Targeting Gun Owners Is Unconstitutional

California law generally bans the possession of a gun within a school zone. For many years, however, both retired peace officers and those with a license to carry concealed weapons were exempted from this ban. Then in 2015, a bill was proposed that would have eliminated both of these exceptions. But after extensive lobbying by interest groups aligned with federal workers and police officers, the bill was amended to remove only the exception for concealed-carry licensees.

Dr. Ulises Garcia is one such license holder, who obtained his license after receiving threats against himself from a former patient. After the change in the law, Garcia can no longer carry his weapon for protection when attending school events with his family. Garcia and a group of other plaintiffs have sued, arguing that the differing treatment afforded to retired peace officers and concealed-carry license holders violates the Fourteenth Amendment’s guarantee of the equal protection of the laws. The federal district court rejected their claims, and they have now appealed to the U.S. Court of Appeals for the Ninth Circuit. Cato has filed an amicus brief supporting Garcia and urging that the district court be reversed.

In rejecting Garcia’s equal-protection arguments, the district court fundamentally erred in its application of an important Supreme Court test. Legislation that treats two groups unequally must be struck down if the enacting legislature was motivated by an impermissible purpose. This includes enacting a law solely to harm a politically unpopular group at the expense of a popular and powerful one. Yet despite plenty of evidence that this is exactly what occurred here, the district judge dismissed the “improper motivation” claim in a single paragraph, writing that the court could not find evidence of bad motives in the “legislative history of the Act” and that it could not rule for Garcia without “evidence of explicit legislative intent to cause harm to civilian gun owners.”

This approach dangerously narrows the universe of evidence that judges must examine to determine legislative motivation. As we explain in our brief, the Supreme Court has consistently examined all available evidence in this search, not just the narrow record produced by legislative history. Relying only on floor statements and committee reports, as the district court did, would allow legislators to easily hide their true motivations by simply holding their tongues. Actions speak louder than words, and in this case the actions of the law itself are evidence that its true motivation could not have been good-faith policy concerns.

When the Ninth Circuit hears Garcia v. Becerra later this spring, it should apply the correct test, examine all available evidence, and strike down this unequal treatment of a politically unpopular group.

Zero-For-Zero Sugar Reform: Offer Zero, Get Zero

Rep. Ted Yoho (R-FL) and 11 co-sponsors recently introduced House Concurrent Resolution 40. It expresses the perfectly laudable “sense of Congress that all direct and indirect subsidies that benefit the production or export of sugar by all major sugar producing and consuming countries should be eliminated.” Things go downhill from there.

The resolution conveniently lists the trade-distorting sugar policies of Brazil, India, Thailand, the European Union, and Mexico, while neglecting to mention U.S. tariff-rate quotas (TRQs) and domestic price supports. The president is encouraged to “seek elimination of all direct and indirect subsidies benefiting the production or export of sugar” in foreign countries. Once the president has accomplished this objective and submits a report to Congress detailing how other countries have eliminated their trade-distorting measures, then he “should propose to Congress legislation to implement United States sugar policy reforms.” 

In essence this means, “Once other countries have given up all policies that favor their sugar growers, let us know and we’ll think about whether we should change ours.” Not exactly demonstrating robust U.S. leadership on trade, is it? 

The American Sugar Alliance (ASA), which represents domestic sugar growers and processors, is a strong supporter of the policy status quo. It serves their interests reasonably well. Or, at least it accomplishes the transfer of a lot of money from U.S. consumers to U.S. sugar producers. Not surprisingly, ASA likes Rep. Yoho’s approach to “reform.” ASA can express full support for this version of zero-for-zero knowing full well that it will never happen. 

An ASA statement praising the resolution laments that “Sugar producers … are also struggling with U.S. sugar prices that are currently as low as they were in the 1980s.” That statement may be technically correct because in the early 1980s sugar prices peaked much higher than today’s levels. What it doesn’t say, though, is that U.S. sugar prices have been in a long-term uptrend since 2013 and now are in the neighborhood of 30 cents per pound for raw cane sugar – well above the U.S. loan rate (support price) of 18.75 cents. 

The statement goes on to say, “Jack Pettus, ASA’s chairman, said new technology and strong business practices have made U.S. producers among the world’s most efficient. They are ready to compete on a level international playing field that is subsidy free.” If Pettus had stopped before adding the words, “that is subsidy free,” he and I would be in complete agreement. As I wrote two years ago in the paper, “Toward Free Trade in Sugar,” the U.S. industry is among the world’s most efficient. Based on an analysis published in the May 15, 2014, edition (pages 17-33) of the USDA/ERS publication, Sugar and Sweeteners Outlook, U.S. sugar producers could compete effectively even without the current system of import restrictions and domestic price supports. 

The Sugar and Sweeteners Outlook article addresses relative costs of production across the world’s major sugar-producing regions. If that study doesn’t by itself persuade that the U.S. industry no longer needs protection from imports, consider this additional evidence: Canadian farmers grow sugar beets solely on the basis of earnings from the marketplace. The Canadian government provides no import restrictions or other forms of income assistance. If Canada can produce sugar without subsidies, why can’t the United States?

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Border Patrol Seeking Facial Recognition Drones

During his campaign, President Trump said that he wanted drones to patrol the border 24/7. Customs and Border Protection (CBP), a Department of Homeland Security (DHS) agency, has used drones originally designed for foreign battlefields in order to conduct border surveillance, although these efforts have hardly been efficient. Federal solicitation documents reveal that DHS is looking to smaller drones with facial recognition capabilities. This ought to concern Americans who value civil liberties.

Before unpacking why plans for CBP facial recognition drones are disquieting, it’s worth outlining what kind of capabilities DHS is looking for.

The solicitation notice states the following:

This OTS [Other Transaction Solicitation] call seeks novel sUAS [small unmanned aerial system] capabilities and technologies to augment CBP and USBP [U.S. Border Patrol] mission capabilities. In particular, DHS is interested in technologies and solutions that support USBP agent activities, including enhanced overall situational awareness or support during distinct events, such as detection, tracking, interdiction, and apprehension, and search and rescue (SAR) operations. USBP agents operate day and night in diverse and extreme environments across thousands of miles of the nation’s international land borders and coastal waters. Agents must patrol remote areas, often with significantly limited mobility, visibility and communications. Additionally, agents are often required to traverse rough terrain on foot while carrying large amounts of equipment and, with limited intelligence and support, resolve encounters with unknown and potentially hostile actors. DHS seeks sUAS solutions that can augment USBP capabilities in such conditions.

Because of the “very positive/robust response” to this solicitation, DHS is closing the OTS call early, with an April 27th deadline now in place.

The solicitation lists required sensor capabilities for the drones, including, “Provides a surveillance range of 3 miles (objective),” “Able to track multiple targets persistently,” and “Identification of humans via facial recognition or other biometric at range.”

Later on, the same document notes:

the sensor technology would have facial recognition capabilities that allow it cross-reference any persons identified with relevant law enforcement databases. The data gathered via the sensors would provide information to USBP agents including the presence and extent of potential threats and support the ability of the agent to determine an appropriate response.

If you’re an American adult reading this there is a good chance that your facial image is in one of these “relevant law enforcement databases.” A 2016 report published by Georgetown Law’s Center on Privacy and Technology revealed: “One in two American adults is in a law enforcement face recognition network.” A Government Accountability Office report from last year found that the Federal Bureau of Investigation’s facial recognition system has access to more than 411 million facial images, including the driver’s license photos from sixteen states.

When considering CBP’s activities we shouldn’t only be thinking about America’s land borders. Current law allows CBP officials to stop and search vehicles within 100 miles of America’s external boundary in order to prevent illegal immigration. Roughly two-thirds of Americans live in this so-called “Constitution-free” zone. Although DHS’ solicitation mentions facial recognition drones being used as part of border patrol we should be prepared for them to make appearances at interior checkpoints as well as at ports of entry.

Jeff Sessions Continues to Hint at Escalating the Drug War

As a candidate, Donald Trump held a relatively moderate line on drug prohibition, often arguing that issues like marijuana legalization should be left to state governments. His selection of Jeff Sessions as Attorney General, however, sent an entirely different message. Sessions is a long-time champion of the federal drug war, and since taking over the Justice Department he has continued to make statements that hint at a return to a much harsher federal approach to drug prohibition.

The Washington Post ran a story this weekend detailing some of the shifts taking place at the Department of Justice, including a green light for federal prosecutors to step up prosecutions for low-level offenses and to rely on heavy mandatory minimums to leverage plea deals. 

Sessions is also expected to take a harder line on the punishment for using and distributing marijuana, a drug he has long abhorred. His crime task force will review existing marijuana policy, according to a memo he wrote prosecutors last week.

The Post story also highlights the central role of Steven H. Cook, a former police officer and federal prosecutor, within the Sessions Department of Justice. Cook has been traveling with Sessions as the Attorney General makes the case for a return to the “tough-on-crime” posture of the 80s and 90s, arguing that efforts to treat even low-level drug offenses as anything less than violent crimes are misguided and “soft.”

Kevin Ring, president of Families Against Mandatory Minimums, expressed his alarm to the Post:

“If there was a flickering candle of hope that remained for sentencing reform, Cook’s appointment was a fire hose. There simply aren’t enough backhoes to build all the prisons it would take to realize Steve Cook’s vision for America.”

Cook, like Sessions, believes that the drug market is inherently violent and therefore the only response is to crack down:

“Drug trafficking is inherently violent. Drug traffickers are dealing in a heavy cash business. They can’t resolve disputes in court. They resolve the disputes on the street, and they resolve them through violence.”

It’s true that the black market for drugs relies on cash transactions and violence, but Cook and Sessions ignore the obvious implication. The drug market has to rely on cash transfers and violence because drugs are illegal. Drug market violence is a function of the market’s illegality, not of the drugs themselves. The same was true of alcohol distributors under prohibition. In 2017 if two alcohol distributors have a dispute, they settle it in court. If two alcohol distributors in 1929 had a dispute, they settled it on the street corner with Tommy guns and Molotov cocktails.  

Drug trafficking isn’t inherently violent; drug prohibition is.

The Trump Administration has yet to announce much in the way of concrete policy changes, but the personnel choices and the drug warrior rhetoric coming from the new administration are causes for concern looking forward.  

Could Trump Turn Democrats Against Single-Payer Health Care?

A new Reuters/Ipsos poll examines how Donald Trump impacts Democrats’ and Republicans’ conventional public policy opinions. The survey asked Americans to evaluate a series of questions related to statements Donald Trump has made on public policy. However, the poll only told half of the respondents that Trump had made the statement, the other half were simply asked if they agreed or disagreed with the position. Sure enough, the “Trump effect” turned Democrats’ away from single-payer health care and got Republicans somewhat less convinced of their opposition.

The survey asked respondents how much they agreed or disagreed with the following statement made by Donald Trump: “When it comes to health care, the government should take care of everybody and the government should pay for it.” However, only half the sample were told Trump made the statement, the other half were simply asked if they agreed or disagreed that government should pay for everyone’s healthcare.

At first, 68% of Democrats agreed that government should pay for everybody’s healthcare. However, this share drops 21 points to 47% among Democrats who were told Trump thought government should pay for everyone’s healthcare. Republicans’ support increased, but by 6 points, from 33% to 39%, among those who were told Trump made the statement. Initially, 61% of Republicans disagreed with the idea of single-payer, but opposition declined to 50% among those who learned Trump favored it.

The survey also found that Trump could make Democrats more supportive of the idea of American exceptionalism and turn Republicans against it. At first, a majority (53%) of Democrats agreed that “American exceptionalism—the idea that the USA holds a unique place in history—is insulting to people from other countries.” However, results flip among Democrats who were told that Trump made this statement. Instead, a majority (54%) come to disagree with the statement that American exceptionalism is insulting to people from other countries.  

Republicans operated in reverse. A majority (53%) of Republicans at first disagreed that the idea of American exceptionalism is insulting to people from other countries. However, a plurality (46%) came to agree with the statement when they heard that Trump believes American exceptionalism is insulting abroad.

The survey found several more instances of the “Trump effect” among partisans. Notably, majorities of both Democrats (69%) and Republicans (56%) agreed that “government officials should be forbidden from financially benefitting from their position.” However, when Trump was explicitly identified, only 23% of Republicans believed that “Donald Trump should be forbidden from financially benefiting from his position”—a shift of 33 points.

Syria and the Danger of Elite Consensus

There was near consensus in Washington, D.C. last week in support of the U.S. strike on Syria. Voices from the left supporting Trump’s action include Hillary Clinton, most of America’s European allies, Tom Friedman, and a large number of former Obama officials. On the right, the usual suspects like Senators John McCain and Lindsey Graham supported the attack, as did most Republican members of Congress, including some like Majority Leader Senator Mitch McConnell who opposed exactly such an action when President Obama was considering in back in 2013. Even the mainstream media appear to have decided it was time to strike Assad, at least to judge from much of the breathless “journalism” we’ve seen so far.

On first blush one might imagine that this consensus is a good thing, coming as it does during what has otherwise been an incredibly polarized first few months of Trump’s presidency. Finally, you might say, we agree on something. And all this agreement among the people we elect and pay to run U.S. foreign policy might also give you confidence that Trump did the right thing.

That confidence, sadly, would be misplaced. The truth is that the elite consensus on Syria, like Trump’s missile strike, is premature and ultimately dangerous to American national security.

The fundamental danger of elite consensus is that it undermines the marketplace of ideas. A democracy’s primary strength in foreign policy making is the ability to weigh competing policy proposals in the news media. Debate and deliberation reveal the evidence and logic behind competing claims and helps the public and political leaders assess the implications of different courses of action. This process, in theory, helps the United States avoid poor decisions.

Consensus, however, undermines this process by substituting doctrine for debate. Almost by definition, consensus requires little, if any, debate or deliberation. When was the last time elite consensus resulted from a free-flowing and vigorous debate in the United States? The natural outcome of debate is division and disagreement. Consensus emerges only when people already agree so completely on the key assumptions and value judgments involved that the conclusions are preordained and debate is unnecessary.

In the case of Syria, Republican and Democratic elites supported Trump’s missile strike not because they had an extended debate over its wisdom–in fact, there was zero debate before the surprise attack was announced–but because they all relied on the same basic doctrine that strongly endorses the value of military intervention, what Obama recently called the “Washington playbook.” Reliance on doctrine may be sufficient when the topic is how to handle routine issues, but it is clearly not the right approach when it comes to complex policy problems, about which both citizens and political leaders have incomplete information. Though beliefs are useful as general guidelines, they must be married to a careful consideration of the facts of the case at hand in order to produce sound policies. And the best way to assess the connection between beliefs and actions is to debate policy options in the marketplace of ideas.

New Video Shows the Simple Recipe for Poor Nations to Become Rich Nations—in Spite of Bad Advice from International Bureaucracies

The recipe for growth and prosperity isn’t very complicated.

Adam Smith provided a very simple formula back in the 1700s.

For folks who prefer a more quantitative approach, Economic Freedom of the World uses dozens of variables to rank nations based on key indices such as rule of law, size of government, regulatory burden, trade openness, and stable money.

One of the heartening lessons from this research is that countries don’t need perfect policy. So long as there is simply “breathing room” for the private sector, growth is possible. Just look at China, for instance, where hundreds of millions of people have been lifted from destitution thanks to a modest bit of economic liberalization.

Indeed, it’s remarkable how good policy (if sustained over several decades) can generate very positive results.

That’s the main message in this new video from the Center for Freedom and Prosperity.

The first part of the video, narrated by Abir Doumit, reviews success stories from around the world, including Hong Kong, Singapore, Chile, Estonia, Taiwan, Ireland, South Korea, and Botswana.

Pay particular attention to the charts showing how per-capita economic output has grown over time in these jurisdictions compared to other nations. That’s the real test of what works.

The second part of the video exposes the scandalous actions of international bureaucracies, which are urging higher fiscal burdens in developing nations even though no poor nation has ever become a rich nation with bigger government. Never.

Yet bureaucracies such as the United Nations, the International Monetary Fund, and the Organization for Economic Cooperation and Development are explicitly pushing for higher taxes in poor nations based on the anti-empirical notion that bigger government is a strategy for growth.

I’m not joking.

As Ms. Doumit remarks in the video, these bureaucracies never offer a shred of evidence for this bizarre hypothesis.

And what’s especially frustrating is that the big nations of the western world (i.e., the ones that control the international bureaucracies) all became rich when government was very small.