With school choice advocate Betsy DeVos slated to become the next U.S. Secretary of Education, the battle between regulation and freedom has suddenly become more intense, with people on both sides exchanging fire. Yesterday, Jason Bedrick weighed in against regulation, while today Jeffrey Selingo warns that a major reason “choice hasn’t necessarily led to better outcomes in higher education is the absence of a strong gatekeeper for quality control.”


This sort of assertion strikes me as more an article of intuitive faith than a conclusion based on evidence. If only some well‐​informed, smart group of experts decided what people could choose, choices would be much better. The problem is that no one has the omniscience to do the job, especially so effectively that the costs of bureaucracy, barriers to entry, and kneecapping of innovation don’t severely outweigh the hoped‐​for benefits.

This morning President‐​elect Donald Trump announced via Twitter that “I will be holding a major news conference in New York City with my children on December 15 to discuss the fact that I will be leaving my great business in total in order to fully focus on running the country in order to MAKE AMERICA GREAT AGAIN! While I am not mandated to do this under the law, I feel it is visually important, as President, to in no way have a conflict of interest with my various businesses. Hence, legal documents are being crafted which take me completely out of business operations. The Presidency is a far more important task!”


With that announcement, Trump takes one important step toward addressing both the wider problem of conflicts of interest, and within it the narrower problem—of distinct constitutional dimensions—of the Trump Organization’s complex ongoing dealings with foreign governments. On those latter entanglements, I argue in a new Philadelphia Inquirer piece that under the Emoluments Clause of the Constitution, Congress will affirmatively need to “decide what it is willing to live with in the way of Trump conflicts”—and it should draw those lines before the fact, not after. Excerpt:

…That clause reads in relevant part: “And no Person holding any Office of Profit or Trust under [the United States] , shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”…


The wording of the clause itself points one way to resolution: Congress can give consent, as it did in the early years of the Republic to presents received by Ben Franklin and John Jay. …


…it can’t be good for America to generate a series of possible impeachable offenses from a running stream of controversies about whether arm’s‑length prices were charged in transactions petty or grand. …


There is no doubt that doing the right thing poses genuine difficulties for Trump not faced by other recent presidents. If he signals that he understands the nature of the problem, it would not be unreasonable to ask for extra time to solve it.

For reasons that Randall Eliason outlines in this helpful explainer, Emoluments Clause issues do not map well onto the concept of “bribery.” (Payments can violate the Emoluments Clause even if made with honest intent on both sides; bribery, for its part, is subject to a separate ban.) Removing himself from day‐​to‐​day management should help Trump avoid some violations of the Clause (for example, it will become less likely that a foreign state firm will wind up compensating him for his time). Stephen Bainbridge of UCLA has suggested that if the President‐​elect refuses to divest ownership of his business he at a minimum “needs to create an insulation wall separating his political activities from those of the organization. Such walls were formerly known in colloquial legal speech as ‘Chinese walls.’ ”


Even if Trump does that, serious Emolument Clause issues will remain, especially those surrounding favorable treatment that a presidentially owned business may not have sought out but which may nonetheless constitute “presents.” Congress should expect to ramp up the expertise it can apply to these problems, and (absent divestiture) assign ongoing committee responsibility to tracking them. And it should issue clear guidelines as to what it is willing and not willing to approve. Such a policy will not only signal that lawmakers are taking their constitutional responsibilities seriously, but could also benefit the Trump Organization itself by clarifying how it needs to respond if and when foreign officials begin acting with otherwise inexplicable solicitude toward its interests.


Expanded and adapted from Overlawyered.

President‐​elect Trump’s pick for Secretary of Transportation, Elaine Chao, may provide some clues about his infrastructure policies. High‐​speed rail advocates have hoped that Trump will support their boondoggles, and his big talk about infrastructure spending as an economic stimulus has done nothing to dim those hopes. Chao may be leaning in that direction as well.

Chao was previously Secretary of Labor under George W. Bush, and prior to that served as Deputy Secretary of Transportation under George H.W. Bush. Born in Taiwan in 1953, Chao’s father was captain of a merchant marine vessal. In 1961, the family moved to the United States where her father started the Foremost Shipping Company, which now owns at least 15 ships. 


Chao received a degree in economics from Mount Holyoke College in 1973 and an MBA from Harvard Business School in 1979. Just seven years later, she was made Deputy Administrator of the Maritime Administration in the Department of Transportation. Two years after that, she became chair of the Federal Maritime Commission, and Deputy Transportation Secretary a year after that. In 1993, she married Mitch McConnell.


As deputy transportation secretary, she let it be known that she thinks the United States has built about enough highways, and she has the respect of the heavily subsidized passenger rail industry. Thus, she may be inclined to support light rail, high‐​speed rail, and other transportation projects that many (including this writer) consider to be obsolete in today’s world.


Digging a hole in the ground, lining it with concrete, and filling it up could be considered “infrastructure,” but it won’t contribute much to the national economy. Transportation infrastructure adds to the nation’s gross domestic product only if it increases passenger travel and/​or freight shipments. Rail projects aimed at getting people out of cars, buses, and planes will actually reduce the nation’s GDP because they cost more than the forms of travel they are supposed to replace.


Meanwhile, much of the Interstate Highway System is at the end of its service life. Washington Metro recently announced it needs to spend $25 billion on “capital needs” (maintenance) over the next ten years to keep its trains going. The New York, Chicago, Philadelphia, Boston, San Francsico, and Atlanta transit systems have similar needs and similar budget shortfalls. 


Trump and Chao will have to decide if America should rebuild its existing infrastructure or let that infrastructure fall apart as it builds brand‐​new infrastructure that it won’t be able to afford to maintain. Even with the tax breaks proposed in Trump’s infrastructure plan, the country won’t be able to do both. While Chao may turn out to be Trump’s least controversial nomination, the actions she takes as secretary will be heavily debated.

President-Elect Trump's selection of philanthropist and long-time school choice advocate Betsy DeVos for Secretary of Education has the public education establishment and its allies in panic mode. American Federation of Teachers President Randi Weingarten tweeted "Trump has chosen the most ideological, anti-public ed nominee since the creation of the Dept of Education." Over at Slate, Dana Goldstein frets that "Trump could gut public education"—even though federal dollars account for less than 10 percent of district school funding nationwide. The New York Times has also run series of hand-wringing pieces about what the Trump administration has in store for our nation's education system.

At the center of the panic over Trump’s nomination of DeVos is their support for school choice. Although light on details, Trump has pledged to devote $20 billion to a federal voucher program. As is so often the case, the most vocal opponents of federal school choice are right for the wrong reasons. Not only does the federal government lack constitutional jurisdiction (outside of Washington, D.C., military installations, and tribal lands), but a federal voucher program poses a danger to school choice efforts nationwide because a less-friendly future administration could attach regulations that undermine choice policies. Such regulations are always a threat to the effectiveness of school choice policies, but when a particular state adopts harmful regulations, the negative effects are localized. Louisiana’s folly does not affect Florida. Not so with a national voucher program. Moreover, harmful regulations are easier to fight at the state level than at the federal level, where the exercise of “pen and phone” executive authority is increasingly (and unfortunately) the norm.

Many of Trump's critics have not addressed very real federalism concerns, but have instead used the DeVos appointment to attack school choice generally, particularly its more free-market forms.

Donald Trump has called the North American Free Trade Agreement the “worst trade deal ever negotiated.” If he were speaking on behalf of Canadian exporters or American consumers of softwood lumber, his point would have some validity. For more than 20 years, NAFTA has failed to deliver free trade in lumber. Instead, a system of managed trade has persisted at the behest of rent-seeking U.S. producers, egged on by Washington lawyers and lobbyists who know a gravy train when they see one.

Those who consider the United States a beacon of free trade in a swirling sea of protectionist scofflaws will be surprised by the sordid details of the decades-long lumber dispute between the United States and Canada. Among those details is the story of how the U.S. Commerce Department (DOC) ran roughshod over the rule of law to manufacture the leverage needed to extort from Canadian lumber mills a sum of $1 billion, which was used to line the pockets of American mills and the U.S. Forestry Service, while restricting lumber imports for nearly a decade through October 2015, at great expense to retailers, builders, and home buyers.

With that ugly history mostly expunged from the public’s memory, the U.S. lumber industry is back at the trough again, demanding its government intervene to restrict Canadian supply, following a whole 13 month period during which it was forced out of the nest to operate in an environment rife with real market conditions! In the quiet shadows of the Friday after Thanksgiving, U.S. softwood lumber producers filed new antidumping and countervailing duty petitions with the DOC and U.S. International Trade Commission (ITC), alleging that dumped and subsidized Canadian imports were causing material injury to the domestic industry.

At the risk of understatement, I'm not a fan of the Organization for Economic Cooperation and Development. Perhaps reflecting the mindset of the European governments that dominate its membership,

the Paris-based international bureaucracy has morphed into a cheerleader for statist policies.

All of which was just fine from the perspective of the Obama Administration, which doubtlessly appreciated the OECD's partisan work to promote class warfare and pimp for wasteful Keynesian spending.

What is particularly irksome to me is the way the OECD often uses dishonest methodology to advance the cause of big government:

• Deceptively manipulating data to make preposterous claims that differing income levels somehow dampen economic growth.
• Falsely asserting that there is more poverty in the United States than in poorer nations such as Greece, Portugal, Turkey, and Hungary.
• Cherry picking years to create a false narrative about trends in personal income tax revenue and corporate income tax revenue.
• Peddling dishonest gender wage data—numbers so misleading that they’ve been disavowed by a member of Obama’s Council of Economic Advisers.

But my disdain for the leftist political appointees who run the OECD doesn't prevent me from acknowledging that the professional economists who work for the institution occasionally generate good statistics and analysis.

For instance, I've cited two examples (here and here) of OECD research showing that spending caps are the only effective fiscal rule. And I praised another OECD study that admitted the beneficial impact of tax competition. I even listed several good examples of OECD research on tax policy as part of a column that ripped the bureaucracy for some very shoddy work in favor of Obama's redistribution agenda.

And now we have some more good research to add to that limited list. A new working paper by two economists at the OECD contains some remarkable findings about the negative impact of government spending on economic performance. If you're pressed for time, here's the key takeaway from their research:

Governments in the OECD spend on average about 40% of GDP on the provision of public goods, services and transfers. The sheer size of the public sector has prompted a large amount of research on the link between the size of government and economic growth. ...This paper investigates empirically the effect of the size and the composition of public spending on long-term growth... The main findings that emerge from the analysis are... Larger governments are associated with lower long-term growth. Larger governments also slowdown the catch-up to the productivity frontier.

For those who want more information, the working paper is filled with useful information and analysis.

Yesterday the President‐​elect of the United States tweeted:

Nobody should be allowed to burn the American flag — if they do, there must be consequences — perhaps loss of citizenship or year in jail!

This view directly contradicts First Amendment doctrine established in the case of Texas v. Johnson (1989). Texas had outlawed desecration of venerated objects including the American flag. The state argued this prohibition protected a symbol of national unity and precluded breaches of the peace by those who would take offense at the flag being burned.


Gregory Johnson, a demonstrator at the 1984 Republican Convention, burned a flag as part of a protest. Johnson and his fellow protesters chanted “America, the red, white, and blue, we spit on you” while the flag burned. He was convicted of destroying the flag and sentenced to a year in jail and fined $2,000. Texas thus did exactly what the President‐​elect wants concerning flag burning.


A five‐​member majority of the Supreme Court ruled that flag burning constituted “symbolic speech” protected by the First Amendment. Indeed, Johnson burned the flag in 1984 to express a series of political views. The Court ruled that prohibiting this speech did not and was unlikely to prevent violence. As to national unity, Justice William Brennan noted an earlier statement by the Court:

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.

Concurring with the opinion, Justice Anthony Kennedy wrote:

Though symbols often are what we ourselves make of them, the flag is constant in expressing beliefs Americans share, beliefs in law and peace and that freedom which sustains the human spirit. The case here today forces recognition of the costs to which those beliefs commit us. It is poignant but fundamental that the flag protects those who hold it in contempt.

This tweet marks at least the second time the President‐​elect has repudiated settled First Amendment doctrine. He earlier criticized the broad protection for free speech enunciated in New York Times v. Sullivan (1964), a decision that complicated suing speakers for libel.


Donald Trump wishes to criminalize flag burning for giving offense to those who value what the American flag represents. Many others have called for limiting speech that offends religions or ethnic groups. In The Tyranny of Silence, Cato’s own Flemming Rose recounts that some Muslim clerics in Europe called for censorship of speech giving offense to Islam. No doubt Mr. Trump would not join their calls for protecting the faith. But he does agree with those radical clerics that giving offense should justify government limits on free speech.


I wonder if the President‐​elect understands why his comments disturb so many people who differ otherwise about so much. He appears to oppose basic ideals underpinning liberal democracy. He is also the President‐​elect.