June 2019

June 28, 2019 12:18PM

Alive Again: The Two‐​Pronged Strategy for Federal Marijuana Policy Reform

By any honest measure, America’s war on drugs has been an abject failure. Illicit drugs remain plentiful, inexpensive, and easily accessible to those inclined toward their use for both self‐​medicating and recreational purposes. Even worse, the collateral damage caused by these policies has left a path of destruction that will be felt for years to come.

Arguably the most indefensible of these ineffective and harmful policies is the federal prohibition on marijuana, which prosecutors continue to enforce despite the growing national consensus in favor of legalization. Following many years of reform efforts at the state level, forty‐​six states now allow the use of marijuana or its derivatives to some degree, including ten states that have fully legalized it for medical and adult‐​use purposes.

It is against this backdrop that several members of Congress have undertaken efforts to end marijuana prohibition. Five years ago, these efforts delivered the first legislative success of the marijuana policy reform movement—by then more than four decades old—with the passage, and then enactment into law, of a provision that prohibits the Department of Justice from using appropriated funds to prosecute those who are acting in accordance with their state’s medical marijuana laws. With that development, known colloquially as “Rohrabacher‐​Farr,” a two‐​pronged legislative strategy emerged: reform advocates in Congress would temporarily and increasingly limit the federal government’s ability to enforce marijuana prohibition by imposing spending restrictions (which would be attached to the annual “must‐​pass” appropriations bills) on particular law enforcement activities, while simultaneously working through the traditional (yet much slower) committee process to amend the U.S. Code to eliminate federal marijuana prohibition.

Other encouraging signs emerged shortly thereafter, including the House of Representatives’ near passage in 2015 of an amendment that would have extended protections to states that have legalized marijuana for adult use, and the subsequent passage through both the full House and the Senate Appropriations Committee (but not the enactment into law) of an amendment that aimed to allow physicians at the Veterans Administration to recommend medical marijuana as a treatment to ailing veterans.

But as the first prong of that strategy was seeing its initial policy successes and the second was getting started with the introduction of several legislative proposals, the then‐​chairman of the House Rules Committee tightened his grip on the floor amendment process and prevented a host of marijuana policy reform amendments from being considered on the House floor. Since then, congressional efforts to bring an end to federal marijuana prohibition have remained in a holding pattern. The Rohrabacher‐​Farr provision has been renewed and extended multiple times since 2014, and two proposals have been shepherded through the House Veterans Affairs and Financial Services Committees, but no new reforms have been signed into law.

However, that may soon change given this month’s inclusion of three significant marijuana‐​policy reform provisions that are now part of two separate House‐​passed appropriations packages. These provisions are:

  • Blumenauer (D-OR)-Norton (D-DC)-McClintock (R-CA) Amendment: Prohibits the Department of Justice from using appropriated funds to interfere with state cannabis programs, effectively extending the protections of Rohrabacher‐​Farr beyond medicinal to cover adult‐​use states. The amendment was adopted by a recorded vote of 267 – 165.
  • Blumenauer (D-OR)-Haaland (D-NM) Amendment: Prohibits the Department of Justice from using appropriated funds to interfere with tribal marijuana programs. This amendment was adopted by voice vote.
  • Marijuana Banking Provision: Prohibits appropriated funds from being used to penalize a financial institution that provides financial services to a state‐​legal marijuana business. This provision was included in the base text of the FY ’20 Financial Services appropriations bill and was therefore not subject to a standalone vote.

In addition to the House’s adoption of these funding restrictions, it appears increasingly likely that the chamber will take up consideration of the Safe Banking Act of 2019, which aims to allow state‐​legal marijuana businesses—which oftentimes operate on an all‐​cash basis—the ability to access traditional banking services. If the full House does pass this bill, it will mark the most substantial development of the second prong of the marijuana policy reform strategy to date.

As encouraging as these developments are, however, the Constitution dictates that legislation does not become law until identical language passes through both the House and the Senate and earns the approval of the president. As such, much work remains to ensure that any marijuana policy reforms make it past the finish line.

But for now, advocates for reform are celebrating the fact that the two‐​pronged strategy appears to be alive again with the prospect of seeing new and meaningful policy change for the first time in five years. If they are successful, we will be one step closer to the criminal justice system the American people demand and deserve.

June 28, 2019 9:16AM

Misunderstandings on the WTO, Trade, and the Environment

These days, the Trump administration’s attacks on trade liberalization, trade agreements, and the World Trade Organization are focused on issues such as trade deficits and allegations that the United States is being treated “unfairly.” But before Trump and his trade team hijacked the trade debate, there had been a critique from the left that trade was bad for the environment in various ways. One example was that trade agreements supposedly got in the way of domestic environmental regulation. There had been some trade disputes over domestic environmental regulations, some of which had included provisions that discriminated against foreign products in favor of domestic ones, and environmental groups were concerned about the impact of adverse rulings by WTO “panels” (i.e., quasi‐​judicial courts) on their ability to adopt such regulations. 

While that debate has been overshadowed recently, it came back yesterday after a WTO panel ruling on various U.S. state measures that discriminate against foreign products in the renewable energy sector. In reaction to this ruling, Todd Tucker of the Roosevelt Institute wrote the following

The World Trade Organization (WTO) is back in the news, with a Thursday ruling against seven U.S. states’ renewable energy policies. The WTO is already unpopular with right‐​wing nationalists like Donald Trump. By siding with India against the U.S., the WTO is likely to make left‐​leaning politicians and the burgeoning global environmental movement unhappy. 

States Are Acting on Climate because the federal government won’t

The WTO is acting against state level policies intended to improve the environment, stepping into the void left by the federal government. In 2009, the U.S. Senate refused to vote on what was at that time the most ambitious climate change legislation: the Waxman‐​Markey Act. Concluding that federal action might never be forthcoming, U.S. states (especially those than lean Democratic) began enacting climate policy of their own.

The measures range from biodiesel incentives in Montana, through nudges for Michigan‐​made clean energy manufacturing, to other schemes in California, Delaware, Connecticut, Minnesota and Washington State. The common denominator of these policies is an attempt to soften the inevitable economic dislocations of moving away from the carbon economy. The Michigan policy was typical: electricity providers get a renewable credit when they generate one megawatt of green energy. However, they get another tenth of a credit when that energy uses Michigan‐​made equipment or Michigan laborers.


The WTO sees “Buy Local” politics as protectionist 

When India complained about these green schemes, they did not have to show that Indian companies tried to qualify for any of them, or that they had been denied access, or that they lost any money to make a case at the WTO. Under the rules of the General Agreement on Tariff and Trade (GATT), Michigan’s energy credit was invalid, because Indian solar panel exporters in theory would have not qualified for that extra tenth of a renewable energy credit if they had tried to sell them in Michigan.

This is a Problem for the Green New Deal

The WTO decision collides with a groundswell of progressive interest in a Green New Deal — a plan that looks a lot like the state policies that the commercial body just ruled against. The Green New Deal resolution by Rep. Alexandria Ocasio‐​Cortez (D-N.Y.) and Sen. Edward J. Markey (D‐​Mass.) outlines five goals, 14 projects and 15 requirements to help evaluate those projects. Instead of just going ahead with carbon taxes (which would likely be unpopular), it gives groups that might be expected to oppose a carbon tax — front line communities, manufacturing workers — a stake in the deal’s success. It uses Buy Local or Hire Local requirements to make its proposed climate solutions politically sellable and viable. These are the sorts of provisions that India and other countries can be expected to challenge if and when a Green New Deal ever gets through Congress.

In reality, while there may be some actual trade and the environment conflicts that are hard to sort out, this is not one of them. The WTO ruling here is very narrow. It is not a general condemnation of subsidies for environmental causes. Rather, it simply says that governments cannot discriminate against foreign goods when adopting their environmental policies. That ruling is actually pro‐​environment. If governments are trying to promote the adoption of environmentally‐​friendly products, competition is helpful not harmful. Generally speaking, environmentalists should want more trade in these products, not less. As I jokingly put it on twitter, “The fundamental question: Do you want artisan, hand‐​crafted solar panels from the Eastern Shore of Maryland for a million dollars a pop, or do you want highly efficient solar panels made by a Chinese factory in Iceland that is powered by geothermal energy?” Shielding local producers from competition makes them stagnant and inefficient. That’s not the way to develop good renewable energy products. If the Green New Deal does that, it is not going to be very green.

There is a group of people out there who still believe in old school industrial policy, advocating a wide range of government interventions in the economy (including protectionist measures like the ones at issue here), in order to build up domestic manufacturing. But the policies they are pushing cannot be categorized as pro‐​environment, and often these policies will be pretty bad for the environment. It’s a shame, because this is one area where supporters of trade liberalization should be able to work together with environmentalists by pushing for lower trade barriers on these products, as my old colleague Bill Watson and I wrote about here

June 28, 2019 9:09AM

A Startling Development on the ObamaCare Front

The U.S. Court of Appeals for the 5th Circuit — the court that would hear any appeal of the Texas v. Azar decision overturning the entire Patient Protection and Affordable Care Act (ACA) — has just issued a request that does not bode well for ObamaCare.

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In NFIB v. Sebelius, Chief Justice John Roberts reasoned the Supreme Court could view the ACA’s otherwise‐​unconstitutional individual mandate as a constitutional use of the Taxing Power. See my criticisms of Roberts’ reasoning here. In Texas v. Azar, a district‐​court judge ruled that since Congress zeroed‐​out the individual‐​mandate penalty, the courts could no longer uphold the mandate as a use of the Taxing Power, ergo the ACA must fall.

I oppose the ACA but disagree strongly with Texas v. Azar. At the time, I wrote, “federal judge Reed O’Connor did exactly what Chief Justice John Roberts did at the high court: jettison the rule of law to achieve a politically desired outcome.”

In an interesting twist, President Trump decided not to defend the ACA but instead to embrace the district court’s ruling, thereby depriving the overturned statute of its most obviously legally cognizable appellant — the government. Fortunately for the ACA, several states and the House of Representatives appealed the lower‐​court ruling to the 5th Circuit. Which brings us to yesterday’s development.

Yesterday, the 5th Circuit asked the states and the House (1) to justify why they have standing to appeal the lower‐​court ruling, (2) to explain, if they do not, whether the court can even hear an appeal of that ruling, and if not (3) what they think should happen then. See the court’s language below.

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The request could mean the ACA and its would‐​be intervenors could have a harder slog than anyone thought. It means at least one judge on the 5th Circuit panel is skeptical that the court can even hear this appeal in its current form.

I think a higher court should, and ultimately will, overturn the lower court’s ruling in Texas v. Azar. But there are rules. Courts need a legitimate case or controversy in order to act. Today, it became less certain that they will.

The probability that Texas v. Azar will stand may have only risen from 0.5 percent to 5 percent, but I never would have thought it would reach even that high.

For more, see Nick Bagley.

June 27, 2019 3:21PM

Joe Biden on Impeachment for Illegal Warmaking

I don’t know if the moderators of tonight’s Democratic primary debate are taking requests, but here’s my question for former vice-president—and current frontrunner—Joe Biden:

“Mr. Biden, the last time you were running for president, you promised that if George W. Bush ‘takes this nation to war in Iran, without congressional approval, I will make it my business to impeach him.’ Now, over a decade later, war with Iran is again on the horizon, and just this Monday, the president said he does not need congressional authorization to wage war. If he acts on that belief, will you call for Congress to impeach President Trump?” 

In December 2007, when then‐​Senator Biden made those remarks, the crowd in Davenport Iowa answered with hearty cheers.

At the time, there was a serious concern that President Bush would use prior congressional authorizations–like the 2002 Iraq War resolution or the post‐​9/​11 Authorization for the Use of Military Force (2001 AUMF)–as cover for a new war with Iran. A month before Biden’s speech, then‐​Senator Barack Obama introduced a joint resolution designed to foreclose that option. “There is absolutely no reason to trust that this Administration will not use existing congressional authorization to justify military action against Iran,” Obama warned.

Here we are again: now, nearly 12 years later, there’s no reason to trust that this administration won’t use the 2001 AUMF as justification for war with Iran. Secretary of State Mike Pompeo has suggested as much, behind closed doors, to members of the House Armed Services Committee. 

Joe Biden knows something about the 2001 AUMF: he voted for it, three days after 9/11. And, like practically every other member who passed that resolution, he described it as a limited measure, aimed at those who were responsible for the attacks. As the New York Times reported after the vote: “Senator Joseph R. Biden Jr., chairman of the Foreign Relations Committee, said Congress was not ceding its constitutional authority to declare war or intending to write a measure like the Gulf of Tonkin resolution, which President Lyndon B. Johnson used in 1964 to justify escalation of the war in Vietnam.” 

The 2001 AUMF has now been in effect almost three times as long as the Gulf of Tonkin Resolution, and the current administration thinks it can draw on that authority to wage war over the “Gulf of Oman incident.” 

In the short term, Congress has limited means available to it for heading off war. Most of the measures currently being debated on the Hill would have to make it past a presidential veto. A sense‐​of‐​Congress resolution threatening impeachment for unauthorized warmaking would not. Biden’s no longer in a position to do more than advocate such a move, but it seems to fit with how he described his 2007 impeachment threat: “a prescriptive way to make clear to this man that there will be severe consequences, because [attacking Iran] would be the most dire action we could take at this moment.” Back then, Biden insisted that an unauthorized strike on Iran would be an impeachable offense. Does he still think so today? 

If he got the question, my guess is that Biden would answer, “yes.” Willingness to use the dreaded “I‐​word” might help shield the Democratic frontrunner from attacks on his left flank. Of course, given Biden’s service as vice president in an administration that ran roughshod over congressional war powers—that answer might also give rise to some awkward questions. But this is the business he’s chosen. 


June 27, 2019 3:00PM

Cato Does Well in a Tumultuous Supreme Court Term

After a bruising and highly partisan confirmation fight, Justice Brett Kavanaugh took his seat on the Court as the term began. Replacing the predictably unpredictable Justice Anthony Kennedy, Justice Kavanaugh seemed poised to move the Court in a decidedly rightward direction. But looks can be deceiving. In a few high‐​stakes cases and, especially, petition rejections and other votes on the “shadow docket” (as opposed to fully briefed and argued cases), Kavanaugh demonstrated a dynamic — not wholly originalist/​textualist or “conservative” — jurisprudence. Notably, he was the swing vote to allow a questionable antitrust lawsuit to proceed against Apple.

And Kavanaugh has tried to keep a low and agreeable profile, easily becoming the justice most often in the majority (over 90 percent of the time). He also showed how different he was from his fellow Trump appointee Justice Neil Gorsuch, who is rapidly becoming a libertarian darling. Kavanaugh actually aligned about as much with Justice Elena Kagan as with Gorsuch.

While Chief Justice John Roberts recently has become, by some metrics, the swingiest member of the bench, there could in future be a reinvigorated conservative block that comes to dominate the Court — especially if President Trump is given the opportunity to fill another seat on the bench. Yet for all the doomsday prophesying from progressive court‐​watchers, eight cases saw one “conservative” justice cast the deciding vote alongside his “liberal” colleagues (four of them involved Justice Gorsuch, in criminal procedure cases). Indeed, of the twenty 5–4 decisions this term, only seven had a “conventional” split of conservatives over liberals. In a more typical term, with more high‐​profile cases with ideological salience, perhaps we’ll see the conservative bloc flex its muscle, but not this year.

Cato filed amicus briefs in 16 cases that the Court heard in the 2018–2019 term, including whether Congress may delegate to the Attorney General the authority to modify sex offender registration requirements (implicating the nondelegation doctrine), to the validity of a state law that refused liquor licenses to people failing to satisfy in‐​state residency requirements (in potential conflict with the dormant Commerce Clause). Mirroring last year’s 11–3 win‐​loss count, Cato’s side prevailed at a 12–4 clip.

Overall, the term had its fair share of winners and losers. Among the winners were American Legion v. American Humanist Association and Knick v. Township of Scott. In the former, a seven‐​justice majority held that a WWI memorial cross in a municipal park did not violate the Establishment Clause (“separation of church and state” in not wholly accurate layman’s terms). In the latter, the Court ruled that challenges to state or local eminent domain actions could be brought in federal court, without claimants first having to exhaust their state‐​court options. Both were clear victories for liberty and speak to the two newest justices’ commitment to our constitutional order. Among the losers was Gamble v. United States, in which the Court upheld the “separate sovereigns” doctrine that allows both state and federal courts to convict an individual for the same underlying action.

Here’s the full breakdown, in the order the opinions arrived:

Winning side (12): Weyerhaeuser Company v. U.S. Fish & Wildlife Service; Timbs v. Indiana; Garza v. Idaho; Frank v. Gaos; Merck Sharp & Dohme Corp. v. Albrecht; Return Mail, Inc. v. U.S. Postal Service; Manhattan Community Access Corp. v. Halleck; American Legion v. American Humanist Association; Knick v. Township of Scott; Iancu v. Brunetti; Tennessee Wine & Spirit Retailers Association v. Thomas; Kisor v. Wilkie.

Losing side (4): New Prime, Inc. v. Oliveira; Gamble v. United States; Gundy v. United States; Mitchell v. Wisconsin.

Next term is shaping up to be an exciting one. This fall, the Supreme Court will hear cases striking at the heart of the culture war — and others that, though less controversial, are of great national import. The Court will decide whether to apply to the states’ the Sixth Amendment’s guarantee of a unanimous jury verdict for criminal convictions, if Title VII of the Civil Rights Act protects transgender and homosexual employees from gender‐ and sexual‐​orientation‐​based discrimination, and the constitutionality of New York City’s ban on transporting locked and unloaded handguns. Unfortunately, the Court declined to take up a case that could have limited the president’s congressionally delegated power to impose tariffs in the oft‐​flimsy name of “national security.” But in light of Justice Samuel Alito’s concurrence in Gundy – indicating a willingness to join his dissenting colleagues in reexamining the Court’s expansive reading of Congress’s delegation of legislative power — we’re hopeful that the Court changes course at some point. But for now, we must continue to wait.

I’ll have more to say in future commentary, but if you’d like to learn about all these cases and trends, from the perspective of Cato‐​friendly scholars and lawyers, register for our 18th Annual Constitution Day Symposium, which will be held September 17 (Constitution Day). That’s also when we’ll be releasing the latest volume of the Cato Supreme Court Review, the editing of which has now passed to my colleague Trevor Burrus as I rediscover what it’s like to use August for vacation and other summer fun rather than checking citations and turning galleys.

June 27, 2019 12:04PM

Partisan Gerrymandering: Time To Get Serious About Remedies

A constitutional wrong to which there is no remedy? For decades the Supreme Court has held severe partisan gerrymandering to be a violation of equal protection, but for just as long it has proved unwilling to convert that holding into any sort of solid remedy. In last year’s Cato Supreme Court Review I described the resulting situation as the “ghost ship of gerrymandering law,” drifting on as precedent, yet abandoned by a majority crew.

Today in Rucho v. Common Cause and Lamone v. Benisek Chief Justice Roberts as expected recruited the votes of newcomers Neil Gorsuch and Brett Kavanaugh for the position identified with Justices Sandra Day O’Connor and Antonin Scalia that gerrymandering is a political question to which the Constitution provides no judicial remedy. 

If partisan gerrymandering is a substantial evil worth fighting — and I believe it is — we should now get serious about finding that remedy through other means. The Constitution’s Elections Clause provides that “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations,” and in fact Congress has in the past prescribed to the states standards for districting. These include standards on compactness, a vital principle of good districting that all by itself would disallow many of the most garish gerrymanders by which U.S. House members reach the Capitol. Countering the gerrymandering of state legislatures is a tougher challenge, but even in states without a process for ballot initiatives it is a natural issue for reformist governors and others who run in non‐​districted races. 

Around the country, machine politicians must be thinking they’ve got a free hand to draw maps even worse than the ones last round. We shouldn’t let them. 

June 27, 2019 11:24AM

Democratic Debate Ignores Illegal Immigration’s Cause: No Visas

Democratic candidates for president gathered last night to debate, and moderators asked, what would you do to address the number of people crossing illegally? The discussion devolved into the question of whether crossing should remain a crime (punishable by prison time) or just a civil infraction (punishable by deportation). No one stated the obvious: that Congress should make it legal, not to trek through Mexico and swim the Rio Grande, but to board private U.S.-bound airplanes and come to the United States to work.

According to the Department of Homeland Security, the average Central American is paying north of $8,000 to make it to the U.S.-Mexico border where they are brutalized in Mexico and in the United States. Round‐​trip airfare from El Salvador, Guatemala, and Honduras is under $300. People are dying on the way to make that illegal crossing. When will politicians step up and say clearly, “We think it should be legal to travel to America.” 

Sen. Klobuchar came the closest by arguing for the “the economic imperative” to allow immigrant “workers in our fields and in our factories.” But no one made the explicit connection between the availability of visas—which allow noncitizens to board U.S.-bound flights—and illegal crossings. It is not that the civil v. criminal debate isn’t important. It is. But it ignores everything up to the moment where a father makes a fateful decision to jump into a river and cross illegally.

For nearly a century and a half, it was not illegal to travel to the United States (unless you were Chinese after 1882). Immigration restrictions otherwise exlusively focused on criminals, valid public health concerns, and people likely to end up on public welfare. Cato’s first policy analysis on immigration from 1981 argued that the United States should return to this system. The author wrote, “In all the debate over immigration, no one seems to be considering the possibility of returning to America’s traditional open immigration policy.”

The Democratic candidates’ debate has shown how little has changed. The reality of the matter is this. By the end of 2019, nearly 730,000 immigrants from Central America’s Northern Triangle will enter Border Patrol custody. But the U.S. government will issue fewer than 10,000 work visas to nationals of those countries. This disconnect is the cause of the immigration crisis. 

Strangely, former‐​Congressman Beto O’Rourke ended up tacitly defending the continued criminalization of illegal crossing (for anyone except asylum seekers), yet his immigration plan contains the most explicit declaration in support of a free market in international labor. His plan contains a line that states that he would “increase the visa caps so that we match our economic opportunities and needs … to the number of people we allow into this country.” This seems like a round‐​about way of saying: let supply and demand function in international labor markets. Perhaps he forgot about that part.

The government doesn’t even need to issue visas to everyone who could conceivably want to come in order to resolve this problem. It just needs to issue enough visas that people can see that legal immigration is the easier path in the future than crossing illegally. The goal should be to lower the cost of legal immigration to at least the point that it is less costly to follow that path than to come to the border.

In a piece for The Bulwark last month, I argued that the government should charge immigrants a fee that is less than what they would pay to smugglers to allow migrant workers to come to the United States. This is essentially what the folks at IDEAL Immigration have proposed. This would cover any fiscal costs associated with the immigrants’ arrivals, bankrupt smugglers, and cure the illegal immigration problem.

Such a plan would increase revenues. Yet the bipartisan consensus in the House and Senate right now is to spend billions more on the border detention camps. If immigrants had a viable route to come here legally, U.S. taxpayers wouldn’t need to spend billions every year to fund detention camps, nor would immigrant children be forced to go without toothbrushes and soap while detained. How many more dead children will it take to make politicians decide that this is better?