Archives: 02/2017

The Masked Agitator Veto

The leaders of the University of California at Berkeley lacked power to prevent Milo Yiannopoulos from speaking on their campus yesterday. A subset of the university’s faculty urged their Chancellor to do just that. His spokesman replied, “Our Constitution does not permit the university to engage in prior restraint of a speaker out of fear that he might engage in even hateful verbal attacks.

Most protesters opposed the event peacefully. Some did not: “security officials claim about 150 ‘masked agitators’ joined the demonstration, setting fires, throwing molotov cocktails and rocks and attacking some members of the crowd.” Yiannopoulos’ speech was cancelled in the interest of public safety.

The faculty members seeking to censor Yiannopoulos did not cover themselves with glory, but the people resorting to violence were the true villains in this narrative. They achieved through violence what could not be achieved by law.

Of course, it is possible the university did not try very hard to hold the event. But the Chancellor faced down a part of his own faculty, and the Berkeley College Republicans thanked the university police and the administration “for doing all they could to ensure the safety of everyone involved.” It does not appear the administration came up short. To the contrary, they appear to have fulfilled their obligations. They deserve praise.

This morning President Trump tweeted “If U.C. Berkeley does not allow free speech and practices violence on innocent people with a different point of view — NO FEDERAL FUNDS?”

Notice U.C. Berkeley is the subject of both actions. But the Berkeley Chancellor supported the speech, and we have no evidence that he or any other person acting on behalf of Berkeley incited violence yesterday.

I do not see how attacking people who have observed constitutional norms will encourage others to also respect free speech.

Walter Olson has more on the federal funds aspect of all this.

On Friday, February 3, at noon, Cato will host a discussion of President Trump and free speech. You can register here or walk in tomorrow.   

Trump, UC Berkeley, and the Federal Funding Whip

A President may not find it simple or straightforward to use direct executive orders to cut off funds to universities that tolerate disruption of speech or exclude speakers based on the content of their speech. (That’s this morning’s Presidential tweet story, if you slept in.) But the power that the Department of Education and allied agencies have gathered to themselves over university life has steadily mounted, often against feeble resistance from the universities themselves, as in the Title IX instance. That gives an administration plenty of handles to make its will known, a process previewed in October, as to Trump, by Chronicle of Higher Education correspondent Steve Kolowich, who also spoke to me for the story. He quotes Alexander Holt, an education-policy analyst at New America, saying: “I could see a Trump administration going crazy on these ‘Dear Colleague’ letters.”

Two years ago I cited several examples of rule by Dear Colleague letter, as I called it, in this area. (More here.) And I noted one big problem with invoking judicial oversight to check the federal government’s power:

It may be difficult to persuade a college to serve as a test case, given the annihilating possibility of a federal funds cutoff as the penalty of its presumption.

University administrators have submitted meekly for years now to rule by federal “Dear Colleague” letter. Now it will be Trump appointees writing those letters. If the administrators wish to retain some measure of independence from control by Washington, D.C., they may need to grasp that the hour is growing late – and that it wasn’t such a good idea to grow dependent on the federal dollar in the first place. (adapted from Overlawyered). 

Conflicted Public Reaction to Trump’s Immigration Executive Order

Last Friday, President Trump issued an executive order temporarily barring entry of refugees, visitors, and immigrants—including those with green cards—from Syria, Iraq, Iran, Libya, Somalia, Sudan, and Yemen. During this delay, the government is tasked with making its screening process more extensive. The order indefinitely bans refugees from Syria.

As Henry Enten notes, we’ll have to wait until we have more polling data to ascertain how the public will judge the action, but polling over the past year gives us some clues.

Slim but Shy Support Most polls throughout 2015-2016 found about 56% of Americans opposed Trump’s call to temporarily ban Muslim immigrants from entering the United States. However, these polls tended to be conducted by live telephone interviewers. In contrast, polls conducted online by reputable firms like YouGov and Morning consult, find a plurality of Americans in support.

Aggregating over 40 telephone and online polls conducted over the past two years finds Americans opposed to the ban 56% to 39% in surveys conducted by phone, but a plurality in support 49% to 39% in surveys conducted online. This suggests that people taking surveys by phone feel uncomfortable sharing their true feelings and thus fib to the live interviewers. But, privately taking a survey online encourages people to share what they really think. In the polling world, this is called “social desirability bias” evoked by social pressure to not appear prejudiced to the live interviewer.

Of course, the difference cannot be entirely attributed to survey mode since the questions weren’t worded the exact same way. Nonetheless, it’s suggestive that there is a “shy immigration restrictionist” effect going on. (Remember the shy Trump voter?)

Americans Don’t Support an Outright Ban on Refugees Existing data suggest Americans do not support a permanent ban on refugees. Most telephone and online surveys found that Americans oppose not taking any refugees at all and a plurality (46%) say the “US should open our borders to refugees of foreign conflicts” according to an Ipsos/Reuters Jan 2017 online survey. At the same time, Americans tend to support taking fewer refugees rather than more, when given the option. For instance, both an Ipsos/Reuters Jan 2017 online survey and a Marist Apr 2016 telephone survey found 53% of Americans want the US to take in fewer refugees.

Wording Impacts Support Strength As you can imagine, survey question wording impacts responses. Support for immigration restriction increases when refugees and immigrants are described as coming from “terror prone regions” or when respondents are told that government needs time to enhance security measures. For instance, Rasmussen, measures the highest degree of support (57%) when it asked if respondents support or oppose a “temporary ban on refugees from Syria, Iraq, Iran, Libya, Somalia, Sudan, and Yemen until the federal government improves its ability to screen out potential terrorists from coming here.” This question presupposes the government screening system is already poor and the new administration could meaningfully improve it. If these are the assumptions going in, support will be higher. When national security concerns are invoked and at the top of people’s minds they are more supportive of immigration restrictions.

Support for immigration restriction decreases, however, when the described policy implies a religious test. Surveys register lower support (48%) if the policy is described as a “temporary ban on all Muslims traveling to the United States” (from Morning Consult).

Bias in Climate Science

Global Science Report is a feature from the Center for the Study of Science, where we highlight one or two important new items in the scientific literature or the popular media. For broader and more technical perspectives, consult our monthly “Current Wisdom.”


There is a new paper out in the journal Climatic Change that takes a look into the issue of publication bias in the climate change literature. This is something that we have previously looked into ourselves. The results of our initial investigation (from back in 2010) were written up and published in the paper “Evidence for ‘Publication bias’ concerning global warming in Science and Nature” in which we concluded that there was an overwhelming propensity for Nature and Science—considered among the world’s leading scientific journals—to publish findings that concluded climate change was “worse than expected.” We noted the implications:

This has considerable implications for the popular perception of global warming science, for the nature of “compendia” of climate change research, such as the reports of the United Nations’ Intergovernmental Panel on Climate Change, and for the political process that uses those compendia as the basis for policy…

The consequent synergy between [publication bias], public perception, scientific “consensus” and policy is very disturbing. If the results shown for Science and Nature are in fact a general character of the scientific literature concerning global warming, our policies are based upon a unidirectionally biased stream of new information, rather than one that has a roughly equiprobable distribution of altering existing forecasts or implications of climate change in a positive or negative direction. This bias exists despite the stated belief of the climate research community that it does not.

In their investigation into publication bias, the authors of the new paper, Christian Harlos, Tim C. Edgell, and Johan Hollander, looked more broadly across scientific journals (including articles from 31 different journals), but a bit more narrowly at the field of climate change, limiting themselves to a sub-set of articles that dealt with a marine response to climate change (they selected, via random sampling, 120 articles in total).

Harlos et al. were primarily interested in looking into whether or not there was a bias in these articles resulting from an under-reporting of non-significant results. This bias type is known as the “file drawer” problem—in which research findings that aren’t statistically significant are rarely published (and therefore sit in a “file drawer).  This leads to an over- (and non-robust) estimate of the number of truly significant results. The “file drawer” problem has received a lot of attention in recent years (see here for example) and it continues to be an active research area.

If You’ve Got $650 Million, the Fiduciary Duty Rule Is Not Your Problem

Yesterday, the New York Times ran a column that claimed to illustrate the issues at the heart of the current debate over the so-called “fiduciary duty rule,” which is slated to affect retirement accounts in the coming months. Except the column completely avoided one of the most important issues—access to financial advice—and instead ruminated on the troubles afflicting movie star Johnny Depp. Mr. Depp may be profligate and his money managers may have been asleep at the wheel, but the fiduciary duty rule has nothing to do with the ultra rich or their expensive advisors. Quite the opposite. Its impact will be felt almost exclusively by moderate income Americans precisely because they have only moderate incomes.

The rule was proposed and implemented in 2015 and 2016; if left unchanged, it will become effective in April 2017. Its stated intent is to ensure that investors receive quality financial advice by requiring that brokers selling certain retirement savings products conform to a “fiduciary duty” standard. In legal terms, acting as a fiduciary means handling another person’s business with the care that a prudent person would take in handling his or her own affairs. Specifically, the rule is intended to address situations in which brokers act as advisors, providing information to investors about the pros and cons of different types of retirement accounts.

This sounds good. Why wouldn’t we want advisors to act in investors’ best interests? Isn’t that just good business? It may be, but there is a difference between deciding to act in your clients’ best interests and abiding by a regulation that imposes a legal standard. The first is essentially costless and may actually benefit the broker by promoting a reputation for customer service. The second is anything but costless. Aside from the expense of implementing necessary compliance procedures to ensure that everything adheres to the law, imposing a legal duty raises the specter of litigation. Litigation, even baseless litigation, is always extremely costly.

Trump Administration Begins Threat Inflation on Iran

In an op-ed for the Boston Herald last week urging the Trump administration to uphold the Iran nuclear deal, I noted that the precise posture that the Trump White House will have toward Iran is not yet known. Today, we got our first insight into just how confrontational that posture will be. And it doesn’t look good.

Trump National Security Advisor Michael Flynn said in a White House briefing that, “As of today, we are officially putting Iran on notice.” According to Flynn, Iran’s recent test of ballistic missiles, which he said is “in defiance of UN Security Council Resolution 2231,” along with an alleged attack on a Saudi naval vessel “conducted by Iran-supported Houthi militants” in Yemen, serve as evidence of “Iran’s destabilizing behavior across the entire Middle East” and make clear that the nuclear agreement signed by Iran and the P5+1 has “emboldened” Iran to act nefariously in the region, “plac[ing] American lives at risk.”

Flynn’s statement amounts to heated, combative rhetoric over rather trivial issues. Only one of the incidents cited by Flynn was an Iranian action. While it’s true that Iran supports the Houthi rebels in Yemen, it has never been clear exactly how much support they give and it is doubtful Iran has the kind of leverage over the militants that make them qualify as strategic proxies. At the end of the day, whatever instability is caused by Iranian support for the Houthis, it doesn’t hold a candle to the regional instability caused by Sunni jihadists, like al-Qaeda-linked groups and ISIS, that have been supported with funds coming out of Saudi Arabia and other Arab Gulf states. Rather than berate the Saudis with threatening bombast in a White House briefing, though, Washington continues to aid the Saudi military as it relentlessly bombs Yemen, killing thousands of civilians, putting millions at risk of starvation, and committing acts that a United Nations panel said could amount to crimes against humanity

With regard to Iran’s ballistic missile test, the reality is far less alarming than Flynn’s words suggest. The nuclear deal itself doesn’t prohibit these missile tests. And as Dan Joyner, professor of international law at the University of Alabama School of Law, explains, “the assertion that Iran’s ballistic missile tests…violate UN Security Council resolutions is incorrect because, as of Implementation Day, all UNSCR’s adopted prior to that date regarding Iran are terminated except for Resolution 2231. And the language that Resolution 2231 employs in addressing Iran’s ballistic missile activity is legally nonbinding language…[T]here can thus be no violation of a legal obligation that doesn’t exist.”

As The Wall Street Journal reports, “UN Security Council Resolution 2231, which endorsed the deal, ‘called upon’ Iran to avoid any activity related to missiles designed to be capable of carrying nuclear warheads.” It’s hard to confirm one way or the other, but for what it’s worth Iranian Foreign Minister Javad Zarif told the Journal that none of Iran’s missiles are designed to carry a nuclear warhead and the tests involved “conventional warheads that are within the legitimate defense domain.” Given that Iran has verifiably rolled back its nuclear enrichment program over the past year, it makes sense that they would have little interest in designing missiles that can carry nuclear warheads, especially given the added international scrutiny it would needlessly attract.

Flynn’s statement indicates an eagerness to stir up tensions with Iran over relatively innocuous issues. This will undoubtedly be perceived in Tehran as threatening, thereby bolstering the more hawkish voices in Iran and undermining the future viability of the Iran nuclear deal, despite the fact that, as the International Crisis Group recently reiterated, “It has delivered so far on its narrow objective: effectively and verifiably blocking all potential pathways for Iran to race toward nuclear weapons.” 

AEI Forum on American Indians

At an AEI forum this week, Naomi Schaefer Riley discussed her insightful new book on Indian policies, The New Trail of Tears. I was pleased to take part in the forum alongside Robert Doar of AEI, Rep. Rob Bishop, and Keith Moore, who headed the Bureau of Indian Education (BIE).

I focused on the bureaucratic failures of the BIE and Bureau of Indian Affairs (BIA), as well as the institutional factors that deter growth on reservations. All of the panelists agreed that the lack of individual property rights on reservations is a key problem.

Keith Moore’s comments impressed me. Keith grew up on, and nearby, the Rosebud reservation in South Dakota. He served as BIE head from 2010 to 2012. Here are a few of his observations:

  • On the effects of subsidies: “Ingenuity, and the innovative, and creative parts of life have been pretty squelched for a long time because the government has provided.”
  • On reservation land being held in trust: “We’re not going to get where we need to go in Indian country until we have freedom, autonomy, and the ability to buy land and own it and create wealth.”
  • On the federal bureaucracy: “You look at the BIA system, it’s a nightmare. Bottom line, I lived it, I was in it, I left it … I don’t know how you move this bureaucratic titanic to get to a spot where it could have a positive effect. ”

The answer, as I think Keith would agree, does not lie in the BIA/BIE, but in Congress and the tribes making fundamental institutional reforms in areas such as property rights and education.

For background on how federal policies toward American Indians have been failing for two centuries, see this study.