Archives: 06/2017

Miami-Dade Police Abandon Aerial Surveillance Plans

Image from PSSThe Miami-Dade Police Department (MDPD) is scrapping plans to test persistent aerial surveillance technology following criticism from privacy advocates. This kind of technology has prompted privacy concerns in others cities, with Baltimore being perhaps the most notable. One of the best-known aerial surveillance companies allows users to keep a roughly 25 square mile area under surveillance and comes with “Google Earth with TiVo” capability, The news from Miami-Dade county. while reassuring, underlines a number of issues concerning federalism, privacy, and transparency that lawmakers must tackle as aerial surveillance tools improve and proliferate.

MDPD Director Juan Perez was set to ask county commissioners to retroactively approve a grant application to the Department of Justice for the aerial surveillance testing. The fact that MDPD was seeking federal money for the surveillance equipment reminds us that federal involvement in state and local policing should be strictly limited.

The aptly-named Persistent Surveillance Systems (PSS), the Ohio-based company that made the sensor system deployed in Baltimore, uses technology originally designed for military operations in Iraq and Afghanistan.

Military equipment has an unfortunate tendency to make its way from foreign battlefields into the hands of domestic law enforcement, as my colleagues have been outlining for years. This is a trend that ought to be strongly resisted.

It’s not clear if the Department of Justice’s Office of Justice Programs would have approved MDPD’s grant application, but given the current attorney general’s record on civil liberties, as well as the president’s own enthusiasm for aerial surveillance, we shouldn’t be surprised if similar grants are approved during the Trump administration.

Statement on Refugee Program Integrity Restoration Act of 2017 – H.R. 2826

A pdf of this statement may be found here.

Statement for the Record
of David Bier of the Cato Institute
Submitted to
House Committee on the Judiciary
Markup of
“Refugee Program Integrity Restoration Act of 2017 – H.R. 2826”
June 14, 2017

The Refugee Program Integrity Restoration Act of 2017 (H.R. 2826) would restrict the liberty of Americans to welcome people fleeing violence and persecution around the world. It would enact a hard and inflexible limit on America’s generosity toward refugees. This arbitrary restriction has no basis in American tradition, individual Americans’ desire or ability to assimilate refugees, or the state of the world today. Indeed, it turns a cold shoulder toward the most severe refugee crisis in many decades.

The legislation adopts a flawed approach to refugee resettlement based on a fundamentally flawed premise: that refugees pose a significant threat to the lives of Americans. The facts cannot sustain the belief that widespread fraud has allowed the admission of large numbers of refugee terrorists. Only two refugees admitted since 9/11 have plotted or attempted attacks in the United States. Neither killed anyone. Looking over the last four decades, refugees have been far less likely to kill Americans in acts of terrorism in the United States than other immigrants or U.S.-born citizens, and none have since 1976.

Above all else, successful refugee integration requires a hospitable policy environment toward refugees. Yet this legislation would move America in the opposite direction: it politicizes refugee acceptance and imposes new constraints on integration for those few refugees that it would continue to admit. Rather than policies intended to promote rapid adoption of America’s way of life, this legislation would keep refugees in a state of long-term legal limbo without permanent status in the United States and allow certain localities to ban their resettlement in their jurisdictions. It notably lacks any provision for welcoming communities to accept refugees beyond its arbitrary cap.

These policies would have negative economic and fiscal effects on the United States. Refugees contribute significantly to the economy through employment, entrepreneurship, and consumption. While their upfront fiscal costs are higher than for other immigrants, studies have shown that they do eventually become net fiscal contributors. Rather than taking measures to reduce refugee dependence on welfare—such as relying on private sponsorship—or creating policies to encourage faster movement into the labor market—such as validating professional credentials prior to arrival—H.R. 2826 will actually make integration more difficult and costly.

Financial Alphabet Soup

On Monday, the Treasury Department released the first of four planned reports on the U.S. financial system. While the 150-page report, focusing on banks and credit unions, includes a number of observations and recommendations worth discussing, there is one page I’d like to highlight here. It’s a single chart. And yet it speaks volumes about the current state of regulation in the financial sector. Here’s the chart:

Those in Washington often talk about the “alphabet soup” of federal agencies. We do love our acronyms here. But this chart shows that the financial sector has a complete soup all of its own. There are nine federal regulators who oversee the financial sector. Additionally, each state has its own regulators, typically one each for securities, insurance, and banking. Plus, there are the self-regulatory organizations—quasi-private bodies whose decisions can have the effect of law on the companies and individuals they oversee. A single organization can be subject to as many as six regulators. An organization that does business in multiple states can potentially be subject to regulation in each of them, in addition to regulation at the federal level.

No NYT, the Public Doesn’t Need to ‘Pay and Pay’ for Private Infrastructure

The Trump administration’s proposal to repair and expand America’s roads, bridges, ports and airports includes the expanded use of public-private partnerships (P3s). Under P3s, state and local governments award franchises to private companies that agree to pay for and manage the infrastructure in exchange for the companies receiving toll payments from future users. A number of P3 projects currently operate in the United States, and they are common in other developed nations.

Despite the growing embrace of these projects by policymakers around the world, the Trump proposal is being met with skepticism. For example, the New York Times dropped this article last week ahead of Trump administration efforts to promote the proposal. According to the article, “experts agree” that “there is little hard evidence” that such projects produce long-term benefits to the public as compared to traditional government-provided infrastructure. (That “agreement” came as news to many transportation experts.)

At heart, the article charges that P3 programs are “win/no lose” proposals for the private firms: if the projects prove popular, the firms profit—sometimes handsomely, to the detriment of consumers. But if the new infrastructure doesn’t get many toll-paying users, the financial losses from the projects fall on taxpayers.

To illustrate this, the NYT cites California State Route 91, one of the first P3s in the United States. Initially intended to reduce congestion, the project awarded a private company the right to build and operate a special four-lane toll road in the middle of the highway. The road was “congestion priced,” meaning the tolls fluctuated in order to limit use just enough to guarantee the free flow of traffic.

The original lease on the road included a noncompete clause that limited the state’s ability to add additional lanes to the non-P3 part of SR-91 or to build parallel infrastructure. This resulted in heavy congestion on the old lanes, pushing motorists onto the toll lanes and producing a financial windfall for the toll company. That ultimately prompted Orange County to buy out the toll company for $207 million in 2003.

However, the SR-91 problem is not inherent to P3s. It arose as a result of the conditions under which the franchise was arranged. Traditionally, P3s have been awarded through negotiations between private companies and transportation authorities, leading to high initial private investments and uncertainty about demand for the road. That risk, in turn, encourages toll road companies to want protections like the noncompete clause.

Emoluments Lawsuits Are a Monumental Distraction

Multiple organizations, businesses, taxpayers, and now the District of Columbia and state of Maryland have sued Donald Trump for violating the Emoluments Clause by not sufficiently separating himself from business holdings that benefit financially from foreign patronage. These lawsuits are a waste of time and resources, having been orchestrated by certain elites who can’t reconcile themselves to the election results and are doing their best to #resist Donald Trump to the point of denying the legitimacy of his presidency. To put a finer legal point on it, the charge that President Trump’s hotels, because they benefit from foreign business, constitute a kind of corruption that the Framers explicitly sought to prevent is, to be blunt, frivolous.

Article I, Section 9, of the Constitution provides that “no Person holding any Office of Profit or Trust under [the United States] shall, without the Consent of Congress, accept any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” This Emoluments Clause was passed unanimously by the Constitutional Convention, based on the young nation’s own recent diplomatic history – namely, gifts given by foreign kings to Ambassador Benjamin Franklin and other diplomats, which they promptly reported to Congress. Under President Bill Clinton, the Justice Department’s Office of Legal Counsel explained that “those who hold offices under the United States must give the government their unclouded judgment and their uncompromised loyalty… . That judgment might be biased, and that loyalty divided, if they received financial benefits from a foreign government.”

In other words, the Emoluments Clause is a stopgap against the risk that foreign powers will try to curry favor by bribing U.S. officials with gifts and other baubles. (Maybe even titles of nobility, which are prohibited for all Americans by another constitutional provision.) To be sure, a politically motivated decision by a foreign government to give preferential permitting or land acquisition terms to a Trump construction project could be a favor worth millions of dollars. 

But is booking suites at a Trump hotel or holding a conference at another Trump facility really a bribe? So long as payments are made at market rates – not “here’s 100 million dollars for a room with a view” – I don’t see how they could. Whatever the Emoluments Clause protects against, arms-length business transactions ain’t it.

Indeed, to hold to the contrary would be to disqualify businessmen with a diversified portfolio from the White House. That can’t be the case; George Washington himself was a wealthy landholder who engaged in business with foreign nationals. There’s even an academic debate about whether the clause applies to the president in the first place, as distinct from those ambassadors and other officials.

In short, while scholars can disagree on legal and policy grounds about many of the Trump administration’s doings – from the travel ban, to renegotiating trade treaties, to various deregulatory initiatives – no serious person should spend time on this emoluments nonsense. They’re a distraction from the important issues our divided nation faces and the debates over how to solve them.

For an elaboration of my thinking on this matter, see Kyle Sammin’s excellent analysis, which I’ll “incorporate here by reference,” as the lawyers say.

Update: This post has been revised slightly for clarity.

 

Who Is Trump Trying to Help on Cuba?

According to media reports, President Trump is expected to announce on Friday that his administration will revert some of President Obama’s policies toward Cuba. In particular, it looks like Trump will impose new restrictions on travel, as well as limits on U.S. companies doing business in the island.

The alleged justification for the new policy is that it will pressure the Cuban dictatorship to give concessions on human rights and political liberalization. That seems odd given that the Trump administration is not particularly fond of pursuing that agenda in its foreign policy: there was no mention of human rights and political freedom during his visit to Saudi Arabia, for example.

Is there a clamor for a tougher approach on Cuba? According to surveys by Pew Research Center—the most recent one from December 2016—an increasing majority of Americans (73%) favors ending the trade embargo against Cuba. Trump’s new policy would not reflect the views of nearly three-quarters of U.S. citizens.

What about Cuban-Americans? A 2016 poll by Florida International University among Cuban-Americans in Miami-Dade County found that 63% opposed the continuation of the embargo and 57% supported expanding economic relations between U.S. companies and the island. Imposing new restrictions on trade and travel to Cuba is something that a majority of Cuban-Americans would frown upon.

That still leaves Cubans in Cuba, who are supposedly the ultimate beneficiaries of the changes Washington wants to bring about in the island. According to an April 2015 Washington Post poll, 96% of Cubans support lifting the trade embargo. The same number said that more tourism from the United States would benefit the local economy.

Survey after survey shows that a majority of Americans, Cuban-Americans, and Cubans in the island favor greater economic ties between the United States and Cuba. If Cubans and Americans don’t want new barriers erected between their countries, who is President Trump trying to help?  

Does President Trump Support “Unrestrained Freedom”?

The Republican National Committee, in the person of Chairwoman Ronna Romney McDaniel, informs me that I “have been selected to represent the Commonwealth of Virginia as a member of The President’s Club.” I know that this is an important responsibility because it comes with a Priority Mail BRE and a request for $750. There’s a lot of boilerplate in the letter about “fake news” and the Democrats and their “radical left-leaning allies.” (Really, if they’re radical, surely they’re more than “left-leaning.” Why not just come out and say it – they’re left-wingers!)

But I’m particularly struck by this line:

I believe you share President Trump’s objectives of smaller government, fiscal discipline, lower taxes, secure borders, conservative judges, a stronger military and unrestrained freedom.

Seriously – President Trump’s objective is “unrestrained freedom”?

Some of those objectives I can see. Fiscal discipline is a presumptuous claim when you’ve promised not to touch the biggest spending programs. Some of the administration’s programs might make government smaller, but others clearly would not. But seriously, “unrestrained freedom”?

For nearly two years now Donald Trump’s main policy themes have been to close our borders, to deport millions of our neighbors and co-workers, and to stop Americans from buying products made overseas. He has bullied, subsidized, and threatened businesses into making uneconomic decisions. He has also talked at length about his desire to limit freedom of speech, frustrated as he is that “our press is allowed to say whatever they want.” While Republicans and Democrats in Congress and the states work on criminal justice reform Attorney General Jeff Sessions steps up the drug war. Trump’s acceptance speech at the Republican National Convention was described in Reason as “easily the most overt display of authoritarian fear-mongering I can remember seeing in American politics.”

The idea that President Trump’s objectives include “unrestrained freedom” is ludicrous even in the context of political fundraising letters.