Archives: 03/2018

To Keep NAFTA Humming, Keep Talk of Steel Out

The 7th round of negotiations on the North American Free Trade Agreement (NAFTA) wrapped up early this week, and ended on a relatively positive note.  There was a noticeable change in tone in the joint press conference with USTR Lighthizer, Minister Freeland and Secretary Guajardo, which NAFTA watchers certainly must have noticed.

The first striking detail was actually something that was omitted. Though Lighthizer did say that the two major goals of the administration were to update and rebalance the deal, he didn’t once utter the phrase trade deficit. Instead, he highlighted discouraging outsourcing, likely referring to the U.S. proposals to eliminate the controversial Chapter 11 on investor-state dispute settlement (ISDS); strengthening rules of origin by increasing the content of North American inputs in automobile manufacturing; and adjusting the rules on government procurement, through a “more balanced” dollar-for-dollar procurement market. It should come as no surprise that he is still pushing in these areas, as there is much left to negotiate, and concessions on these issues will not likely be settled until the final rounds of the agreement take shape.

So far, the three countries have closed a total of 6 out of 30 chapters, most recently finishing the chapters on Good Regulatory Practices, Administration and Publication, and Sanitary and Phytosanitary Measures. Though the three ministers all stressed the importance of timing, considering the upcoming Presidential elections in Mexico, as well as mid-term elections in the U.S., Freeland made clear that Canada would not be satisfied with just any deal. Lighthizer seemed to suggest this as well, but said that while the U.S. preferred a tripartite agreement, he would conclude bilaterals, if necessary. This light jibe is in line with previous reports that Lighthizer thinks the talks are moving a lot more smoothly with Mexico than with Canada.

The overall positive tone was only briefly interrupted when Freeland addressed President Trump’s announcement last week that he would impose a 25% tariff on steel and 10% tariff on aluminum imports. She reiterated the message from her official statement that any tariffs on Canada would be “entirely inappropriate.” A comment on this was to be expected, not least because Canada would be the country most affected by the administration’s actions. In fact, a December 2017 report by the International Trade Administration noted that Canada leads in steel imports to the U.S., making up 16% of total imports. The Canadian and U.S. steel sectors are also highly integrated, with 50% of all American steel exports destined for Canada.

What remained unacknowledged, however, were recent comments by President Trump that the tariffs would be tied to satisfactory progress on the NAFTA negotiations. The three ministers seemed to signal that they prefer to keep the discussion on steel tariffs separate from NAFTA. This would be wise. First, linking the Section 232 actions to NAFTA undermines the overall national security argument put forward by the administration, as it is now being used by the president as a bargaining chip. Second, it would run counter to the spirit of NAFTA, which is of three neighbors working together to increase North American competitiveness. The Department of Defense even expressed its concern “about the negative impact on our key allies” that the steel and aluminum tariffs would bring about. Third, linking this issue to the ongoing negotiations could seriously threaten to derail the talks, which the administration simply cannot afford due to its tight negotiating timeline.

While the NAFTA negotiations have had their ups and downs in seven successive rounds, it is important to keep in mind that things can change very quickly. In Monday’s press conference Freeland, addressing Lighthizer, said “I think we’re becoming friends.” Let’s not upset the progress we’ve made so far on NAFTA, as well as the friends we’ve made along the way, and keep steel out of the discussions.

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Government Immigrant Assimilation Programs Can Backfire: The Case of German Americans

The assimilation of immigrants and their descendants is important to their long-run success and to maximize the benefits from immigration.  Current research indicates that today’s immigrants are assimilating well.  A massive 520-page literature survey by the National Academy of Sciences found that assimilation is proceeding apace in the United States although some of those gains are masked by a phenomenon called “ethnic attrition” whereby the most successful and integrated descendants of immigrants cease to self-identify as members of their ancestor’s ethnic groups.  Numerous OECD reports find greater economic integration of immigrants and their descendants in the United States relative to other developed countries, even when it comes to job matchingResearch by University of Washington economist Jacob Vigdor shows that modern immigrant civic and cultural assimilation is similar to that of immigrants from the early 20th century, to the extent that “[b]asic indicators of assimilation, from naturalization to English ability, are if anything stronger now than they were a century ago.”

However, John Fonte of the Hudson Institute argues that today’s immigrants are not assimilating well because our “patriotic assimilation system is broken.”  In a shorter piece explaining his reasoning, Fonte argues that the “assimilation of the Ellis Island generation succeeded only because American elites (progressive at the time) insisted upon ‘Americanization.’”  Elites at the time showed their support for Americanization through many government programs and non-profit assimilation efforts supported by states. 

Fonte and I disagreed about this (and other topics) on a panel in 2014 at Hudson.  I argued that there is no evidence from over 100 years ago that the Americanization Movement, a government program combined with support from non-profits to assimilate immigrants, actually encouraged or sped up the assimilation of the immigrants who were affected by it.  Fonte countered by saying [2:44:15]: “It’s true we don’t have data on how well assimilation worked, but I think we have plenty of anecdotal evidence that Americanization did help.”  Later, I wrote about several contrary anecdotes where new immigrants offended and discouraged by the government’s efforts to forcibly assimilate them to a particular nationalistic definition of what it meant to be an American.

A revealing anecdote printed in a Polish-language newspaper that appealed to American traditions when it wrote that the Americanization Movement “smacks decidedly of Prussianism, and it is not at all in accordance with American ideals of freedom” (256).  A Russian-language newspaper made the more devastating claim that the Americanization Movement did not actually do much except insult immigrants:

Many Americanization Committees only exist on paper.  They make much noise, get themselves in newspapers, but do not do much good.  They mostly laugh at the poor foreigners.  If Americans want to help the immigrants, they must meet them with love.  The immigrant is by no means stupid.  He feels the patronizing attitude the American [Americanizers] adopts towards him, and therefore never opens his soul (258). 

Standing Up to Trump on Steel/Aluminum Tariffs

Donald Trump has talked up protectionism for decades, so his apparent decision to impose tariffs on steel/aluminum for (unconvincing) “national security” reasons may be something he truly believes in. If that’s the case, it’s very important for everyone to step forward and figure out a way to talk him out of it. And they are. Here’s a sampling:

Sen. John Thune, a South Dakota Republican who’s a member of GOP leadership, told reporters Monday night that Republicans are still looking at what legislative recourse they have to stop Trump’s action on trade, but first they are trying to convince him not to go through with it.
 
“First and foremost there is going to be an attempt to try to convince the President that he’s headed down the wrong track, and hopefully get him to a point where he’ll reconsider that decision,” Thune said.

Congress has ultimate Constitutional power over trade, although they have delegated a good deal of it by statute over the years. This is their opportunity to exercise their power in support of free trade.

West Wing aides led by Cohn, who directs the National Economic Council, are planning a White House meeting for later this week with executives from industries likely to be hurt by big tariffs on imported steel and aluminum, two officials familiar with the matter said. The meeting is tentative and the participants have not yet been set in stone, but industries that could be hit hard by the tariffs include automakers and beverage companies.

Trump announced the tariffs in front of the steel/aluminum companies who would benefit. It’s important he hear from those who would be hurt.

European Commission chief Jean-Claude Juncker has vowed to fight back against US President Donald Trump’s threat of a 25% tariff on steel and 10% on aluminum imports.

“So now we will also impose import tariffs. This is basically a stupid process, the fact that we have to do this. But we have to do it. We will now impose tariffs on motorcycles, Harley Davidson, on blue jeans, Levis, on Bourbon. We can also do stupid. We also have to be this stupid,” he said in Hamburg on Friday evening.

If Juncker’s threats lead to actual tariff retaliation, we are worse off than with Trump’s tariffs alone. But the idea behind Juncker’s response is to appear as “stupid” as Trump, in order to get him to back down, by giving other U.S. industries a reason to lobby against the steel/aluminum tariffs. (A Canadian journalist had a clever idea for retaliation without so much self-inflicted harm that I haven’t seen tried before: “Rather than raise tariffs on American exports, why not lower them on exports of the same goods from other countries, giving them a leg up over the Americans in our market?”)

Trade policy looks pretty bleak in the face of these tariffs, which would create a loophole in the system that others are sure to utilize as well. If the U.S. can impose these tariffs on steel and aluminum on the basis of “national security,” someone else is sure to try for tariffs on food, or clothing, or various other products on the same basis. But the tariffs haven’t been imposed yet. Until they are, everyone should push back in every way they can think of.

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Qualified Immunity: The Supreme Court’s Unlawful Assault on Civil Rights and Police Accountability

Our primary federal civil rights statute, colloquially called “Section 1983,” says that any state actor who violates someone’s constitutional rights may be sued in federal court. This remedy is crucial not just to secure relief for individuals whose rights are violated, but also to ensure accountability for government agents. Yet the Supreme Court has crippled the functioning of this statute through the judge-made doctrine of “qualified immunity.” This doctrine, invented by the Court out of whole cloth, immunizes public officials even when they commit illegal misconduct unless they violated “clearly established law.” That standard is incredibly difficult for civil rights plaintiffs to overcome because the courts have required not just a clear legal rule, but a prior case on the books with functionally identical facts.

In Pauly v. White, 874 F.3d 1197 (10th Cir. 2017), the Tenth Circuit used qualified immunity to shield three police officers who brutally killed an innocent man in his home. The officers had no probable cause to think Samuel Pauly had committed any crime, but they stormed his home with guns drawn and shouted that they had him surrounded—yet failed to identify themselves as police. Mr. Pauly and his brother reasonably believed they were in danger and retrieved two guns to defend themselves. After his brother Daniel fired two warning shots to scare away the unidentified attackers, Samuel was shot dead by one of the officers—Ray White—through the front window of his home.

The Tenth Circuit held that Officer White’s use of deadly force was objectively unreasonable and that it “violated Samuel Pauly’s constitutional right to be free from excessive force.” But the court still granted Officer White qualified immunity; there was no prior case with sufficiently similar facts, so the unreasonableness of his conduct was not “clearly established,” in the court’s view. What’s more, the court held that because Officer White had qualified immunity, the other two officers automatically received immunity as well, even though their own reckless conduct caused Officer White to commit the unlawful shooting.

This decision was erroneous even under existing precedent, but it also throws into sharp relief the shaky legal rationales for qualified immunity in general. The text of Section 1983 makes no mention of any sort of immunity, and the common-law background against which it was adopted did not include a freestanding defense for public officials who acted unlawfully; on the contrary, the historical rule was that public officials were strictly liable for constitutional violations. In short, qualified immunity has become nothing more than a “freewheeling policy choice” by the Court, at odds with Congress’s judgment in enacting Section 1983.

The Cato Institute has therefore filed an amicus brief urging the Court to hear Mr. Pauly’s case and to reconsider its misguided qualified immunity jurisprudence. This brief will be the first of many in an ongoing campaign to demonstrate to the courts that this doctrine lacks any legal basis, vitiates the power of individuals to vindicate their constitutional rights, and contributes to a culture of near-zero accountability for law enforcement and other public officials.

Right to Try and the FDA’s Proposed Ban on Kratom

In his State of the Union address, President Trump expressed support for a Right to Try law that would allow terminally-ill patients to test medicines not yet fully vetted by the FDA. This perspective recognizes the tradeoff between benefits and risks.

The administration is singing a different tune, however, regarding kratom, a medicinal herb grown in East Asia that might help Americans who suffer from chronic pain and do not wish to, or cannot, rely on opioids.

The FDA recently announced that it is considering a ban on kratom and is working to prevent shipments to the United States. This announcement comes on the heels of the DEA’s attempted ban in 2016, which caused a public and Congressional backlash, forcing the DEA to back down.

Kratom, which appears to target opioid receptors in the brain, is used by many chronic pain sufferers. The FDA correctly notes that existing evidence is not conclusive on kratom’s efficacy, but numerous studies and a wealth of anecdotal evidence suggest kratom relieves pain with modest risks.

Kratom is also used to reduce opioid addiction. The FDA also doubts about its effectiveness in this area, but again several studies support its value in easing withdrawal.

Doubts about effectiveness aside, the prima facie reasoning behind the FDA’s crackdown can be found in a press release from November 14, 2017, in which Commissioner Scott Gottlieb attributes 36 deaths to kratom. A recent study, however, found no evidence that kratom alone causes death.

And even if kratom can be dangerous, banning it violates the administration’s defense of Right to Try laws: potentially dangerous medicines are nevertheless valuable if their expected benefits exceed their risks.

Outlawing kratom, moreover, will mainly spawn a black market. This harms kratom consumers (by raising prices and diminishing quality control) and society generally (by generating violence and corruption, as occurs now for other banned substances).

The FDA may believe that kratom’s risks are so great that no rational person would ever accept them. But in a free society, individuals—not a government bureaucracy—decide what risks to take with their health.

The Trump White House is on the right track by supporting Right to Try. The administration should stick to this philosophy in its treatment of kratom.

Another BRAC Now

Last month, Congress authorized a massive increase in defense spending as part of a two-year budget deal. In 2018 alone, the Pentagon will receive an additional $80 billion, increasing the topline number to $629 billion. War spending will push the total over $700 billion. Though such a windfall might prompt Defense Department to ignore cost-saving measures, the White House pledged that “DOD will also pursue an aggressive reform agenda to achieve savings that it will reinvest in higher priority needs.” Noticeably absent, however, was another Base Realignment and Closure (BRAC), even though Secretary of Defense James Mattis, and at least four of his predecessors, have called for such authority in order to reduce the military’s excess overhead, most recently estimated at 19 percent.

Congress’ unwillingness to authorize a round of base closures should surprise no one. But congressional inaction doesn’t merely undermine military efficiency. In the most recent Strategic Studies Quarterly, ranking member of the House Armed Services Committee, Rep. Adam Smith (D-WA) and I explain how the status quo is actually hurting military communities.

To be sure, closing a military base can be disruptive to surrounding economies, and for some communities it may be economically devastating. But such cases are the exception, not the rule. Evidence shows that most communities recover, and some do so quite rapidly. A 2005 study by the Pentagon Office of Economic Adjustment researched over 70 communities affected by a base closure and determined that nearly all civilian defense jobs lost were eventually replaced.8 The new jobs are in a variety of industries and fields, allowing communities to diversify their economies away from excessive reliance on the federal government.

Rep. Smith and I are not alone in our assessment of the impact that congressional inaction on BRAC has on local communities and our military. In June of last year, over 45 experts from various think tanks of differing ideological and political bents signed onto an open letter urging Congress to authorize a BRAC round.

In a 2016 letter to congressional leaders, then-Deputy Secretary of Defense Robert Work explained that “local communities will experience economic impacts regardless of a congressional decision regarding BRAC authorization. This has the harmful and unintended consequence of forcing the Military Departments to consider cuts at all installations, without regard to military value… . Without BRAC, local communities’ ability to plan and adapt to these changes is less robust and offers fewer protections than under BRAC law.”

Further, an overwhelming majority of the communities represented by the Association of Defense Communities would prefer a BRAC to the current alternative. This should not come as a shock because, as Smith and I note, “Local communities have been deprived of the support BRAC would provide and have been denied access to property that could be put to productive use.”

Just to recap, nearly everyone—from think tank experts to DOD officials and from presidents to local community leaders—want a BRAC. Alas, a few key members of Congress stand in opposition.

BRAC has proven to be a fair and efficient process for making the difficult but necessary decisions related to reconfiguring our military infrastructure and defense communities. Rather than continuing to block base closures for parochial reasons, Congress should permit our military the authority to eliminate waste while providing vital defense resources where they are most needed, and give communities the clarity and financial support they need to convert former military bases to new purposes.

If you would like to hear more, Rep. Smith and I will be discussing the issue at the Cato Institute on March 14 at 9 am. Click here for more information and to register.

Trump’s Latest Tariff Talk

Yesterday morning, my colleague Dan Ikenson warned of a possible announcment by President Trump related to tariffs on steel and aluminum, to be imposed on (extremely flimsy) “national security” grounds. That announcement did come (as Trump was speaking to steel and aluminum company executives), and everyone is still trying to sort out what it means. This is from the Washington Post:

Speaking at the White House, the president said he has decided on tariffs of 25 percent for foreign-made steel and 10 percent for aluminum.

“We’ll be imposing tariffs on steel imports and tariffs on aluminum imports,” the president said. “…You will have protection for the first time in a long while, and you’re going to regrow your industries.” 

It certainly feels like Trump is finally going to make good on his frequent threats to impose tariffs (putting aside the usual “trade remedy” kind, which all presidents impose). But if you are looking for signs of hope, note that nothing has actually been signed yet. All Trump did was say that he would impose tariffs. And recall this sequence of events from last year:

In late January, Trump signed a Presidential memorandum on “Construction of American Pipelines,” and said: “We are – and I am – very insistent that if we’re going to build pipelines in the United States, the pipes should be made in the United States. … From now on, we’re gonna start making pipeline in the United States. We build it in the United States; we build the pipelines; we wanna build the pipe. Gonna put a lot of workers, a lot of steel workers, back to work. Okay. We will build our own pipeline. We will build our own pipes.”

Then in February, he said this: “We have also taken steps to begin construction of the Keystone Pipeline and Dakota Access Pipelines. Thousands and thousands of jobs, and put new buy American measures in place to require American steel for American pipelines. In other words, they build a pipeline in this country, and we use the powers of government to make that pipeline happen, we want them to use American steel. And they are willing to do that, but nobody ever asked before I came along. Even this order was drawn and they didn’t say that.”

By early March, however, the White House quietly announced that the Keystone XL pipeline would not be subject to a requirement to use American steel.

Is it possible that a similar pullback will happen with the steel/aluminum tariffs? U.S. trading partners, some members of Congress, and U.S. companies that use steel/aluminum will work hard to convince the White House not to go forward. (Reports like this one may help: “Electrolux puts $250 million U.S. investment on hold over Trump tariff hike.”)

For more on the issue, see these op-eds from my colleagues Dan Ikenson and Colin Grabow, and also from me.

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