On December 25, 2019 the Wall Street Journal had an editorial that discussed the involvement of bootleg THC vaping cartridges in the recent outbreak of vaping-related lung illnesses. For an editorial board that is usually very sophisticated in understanding and applying economics, I was very disappointed to witness how biases against the recreational use of marijuana and other currently illicit drugs can cloud the usually clear reasoning of the editors. Not only did the editorial cherry-pick facts to perpetuate unproven or long-discredited dogmas about the harmful effects of marijuana—a drug not nearly as dangerous as alcohol—but it also seemed to ignore the harmful unintended consequences that result from prohibition, which has a lot to do with the “Vaping-Marijuana Nexus.” This should never escape the attention of editorialists who are knowledgeable in economics. I was particularly disappointed in light of the editorial board’s history of opposing punitive taxes on tobacco and other politically incorrect but legal products, recognizing that such “sin taxes” only fuel an often-dangerous black market. My disappointment and frustration moved me to write this letter to the editor, which the Journal was gracious enough to publish today.

Most days, the Wall Street Journal OpEd page runs multiple unsigned editorials next to the letters and across from the opinion columns. Last Friday, however, the Editorial Board gave its entire platform to a single composition, titled “Elizabeth Warren Has a Plan, Oh My.”

The editorial’s thesis is to “show where the American left wants to go” by presenting Senator Elizabeth Warren’s (D‑Mass.) campaign platform for president, which “exceeds what the socialist dreamers of a century ago imagined.”

The guts of the editorial are 26 bullet points each describing Warren’s policy initiatives, including “Wealth tax,” “Medicare for all,” and “Free college.” After listing Sen. Warren’s various “plans for that,” the WSJ Board concludes:

All this adds up to such an expansion of government that the temptation is to dismiss it as fanciful. But Ms. Warren is a shrewd and disciplined politician who isn’t supporting these ideas on an ideological whim … The question for Democrats: Is this the agenda they want to put forward in 2020?”

For my part, I’d add that Republicans are little better than Democrats on this score, at least in practice (if not in campaign rhetoric). Last month, for example, large bipartisan majorities in Congress passed a $1.43 trillion spending bill—up $50 billion over the previous year—that also raises the legal vaping age to 21. Our Republican president quickly signed the package. The upshot is that both parties collaborated on a spending bill defined by principles of Big Government and the Nanny State.

Setting aside the limited scope of the Editorial Board’s case, I have a bone to pick with one of their policy arguments against Sen. Warren.

Specifically, the editorial’s last bullet point, titled “Miscellaneous,” includes Warren’s pitch to “give congressional staff ‘competitive salaries.’” If the WSJWSJ‘s‘s institutional voice is to be believed, then lawmaker spending on congressional staff reflects the “expansion of government” and even “socialism.”

I share the Board’s concern regarding overweening government, but I think the editorial misses the mark on Congress’s support personnel. Though perhaps counter-intuitive, investment in congressional staff is an essential complement to the WSJ’s avowed goal—that is, checking the “expansion of government.”

Of course, Big Government today is largely coterminous with the administrative state. From 1995 to 2017, the executive branch issued over 92,000 rules, compared to 4,400 laws enacted by Congress. The regulatory agencies behind all this lawmaking didn’t materialize from thin air; rather, they were created by legislation, and Congress paired these “delegations” with an oversight framework.

Passed during the administrative state’s adolescence, the 1946 Legislative Reorganization Act established Congress’s strategy for supervising the regulators. The Act tasked issue-specific committees with a duty to conduct “continuous watchfulness” over administrative policymaking. To execute this mandate, the Act provided committees with professional staffs.

By design, therefore, committee staffers are crucial cogs in Congress’s oversight machinery, and this understanding served as conventional wisdom among lawmakers through much of the last century. Yet this prevailing sense abated during the 1980s and, ultimately, disappeared by the mid-1990s.

What happened? A shifting power landscape on Capitol Hill led to the decline of staff, both in status and number.

After World War Two, committees were the most consequential institutions in Congress; now, parties fill that role. Part of the reason for this change is demographic: The parties became more homogenous with the demise of southern Democrats and northeastern Republicans. At the same time that party rank-and-file were taking on hive-minds, opportunistic party leaders gamed the House and Senate rules to centralize power in their hands.

For ascendant party leadership in Congress, strong committees were a roadblock to the consolidation of authority. To weaken committees, party leaders sought to weaken committee staff.

Matters came to a head in 1995 on the first day of the 104th Congress, when Speaker Newt Gingrich and Republican leadership slashed committee staff by one-third, and the Senate soon followed suit. Because it was in the interest of both parties’ leaders to subdue committees, staffing never recovered

For example, there were 2,115 professional personnel in House and Senate standing committees in 2015, or less than two-thirds the total in 1991 (3,528). To be fair, party leaders invested in some parts of Congress–themselves. From 1995 to 2011, House and Senate leadership staff increased 35 percent and 38 percent (respectively).

Simply put, Congress doesn’t have the tools to oversee the administrative state it created. The WSJ grows a false narrative when its Editorial Board opines that Warren’s plan for congressional staff reflects an “expansion of government.” In a less sincere tone—his real purpose was power—Rep. Gingrich advanced the same arguments when he dropped the ax on committee staff in 1995. Though untrue and often disingenuous, it makes for a great talking point to claim that Congress should lead by example by starving itself in the name of fiscal prudence. Anyone who claims otherwise is branded as a spendthrift. That’s why staffing levels have never recovered.

In conclusion, I’ll turn to R St. Institute’s Casey Burgat, who’s been sounding this alarm for a while. He warns:

As the size and complexity of the federal government has continued to grow, Congress has deprioritized spending within the offices most responsible for legislating and conducting Executive Branch oversight.

A just-published National Bureau of Economic Research working paper provides empiric evidence that the new “war on vaping” runs at cross-purposes with public health efforts aimed at getting tobacco smokers to quit.

Nicotine e‑cigarettes are twice as effective as nicotine patches, gum, or other nicotine replacements in achieving smoking cessation according to a 2019 study published in the New England Journal of Medicine.

In the NBER working paper the researchers studied the impact of the 95 percent tax on the wholesale price of e‑cigarettes that was enacted in Minnesota, the first of the states to tax e‑cigarettes. (There is no federal tax on e‑cigarettes.) They used the National Cancer Institute Tobacco Use Supplement to the Current Population Survey from 1992–2015 in conjunction with a synthetic control difference-in-differences approach and concluded:

Our results suggest that in the sample period about 32,400 additional adult smokers would have quit smoking in Minnesota in the absence of the tax. If this tax were imposed on a national level about 1.8 million smokers would be deterred from quitting in a ten year period. The taxation of e‑cigarettes at the same rate as cigarettes could deter more than 2.75 million smokers nationally from quitting in the same period.

On New Year’s Eve the Washington Post reported the Trump administration plans to announce a ban on flavored vaping pods while sparing refillable open-tank systems commonly sold in vaping shops. Menthol and tobacco flavored vaping pods will still be permitted. This is seen as a compromise between a complete ban on flavored vaping and the status quo. President Trump was concerned that a complete ban will irreparably harm vaping retailers.

While this proposal is not as damaging as a complete ban, it still stands to interfere with efforts by adults to quit smoking. Multiple surveys show they prefer the flavored variety to quit tobacco and the flavored pod ban makes that more inconvenient. And if the goal is to reduce teen vaping (which has increased as teen tobacco smoking has plunged), it is unclear if the ban of all flavored pods except menthol and tobacco will have much impact, given survey reports that menthol is one of the most popular flavors among teens.

This proposal will likely cause many teen and adult vapers to shift to the menthol flavor, but it may also cause some to look to the black market for flavored pods, with all of the health risks that entails. It also risks disrupting the continued decline in adult tobacco smoking. 

Mrs. Soon Pak manages Dami Hospitality, LLC, a company that runs hotels and motels in Colorado. Pak is a Korean immigrant with minimal proficiency in English. She relies on third-party professionals to assist her in maintaining compliance with the myriad regulations that even native English speakers struggle to understand. Between 2006 and 2014, Dami’s insurance agent failed to renew the company’s worker’s compensation insurance, despite assuring Pak that Dami maintained full coverage.


In 2014, the state division of workers’ compensation gave notice that Dami’s policy had lapsed, and Pak immediately secured coverage without any employee suffering any harm. A few weeks later, the division imposed a fine of $841,200, calculated at a $25–500 daily rate that the division had allowed to accumulate for eight years before finally giving notice to the company. Put simply, the state assessed nearly a million-dollar fine against a small corporation—which grosses less than a quarter of the total fine—for a violation that was solved immediately after notice was received, with no actual harm done to anyone.

However one defines “excessive,” this fine is excessive compared to Dami’s violation. To frame it in the worker’s comp context, if an employee is killed on a job, his dependent receives $250,000. That means the Colorado Labor Department considers the results of Dami’s lazy insurance agent to be worse than three workplace fatalities.

Dami sought relief in the Colorado courts, arguing that the fine violated the Excessive Fines Clause of the Eighth Amendment (which the U.S. Supreme Court held just this part term applies to the states). Cato filed an amicus brief supporting Dami before the Colorado Supreme Court, arguing that the excessive fines clause applies to corporations (which the state had been denying). The Colorado Supreme Court ruled that the Excessive Fines Clause does indeed apply to corporations and that a fine that is financially ruinous may be deemed unconstitutionally excessive, but that the total fine in this case cannot be considered in the aggregate. The question, the court said, is limited to evaluating whether each individual daily fine is financially ruinous. While the decision was favorable to Dami and Mrs. Pak in part, as one justice wrote in dissent, confining the excessiveness inquiry to the daily fine ($250-$500) misses the point of the constitutional exercise.

Both Colorado and Dami were unsatisfied with the ruling and have asked the U.S. Supreme Court to step in. The state has asked the Court to review (1) whether the Excessive Fines Clause applies to corporations at all, and (2) even if it does, whether the financial ruin the fine may cause is relevant to determining its excessiveness. Dami has filed a cross-petition, asking the Court to take up both of those issues—to finally resolve all the issues in this expensive and time-consuming enforcement action—and also to look at whether the fine must be considered in the aggregate.

The Supreme Court will review at its conference next week (January 10) whether to take up this case—which it should.

Here is news you probably can’t use: a new Texas Law Review analysis by University of Chicago law professor William Baude concludes that Justice Hugo Black, who served on the Supreme Court from 1937 to 1971, was unconstitutionally appointed.

The relevant text is the Constitution’s Article I, Section 6, which says “No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States which shall have been created, or the Emoluments whereof shall have been increased during such time.”

At the time of his appointment Black was serving as a senator from Alabama as part of a Congress that had enacted new retirement benefits for Justices, and while his backers argued that the clause did not apply to bar his nomination, Baude concludes that it probably did. One litigant before the high court challenged Black’s right to serve, but the Court chose to sidestep the merits of that claim by ruling against its standing, and the controversy died.

All of this might seem purely academic. At this remove there would be no way to unscramble the legal omelet as to Black’s jurisprudential contributions, even were there a will. (Despite an unpromising start, the Alabaman eventually showed a libertarian streak on many Bill of Rights issues.)

But the issue is not quite so remote as that, because more than a few contemporary commentators have flirted — in some cases more than flirted — with claims that the makeup of the present Supreme Court is illegitimate.

After the Senate leadership refused to hold hearings on the Supreme Court nomination of Merrick Garland, the editorial board of the New York Times repeatedly declared the seat of the late Justice Scalia to have been “stolen,” and then-Rep. Keith Ellison (D‑Minn.) said of eventual nominee Neil Gorsuch that “he’s not there properly.”

The confirmation of Brett Kavanaugh to the seat vacated by Justice Anthony Kennedy brought renewed attack, with former Attorney General Eric Holder declaring that “the legitimacy of the Supreme Court can justifiably be questioned” and other high-profile figures taking a similar line.

Law professor Erwin Chemerinsky raised the ante with this remarkable assertion in The American Prospect: “each of the five conservative justices — Clarence Thomas, John Roberts, Samuel Alito, Neil Gorsuch, and Kavanaugh or someone like him (emphasis added) — came on to the Court in a manner that lacks legitimacy. … Perhaps at some point it will lead to open defiance of the Court.”

Other commentators were happy to take up the exciting theme that future Court opinions written by, or decided by the votes of, Gorsuch, Kavanaugh, and perhaps other Justices might meet with open defiance or resistance from a future Democratic president, from state officials, or from people “marching in the streets.”

“What can the Supreme Court do? Send its tiny police force to storm the White House?” wrote Mark Joseph Stern at Slate. Libertarian-minded law professor Ilya Somin, who does not welcome the efforts to de-legitimize the Court or promote defiance of its rulings, nonetheless found them worth taking seriously enough to analyze at length last year.

Baude’s research may provide a bit of reassurance in this respect. The challenge to the legitimacy of Black’s seat fizzled in part because it gained little headway with the public, but much more because the Court’s other Justices welcomed Black aboard.

Most of the scenarios in which triumphant Democrats in 2021 or 2022 defy Supreme Court rulings are difficult to reconcile with the reality that the Court’s liberal Justices have, to all appearances, been entirely content to regard Gorsuch and Kavanaugh as legitimate colleagues, and would, themselves, neither counsel nor welcome defiance of Court rulings. As I wrote last year, “the federal courts are not as polarized and tribal as much of the higher political class and punditry at nomination time.” 

Baude puts it this way at the conclusion of his article: “the real source of constitutional settlement in our system is not always judicial decision, but sometimes sheer practice.”

Of all the concerns about immigration, perhaps none is more important to politicians than how immigration affects political control. In particular, many Republicans believe that immigration has clearly boosted the Democratic Party and that higher immigration will obviously doom the GOP. But historically (and recently), congressional Republicans have performed much better during periods when the immigrant share of the population is high. By contrast, Democrats dominated the low immigration periods.

GOP Almost Always Controls a House of Congress During High Immigration Periods, Rarely Controls Either House During Low Immigration Periods

The Republican Party came into existence in 1854, and while it quickly dominated, the Civil War and Reconstruction make its early history anomalous. Looking solely at the period since Reconstruction, Republicans have controlled at least one House of Congress 85 percent of years when the immigrant share of the population was greater than 10 percent, while not controlling either House 83 percent of all other years (Fig. 1). Moreover, they have controlled both houses 59 percent of the high immigration years, compared to just 7 percent of the low immigration years.

Starting this analysis earlier or later hardly changes this relationship between high immigrant shares and GOP success. From 1936 to 1994, when the immigrant population share fell below 10 percent, the GOP won a majority in House elections just twice. It had slightly better success in the Senate. In 1995, the immigrant population would again exceed 10 percent of the population, and the GOP has controlled the House or Senate 92 percent of the years since. Figure 2 shows that regardless of the period considered, Republicans outperformed Democrats when the immigrant share of the population was high.

This relationship is less dramatic for presidential elections, where the parties have basically split White House control regardless of the immigrant population. Republicans have held the White House 61 percent of years with immigrant populations greater than 10 percent, while they held it 47 percent of other years (Figure 3). In other words, the outcomes of presidential elections appear to have little relationship with immigration.

Why Republicans Succeed Despite Immigration

Explaining results in 72 elections with any simple narrative is obviously impossible. But some theories make more sense than others. To begin with, it is true that Democrats have generally benefited from the immigrant vote, so Republicans have had to win even more votes from the native-born population. 

It is likely that backlash against immigrants can explain at least some of the GOP’s success. The Republican “revolution,” when the GOP took over the House in 1994 for the first time in decades, corresponded with the peak in support for immigration restriction since polling began in the 1950s, and they quickly tried to limit illegal immigration. Though support for restriction quickly dissipated and, by 2019, the public had never been more supportive of immigration, it is possible that the backlash caused a sustained political realignment (particularly in the South).

A related explanation is that high immigration periods have undermined support for key Democratic priorities (at least starting with FDR). Even if they aren’t opposed to foreigners being in the country, people appear less willing to support more expansive welfare benefits if they might benefit foreigners. For this reason, economists Paul Krugman and Vernon Briggs have contended that the New Deal and Great Society entitlement programs of FDR and LBJ might never have happened had immigration remained open. Consistent with this view, one of the first actions that the GOP took when it took over in 1995–96 was to restrict welfare, particularly to immigrants.

Perhaps the best explanation for the GOP’s continued success focuses on the fact that high immigration occurred during periods when Democrats have lacked a key Democratic constituency: unions. Like naturalized citizens, a majority of union members have backed Democrats throughout U.S. history. Beyond members’ votes, unions also fundraise, donate, and campaign for Democrats. Since 1895, Republicans have controlled at least one house of Congress 85 percent of years in which the unionization rate was below 13 percent, while they haven’t controlled either house 83 percent of all high unionization rate years (Figure 4).

Unionization spiked thanks to the Wagner Act of 1935, but while Congress never repealed it, economic factors have produced a steady decline in unionization since the 1950s. Unionization rates fell as the foreign-born share of the population rose, and vice versa. But the lost union members made up a much larger portion of voters than the increase in naturalized citizens, leaving Democrats worse off.

Conclusion

This brings up another important consideration in this analysis: the fact that native-born citizens are still 92.2 percent of U.S. voters, meaning that natives will always play a much more important role in the elections than naturalized citizens. The fact that immigrants tend to clusters in certain cities and states further dilutes their effect. Helping Democrats win California, for example, by an even larger margin than they would otherwise does little to influence the overall outcomes.

Not only are immigrant voters a small part of the electoral picture, but immigration policy is only one part of the debates in each campaign. Party success depends on many other factors, policy choices, and strategies, and it would be impossible to consider every change. History need not be destiny, but it is nonetheless evidence for the proposition that Republicans can continue to win elections even during times with many more immigrants in the country.

States that permit recreational marijuana sales tend to have lower rates of vaping-related hospitalizations, according to data published by the Centers for Disease Control and Prevention (CDC). The CDC has linked vitamin E acetate, an adulterant typically reserved to the black market, to 48 of the 51 hospitalized patients it has examined. Governments have often responded to these contaminations by enacting bans on e‑cigarettes and other vaping products, but the CDC data suggest they should take the opposite approach.

From my column with Jacob Rich at rea​son​.com.