Earlier this month, the U.S. Court of Appeals for the D.C. Circuit (CADC) ruled that the U.S. Department of Justice Federal Criminal Discovery Blue Book for prosecutions were exempt from Freedom of Information Act (FOIA) requests. The National Association of Criminal Defense Lawyers (NACDL) filed the suit to make the book public, and for good reason.
For background, criminal discovery is the process by which a prosecutor's office turns over evidence to the defense team that is relevant to the criminal case before trial. Particularly, evidence that might be helpful or exculpatory to a criminal defendant must be turned over under Brady v. Maryland (1963) and subsequent cases. For example, if investigators independently found an eyewitness that supports a defendant's alibi, or discovers that a witness or police officer has a history of dishonesty, that information must be turned over to the defense counsel in the furtherance of justice. Such evidence is known as "Brady material."
The origin of NACDL's case dates back to the bungled prosecution of the late Sen. Ted Stevens (R-AK). A federal judge threw out Stevens' 2008 conviction for corruption because the DOJ hid evidence from the defense team, including contradictory statements by a star witness that were crucial to proving Stevens' alleged criminal intent. Furthermore, the judge ordered an independent inquiry into the handling of the case that resulted in a damning 514-page report that faulted the DOJ for its mismanagement and "egregious misconduct" in the case.
The prosecution and conviction ended the career of a long-serving United States Senator. If the DOJ could do that to him, they may do (and probably have done) that to people much less powerful. Consequently, Congress held hearings to consider whether or not to pass new legislation to ensure discovery would be properly handled within the Department of Justice. But as NACDL wrote in their 2014 complaint:
DOJ asserted that federal legislation was unnecessary to prevent future discovery abuses because it had instituted various internal reforms. During the hearings, DOJ asserted it had implemented "rigorous enhanced training" to ensure that "prosecutors and agents [have] a full appreciation of their responsibilities" under federal law. As part of this effort, DOJ stated that it had created a "Federal Criminal Discovery Bluebook" that "comprehensively covers the law, policy, and practice of prosecutors' disclosure obligations" under Brady v. Maryland, 373 U.S. 83 (1963), Giglio v. United States, 405 U.S. 150 (1972), and their progeny. According to DOJ, the Blue Book was "distributed to prosecutors nationwide in 2011" and "is now electronically available on the desktop of every federal prosecutor and paralegal." [internal citations omitted]
In short, the Blue Book should assure everyone that DOJ prosecutors will play by the rules...but everyone will just have to take the DOJ at their word on that because the Blue Book is off-limits to the public.
Although the CADC agreed with the lower court ruling and the DOJ's interpretation of current precedent, Senior Judge David Sentelle wrote a concurrence to the opinion, joined by Senior Judge Harry Edwards, that read:
It is often said that justice must not only be done, it must be seen to be done. Likewise, the conduct with the U.S. Attorney must not only be above board, it must be seen to be above board. If the people cannot see it at all, then they cannot see it to be appropriate, or more is the pity, to be inappropriate. I hope that we shall, in spite of Schiller, someday see the day when the people can see the operations of their Department of Justice.
In short, I join the judgment of the majority, not because I want to, but because I have to.
Such a concurrence signals that the guiding precedent in Schiller should be re-examined and such information vital to the public interest should be made public. "Just trust us" is not a reasonable guarantee of governmental and prosecutorial accountability.
The NACDL released a statement that they will file for an en banc hearing at CADC. You can read the opinion and concurrence here. Judge Sentelle delivered the B. Kenneth Simon Lecture on Constitutional Thought at Cato on Constitution Day 2013 that you can read here.
You Ought to Have a Look is a feature from the Center for the Study of Science posted by Patrick J. Michaels and Paul C. (“Chip”) Knappenberger. While this section will feature all of the areas of interest that we are emphasizing, the prominence of the climate issue is driving a tremendous amount of web traffic. Here we post a few of the best in recent days, along with our color commentary.
With the end of Convention season mercifully upon us, we thought we ought to have a look at what the party platforms have to say about energy and the environment, with an eye on climate change policies in particular.
We’ll start out with the Democratic Party Platform.
The Democrats are of the mind that human-caused climate change is one of the major problems facing the country/world today, describing it as “an urgent threat and a defining challenge of our time.”
It’s unclear that the voters feel that way… although part of the Democrats strategy for this election seems to be to try to persuade them otherwise.
The Democratic platform is chock full of government actions that promise to initiate, broaden and extend the current set of rules, regulation, and orders seeking to reduce our emissions of carbon dioxide (and other greenhouse gases), largely by way of lessening (on the way to eliminating) our reliance on fossil fuels as our primary source of energy production. This collection of promised federal actions is large both in scope and number and includes everything from pursuing a carbon tax
Democrats believe that carbon dioxide, methane, and other greenhouse gases should be priced to reflect their negative externalities, and to accelerate the transition to a clean energy economy and help meet our climate goals.
to furthering regulatory control
Democrats are committed to defending, implementing, and extending smart pollution and efficiency standards, including the Clean Power Plan, fuel economy standards for automobiles and heavy-duty vehicles, building codes and appliance standards
to rallying international efforts
In the first 100 days of the next administration, the President will convene a summit of the world’s best engineers, climate scientists, policy experts, activists, and indigenous communities to chart a course to solve the climate crisis. Our generation must lead the fight against climate change and we applaud President Obama's leadership in forging the historic Paris climate change agreement. We will not only meet the goals we set in Paris, we will seek to exceed them and push other countries to do the same by slashing carbon pollution and rapidly driving down emissions of potent greenhouse gases like hydrofluorocarbons.
and even to prosecuting folks who don’t toe to party line
Democrats also respectfully request the Department of Justice to investigate allegations of corporate fraud on the part of fossil fuel companies accused of misleading shareholders and the public on the scientific reality of climate change.
All and all, an extremely ambitious plan:
We are committed to a national mobilization, and to leading a global effort to mobilize nations to address this threat on a scale not seen since World War II.
The Republican sees things almost completely differently.
The Republican Party Platform does not share the Democrats’ concerns that climate change is a major pressing issue. Instead it describes how the severity of the issue has been grossly distorted through “intolerance toward scientists and others” who dissent from the “orthodoxy.”
The Republican platform wants to both reel in most for the current climate efforts put in place by the Obama Administration as well as put the kibosh on any new federal actions on reducing carbon dioxide emissions through restricting energy choice. As for current actions, the Platform includes things like
We will likewise forbid the EPA to regulate carbon dioxide, something never envisioned when Congress passed the Clean Air Act.
We reject the agendas of both the Kyoto Protocol and the Paris Agreement, which represent only the personal commitments of their signatories; no such agreement can be binding upon the United States until it is submitted to and ratified by the Senate.
We demand an immediate halt to U.S. funding for the U.N.’s Framework Convention on Climate Change (UNFCCC) in accordance with the 1994 Foreign Relations Authorization Act.
We oppose any carbon tax.
Instead, the Republicans want to ease restrictions and encourage development of any energy production methods that are competitive in the free marketplace. This includes support for
the development of all forms of energy that are marketable in a free economy without subsidies, including coal, oil, natural gas, nuclear power, and hydropower.
the cost-effective development of renewable energy sources — wind, solar, biomass, biofuel, geothermal, and tidal energy — by private capital.
lifting restrictions to allow responsible development of nuclear energy, including research into alternative processes like thorium nuclear energy.
Ultimately, the Republicans
firmly believe environmental problems are best solved by giving incentives for human ingenuity and the development of new technologies, not through top-down, command-and-control regulations that stifle economic growth and cost thousands of jobs.
And then there is the Libertarian Party Platform. This platform is considerably less wordy than their Democratic or Republican counterparts without any direct mention of climate change. Here are the sections on the Energy and the Environment in their entirety:
Competitive free markets and property rights stimulate the technological innovations and behavioral changes required to protect our environment and ecosystems. Private landowners and conservation groups have a vested interest in maintaining natural resources. Governments are unaccountable for damage done to our environment and have a terrible track record when it comes to environmental protection. Protecting the environment requires a clear definition and enforcement of individual rights and responsibilities regarding resources like land, water, air, and wildlife. Where damages can be proven and quantified in a court of law, restitution to the injured parties must be required.
2.3 Energy and Resources
While energy is needed to fuel a modern society, government should not be subsidizing any particular form of energy. We oppose all government control of energy pricing, allocation, and production.
It you like big government, the Democrats have a deal for you. If you prefer that the federal government largely stay out of our energy markets, then you’ll find much to like in either the Republican or Libertarian Platforms.
In our opinion, this presidential election should not be about climate change itself as we don’t believe that the risks and challenges it presents are greater than the ones that are posed by its proposed “solutions”(see our soon-to-be-updated book Lukewarming: The New Science that Changes Everything for reasons why we think the way we do). But, this election should be about climate change policies. A Democratic Administration will seek a further expansion of the reach of the federal government into our daily lives as the impacts of their vigorous pursuit of reducing carbon dioxide emissions increasing find their way into all aspects of our daily lives—reducing choice and increasing costs of all manner of things, while having minimal effect on the actual climate. As it stands now, the federal government’s reach has grown perilously. It is high time to insure the Constitutional limitations placed upon it are restored and respected.
The debate over the Seattle experiment has generated more heat than light to this point. A new report from Jacob Vigdor and his colleagues at the University of Washington attempts to shed some light on the effects of the first incremental stage of the increase. They use data from the state’s Employment Security Department from when the law was passed through the fourth quarter of 2015, at which point the minimum wage stood at $11 per hour. This does not include the second stage of increases that took place January 1, 2016, or the further increases that will eventually bring it to $15 per hour and much higher thereafter. The early results show the mixed effects of the first incremental increase, there does not appear to be much evidence of firms being driven out of business, and some low-wage workers have seen their hourly wage increase, it also reduced the employment rate and hours, with the end result for these low-wage workers being “ambiguous and likely fairly small.”
The report only analyzes the first initial stage of the scheduled minimum wage increases, as the authors note and as illustrated in Figure 1. In addition, due to the timing of the study, it can only capture the short-run effects of this first incremental increase. As such, this analysis cannot provide insight into the impact of future additional increases to the minimum wage or what the longer-run effects might be.
Seattle Minimum Wage Schedule and Period Analyzed
Source: Seattle Minimum Wage Study Team, 2016.
They employ multiple strategies to try to discern the impact of the minimum wage increase. In the most straightforward, the “observable change,” they simply compare trends in Seattle before and after the increase took place. This might be affected by differences in underlying trends that would lead to spurious findings, so they include a number of other comparisons, like King County excluding Seattle, but their preferred specification is a “Synthetic Seattle” consisting of an aggregate of zip codes in the state with similar levels and trends to Seattle. They then compare what happened in Seattle, which was subject to the minimum wage increase, to “Synthetic Seattle” which had no minimum wage increase but in other ways was very similar.
As might be expected, the share of workers with wages below $11 an hour decreased significantly, but this was also true to some extent outside of Seattle, which suggest much of this decline might be due to improvements in the broader economy rather than directly attributable to the minimum wage increase. They estimate the minimum wage increase responsible for a $0.73 rise in median hourly earnings.
While the employment rate of low-wage workers in Seattle increased by 2.6 percentage points over the period, it increased less than it did in their preferred comparison Synthetic Seattle, where it increased by 3.8 percentage points, leading them to conclude “the Minimum Wage Ordinance modestly held back Seattle’s employment of low-wage workers relative to the level we could have expected.” Evaluations simply looking at the total number of low-wage jobs in Seattle before and after the increase took effect would have observed a substantial increase in the total number of jobs, and may have erroneously concluded that there were no adverse employment effects of the minimum wage increase. While it is true that the discrete level of jobs increased, there is some evidence that it reduced the employment rate of lower-wage workers compared to what it otherwise would have been.
A similar dynamic can be seen with hours worked for this lower-wage group: due to an healthy broader economy, the hours worked increased relative to Seattle’s history, but improved less than it did in the control groups, and “on balance, it appears that the Minimum Wage Ordinance modestly lowered hours worked” by 4.1 hours per quarter compared to their preferred comparison, Synthetic Seattle.
Impact on Low-Wage Workers
Source: Seattle Minimum Wage Study Team, 2016.
In aggregate the authors find some evidence of a reduction in hours per employee, and minimal evidence of an impact on the number of persistent jobs in industries with a high proportion of low-wage workers. They also find an increase in the rate of business closures and business openings, and suggest this could be in line with other research that found that minimum wage increases prompt in firm composition from more labor intensive companies to those that rely more on capital.
We don’t yet know what the long-term effects of the minimum wage increase will be. This study only encompasses the first step of the phase-in, and later scheduled increases will raise the wage floor to levels that are outside the scope of most past U.S. experiences, making it difficult to estimate the magnitude of potential effects. Some of the minimum wage literature has found that the long-run effects of an increase are greater in magnitude, as the authors of this report note saying “in the long-run, certain industries affected by the minimum wage, such as the fast food industry, have more opportunity to relocate, change the composition of their workforce, or invest in technologies that reduce their need for labor.” In addition a high wage city like Seattle implementing this incremental step during a time of relatively strong broader economy limit how applicable these findings might be for other places.
The initial results suggest that, at least in this initial stage, the sky is not falling, but there are signs that the increase did have unintended consequences, reducing opportunities for low wage workers that leave the net effect of the increase on these targeted workers ambiguous. Because the minimum wage is poorly targeted to poor households, think teenagers in relatively affluent families who are affected by the minimum wage increase, this ordinance likely has even less of an impact in terms of poverty reduction. These are just preliminary results from the first step of a minimum wage increase in a relatively high-wage city. The adverse effects of further increases and the long-run responses could be much larger and more costly.
Plenty of libertarians were wary of seeing former Massachusetts governor Bill Weld as the Libertarian Party's nominee for vice president. Even those of us who haven't had anything to do with the LP would like to see the party represented by, you know, libertarians. Weld, who seems like a nice man and was apparently a decent governor, is the living expositor of the difference between a libertarian and someone who's "socially liberal and fiscally conservative."
Case in point: this week's ReasonTV interview, where Weld praises Justice Stephen Breyer and Judge Merrick Garland, who are the jurists most deferential to the government on everything, whether environmental regulation or civil liberties. Later in the same interview, he similarly compliments Republican senators like Mark Kirk and Susan Collins, who are among the least libertarian of the GOP caucus in terms of the size and scope of government and its imposition on the private sector and civil society.
My point isn't to criticize the Weld selection as a matter of political strategy. Indeed, he seems to have brought a certain respectability to a party that is rarely taken seriously. And if that moves the national political debate in a more libertarian direction, bully.
But then look at the most recent news made by the man at the top of the LP ticket. Former New Mexico governor Gary Johnson, in an interview with (my friend) Tim Carney of the Washington Examiner, calls religious freedom "a black hole" and endorses a federal role in preventing "discrimination" in all its guises. More specifically, he's okay with fining a wedding photographer for not working a gay wedding -- a case from New Mexico where Cato and every libertarian I know supported the photgrapher -- and forcing the Little Sisters of the Poor to pay for contraceptives (where again Cato and libertarians supported religious liberty). He also bizarrely compare Mormonism to religiously motivated shootings.
In other words, Johnson doesn't just come off as anti-religion, but completely misses the distinction between public (meaning government) and private action that is at the heart of (classical) liberal or libertarian legal theory. That's a shame: it makes him no different than progressives in that regard -- or social conservatives, who miss the distinction in the other direction, restricting individual rights in addition to government powers.
And so, what we're left with is a Libertarian Party ticket that's positioning itself as "moderate" more than anything else. Again, that may well be a clever political ploy -- though it makes the dubious bet that there are more #NeverHillary Democrats than #NeverTrump Republicans -- but it's not very encouraging for libertarians who want to "vote [their] conscience."
When Secretary of State John Kerry promised to respond more vigorously to the worldwide refugee crisis last year, more than 85 members of Congress signed onto a bill to shut down the entire refugee program. Texas Congressman Brian Babin, the bill’s sponsor, explained their view: “The most persecuted religious minority in the world have been Christians, and of these 70,000, soon to be 100,000 per year coming in from the Middle East, less than four percent are Christian.”
Rep. Babin is right to be concerned for Christian refugees, but his facts about the refugee program are quite wrong. A majority of the 70,000 refugees that the United States accepted last year were from areas other than the Middle East. The U.S. refugee program has not only accepted a higher percentage of Christians than he stated, it has actually accepted more Christians than Muslims, even after President Obama’s changes at the beginning of this year.
A shutdown of the refugee program would injure refugees of all faiths.
Because most Syrian refugees are Muslim, and Syria has received the bulk of the attention recently, many people have come to associate the refugee program exclusively with the Middle East and Muslims. But the reality is that the majority of refugees come from outside the Middle East. More than 60 percent of refugees come from areas that are not the “Near East” or “South Asia,” according to data from the State Department. As can be seen below, this share is down from 2014.
Figure 1: Refugees in U.S. Refugee Program by Region (FY 2014-2016)
Source: State Department
It’s also incorrect to associate the refugee program primarily with Muslims. The State Department data show that the majority of the refugees admitted under the U.S. refugee program so far this year subscribe to religions other than Islam. The share of Muslims has steadily risen as the refugee crisis in Iraq and Syria has worsened, but not at the expense of Christians, whose share has remained level since 2014.
Figure 2: Refugees in the U.S. Refugee Program by Religion (FY 2012-2014)
Source: State Department
President Obama has also not overseen any dramatic changes to the religious makeup of the refugee program compared to his predecessor. In the years available, the Bush administration admitted a slightly higher share of Christians and slightly lower share of Muslims.* Other religions saw the largest percentage increase during the Obama years (5.6 percent), but overall the makeup is still similarly divided.
Figure 3: Refugees in the U.S. Refugee Program by Religion Under the Last Two Administrations*
Source: State Department
The lower share of Christian refugees, though still larger than for other religions, could create the misleading impression that Christians have done somewhat worse in recent years. This is decidedly not the case. In absolute terms, significantly more refugees of all faiths, including Christians, were accepted during President Obama’s final seven years than during his predecessor’s final seven years (data is unavailable before January 2003).* In fact, 27,000 more Christians escaped persecution under the current administration.
Figure 4: Refugees in U.S. Refugee Program By Religion Under the Last Two Administrations
Source: State Department
Adherents of religions other than Islam compose a substantial portion of the refugee flows even from majority Muslim countries. While most of the refugees admitted from these nations are Muslim, about a third are not. The refugee program admits large numbers of non-Muslims from areas in which they are the minority, far in excess to their proportion of the populations (Figure 5). More than 80,000 Christians escaped persecution in Muslim majority countries since January 2003.
Figure 5: Muslim and Non-Muslim Refugees in the U.S. Refugee Program from Majority Muslim Countries
Source: State Department, CIA World Factbook
Banning refugees—from any area in the world—would hurt members of many faiths. The question for congressmen like Rep. Babin is whether they should allow their fears over Muslims to trump their compassion for Christians. Considering no Muslim refugee has carried out a deadly attack in the United States in the history of the modern refugee program, we should overcome those fears. The United States should do more to provide safety for Christian refugees but that does not require—nor should it prompt—doing less to help Muslim and other non-Christian refugees.
*FY 2009’s refugee allocation was apportioned under President Bush.
Judging from my Facebook page, the internet is blowing up with arguments that, in November's election, voters must cast their ballots for a major-party candidate even if they dislike that candidate, and they must not vote for a third-party candidate.
These arguments go like this:
Third-party voters say neither major-party presidential candidate is worthy of their vote. But in fact, [major-party candidate the writer supports] is not nearly as objectionable as [other major-party candidate]. If [other major-party candidate] wins, terrible things will happen, but if [major-party candidate the writer supports] wins, terrible things won't happen. So stop selfishly thinking about a third-party candidate, and cast your ballot for [major-party candidate the writer supports]!
No doubt this argument is appealing to the writer and other major-party backers. But even if we grant the writers' assertion about the virtues of their preferred candidate AND their belief that a third-party candidate can't win the presidency, this argument literally is irrational and--worse--it deprives voting of perhaps its greatest virtue.
The Real Clear Politics "Battle for White House" electoral map currently shows only 13 states, plus one Maine congressional district, to be toss-ups in the presidential race. Six more are rated as "leaning" toward Democrat Hillary Clinton and six (plus a Nebraska congressional district) are leaning toward Republican Donald Trump. RCP categorizes the other 25 states and the District of Columbia as being "solidly" (or stronger) in either the Clinton or Trump columns.
For those latter 25 states plus D.C., a would-be third-party voter's grudging ballot for a major-party candidate is literally meaningless in deciding the presidency. The state's Electoral College electors will go to Clinton or Trump regardless of how that voter casts his or her ballot--and the voter certainly must know that. So if that person chose to forgo voting for a third-party candidate and instead voted for a major-party candidate anyway, that voter made an irrational decision.
What about the other 25 states? Yes, there is a possibility that a voter's ballot could matter—but only if that voter's state (or congressional district, in the states where electors are awarded by distict) popular vote is perfectly evenly divided +/– one vote , and the national electoral college is decided by that state's (or district's) Electoral College electors. (Notice the qualifier "only if," which means there are still more conditions that need to be met in order for the one ballot to prove pivotal.) In this case, the probability that the voter's ballot would be meaningful isn't zero, but it practically is. So, if a person in these states chose to forgo voting for a third-party candidate and instead voted for a major-party candidate anyway, that voter made an irrational decision.
Does this mean that people shouldn't vote for president? It does if their sole motivation is to cast the deciding ballot. Voting has costs in time and money (e.g., gas money, bus fare), and it is pointless to absorb those costs for no benefit.
But there is a sound reason to vote (for some people, at least): for the pleasure of expressing one's political preference. If voting for one of the major-party candidates provides that pleasure, then the voter should do it. For some voters, third-party candidates provide that pleasure because third parties are strongly associated with specific political causes (e.g., liberty, the environment, federalism) that many people care about deeply. Expending time and money to enjoy that pleasure is as sensible as spending time and money for the pleasure of reading a good book, or watching a baseball game, or eating chocolate.
So if a person wants to vote for Jill Stein in order to signal concern for the environment and disgust with the major party candidates, it's perfectly sensible to do so. The same is true for the person who wants to vote for Gary Johnson to show support for individual liberty and free markets. It's even sensible to vote for the perennial write-in favorite Mickey Mouse, to indicate dissatisfaction with American politics. And, of course, one can always follow H.L. Mencken's advice and not vote at all.
Today, on Milton Friedman Legacy Day, the Nevada Supreme Court will hear oral arguments in two lawsuits against the state's education savings account (ESA) law. Under the law, students who leave their assigned district school can receive a portion of the funds that would have been allocated to them in their district school (about $5,100 to $5,700 depending on family income). The parents can use those funds to customize their child's education by purchasing a wide variety of educational good and services, including private school tuition, text books, online courses, homeschool curricula, and more. They can even save funds for future expenditures. A similar program in Arizona has proved highly popular among parents.
However, a group dedicated to protecting the district school monopoly is asking the state supreme court to strike down the program before it goes into effect:
“I fear that, because this is the most aggressive model for this program, the privatization of education … will spread like wildfire,” said Electra McGrath-Skrzydlewski, whose 12-year-old daughter is a student in the Clark County School District.
McGrath-Skrzydlewski joined several parents last October to sue the state in a Carson City court, challenging SB302 on the grounds that it diverts money meant “exclusively” for public schools to private schools and other private expenses. Their complaint also claims the bill violates a constitutional requirement that lawmakers create a “uniform” system of public schools.
As Neal McCluskey noted on Twitter, even the opponents of the ESA assume that parents want it. And they're right: more than 8,000 eager families have already applied.
In separate case, the ACLU claims that the ESA law violates the state constitition's "uniformity" clause as well as a separate constitutional provision prohibiting the state funding of religious instititions. However, as I've discussed previously, these arguments do not hold water. The ACLU wants the court to interpret the constitutional mandate that the state create a system of "uniform" and nonsectarian schools to mean that it must exclusively fund those schools. Fortunately, the lower court rejected this strained interpretation, holding instead that "the Nevada constitution requires the state to establish a non-sectarian system of public schools, but it is also empowered to encourage education by other means that are not limited to non-sectarian schooling."
Likewise, the lower court rejected the ACLU's Blaine Amendment claim, holding that it “was not intended to preclude any expenditure that has an incidental benefit to religion, where such is made for a primary secular purpose,” and that the ESA “was enacted for the valid secular purpose of providing financial assistance to parents to take advantage of educational options available to Nevada children.”
For more information on the two cases and to watch live feed of the oral arguments beginning at 1:00pm EDT, go to Choice Media's website.