Hours after I published Why Conservatives Shouldn’t Support Federal Paid Parental Leave, Ramesh Ponnuru criticized it and the work of other Cato scholars on the same topic.
Ramesh takes exception with my use of the new Cato paid leave poll that tested the conservative response to paid leave costs, estimated using the Democrat’s plan for paid leave (the only formalized Republican proposal for publicly-provided paid leave is Rubio's plan, which is not popular).
Yet the context was former Senator Santorum’s article, which argued for reaching across the aisle to find agreement with Democrats on a federal paid family leave policy. Santorum leaves the ultimate design of the policy open-ended.
As Ramesh must know, the Republican plan for paid leave is not an appealing compromise for congressional Democrats. In fact, senator Rubio’s proposal has zero co-sponsors. On the other hand, the Democrat’s FAMILY Act has 34 co-sponsors in the Senate and 160 in the House.
You can find just about any kind of restaurant imaginable in our nation’s capital, but what you won’t find, no matter how hard you look, is a gun store. D.C. residents who want to buy guns, like Tracey and Andrew Hanson, have to leave the district to get them. D.C. law specifically allows residents to buy firearms from outside the District.
So the Hansons visited Frederic Mance, a federally licensed gun dealer in Texas. D.C. law had no problem with the Hansons buying a gun from Mance, and the law of Texas allowed Mance to sell to the Hansons. The Hansons agreed to buy handguns from Mance in what would be an otherwise entirely lawful transaction, but there was a problem: the federal government (of course).
Federal law categorically forbids firearms dealers from selling handguns to anyone not a resident of the state in which the dealer does business. The purported justification for this restriction is that the government doesn’t believe licensed dealers can handle complying with the laws of the purchaser’s state—even though they are required to do just that should the customer want something like a bolt-action rifle, shotgun, or even (heavily restricted) machine guns.
Mance, the Hansons, and several others sued the federal government in Texas, arguing that the interstate handgun-transfer ban violated their Second Amendment right to bear arms and Fifth Amendment right to equal protection. The district court agreed that the law was unconstitutional, but when the case came to the U.S. Court of Appeals for the Fifth Circuit, a closely divided court found for the government, over strong dissent. The plaintiffs now appeal their case to the Supreme Court, hoping our nation’s highest court will finally step in and clarify how laws are to be evaluated under the Second Amendment—something the justices have avoided doing since declaring in D.C. v. Heller (2008) that there is indeed an individual right to keep and bear arms.
Federal law has put the national firearms market into an irrational state. Dealers are trusted to follow the law of multiple states when selling long guns, but are categorically forbidden from doing the same with the most common arms in the country. It regulates the interstate arms trade as if the Founders hadn’t been driven to war by embargoes on trading guns, and exclusively targets the arms which Americans—and the Supreme Court—have indicated are the most crucial for self-defense.
Because the right to armed self-defense is fundamental and should not be given “second class” treatment, Cato has filed an amicus brief urging the Supreme Court to hear the Mances’ case. In an area of the law where the circuits diverge substantially on how to treat an important civil right, the Court needs to step in and help set the course. This case is an ideal vehicle in which to do it, as its resolution would not directly disrupt the nation’s diverse tapestry of gun laws, but instead help equip lower courts with the tools they need to properly map the metes and bounds of the Second Amendment.
The Supreme Court will decide whether to take up Mance v. Whitaker later this winter.
A month ago the novelist Jay Seliger asked “Is there an actual Facebook crisis, or media narrative about Facebook crisis?” After two years of criticism of the company, he noted, its users are still on board. Indeed, you might have to pay them a $1,000 to give up Facebook for one year. Seliger remarks that an earlier New York Times story “reads a lot like a media narrative that has very little to do with users’ actual lives.”
Seliger asserts that Facebook is “a Girardian scapegoat for a media ecosystem that is unable or unwilling to consider its own role” in the election of Donald Trump. (On Rene Girard see this). I don’t know about the culpability of the “media ecosystem,” but the ferocity of the campaign against Facebook suggests something more at work than a concern about privacy and the use of online data.
Many people were horrified and surprised by Trump’s election. But Trump himself, his campaign, and those who voted for him bear responsibility for his election; to be more accurate those who voted for him in a small number of states like Michigan and Wisconsin put him in the White House.
It is difficult to believe that Facebook’s managers were dumb enough to take sides in a presidential campaign, least of all the side of Donald Trump. Brad Parscale, Trump’s campaign manager in 2016, says plausibly that Facebook gave the campaign as much assistance as it would any multi-million dollar advertising customer. The company sent a person to be a “living manual” to the platform and to fix it quickly when it did not work.
But maybe Facebook’s “sins” were more passive than active. After all, Facebook might have prevented Trump’s victory by refusing to sell advertising to his campaign and by suppressing a significant part of advocacy for his election on the platform. Technically I imagine both could be done. Both might well be legal; they would without doubt be constitutional. Facebook has no obligation to protect speech on its platform. Perhaps more than a few people believe Facebook helped elect Donald Trump not because of what it did but because of what it did not do.
In this light, some, though not all, of the criticisms of Facebook may be a way of posing a question to Mark Zuckerberg: “This campaign against you and your company must be unpleasant and costly. The bad publicity and even government investigations might go away if Facebook refuses to sell ads to Trump’s re-election campaign and suppresses at least the worst speech of his supporters. Also, no Facebook personnel to help them. How about it?” Zuckerberg might be rational, if not wise, to take that deal.
But, of course, that would not be the end of it. Trump supporters and the Right generally think Silicon Valley have it in for them. Facebook would go from scapegoat for the left to a major target of Trump’s re-election effort. A Trump victory would mean an administration bent on revenge against Facebook. A Trump defeat would turn Facebook into a scapegoat for the other half of a polarized America. In this latter case, Republicans too might end up asking Mark Zuckerberg what he’s willing to do to make the pain end.
In both cases, we will end up with what few want: regulation of social media determined by fear of a president or a party in power, now or in the future. Another limit on government and politics would have fallen by the way.
Facebook may moderate (and suppress) content on its platform. But if that moderation is done under credible threats by government officials, any suppression of speech looks a lot like censorship. We may be on a road where permitted private policies are in service to forbidden government goals. It’s not a road we want to follow to its end.
Fifty years ago today, NASA’s Apollo 8 mission sent three astronauts to orbit the moon and return safely to earth. This first manned mission to the moon was planned rapidly and executed flawlessly. The Saturn V rocket was the most powerful engine ever built, yet was new and not fully tested. The computers available at the time were primitive, yet everything about the timing of burns and entry angles had to be precise. It was a stunning achievement. An American triumph. Hats off to astronauts Frank Borman, James Lovell, and William Anders who showed unbelievable courage.
If the mission were pursued today, the president would tweet the astronauts halfway to the moon telling them to abort. The computers would jam during launch like during the Obamacare launch. Political operatives would create a dossier claiming that NASA was in cahoots with the Russians. Planning would take four years, not four months. Environmental lawsuits would threaten to shutdown the Saturn V launchpad. Labor regulations would slow astronaut training. NASA executives would be indicted for giving contracts to relatives. Federal budget squabbling would shutdown mission control, leaving the astronauts to find their own way home from the far side of the moon. It would be a mess.
Liberals and socialists want big things from the government, but Washington today is running trillion-dollar deficits and is far too dysfunctional. Paul Light here and Peter Schuck here discuss reasons why the government fails so much these days, and I discuss the core reasons for federal failure here.
Since the early Republic, the federal government has suffered from corruption, cost overruns, pork barrel spending, and vicious partisan battles. But the situation today is worse because the government has grown so huge it is impossible to manage and oversee properly. The federal government budget is 100 times larger than the budget of the average state government. Milton Friedman observed, “because government is doing so many things it ought not to be doing, it performs the functions it ought to be performing badly.”
The 1968 moonshot remains awe-inspiring, as Joel Achenbach discusses here and Robert Kurson discusses here. But looking ahead, we would get more out of government if it did less, and we would be better off putting faith in entrepreneurs for the next breakthroughs in space and much else.
The timing of James Mattis's resignation as Secretary of Defense may be as significant as the particulars cited in his letter announcing it. It came on the heels of President Donald Trump's announcement that U.S. troops would be swiftly removed from Syria, and amidst rumors that a similar withdrawal was in the offing for Afghanistan. Trump's Syria decision alone might have proved the last straw, but there have been countless other occasions since January 2017 when Mattis might have taken a stand on principle. Why this decision? And why now?
Mattis's resignation letter mentions neither Afghanistan nor Syria, but hints indirectly at both: "the 29 democracies...fighting alongside us following the 9-11 attack on America" and the "the Defeat ISIS coalition" that supposedly includes 74 countries. A "core belief," Mattis explained, "is that our strength as a nation is inextricably linked to the strength of our unique and comprehensive system of alliances and partnerships."
One could be forgiven for questioning Mattis's claim that he shares President Trump's view that "the United States should not be the policeman of the world." The Defense Department that he presides over, and the National Defense Strategy that he issued, is clearly oriented around the defense of others. It reflects a belief, widespread among the U.S. foreign policy establishment, that the U.S. military exists not merely to defend "these States" named in the Constitution, but the plethora of allies, both formal and informal, who have grown dependent upon American military power. It is a subtle, but critical, point of difference between the Founders' intentions and U.S. foreign policy as it is practiced today.
And Mattis clearly sees U.S. military power as the bedrock of America's global influence, more important even than our dynamic economy or our vibrant political culture. Don't be fooled by his comment, oft repeated in the media, that a failure to properly fund the instruments of diplomacy would result in him having to "buy more ammunition." The U.S. military bought many more bullets, and ships, and planes, under Mattis's tenure. If he felt so strongly that the nation's priorities were out of whack, he would have spent more time challenging the premises that have U.S. forces deployed in over 800 military facilities over the world, fighting wars in at least seven different theaters, and under dubious authority. Instead, he has boasted of securing for the Pentagon enormous spending increases. He even prevailed on the president to endorse a $750 billion Pentagon budget for the next fiscal year, mere weeks after Trump had said $700 billion was much too high ("crazy" even).
The U.S. military is expensive because the U.S. military is busy. Very busy. It isn't obvious that this high level of activity advances U.S. security and prosperity. And U.S. promises to defend others allows them to underspend on their militaries. Indeed, that was always the object. It is incumbent upon Mattis -- and all those who so loudly lament his departure -- to spell out how the U.S. military would be more busy if it wasn't mostly in the business of defending others from threats that they can and should address themselves.
It is hard to imagine how that is possible. Rep. Ro Khanna (D-CA) recently tweeted, citing evidence compiled by Stanford’s David Kennedy, "that from 1945-1973 the U.S. had 19 overseas deployments. Since then we have had over 144.” This tracks with evidence that the Congressional Research Service compiled in October 2017. According to the CRS study, explains Cato’s John Glaser, "the United States has engaged in more military interventions in the past 28 years than it had in the previous 190 years of its existence." Glaser's back-of-the-envelope calculations count 199 interventions from 1798 to January 1989 and 213 from 1989 to today. He continues: "About 46 percent of Americans have lived the majority of their lives with the United States at war. Twenty-one percent have lived their entire lives in a state of war."
There may have been occasions when Jim Mattis successfully fended off President Trump's inclination to use the U.S. military even more often than he did. Reports of attacks thwarted or shelved, including against North Korea and Venezuela, remind that Mattis certainly doesn't hold the title as the Trump administration's most bellicose player. But his decision to walk away from the administration on the occasion of the president's decision to draw down U.S. involvement in two protracted conflicts speaks volumes.
Today’s enactment of the First Step Act constitutes the most significant reform of the federal criminal justice system in a generation. The new law includes many laudable features, such as reducing mandatory minimum sentences for non-violent drug offenses, making retroactive the provisions of the Fair Sentencing Act of 2010 that reduced the crack-to-cocaine sentencing disparity, expanding the “safety valve” that allows certain non-violent drug offenders to avoid the harshness and rigidity of mandatory minimum prison sentences, and requiring the placement of prisoners near the families to whom they’ll one day return.
Policymakers, stakeholders, and activists have been pushing for many of these reforms for half a decade, and for those closest to the effort, the experience has been a roller coaster of advances and setbacks. Just weeks ago, despite growing support throughout much of the year, it seemed as though the door would close yet again on this bipartisan and cross-ideological effort. Then, in the immediate aftermath of a supportive tweet from President Trump, newfound support from Senator Ted Cruz, and needling from fellow Kentucky Senator Rand Paul, Senate Majority Leader Mitch McConnell reversed course and committed to bringing the First Step Act to the Senate floor for a vote. The bill passed the Senate on December 18, 2018, by a vote of 87-12, and then quickly moved to the House—which had passed a similar but less robust bill earlier this year—where it passed 358-36. The bill became law with the president’s signature earlier today.
In typical Washington fashion, the drama surrounding this effort has caused a flurry of media attention, perhaps leading some to the conclusion that this package of reforms will fix most, if not all, of what is wrong with our criminal justice system. But as even the staunchest advocates of the new law acknowledge, there is much more that needs to be done. As implied by the title of the bill—the First Step Act—there are additional reforms that must be instituted before Americans will have the criminal justice system they deserve and that justice demands.
Scholars with Cato’s Project on Criminal Justice have identified coercive plea bargaining as among the most perverse practices in America’s criminal justice system, both because it produces an alarming number of false convictions and because it has resulted in the near-elimination of the criminal jury trial. Today, more than 95 percent of convictions are obtained through plea bargains, rendering the constitutionally prescribed method for adjudicating criminal cases—the jury trial—practically extinct.
In its idealized form, plea bargaining is the process by which prosecutors and the criminal defendant negotiate a mutually acceptable resolution whereby the defendant avoids trial by pleading guilty to the alleged crime or crimes before a judge. The defendant typically gets the benefit of a modest reduction in prison time and/or financial penalties, while the prosecution gets to avoid the expense of a trial and the inevitable unpredictability of juries.
But the plea-bargaining process can easily become coercive when, for example, prosecutors stack charges in order to expose the defendant to greater prison time if they insist on going to trial, a well-documented phenomenon known as the trial penalty. Other coercive levers available to prosecutors include pretrial detention, the use of civil forfeiture that can deprive the accused of the resources needed to defend themselves, and threats to investigate friends and family members. The result is a system in which the government can convict and incarcerate people without the explicit approval of ordinary citizens, and without having to prove its case against the accused in a public and adversarial proceeding.
As part of its effort to raise public awareness of coercive plea bargaining and challenge its legitimacy, the Cato Institute’s Project on Criminal Justice hosted two events earlier this year—one in July titled Plea Bargaining: Good Policy or Good Riddance? and a second in October titled Coercive Plea Bargaining.
Cato has also begun a strategic amicus initiative designed to restore the Founding-era practice of ensuring that jurors have the information they need to perform not only their fact-finding function, but also their time-honored role of limiting government power by refusing to convict factually guilty defendants when it would be unjust to do so—a practice often referred to as “jury nullification,” but perhaps more accurately described as “conscientious acquittal.” To properly discharge the latter role of limiting government power, jurors should be advised of the likely consequences for the defendant if they are convicted, the substance of any plea offer(s) made to the defendant by the prosecution, and basic information about the history and importance of conscientious acquittal in the Anglo-American legal system.
And to set the stage for possible legislative responses to coercive plea bargaining, Cato will endeavor to educate policymakers in the coming months on the myriad problems associated with this unjust, unseemly, and extra-constitutional feature of our criminal justice system. If there is an appetite for a “Second Step Act” in 2019 or beyond, Congress would do well to include provisions that squarely confront the epidemic of coercive plea bargaining.
“This will be a wall with a big, very beautiful door because we want the legals to come back into the country.” -Donald J. Trump, August 23, 2015
“I want people to come into our country legally. I want to have a big, fat, beautiful open door.” -Donald J. Trump, September 3, 2015
“I want tremendous numbers of people to come in, and we are going to have that big beautiful door in the wall.” -Donald J. Trump, November 2, 2016
“We’re going to have a big, fat beautiful door right in the middle of the wall. We’re going to have people come in, but they’re coming in legally.” -Donald J. Trump, October 28, 2015
The House Freedom Caucus—a coalition of Republicans—were reportedly the “driving force” behind talking President Trump into a government shutdown over the border wall. Freedom Caucus leaders Jim Jordan (R-OH) and Mark Meadows (R-NC) “led a revolt” on the House floor against the bill that would have kept the government open without more money for Trump’s wall. Rep. Jordan justified their position this way:
Let's do what we said. Let’s build the border security wall ...It's pretty simple. What did you tell the voters you were going to do? What did they elect you to do? Go do that.
That’s a fair point. Trump did center his campaign in 2016 around a border wall along the southern border. Of course, he also told voters repeatedly that Mexico—not U.S. taxpayers—would pay for it. But setting that issue aside, President Trump also vociferously promised that the border wall would contain a “big beautiful door” that would let in “tremendous numbers of people.” So why are Republicans not demanding a shutdown if the door isn’t built? Isn't that what Americans were promised too?
Of course, they have no intention of keeping this promise. The Trump administration is closing down legal ports of entry for asylum seekers to prevent them from entering legally. It has championed bills to cut legal immigration by 50 percent, and its regulations are already making legal immigration much more difficult. Don’t expect any shutdowns for the "big beautiful door" any time soon.