Domestic and international politics surrounding the Trump administration’s planned summit with Moscow are largely overshadowing the tangible U.S. national interests at play. Trump’s frequently expressed esteem for President Putin, along with his apparent admiration for authoritarian strongmen from Kim Jong Un to Rodrigo Duterte, rubs much of Washington and many U.S. allies, particularly in Europe, the wrong way for two reasons. First, it suggests that Trump is abandoning America’s purported role as a global defender of democracy. Second, it suggests that Trump is unwilling to take a tough stance toward Moscow despite the U.S. intelligence community’s assessment that Russia meddled in the 2016 election and constitutes a major, continuing threat to America’s security and geopolitical interests.
But even if Trump is more brazen than his predecessors in his fondness for autocrats, the United States has a long history of showering brutal dictators with rhetorical praise and direct support. And while Trump has been rhetorically easy on Putin in a way that has made NATO allies, and the U.S. foreign policy community, uncomfortable, the nuts and bolts of U.S. policy toward Russia have not changed. The Trump administration has pushed to expand NATO, boosted U.S. troop deployments in the Baltics, conducted provocative military exercises with its alliance partners in various East European locales as well as the Black Sea, and refused to give ground to Russian interests in Ukraine or the Balkans. Indeed, the administration has even engaged in military exercises with Ukrainian forces and approved the sale of “defensive” arms to Kiev.
Proposals for a tougher approach toward Russia essentially amount to imposing more economic sanctions, which have not proven effective in changing Russia’s policies or strategic calculus, and retaliatory covert cyber operations, which would likely escalate tensions to little greater effect. Moreover, some of the anger toward Moscow among politicians and pundits has generated a worrisome intolerance of those in the policy community who dare advocate a more conciliatory posture. Indeed, at times that shrill criticism is reminiscent of the excesses that Senator Joseph McCarthy and his followers exhibited. That development damages America’s political culture.
Contrary to much of the political commentary, meeting with adversaries, such as Putin and North Korea’s Kim Jong‐un, is not tantamount to appeasement. Nor are sensible negotiations and a willingness to compromise. While Russian meddling in the 2016 election was a serious offense, we must avoid letting it drive U.S. policy into determined, unrelenting hostility. The two countries are already perilously close to a second Cold War, and it is imperative to keep the lines of communication and diplomacy open.
The alleged threat from Russia, including the apparent election meddling, must be kept in perspective. The United States remains the world’s economic and military superpower and is remarkably insulated from external security threats. Meanwhile, Russia’s economy is approximately the size of Spain’s, it has limited conventional power projection capabilities, and it suffers from burdensome domestic problems, including corruption, as well as demographic trends that are likely to sap its power potential in future years.
A Trump‐Putin summit is worthwhile, as there are a number of contentious issues that need to be addressed and require diplomacy to resolve. Those volatile disagreements include sharp differences over policy toward Syria, Iran, North Korea, and Ukraine. Even a candid bilateral dialogue at the highest level may not resolve those differences, at least not quickly. But just as the Trump‐Kim summit helped ease tensions and the risk of a dangerous confrontation, the summit meeting between Trump and Putin may help dampen the growing U.S.-Russian animosity. That would be useful, because it will be difficult to make even modest progress toward solving problems such as Syria, Ukraine, and North Korea without substantial Russian input and cooperation.
To achieve a bilateral détente, though, U.S. objectives must remain limited and realistic. It may be possible to induce the Kremlin to dial back its support for separatist rebels in eastern Ukraine or limit the Russian military presence in Syria. It is not an achievable objective to insist that Russia return Crimea to Ukraine. Moscow will no more do that than Israel will return the Golan Heights to Syria or Turkey relinquish occupied northern Cyprus to the Republic of Cyprus.
President Trump has yet to demonstrate the strategic acumen necessary to deftly engage in nuanced diplomacy with adversaries in a way that tangibly advances U.S. interests. The summit with Kim was a mixed bag. The achievement consisted primarily of changing the overall dynamics of the bilateral relationship in a less confrontational direction. Although that meeting did not deserve the knee‐jerk negative response from Trump’s political opponents (or, for that matter, the knee‐jerk positive response from his supporters), there also were few truly tangible gains. Moreover, the president seemed more interested in stagecraft, rather than statecraft. He needs to improve that performance in his summit with Vladimir Putin.
President Trump ordered the end of his child separation policy, and a court has ordered the reunification of parents who were separated from their children. The Department of Homeland Security (DHS) has said it will stop referring parents, but many conservatives felt that the family separation was a positive development in the fight against illegal immigration and even required by law, so here is a review of nine of their most common defenses of the policy.
1. “It’s the law, and that’s what the law states.” -White House Press Secretary Sarah Huckabee Sanders
- No, it doesn’t, and in many cases, the law prohibits criminal prosecutions.
No law requires immigrant children to be separated from their parents. Under the Trump administration’s “zero tolerance” policy, DHS chose to refer to the Department of Justice (DOJ) twice as many border crossers—and far more parents—for prosecution for “improper entry” under 8 U.S.C. 1325. This law provides that “any alien who… attempts to enter the United States at any time or place other than as designated by immigration officers… shall… be fined… or imprisoned not more than 6 months.” Those who claim that this statute requires separation must defend the view that it 1) requires referring all offenders for prosecution, 2) requires separating children during that referral, 3) requires prosecutors to seek jail time, and 4) allows no exceptions.
None of these four claims are true. 1) The “shall” in this statute doesn’t require prosecution of every single offender, but rather limits the penalties to be imposed (“shall be… not more than”). As DOJ’s own manual affirms, “the prosecutor has wide latitude in determining when, whom, how, and even whether to prosecute… [as] has been recognized on numerous occasions by the courts” (citing a half a dozen cases). The statute, however, specifies the maximum or minimum penalties should the prosecutor decide to prosecute. 2) In any case, nothing in this statute requires that—in the process of DHS’s referral for prosecution—a parent be separated from their child, and 3) the statute explicitly allows prosecutors not to seek jail time. In response to an ACLU lawsuit, DOJ even admitted to the court that the detention and prosecution decisions are entirely “discretionary.”
4) As importantly, 8 U.S.C. 1158 provides that “Any alien who… arrives in the United States (whether or not at a designated port of arrival…), irrespective of such alien’s status, may apply for asylum…” In other words, it is completely legal for illegal immigrants to apply for asylum not at a designated port of entry. Congress enacted the statute permitting asylum in 1980 after it criminalized improper entry in 1952, indicating that it did not envision asylees being prosecuted. Moreover, the United States is a party to the United Nations 1951 Refugee Convention. Article 31 prohibits, with some exceptions, “penalties, on account of illegal entry or presence” on refugees because “the seeking of asylum can require refugees to breach immigration rules.” The DHS Office of Inspector General has found prosecuting asylum seekers at the border “may violate U.S. treaty obligations” under the Convention.
Congress has certainly never made it mandatory to separate families. In fact, the House Committee on Appropriations in 2005 under Republican control stipulated in its report attached to the annual appropriations bill that it “expects DHS to release families or use alternative to detention such as the Intensive Supervised Appearance Program whenever possible,” and that if detention is temporarily necessary or otherwise unavoidable, it “directs DHS to use appropriate detention space to house them together.”
2. “If you are seeking asylum for your family, there is no reason to break the law and illegally cross between ports of entry.” -DHS Secretary Kirstjen Nielsen
- False. Secretary Nielsen has admitted DHS is turning back many asylum seekers at ports of entry and that it is still separating many families who are admitted at ports.
In January 2017, the American Immigration Council (AIC) filed a complaint about the DHS’s practice of turning away asylum seekers at ports of entry. Human Rights First documented numerous other cases in May 2017, concluding that the policy “is pushing some asylum seekers to dangerously cross the border between formal entry points.” In July, AIC filed a class action lawsuit challenging the policy. In December 2017, NPR reported that DHS officials at a port in San Diego were telling asylees from Central America “they can’t come in.” In June 2018, the Atlantic published video of asylum seekers being turned back at ports of entry—one man was turned back 20 times in four days. This forced them to sleep homeless under a bridge in Mexico. The same month, the Intercept reported on the officials in Texas rejecting asylum seekers from Central America, producing video of the illegal actions, and the Washington Post reported on a father with a 15‐year‐old son whom CBP officials had rejected nine times over the course of nine days. Here are many other cases.
In April 2018, Secretary Nielsen herself admitted this was happening and said, “We are metering, which means that if we don’t have the resources to let them in on a particular day, they are going to have to come back.” It is illegal under 8 U.S.C. 1158 to refuse to allow a person to submit an asylum application. It takes minimal resources to process an asylum claim, so the idea that they need to stop processing now is baseless. Moreover, because the practice has forced homeless, hungry, and desperate people to cross between the ports, DHS still has to process the claims, while at the same time, it has chosen to expend resources to arrest them, refer them for criminal prosecution, and house the children in detention facilities—all of which is more expensive than processing the original claim.
Finally, DHS is still separating some families who presented themselves at ports of entry for asylum. Secretary Nielsen has stated that “for those seeking asylum at ports of entry… we only separate if the child is in danger, there is no custodial relationship between ‘family’ members, or if the adult has broken the law.” The ACLU filed a lawsuit on behalf of a woman who DHS separated from her 7‐year‐old daughter after she turned herself in at a port of entry. DHS eventually returned the child five months later without an apology. In December 2017, DHS separated four fathers from their children, claiming that it couldn’t verify their relationships. Many other cases have been documented by Erika Pinheiro, policy and litigation director at Al Otro Lado. The separation policy is far broader than DHS maintains.
3. “If you as a parent break into a house, you will be incarcerated by police and thereby separated from your family. We’re doing the same thing at the border.” -DHS Secretary Kirstjen Nielsen
- No, it’s not the same. Burglary is a serious crime and generally a felony. Illegal entry is not.
Ignoring the illegality of prosecuting asylum seekers and setting aside the fact that there is no requirement to prosecute, illegal entry is a misdemeanor offense. Illegal entry is most similar to technical violations of motor vehicle law, such as driving without a license, not breaking and entering, because it amounts to nothing more than movement without a proper permit. Many misdemeanors do not even require police to take a person into custody at all. A variety of traffic offenses—including driving without a license, operating an unregistered vehicle, speeding, and other offenses—are misdemeanors in dozens of states. In general, police simply issue a summons to appear in court (for an example, see the Virginia code here). If a child is in the vehicle, they are not separated from the parent pending the final dispensation of the case.
In the unusual cases in which a parent is brought into custody for such a violation, the children either wait in the police station while the parent is processed or are handed off to a relative. For example, in the case of Gail Atwater v. City of Lago Vista, a local police officer arrested Atwater for a seatbelt violation with children in the car. The officer initially said that the children could come to the police station, but allowed a friend of Atwater to pick them up. In other words, there is a massive difference between the treatment of minor offenses committed by Americans and these parents coming to the border. Moreover, if U.S. parents and children are separated for these types of offenses—as in the Atwater case—it is an outrage, not a justification for further separations.
4. “The separation of parents and their children is because of a court ruling.” –Speaker Paul Ryan
- No, it only requires the government to treat children humanely.
No court case requires the separation of parents and children. Defenders of the Trump policy point to the Flores settlement agreement and the Ninth Circuit’s 2016 interpretation of it, but neither requires family separation.
In 1985, Border Patrol arrested a 15‐year‐old Salvadoran girl named Jenny Lisette Flores attempting to cross the border illegally. She was attempting to reunite with her mother who had come to the United States during El Salvador’s long and bloody civil war. She—and all other minors in government custody—were subject to abuse, detained alongside adults, and forced to undergo daily strip searches, which a judge found violated the Constitution in 1988. After more than a decade of litigation over her case, the Clinton administration settled, entering into an agreement that specified standards for facilities for minors and required the government to quickly place minors in “the least restrictive setting appropriate to the minor’s age and special needs.” The Ninth Circuit in 2016 found that it “unambiguously applies both to minors who are accompanied and unaccompanied by their parents.”
Nothing in the Flores settlement or the Ninth Circuit decision mandates that children be separated from their parents—just the opposite: Flores requires that they be reunited with them if they happen into government custody alone. Minors are only to be separated from “unrelated adults.” The Trump administration argues that because Flores mandates the release of children within 20 days, it requires them to separate children from their parents who are still in custody. This is false. Flores does not prohibit the release of parents, which would keep the family unit together as long as their case is pending (argument #5 below shows how this can be workable).
In any case, Flores was not the origin of the family separation policy because it only governs DHS custody determinations. The separation of children and parents started up in earnest this year because DHS decided to transfer to DOJ—and DOJ decided to prosecute—parents who had crossed the border with children.
5. “Adults and children were simply being released in the country [when] we refused to prosecute these adults for illegal entry.” -Attorney General Jeff Sessions
- Prosecution doesn’t prevent eventual release, and alternatives to detention work and save money.
Prosecutions for illegal entry do not prevent release into the United States. After the 9th Circuit clarified that Flores applied to all minors, the Obama administration did decide to release both parents and children pending determinations on their asylum claims, rather than separate the children from the parents. But prosecutions for illegal entry only delay deportation for those without a credible asylum claim and do not prevent release of asylum seekers by the DHS after DOJ is finished prosecuting them. In fact, the criminal prosecutions often only take a few days to process because defendants are prosecuted in mass, and most plead guilty as quickly as possible (particularly when they are separated from their children). After the prosecution, the parents are sent back to DHS custody—just not with their kids.
While families were released in 2015 and 2016, the Obama administration created alternatives to detention that included bonds, electronic monitoring, and community management. These programs resulted in high levels of compliance among asylum seekers pursuing their claims in immigration court. In 2016, 83 percent of those released on bonds showed up in court. The Intensive Supervision Appearance Program (ISAP) resulted in appearance rates of 99.6 percent. The Family Case Management Program (FCMP) uses caseworkers to help immigrants comply, and 100 percent of the immigrants in the program showed up for their court hearings. Nonetheless, the Trump administration terminated this program in June 2017. The Family Placement Alternatives program which relies on community monitoring achieved a 97 percent appearance rate, at a cost of just $50 per day per family, compared to the estimated detention cost of $798 per family. In other words, there are cheaper alternatives to detention.
6. “It would be a tough deterrent.” -White House Chief of Staff John Kelly
- Family separation has failed to deter people from coming, and it is cruel and illegal to deter asylum seekers from seeking safety in the United States.
No evidence has emerged that family separation has done much to deter illegal immigration. DHS experimented with family separation in a single border sector around El Paso from July to November 2017. As Dara Lind at Vox first reported, the number of families coming through that sector actually increased 64 percent during the experiment from 231 to 379. May was the first month that saw the policy applied across the entire border, and the number of families stayed virtually the same from April through the end of May. In general, the number of families has increased from a monthly average of 6,301 in 2017 to 7,389 in 2018, despite increasingly harsh enforcement.
In any case, it is entirely legal to seek asylum at or between ports of entry, and prosecuting asylum seekers in order to deter them from fleeing violence is illegal and cruel. Kelly has said that he wants to deter them because the journey is so dangerous. But the migrants are aware of the risks. A UNICEF report from 2016 highlights stories of Central Americans who are planning to travel or have attempted to travel to the United States, including a boy who lost his leg falling from a train on the way. Still, he predicts that his siblings will eventually make their own attempts to get to the United States. As UNICEF concludes, “Anyone who fled from a gang or other criminal organizations is at high risk of being attacked, raped or killed upon returning home.” Dozens of deported Central Americans, including some children, have already been murdered. The repeated attempts of people who were deported further highlights that they consider the dangerous journey a risk worth taking.
7. “The kids are being used as pawns by the smugglers and the traffickers.” -DHS Sec. Kirstjen Nielsen
- False. DHS statistics show that 99.8 percent of all families were not alleged smugglers.
DHS alleges that 237 individuals of the 106,724 who entered as a family unit from October 2016 to February 2018 pretended to be the parent of a unrelated child—that is 0.2 percent of all family members. It is important to remember that this is just what DHS alleges, not what it has proven in court. Some of these parents dispute DHS’s findings, claiming that they are the parents of the children, and have now been wrongfully separated from them.
8. “Our issue is strong borders, no crime; their issue is open borders, let MS-13 all over our country.” -President Trump
- False. Latin American immigrants, including illegal immigrants, are less likely to commit crimes.
In 2016, immigrants from Latin America were about half as likely to end up committing crimes and being incarcerated in the United States as native‐born Americans. Even illegal immigrants from Latin America—who can be incarcerated in detention and prisons purely for immigration offenses (as the administration is doing)—are significantly less likely to be incarcerated in the United States than people born in the United States. A substantial body of research now shows that immigration has reduced crime rates in general across the United States.
9. “Such a difference in the media coverage of the same immigration policies between the Obama Administration and ours.” – President Trump
- Obama’s flawed policies don’t justify Trump’s, and while Obama did occasionally separate some families, Trump not only increased the practice dramatically—he made it mandatory.
President Obama never had an explicit policy of separating families. Nonetheless, the Obama administration’s activities should not be downplayed. Virtually all the actions that the Trump administration has taken are ramped up versions of policies and practices of the prior administration. American Immigration Council filed a complaint on behalf of five asylum seekers denied access to ports of entry in early January 2017 before President Trump took office and called the practice “systematic.” Lutheran Immigration and Refugee Service, Women’s Refugee Commission, and Kids in Need of Defense published a report the same month describing numerous reports of family separation as a consequence of criminal prosecutions.
But DHS turned the problematic procedures under the Obama administration into official policy—indeed, appearing to even intentionally target parents with children as a deterrent. Under Obama, DOJ’s policy was generally not to prosecute parents traveling with children (though it is clear that DHS did not always refrain from referring parents to DOJ for criminal prosecution). In any case, under Trump, the share of border crossers that were prosecuted shot up from 30 percent to 60 percent (not quite “zero tolerance,” but moving in that direction). DHS has not published statistics on the number of separated families over time, but in May through June 2018, the policy separated between 2,300 and 3,000 children from their parents. The number of cases before the policy is unknown, but likely in the dozens per month or fewer.
President Trump recently said, “Our issue is strong borders, no crime; their issue is open borders, let MS-13 all over our country.” But according to statistics from Border Patrol, the government made arrests of just 275 MS-13 gang members at the border so far in 2018—that’s just 0.11 percent of the 252,187 apprehensions in this year. That’s hardly any different from prior years. Apprehensions of individuals in any gang made up just 0.2 percent of all Border Patrol arrests in 2018, meaning that 99.8 percent of all arrests were not gang members.
The figure below shows the trends in these apprehension figures. 2015 saw the highest share of gang members arrested. However, 2014 saw the highest number at 1,034. MS-13 arrests as a share of all arrests were highest in 2018, but still lower in absolute terms than in 2014.
This picture of enforcement mainly targeting nonviolent people fits with the statistics on enforcement against immigrants inside the United States as well. Other Cato research has demonstrated that illegal immigrants commit fewer crimes than native‐born Americans.
I’ve written before about the worrisome gap between the American people and foreign policy elites (see e.g. here and here). Whereas most Americans believe that the U.S. military exists chiefly to defend the United States and its economic and security interests, the intelligentsia is committed to a broader set of objectives, including defending the security of others, shaping the international system, and advancing the cause of democracy and human rights. These slightly differing impulses often worked hand in hand. A large and active U.S. military that was focused mostly on U.S. security and prosperity typically helped others.
But that wasn’t always the case. And military interventions initiated with lukewarm public support (e.g. Somalia 1993), or sold on phony pretenses (e.g. Iraq 2003), eventually subjected the men and women responsible for these debacles to closer scrutiny. As I explain over at The National Interest:
Trump exploited the gap between the elites and the public at large with ruthless efficiency on his path to the GOP nomination, and then in his general election win over Hillary Clinton. As president, his rhetoric has continued to shine the light on the public vs. elite divide, though his actions have largely conformed with the primacist consensus.
Increasingly, however, we see not merely a disconnect between the public and elites, but also among different age groups within the American electorate. And the age cohort most skeptical of American global leadership, at least as it has been practiced for the last several decades, is the Millennial Generation, those men and women born between 1981 and 1996. These individuals did not arrive at their views because of Donald Trump; a majority of voters under 45 voted for Hillary Clinton.
Earlier this week, Cato hosted a policy forum exploring the generational divide and centering on a new report by the Chicago Council on Global Affairs. The event featured three of the authors of this report: the Chicago Council’s Dina Smeltz, Cato Senior Fellow and GMU Professor Trevor Thrall, and William Ruger of the Charles Koch Institute, and also included a lively and wide‐ranging discussion.
Going back to 1947, the Chicago Council has asked Americans “Do you think it will be best for the future of the country if we take an active part in world affairs or if we stay out of world affairs?” The percentage of those answering “active part” has averaged in the high 60s/low 70s.
When one separates respondents by their age cohorts, however, the generational divide becomes clear. The Silent Generation, those men and women born between 1928 and 1945, are most supportive of an active role (78 percent in the latest survey). Baby Boomers (born between 1946 and 1964) are slightly less supportive (72 percent), and Generation X (1965–1980) less “active” still (62 percent). Barely a majority of Millennials (51 percent) embrace the “active” over “stay out” approach.
But, as I explained in my introductory remarks, and then expanded upon at TNI, Millennials don’t want to disengage from the world – rather, they want to engage differently:
they appear to be in relative agreement with older Americans regarding the need to share global leadership with others. Additionally, Millennials are somewhat more supportive of free trade, and have more positive attitudes toward the effects of globalization upon the U.S. economy, than men and women born in earlier eras.
In that sense, we should consider moving beyond euphemistic terms such as global leadership and global engagement, and cast the generational divide as one between hawkish engagement and militarism versus generally peaceful engagement through commerce and cultural exchange (i.e. leading by example).
And, once the Millennial generation is firmly in control, we might see U.S. leadership practiced less through costly and counterproductive wars, and more through mutually beneficial trade and diplomacy.
Monday of this week marked the Day of the Seafarer, an occasion meant to recognize the critical role played by mariners in the global economy. American seafarers, however, increasingly find little to celebrate. A large source of their travails is the Jones Act. Signed into law 98 years ago this month, the law mandates that cargo transported between two domestic ports be carried on ships that are U.S.-built, U.S.-owned, U.S.-flagged, and U.S.-crewed. The harm caused by this law is well documented. By reducing competition from foreign shipping options and mandating the use of domestically built ships that are vastly more expensive than those constructed elsewhere, the Jones Act has raised transportation costs and served as a de facto tax on the economy. Too often overlooked is that the Jones Act has also presided over the decimation of the U.S. maritime sector, the very industry whose fortunes it was meant to promote (an age‐old story in the annals of protectionism). The numbers speak for themselves. Since 2000 the number of oceangoing vessels of at least 1,000 tons which meet the Jones Act’s requirements has shrunk from 193 to 99. A mere three U.S. shipyards are capable of producing oceangoing vessels for commercial shipping, and one of them, the Philly Shipyard, is facing a possible shutdown. Europe, in contrast, has roughly 60 major shipyards capable of building vessels of at least 150 meters in length, while the United States has a total of seven such shipyards when those producing military vessels are included. Both the declining number of Jones Act ships and the struggles of the shipyards that build them are in large part explained by the vastly inflated cost of ships constructed in the United States. According to the Congressional Research Service, American‐built coastal and feeder ships—the types of ships commonly used in domestic sea transport—cost between $190 and $250 million, whereas similar vessels constructed in a foreign shipyard cost about $30 million. One unsurprising consequence of such stratospheric costs is a reluctance on the part of domestic shipping firms to invest in new ships, with U.S. seafarers forced to work aboard vessels that are significantly older than those found in other countries. Excluding tankers (these vessels were subject to a requirement in the wake of the Exxon Valdez oil spill that they be double‐hulled by 2015, thus encouraging the purchase of new ships and decreasing their average age), the Jones Act fleet averages 30 years of age—fully 11 years older than the average age of a ship in the merchant fleet of other developed countries. For context, the maximum economic life of a ship in the world market is typically 20 years. International comparisons of specific ship types are even more eye‐opening. Jones Act containerships, for example, average more than 30 years old. The international average is 11.5. The only two bulk ships in the Jones Act fleet average 38 years old, while the international average is 8.8. General cargo ships average 34 years of age compared to an international average of 25.2. Struggling shipyards, a dwindling fleet of old ships, and fewer jobs are now the order of the day in the maritime sector. As Mark H. Buzby, head of the U.S. Maritime Administration, testified before Congress earlier this year, “over the last few decades, the U.S. maritime industry has suffered losses as companies, ships, and jobs moved overseas.” Also addressing members of Congress, one senior union official admitted that “the pool of licensed and unlicensed mariners has shrunk to a critical level.” This is not a new story. During Operations Desert Shield and Desert Storm, the United States was so desperate for civilian mariners to crew transport vessels that it enlisted the services of two octogenarians and one 92‐year‐old. Its search for ships was equally frantic, resulting in two requests to borrow a ship from the Soviet Union—and two rejections. Notably, during this conflict a much larger share of U.S. military equipment and supplies was carried by foreign‐flagged vessels (26.6 percent) than U.S.-flagged commercial vessels (12.7 percent). Supporters of the Jones Act often claim the law is vital to assure a strong merchant marine capable of answering the country’s call in times of war or national emergency. Should the Jones Act be repealed, they warn that the maritime industry will enter a dangerous downward spiral. But the record clearly shows that their nightmare scenario, in fact, describes the status quo. It’s time for this law to go, or be significantly reformed. Toward that end the Cato Institute has unveiled its Project on Jones Act Reform, which will feature a series of policy papers exposing the fallacies and realities of this archaic law. This first of these policy analyses, The Jones Act: A Burden America Can No Longer Bear, is now available and provides an overview of the law, its history, and myriad shortcomings. More such policy analyses will follow both this year and next, along with other commentary pieces about this failed law, so be sure to check back for the latest updates.
On closer inspection of yesterday’s Janus v. AFSCME decision, the Supreme Court looks to have updated and clarified its decisional framework for addressing the age‐old matter of stare decisis – deference to old precedents — a framework that largely mirrored Cato’s amicus brief in this landmark case. Properly understood, stare decisis doesn’t demand that courts blindly follow decisions that are no longer viable, but instead imposes a special duty to overturn faulty precedents in constitutional cases. The Janus majority both recognized and embraced this weighty responsibility.
Justice Samuel Alito’s decision set forth five important factors to consider when deciding whether to follow precedent: 1) “the quality of Abood’s reasoning”; 2) “the workability of the rule it established”; 3) “its consistency with other related decisions”; 4) “developments since the decision was handed down”; and 5) “reliance on the decision.” Although both owe much to Chief Justice John Roberts’s pithy concurrence in Citizens United, the similarities between the Janus factors and those laid out in Cato’s brief are striking.
Abood v. Detroit Board of Education (1977) was so poorly reasoned that, as the Court observed, proponents of upholding the case “implicitly acknowledge[d] its weaknesses by forwarding alternative justifications.” Chief among these justifications was the attempt to borrow legal rationales from Pickering, a case completely unrelated to Abood’s original reasoning. The Court found there to be “no good reason, at this late date, to try to shoehorn Abood into the Pickering framework,” and that “[e]ven if that were attempted, the shoe would be a painful fit.” But defenders of agency fees had little choice but to make this argument, since the two cases that Abood was actually supposed to be based on (Hanson and Street) both managed to avoid rendering a decision on First Amendment grounds. Cato’s brief conspicuously made these points, and the Court detected these same inherent flaws when deciding the case.
The Abood standard has also proven to be unworkable, with the distinction between chargeable and nonchargeable expenditures presenting the thorniest issue. Chargeable expenditures are those supposedly nonpolitical expenses that nonmembers could be validly forced to pay for under Abood, but in the context of public‐sector unions, collective bargaining and political action are practically indistinguishable. Again the proponents of state‐union compulsions advanced a self‐defeating argument, with the Court observing that “[n]ot even the parties defending agency fees support the line that it has taken this Court over 40 years to draw.”
Next, what Cato’s brief recognized as one consideration the Court’s decision split into two, first considering the factual developments since Abood and then moving onto the case’s legal inconsistency with the overall body of First Amendment jurisprudence. As for the former, the Court took notice that Abood was decided “against a very different legal and economic backdrop” when “[p]ublic-sector unionism was a relatively new phenomenon.” Such considerations were again advanced by Cato, arguing that the Court should “look back on the period of time since the precedent was established and inquire ‘whether facts have so changed … as to have robbed the old rule of significant application or justification.’”
And regarding Abood’s place within the First Amendment canon, the Court once again found the decision to be “an anomaly,” commenting that it “particularly sticks out when viewed against our cases holding that public employees generally may not be required to support a political party.” While Cato’s brief instead chose to focus on the weakness of the labor peace rationale in justifying an infringement on individual’s free speech rights, the overall conclusion remained the same; as the great legal thinker Big Bird would have observed, “one of these things is not like the others.”
Finally, the Court paralleled Cato’s brief in adjudging that any reliance interests in Abood were insufficient to prevent the case from being overturned. While Cato argued both that there could be no valid reliance interests in the deprivation of First Amendment rights and that overruling Abood would impose no special hardship on labor contracts, the Court went even farther. It summarized the litany of holes in the counterargument thus: “the uncertain status of Abood, the lack of clarity it provides, the short‐term nature of collective‐bargaining agreements, and the ability of unions to protect themselves if an agency‐fee provision was crucial to its bargain all work to undermine the force of reliance as a factor supporting Abood.”
As the Court has recognized for decades, stare decisis – at least in principle — “promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Far from constituting a hindrance, the newly elucidated Janus framework has the potential to advance these noble objectives by providing both judges and practitioners with a stable, logical system for determining when adherence to the Constitution mandates abandoning erroneous precedent.
This was the first full term with the Court back at its “full strength” of nine justices, so all eyes were on Justice Neil Gorsuch to see how he would fit in — and how the Court’s internal dynamic and voting patterns would shift from what they were before Justice Antonin Scalia’s death in February 2016. While early reports, based on what turns out now to be unsubstantiated speculation, spoke of tensions between the newest justice and several of his colleagues, he quickly settled in and ended up writing many thoughtful opinions, including being assigned to write for the majority in several important cases (a rarity for a junior justice).
Cato filed in 15 merits cases on important issues ranging from free speech to separation of powers to criminal procedure. One of those got dismissed along the way because of legislative developments (United States v. Microsoft), leaving 14 opinions. (I’m including in that count two briefs filed by our project on criminal justice but not counting the one filed in Trump v. Hawaii because it was an immigration‐policy brief which no Cato lawyers signed.)
Improving on last year’s 9–4 performance, Cato achieved an 11–3 showing. Perhaps most importantly, we handily beat our biggest rivals, the federal government, which amassed an 11–15 record. (It’s an apples‐and‐oranges comparison, i know, because the government typically appears as a party, not simply amicus, and always participates in oral argument.)
Cato also effectively drew votes from across the judicial spectrum, winning 13 votes from Chief Justice John Roberts, 12 from Justice Elena Kagan, 11 from Justices Anthony Kennedy and Gorsuch, 9 from Justices Clarence Thomas, Stephen Breyer, Samuel Alito, and 7 each from Justices Ruth Bader Ginsburg and Sonia Sotomayor.
Here’s the breakdown, in the order the opinions arrived:
Winning side (11): Masterpiece Cakeshop v. Colorado Civil Rights Commission; Carpenter v. United States; Murphy v. NCAA; Collins v. Virginia; NIFLA v. Becerra; Digital Realty Trust v. Somers; Minnesota Voters Alliance v. Mansky; Janus v. AFSCME Council 31; McCoy v. Louisiana; Lozman v. City of Riviera Beach; and Lucia v. SEC.
Losing side (3): Oil States Energy Services v. Greene’s Energy Group; Currier v. Virginia; and South Dakota v. Wayfair.
Next term doesn’t yet look like as exciting as this one was — though recall that several high‐profile cases, including Masterpiece Cakeshop and the partisan‐gerrymandering lawsuits — ended in fizzles. But still, come this fall we’ll see important cases on property rights, separation of powers, the nondelegation doctrine (!), and more. But of course before we get to next term, the summer will be occupied with the battle over the successor to Justice Kennedy, who announced his retirement hours after the Court announced its final opinions.
I’ll have more to say on all this in future commentary, but if you’d like to learn more about these cases/trends and the views of Cato‐friendly scholars and lawyers, register for our 17th Annual Constitution Day Symposium, which will be held September 17. That’s also when we’ll be releasing the latest volume of the Cato Supreme Court Review, the editing of which will consume the parts of the summer not spent analyzing Kennedy, his possible successors, and the eventual nominee.