Archives: 01/2018

Eighth Circuit Makes Tangled Mess of Hair Braiding Case

Readers of this blog may recall Cato’s filing an amicus brief for an appeal in the Eighth Circuit supporting two Missouri women’s challenge to state requirements that they become licensed as cosmetologists or barbers before being allowed to work as African-style hair braiders. Obtaining the mandatory license from the Missouri Board of Cosmetology & Barber Examiners entailed undergoing a minimum of 1,000 hours of mostly irrelevant training and passing an exam with both written and “practical” (term used loosely) components. 

Not only is over 90 percent of the required training completely inapplicable to the practice of African-style hair braiding, but seven of the nine board members are barbers, cosmetologists, or cosmetology school owners with a direct financial incentive to limit competition.

None of that mattered to the three judges on the Eighth Circuit panel, who yesterday after a full year of foot-dragging issued a perfunctory opinion upholding the district court ruling in the board’s favor. Instead of finally providing two aspiring entrepreneurs their day in court before a neutral arbiter, this ruling continues the pattern of courts’ violating bedrock due-process principles by rubber-stamping occupational regulations under the flimsiest of rationales.

Beginning with a single footnote in the 1938 case United States v. Carolene Products Co., the Supreme Court has scrutinized rights violations differently depending on how it classifies the right in question and whether the violation harmed “discreet and insular minorities.” (Ironically, the plaintiffs in Niang are both women and African Americans—two classes traditionally protected under this principle.) For a law that infringes so-called “fundamental” rights, courts apply what is known as “strict scrutiny” and require governments to prove that the law is narrowly tailored toward achieving a compelling government interest. 

On the other end of the spectrum are economic rights that courts have decided are less important, with infringements only being reviewed under the much less rigorous “rational basis” standard. Under this lower standard, it is up to the person challenging the law to prove that it is not “rationally related” to a “legitimate” (real or imagined) government interest. 

A Spying “Reform” That Makes Things Worse

Donald Trump’s whiplash-inducing Twitter comments about the surveillance legislation his administration had just endorsed didn’t stop the House of Representatives from approving a bill to reauthorize the FISA Amendments Act for another six years, but if you watched the floor debate, you might come away thinking civil libertarians won at least a few concessions in the process. Defenders of the statute’s controversial Section 702, which authorizes warrantless surveillance of foreigners’ communications, rejected a proposal to require FBI agents to seek a warrant before querying the vast 702 database for Americans’ communications—a practice critics have dubbed a “backdoor search”—but did accept a narrower warrant requirement for queries conducted for criminal investigations unrelated to national security. Is this, as the bill’s boosters repeatedly insistence, a “compromise” that should provide some small consolation to civil libertarians?

Alas, no. There’s a good reason you won’t find any privacy advocates cheering even a partial victory following Thursday’s vote.  First, as I noted back in October, such a narrow warrant requirement would do almost nothing to prevent abuses of the sort it’s most reasonable to worry about: historical abuses of spying power have nearly all been clothed in invocations of national security.  But it’s worse than that.  The limited warrant requirement in the House bill not only exempts a potpourri of ordinary crimes—among them any involving the risk of death or serious injury, cybersecurity, or offenses against minors—it applies only to what are known as “predicated” or “full” investigations.  

California Spending Under Governor Brown

The Wall Street Journal had a flattering piece about Governor Jerry Brown’s budgeting today:

California Gov. Jerry Brown appears poised to exit office next year with a top political priority in hand: free from the massive budget deficits that had weighed on his predecessors.

… Mr. Brown has been preaching frugality for years—he kicked off one past budget talk with Aesop’s fable about the thrifty ant and the lazy grasshopper.

Mr. Brown took office in 2011 with a $27 billion deficit and drastically slashed spending. In 2012, he staked his governorship on a tax increase that voters approved that year and reauthorized in 2016.

Brown might have been “preaching frugality,” but his high-speed rail boondoggle is about as spendthrift as you can get.

As for state deficits, they generally arise when states project high future spending growth even when revenues are stagnating. They have more to do with excessively optimistic forecasts than they do with real gaps between current spending and revenues.  

California general fund spending increases have been substantial under Brown, as shown in the chart below using the latest state data.

Spending fell 6 percent Brown’s first year, but then bounced back strongly, rising 46 percent from 2012 to the enacted level for 2018.

During the whole period, 2011 to 2018, general fund spending rose 38 percent in California, compared to an average 27 percent in the other 49 states, per NASBO data.

Total California spending (general and nongeneral funds) has risen 44 percent under Brown, 2011-2018. Perhaps Brown did too much preaching, and not enough actual cutting.

In the Cato 2016 Governors Report Card, I assigned Brown an “F.” Look for another Report Card this October.

House Votes To Reauthorize FISA Section 702 Mass Surveillance Program

Two months of drama in the House of Representatives over the soon-to-expire FISA Section 702 mass surveillance program came to an end this morning, with a bipartisan group of House members first defeating a FISA reform amendment (USA RIGHTS Act) offered by Rep. Justin Amash (R-MI), then passing the GOP House leadership bill. The key votes in support of the GOP House leadership effort came from Democrats, including Minority Leader Nancy Pelosi (D-CA) and House Intelligence Committee Ranking Member Adam Schiff (D-CA).

The progressive activist group Demand Progress, which spearheaded the campaign on the political left for meaningful surveillance reforms, issued a blistering statement after the vote, the key paragraph of which follows:

Demand Progress has opposed the FISA Amendments Reauthorization Act from the start and has instead urged the House to pass strong reform legislation, like the USA RIGHTS Act, which was offered as an amendment but defeated 183-233, despite strong support from members of both parties. 55 Democrats voted against the amendment, where a swing of 26 votes would have meant its adoption and the protection of Americans’ privacy. The USA RIGHTS amendment would have enacted meaningful reforms to Section 702, which are imperative given the government’s historical abuse of surveillance authorities and the danger posed by future abuses.

Amash garnered 58 GOP votes for his amendment (offered with several other Democratic and Republican House members), by far his best showing since his first attempt to rein in federal mass surveillance programs in the summer of 2013, in the wake of Edward Snowden’s revelations. 

The FISA Amendments Act was first passed in 2008, when Pelosi was Speaker. In her floor speech in support of the FISA Amendments Act on June 20, 2008, Pelosi made this claim:

Some in the press have said that under this legislation, this bill would allow warrantless surveillance of Americans. That is not true. This bill does not allow warrantless surveillance of Americans. I just think we have to stipulate to some set of facts.

In fact, as Demand Progress noted in their 2017 report on Section 702, the FISA Court itself found the federal government had done exactly that in a number of cases. But as is so often the case in politics, it is emotion and perception, not facts and reason, that dominate debate on Capitol Hill. Today was another one of those days.

 

What to Do with Diversity Green Cards in the DACA Deal

A surprising Politico story this morning laid out the contours of a rough deal to legalize the DACA recipients.  There are several welcome developments.  First, it would be a wider DREAM Act that goes beyond the DACA recipients.  In exchange, it would restrict the legalized DREAMers from sponsoring their parents (essentially duplicating current law), but it does allow the parents 3-year renewable legal status.  This is a fine compromise.  Second, it would not eliminate any of the family-sponsored green card categories, a wonderful development.  Third, it would use the 50,000 annual diversity green cards, also known as the visa lottery, to legalize Salvadorans here on Temporary Protected Status (TPS) who just had their status canceled (this status will expire in 18 months).  This third point is the most potentially troubling depending on what happens to those green card numbers after the 200,000 or so Salvadorans are legalized.

If the green cards from the diversity visa that are allocated to legalize those on TPS are canceled after the Salvadorans are legalized, then this would be a bad move.  Green cards are rare and valuable commodities that are beneficial to the United States and to the immigrants themselves.  The Salvadorans should be legalized, but not at the cost of reducing legal immigrants by substantially more.

Trump’s Foreign Policy: No Hope, Little Change

Over at The National Interest, I review some recent articles (e.g. here, here and here) claiming that President Donald Trump has completely reoriented U.S. foreign policy in the span of one year. If true, that would be a pretty mean feat. After all, Barack Obama claimed to have tried to do the same thing, and he essentially admitted to being rolled by what Obama adviser Ben Rhodes labeled “the blob.”

But, it turns out, it isn’t true. Trump hasn’t, for example, restructured U.S. alliances.

How a Bitcoin System Is Like and Unlike a Gold Standard

Many commentators have compared Bitcoin to gold as an investment asset. “Can Bitcoin Be Gold 2.0?,” asks a portfolio analyst. “Bitcoin is increasingly set to replace gold as a hedge against uncertainty,” suggests a Cointelegraph reporter.

Economists, by contrast, are more interested in considering how a monetary system based on Bitcoin compares to a gold-standard monetary system. In a noteworthy journal article published in 2015, George Selgin characterized Bitcoin as a “synthetic commodity money.” Monetary historian Warren Weber in 2016 released an interesting Bank of Canada working paper entitled “A Bitcoin Standard: Lessons from the Gold Standard,” which analyzes a hypothetical international Bitcoin-based monetary system on the supposition that “the Bitcoin standard would closely resemble the gold standard” of the pre-WWI era. More recently, University of Chicago economist John Cochrane in a blog post has characterized Bitcoin as “an electronic version of gold.”

In what important respects are the Bitcoin system and a gold standard similar? In what other important respects are they different?