December 20, 2018 2:57PM

New Census Data Show Migration to Low‐​Tax States

The Census Bureau has released new data on state population growth between July 2017 and July 2018. Domestic migration between the states is one portion of annual population change. The Census data show that Americans are continuing to move from high-tax to low-tax states.

This Cato study examined interstate migration using IRS data for 2016. The new Census data confirms that people are moving from tax-punishing places such as California, Connecticut, Illinois, New York, and New Jersey to tax-friendly places such as Florida, Idaho, Nevada, Tennessee, and South Carolina.

In the chart, each blue dot is a state. The vertical axis shows the one-year Census net interstate migration figure as a percentage of 2017 state population. The horizontal axis shows state and local household taxes as a percentage of personal income in 2015. Household taxes include individual income, sales, and property taxes.

On the right, most of the high-tax states have net out-migration. The blue dot on the far right is New York with a tax burden of 13 percent and a net migration loss of nearly 1 percent (0.92) over the past year.

On the left, nearly all the net in-migration states have tax loads of less than 8.5 percent. The outlier on the bottom left is Alaska. If policymakers want their states to be people magnets, they should get their household tax burdens down to 8.5 percent of personal income or lower.

The red line is fitted from a simple regression that was highly statistically significant.

Media Name: migration_scatter_census_2018.png

December 20, 2018 2:55PM

The First Amendment Allows You to Draw Your Own Conclusion on Same‐​Sex Marriage

Earlier this year in Masterpiece Cakeshop, the Supreme Court contended with the issue of whether cake‐​baking is protected speech under the First Amendment, and thus whether a Christian baker could refuse to design a wedding cake for a same‐​sex ceremony. The Court ended up punting on the case’s major questions, but now the Arizona Supreme Court is facing a similar issue, this time with calligraphers instead of bakers.

Artists Joanna Duka and Breanna Koski are practicing Christians who own and operate Brush & Nib, an art studio in Phoenix, Arizona. In addition to designing wedding invitations using calligraphy, they produce recreations of wedding vows and other custom artistic works. Phoenix’s public accommodation law would require them to design invitations and vows for every ceremony—even those that conflict with their sincerely held faith. The city imposes draconian punishments for failing to comply with this law; Joanna and Breanna could face fines of $2,500 per day, or up to six months in jail. It seems that in Phoenix, Christian artists who oppose same‐​sex marriage must choose between practicing their faith and running a business if they want to avoid both bankruptcy and jail time.

Cato of course has a long history of supporting both gay rights and the First Amendment. We were the only organization in the entire country to have filed briefs supporting the petitioners in both Masterpiece Cakeshop and the marriage cases that ended in Obergefell v. Hodges (2015). Now, joined by professors Dale Carpenter and Eugene Volokh—who differed on Masterpiece Cakeshop because they consider cakemaking not sufficiently expressive for the First Amendment to apply—Cato has filed an amicus brief arguing that expressive small businesses (including calligraphers) are indeed protected from speech compulsions.

The First Amendment, in stark contrast to Phoenix’s public accommodation law, protects people from government‐​compelled expression. The Supreme Court in Wooley v. Maynard (1977) established that even forcing a driver to display a license plate with the motto “Live Free or Die” violated that person’s “individual freedom of mind.” It would surely violate someone’s conscience far more to be forced to design art or otherwise convey messages for a ceremony with which they disagree.

Besides, the Arizona Supreme Court previously held that tattoo design is art, and that both the design and sale of such art is protected by the First Amendment. According to the Arizona Court of Appeals in this case, however, calligraphy—unlike tattoo design—is not “inherently expressive.”

The lower court ignored all historical evidence proving that calligraphy is art. Not only is calligraphy considered a fine art in Chinese tradition, but it also has had a profound effect on American history. After all, our own Declaration of Independence is a masterpiece of calligraphy, designed by Timothy Matlack. If Matlack were forced to design royal proclamations declaring the colonists traitors, his freedom of conscience would have been severely violated—and the same applies to the Brush & Nib artists.

Wooley also provides an important limiting principle for protecting individual freedom of mind: it does not apply to all conduct, only First Amendment‐​protected expression. Far from the blanket discrimination that hoteliers and restauranteurs often leveled at African‐​Americans in the Jim Crow era, refusing to create a wedding invitation is simply refusing to speak in a way that would betray one’s faith or compromise one’s conscience. Just as the government cannot force a patriot like Timothy Matlack to denounce his fellows, or an atheist to endorse Scientology, the government cannot force orthodox Christians, Jews, and Muslims to design art for same‐​sex weddings.

December 20, 2018 12:53PM

Some Early Reactions to the Reactions to President Trump’s Syria Announcement

President Trump’s Syria announcement yesterday has sent the foreign policy community into orbit. The distress is mostly bipartisan, although the real vitriol seems to be coming more from Republicans than Democrats. See, for example, the stories of Vice President Pence’s meeting with GOP senators, and Rep. Adam Kinzinger’s meltdown on CNN.

A few, however, appreciated the president’s decision. See especially, Cato’s John Glaser (here and here), Defense Priorities’ Benjamin Friedman, Win without War’s Stephen Miles, and timely tweets from Democrat Ted Lieu and Republicans Rand Paul and Justin Amash.

Rather than simply rehash these statements, here are a few brief observations related to the president’s decision:

  • It should not be a surprise to anyone. Donald Trump has been railing against U.S. entanglement in Middle Eastern civil wars for years — as he noted this morning on Twitter. The only real surprise is that it took so long for him to overrule his foreign policy advisers who were dead set against withdrawal. (It does raise the question: Does he have the right foreign policy advisers?) As recently as this September, John Bolton explained publicly that U.S. forces would remain in Syria as long as Iranian forces were there — effectively signaling a willingness to leave U.S troops there forever. Wednesday’s announcement is merely the latest reminder that the president sets policy.
  • I’m particularly interested — and moderately concerned — by an apparent meeting of the minds (and possible quid pro quo?) between President Trump and Turkey’s President Recep Tayyip Erdogan. Aside from the troublesome atmospherics of the U.S. government drawing closer to an authoritarian thug, there are also grounds for asking what this means for the Kurds. Initial signs aren’t promising — Erdogan hinted that an offensive was imminent even before Trump’s announcement. If the decision to remove U.S. forces from Syria is part of a larger project that will tie the United States even more closely to the Turkish president, then President Trump almost certainly made the right decision for the wrong reason.
  • I have zero tolerance for those who bemoan the lack of congressional oversight of this decision, or who complain that the president opted for a troop withdrawal on his own, an apparent case of executive overreach. Where was this same outrage when a progression of U.S. presidents, up to and including Donald J. Trump, undertook military operations either without any congressional authorization, or only under the dubious cover of the 2001 and/​or 2002 AUMFs? We should have had a proper debate over the post‑9/​11 AUMFs, and the appropriate recourse is to repeal rather than replace them. But those who didn’t want such a debate when U.S. forces were actively engaged in acts of war in multiple theaters, but who want one now that they’re leaving just one of those warzones, don’t have a leg to stand on.
  • The execution of this policy is almost certain to be chaotic. That is both unfortunate and unforgivable. The Pentagon, as it often does, will try to make it seem well‐​thought‐​out, but the mixed messages and general confusion emanating from the Trump administration over the last 24 hours are apparent to everyone. I understand that President Trump was new to the policymaking process when he was elected — and, indeed, that likely worked in his favor electorally, as millions of Americans appeared to value his fresh perspective over Hillary Clinton’s experience. But his administration is now nearly two years old, and there simply is no excuse for a chaotic roll‐​out of an important foreign policy decision, one that certainly affects the lives of officially 2,000 American servicemen and women (the actual number could be twice that), plus potentially millions living in Syria. In my writing, I often stress how the impulse to do something (anything!) often ignores the unintended consequences of our actions. The other side is more concerned about sins of omission than sins of commission, claiming that these, too, have unintended consequences. Fair enough. In this instance, President Trump initiated a significant change in U.S. force posture in an active war zone, believing that the decision serves U.S. strategic interests. He has an obligation to take every possible step to ensure that it actually does advance our interests. An approach that amounts to “Tweet and hope for the best” doesn’t cut it.

Finally, the statements and tweets noted at the top reflect the major foreign policy debates going on within both parties. My colleagues Emma Ashford and Trevor Thrall broke this down in a recent piece for War on the Rocks, and in two episodes of the “Power Problems” podcast (with Bryan McGrath on the right and Jake Sullivan on the left). A key area of disagreement among foreign policy thinkers of all stripes revolves around the efficacy of military force, and the utility of other foreign policy tools, including diplomacy, economic carrots and sticks — and, yes, moral suasion. Leading by example, and calling on others to behave in ways that serve the cause of peace, was the touchstone of U.S. foreign policy for at least the first half of this country’s history. Some people have never forgotten that the nation’s Founders generally abhorred warfare, and were extremely reluctant to become embroiled in others’ disputes. It is significant, I think, that Rep. Ro Khanna frequently invokes John Quincy Adams in his speeches.

There is an alternative to the bipartisan foreign policy consensus that views the United States as the indispensable nation, and U.S. military power as the essential element of that indispensability. The responses to Trump’s Syria decision remind us that the particulars of that alternative will continue to be hammered out over at least the next two years.

December 20, 2018 11:35AM

A Potential Border Wall Compromise

President Trump recently backed off his demand for $5 billion in funding for his border wall, likely averting a government shutdown around Christmas.  However, the political debate over funding for border wall will merely reemerge in the New Year.  Besides new court decisions regarding DACA, there is little to break this deadlock.  Some of the suggestions below offer additional avenues on which to negotiate.  

One of President Trump’s persistent claims is that the wall will secure the border and he recently implied that Border Patrol agents are substitutes for such a barrier.  In that case, I have a suggestion for Congressional Democrats who will be negotiating with the President over the wall in the next several years:  If you must fund the wall in exchange for the DREAM Act or DACA, have Border Patrol pay for it.

This idea is simple in concept – just fire Border Patrol agents and use their saved salaries to fund the construction of the border wall.  As of the middle of 2018, the 19,338 Border Patrol agents had an average annual salary of $61,064.  Altogether, they were paid about $1.18 billion in 2018.  The savings from firing all of them in one year wouldn’t come close to funding the $25 billion or so to build the entire border wall and would only go a small portion of the way toward President Trump’s more modest $5 billion request, but it’s a start.

Of course, the government should not fire all the Border Patrol agents.  Some are necessary to patrol the border even if Congress liberalizes the immigration system.  But this is Washington, DC, and politics being what it is, we all must compromise.  If Congress instead fired half of all Border Patrol agents and instituted a policy of no new net hiring, that would free up $590.4 million per year for the construction of a border wall.  In 8 years and 5 months, about $5 billion in savings could be diverted to the wall.

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December 20, 2018 10:47AM

Defending a Court’s Discretion To Allow Arguments for Conscientious Acquittal

Throughout the entire Anglo‐​American legal tradition, the independence of citizen juries has been understood to be an indispensable structural check on executive and legislative power. This independence has traditionally implied that jurors would both understand the consequences of a conviction, and that they would possess the power of conscientious acquittal, or “jury nullification”—that is, the inherent prerogative to decline to convict a defendant, even if factual guilt is shown beyond a reasonable doubt, when convicting would work a manifest injustice. Nevertheless, modern courts generally do not protect a defendant’s right to make such arguments directly to a jury, nor even to inform a jury about the consequences of conviction. A fascinating case now pending before the Second Circuit illustrates the tensions in modern case law on the subject, and raises the crucial question of whether district courts may, at the very least, permit such arguments in appropriate cases.

Yehudi Manzano, a 31‐​year‐​old man, made the regrettable decision to get involved in a romantic relationship with a 15‐​year‐​old girl. While their sexual relationship was impermissible under Connecticut age‐​of‐​consent laws, there was no indication that any instance of sex was coerced. On one occasion, Mr. Manzano took a video on his cell phone of the two of them having sex, which he then deleted. But the video was uploaded to the cloud, federal prosecutors ultimately became aware of the recording, and they charged Mr. Manzano with both production and distribution of child pornography, which respectively carry mandatory minimum sentences of fifteen and five years.

Mr. Manzano exercised extraordinarily poor judgment, and he is independently facing state charges for second‐​degree sexual assault. But the federal charges against him — a threatened minimum of 15 years, all for taking and deleting a private video, in a non‐​coerced context, that no one but government investigators ever saw — are grossly disproportionate, and they exemplify the problems with mandatory minimum sentences in general. As such, Mr. Manzano’s attorney sought to introduce evidence of the mandatory minimum sentence and to argue for conscientious acquittal. The District Court judge did not conclusively resolve these motions, but it did indicate openness to letting Manzano’s counsel ask a government witness about the mandatory minimum, and said that if the evidence came in, he would allow argument on it. This is therefore the extraordinarily rare case where a district court showed even tentative willingness to permit arguments sounding in conscientious acquittal.

But even those conditional, preliminary rulings were too much for the prosecutor to accept. The government stayed the trial, and is now seeking the extraordinary remedy of a writ of mandamus from the Second Circuit, asking the appellate court to prohibit the District Court from permitting any evidence or argument about conscientious acquittal. In other words, according to the United States, keeping a jury in the dark about the actual consequences of conviction is so vital that it warrants stopping a trial and overriding the traditional discretion of district court judges to rule on evidentiary questions as they arise.

The Cato Institute, joined by FAMM and the NACDL, has therefore filed an amicus brief, urging the Second Circuit to deny the government’s petition. Not only is the District Court’s preliminary ruling well within its discretion, but the judge’s approach is also eminently reasonable, as it thoughtfully harmonizes many tensions in the modern case law of conscientious acquittal. Our brief argues that, throughout the Anglo‐​American legal tradition, pre‐​dating even Magna Carta, juries have always possessed the inherent authority to acquit defendants in the face of manifestly unjust prosecutions. This power was well‐​established in the Founding Era, in which juries were regularly aware of — and tailored their verdicts to — the consequences of conviction. And while modern cases (perhaps erroneously) do not generally afford defendants the right to argue for conscientious acquittal, no controlling cases preclude a district court from permitting such arguments.

Protecting the discretion of district court judges in this regard is all the more important today, in light of the vanishingly small role jury trials play in our criminal justice system. Today, jury trials have been all but replaced by plea bargaining as the baseline for criminal adjudication, and severe mandatory minimums, like the one at issue here, are a major driver of this trend. Preserving the possibility that juries may, in appropriate cases, be informed about the consequences of conviction is a small but vital safeguard against the wholesale erosion of the jury trial itself.

December 20, 2018 10:03AM

Cato Daily Podcast: Another Perspective on FIRST STEP

The U.S. House is expected to vote on the FIRST STEP Act today after the legislation passed the Senate late Tuesday.

For today’s Cato Daily Podcast, I spoke with Shon Hopwood of the Georgetown University Law Center about what the act does and why he views the legislation as both historic and modest reform.


Hopwood spoke at the Cato Institute’s Cato Club 200 event this year where he detailed his own experiences as a federal inmate and why sweeping criminal justice reform remains necessary.

December 20, 2018 9:49AM

After 40 Years China Still Needs to “Emancipate the Mind”

This week marks the 40th anniversary of China’s opening to the outside world, announced at the Third Plenum of the Eleventh Party Congress in1978. After Mao Zedong’s disastrous Cultural Revolution and the failure of central planning, the nation was ready to embark on a new path of development. Individuals were to be given greater economic and political freedom under the leadership of Deng Xiaoping.   

How successful was that new path in the long run? Today, China’s paramount leader Xi Jinping expresses his desire for a “socialist rule of law” and supports the “principle of letting a hundred flowers bloom and a hundred schools of thought contend.” Yet what we see is increasing constraints on freedom of thought.

Xi and Deng had similar backgrounds, as both were at one point victimized and elevated by the Communist Party. During the Cultural Revolution, Deng was labelled a “capitalist roader” and his son was crippled by the Red Guards. Those events left an indelible mark and opened Deng’s mind to new thinking about how best to organize the economy and allow people to prosper. He thought that China’s leaders “ought to study the successful experiences of capitalist countries and bring them back to China.” That view contrasted sharply with Chairman Mao’s condemnation of private enterprise and his view of capitalists as criminals.

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