In a recent Philadelphia Inquirer opinion piece White House economic advisor Peter Navarro hailed the christening of a new transport ship in the nearby Philly Shipyard as evidence of the “United States commercial shipbuilding industry’s rebirth.” As is typical of Navarro’s pronouncements, the reality is almost the exact opposite. In fact, a closer examination of the ship’s construction reveals it to be symptomatic not of a rebirth, but of the industry’s long downward slide. Named after the late Senator Daniel K. Inouye of Hawaii, Navarro describes the 850-foot Aloha-class vessel as “massive” and notes that it is “the largest container ship ever built in the United States.” This, however, is somewhat akin to the tallest Liliputian. Although perhaps remarkble in a domestic context, by international standards the ship is a relative pipsqueak. Triple‑E class ships produced by Daewoo Shipbuilding & Marine Engineering for Maersk Line, for example, are over 1,300 feet in length. While the Inouye’s cargo capacity is listed at 3,600 TEUs (twenty-foot equivalent units, roughly equivalent to a standardized shipping container), the Triple‑E class can handle 18,000. The only thing truly massive about the Inouye is its cost. The price tag for this vessel and another Aloha-class ship also under construction at the Philly Shipyard is $418 million, or $209 million each. The Triple‑E vessels, purchased by Maersk Line, meanwhile, each cost $190 million. The South Korean-built ships, in other words, offer five times the cargo capacity for nearly $20 million dollars less. But the story gets worse. The Wall Street Journal reports that after the Philly Shipyard completes work on “two small ships”—a reference to the Inouye and its sister vessel—it has no more orders lined up. The shipyard is already laying off 20 percent of its workforce and the dearth of future work has prompted speculation of a possible shutdown. Sadly, the Philly Shipyard’s travails are hardly atypical of the U.S. shipbuilding industry, and even Navarro admits that the sector has seen its workforce decline from 180,000 in 1980 to 94,000 today. And yet we are to believe that the Inouye’s construction heralds the pangs of an alleged rebirth? At least credit the White House advisor for assigning proper blame for this sad state of affairs (which he misguidedly presents as credit). The Inouye, Navarro says, is in large part the result of a protectionist law called the Jones Act. He’s not wrong. Formally known as the Merchant Marine Act of 1920, the law mandates that ships transporting merchandise between two domestic ports be U.S.-built, U.S.-owned, U.S.-flagged, and U.S.-crewed. The result is that instead of purchasing cheaper foreign-built ships, Americans are faced with enormous prices for relatively small ships. The cost of transportation, in turn, is higher than what it would otherwise be while the number of Jones Act-compliant vessels has gone down, along with jobs for mariners and shipbuilders. Those ships that remain, meanwhile, are far older than the foreign counterparts—no surprise given the cost deterrent to buying new ships. While the Inouye is brand new, the average Jones Act containership is 30 years old. The international average is 11.5. Consistent with other protectionist misadventures, the Jones Act’s list of victims includes those it was meant to help. Rather than recommitting to the Jones Act and other failed forms of maritime protectionism as Navarro is so eager to do, the United States should instead be aggressively seeking this law’s repeal. An increasingly untenable status quo demands nothing less. Learn more about Cato’s Project on Jones Act Reform.

President Trump and his trade advisers are the most vocal in putting forward misguided views on the trade deficit, but, unfortunately, their position is a bipartisan one. Here’s something Congressman Brad Sherman of California said recently:

But Rep. Brad Sherman (D‑CA), ranking member of the House Foreign Affairs Asia and the Pacific subcommittee, told Inside U.S. Trade he would be “surprised if any [bilateral] deal is finalized in the next 12 months.” Sherman met with Gerrish late last week, he said.

“Look, we spent 50 years telling the world that the only moral and correct thing to do was to have the United States run an enormous trade deficit with the entire world,” he said. “Of course, they decided to agree. Getting them to change their minds is not something that we are doing all that effectively and it’s certainly not something that is easy.”

Asked if he was confident a bilateral deal would be initiated in the near future, Sherman said “no, definitely not.”

Gerrish, he said, “was getting my input, but my input is certainly if you are dealing with a managed economy there has to be stated goals for how large the trade deficit will be or whether it will be balanced trade,” he said. “And it’s good to have people focused on the trade deficit; whether they are going about it the right way is perhaps another story. But ignoring it is a short-term strategy.”

Asked which countries might be top contenders for a bilateral, Sherman said none, adding that the criteria USTR was using to determine candidates was based on countries that trade fairly.

The U.S. will “strike deals” only with countries “that will provide for balanced and fair trade, of which there are none that I’m aware of right now,” he said.

The notion that a trade deal should lead to “balanced trade” seems like it comes from a Cuba-Venezuela trade arrangement, in which oil is traded for doctors. In the free market world of trade agreements, by contrast, the parties agree not to a barter of goods and services, but rather to remove tariffs and other protectionist barriers. The resulting bilateral trade balance is something to be determined by the market. The new trade flows are probably worth studying for various academic reasons, but are not a measure of success or failure of the deal.

By contrast, Congressman Sherman seems to think that the negotiation is over the trade deficit itself: “there has to be stated goals for how large the trade deficit will be.” But that’s not how U.S. trade negotiations do work or should work. What we negotiate about is the level of tariffs and other barriers. (Ideally, both sides would agree to have no tariffs, although in practice it is often just a lowering of tariffs.)

There can be complications from trading with the “managed economies” that he refers to, but those can be dealt with in trade agreements through specific rules. For example, they can establish rules on how state-owned enterprises should behave. There were rules of this sort in the Trans Pacific Partnership, and it would be a good idea for someone to propose similar rules in an agreement with China. 

International rules to limit managed trade and constrain protectionism are a good idea. A (bipartisan) focus on bilateral trade deficits, by contrast, won’t address these fundamental issues, and is a big mistake.

Congressman Sherman’s comments did not surprise me, because I had a brief exchange with him on this very issue in a House Committee hearing last year on the impact of a US-UK trade agreement (starts at 1:12:28). He asked the following question and was looking for a short answer: “Would a deal with Britain that simply eliminated all tariffs be good or bad for reducing America’s trade deficit? … it’s possible that it can’t be estimated.” I knew I wouldn’t be able to have a real discussion with him in this setting on the value of trade deficits as a metric, but in answering I wanted to get the point out there that looking at trade deficits is a mistake, so I said: “I can’t estimate it but I also don’t think trade deficits are bad for the economy.” He responded by saying, “We lose 10,000 jobs for every billion dollars of trade deficits …”, but then quickly moved on.

We have spent a lot of time over the years rebutting the misunderstandings about trade deficits: See, e.g., here, here, here, and here. But clearly, there is still work to do. 

I’ve previously blogged about Allah v. Milling, a case in which a pretrial detainee was kept in extreme solitary confinement for nearly seven months, for no legitimate reason, and subsequently brought a civil-rights lawsuit against the prison officials responsible. Although every single judge in Mr. Allah’s case agreed that these defendants violated his constitutional rights, a split panel of the Second Circuit said they could not be held liable, all because there wasn’t any prior case addressing the “particular practice” used by this prison. Cato filed an amicus brief in support of Mr. Allah’s cert pertition, which explicitly asks the Supreme Court to reconsider qualified immunity—a judge-made doctrine, at odds with the text and history of Section 1983, which regularly allows public officials to escape accountability for this kind of unlawful misconduct.


I also blogged about how, on June 11th, the Supreme Court called for a response to the cert petition, indicating that the Court has at least some interest in the case. The call for a response also triggered 30 days for additional amicus briefs, and over the last month, Cato has been coordinating the drafting and filing of two such briefs—one on behalf of a group of leading qualified immunity scholars (detailing the many recent academic criticisms of the doctrine), and the other on behalf of an incredibly broad range of fifteen public interest and advocacy groups concerned with civil rights and police accountability. 


The interest-group brief is especially noteworthy because it is, to my knowledge, the single most ideologically and professionally diverse amicus brief ever filed in the Supreme Court. The signatories include, for example, the ACLU, the Institute for Justice, the Second Amendment Foundation, Americans for Prosperity (the Koch brothers’ primary advocacy group), the American Association for Justice (formerly the Association of Trial Lawyers of America), the Law Enforcement Action Partnership (composed of current and former law-enforcement professionals), the Alliance Defending Freedom (a religious-liberties advocacy group), and the National Association of Criminal Defense Lawyers. The brief’s “Statement of Interest” section, after identifying and describing all of the individual signatories, concludes as follows:

The above-named amici reflect the growing cross-ideological consensus that this Court’s qualified immunity doctrine under 42 U.S.C. § 1983 misunderstands that statute and its common-law backdrop, denies justice to victims of egregious constitutional violations, and fails to provide accountability for official wrongdoing. This unworkable doctrine has diminished the public’s trust in government institutions, and it is time for this Court to revisit qualified immunity. Amici respectfully request that the Court grant certiorari and restore Section 1983’s key role in ensuring that no one remains above the law.

The primary theme of this brief is that our nation is in the midst of a major accountability crisis. The widespread availability of cell phones has led to large-scale recording, sharing, and viewing of instances of egregious police misconduct, yet more often than not that misconduct goes unpunished. Unsurprisingly, public trust in law enforcement has fallen to record lows. Qualified immunity exacerbates this crisis, because it regularly denies justice to victims whose constitutional rights are violated, and thus reinforces the sad truth that law enforcement officers are rarely held accountable, either criminally or civilly.


Moreover, qualified immunity not only hurts the direct victims of misconduct, but law enforcement professionals as well. Policing is dangerous, difficult work, and officers—most of whom do try to uphold their constitutional obligations—increasingly report that they cannot effectively carry out their responsibilities without the trust of their communities. Surveys of police officers thus show strong support for increased transparency and accountability, especially by holding wrongdoing officers more accountable. Yet continued adherence to qualified immunity ensures that this worthy goal will never be reached.


The Supreme Court is in recess now, and the defendants’ response brief won’t be due until September 10th, so we’re going to have to wait until early October to find out if the Supreme Court will take the case. But the Court, the legal community, and the public at large should now be aware that criminal defense lawyers, trial lawyers, public-interest lawyers of every ideological stripe, criminal-justice reform groups, free-market & limited-government advocates, and law enforcement professionals themselves all agree on at least one thing—qualified immunity is a blight on our legal system, and the time has come to cast off this pernicious, counter-productive doctrine.

In a 2012 dissent from a District of Columbia Appellate Court opinion, Supreme Court nominee Brett Kavanaugh acknowledged that “dealing with global warming is urgent and important” but that any sweeping regulatory program would require an act of Congress:

But as in so many cases, the question here is: Who Decides? The short answer is that Congress (with the President) sets the policy through statutes, agencies implement that policy within statutory limits, and courts in justiciable cases ensure that agencies stay within the statutory limits set by Congress.

Here he sounds much like the late justice Antonin Scalia, speaking for the majority in the 2014 case Utility Air Regulatory Group v. EPA:

When an agency claims to discover in a long-extant statute an unheralded power to regulate “a significant portion of the American economy” we [the Court] typically greet its announcement with a measure of skepticism. We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast “economic and political significance.”

Scalia held this opinion so strongly that, in his last public judicial act, he wrote the order (passed 5–4) to stay the Obama Administration’s sweeping “Clean Power Plan.” Such actions occur when it appears the court is likely to vote in a similar fashion in a related case.

This all devolves to the 2007 landmark ruling, 5–4, in Massachusetts v. EPA, that the EPA indeed was empowered by the 1990 Clean Air Act Amendments to regulate emissions of carbon dioxide if the agency found that they endangered human health and welfare (which they subsequently did, in 2009). Justice Kennedy, Kavanaugh’s predecessor, voted with the majority.

Will Kavanaugh have a chance to reverse that vote? That depends on what the new Acting Administrator of the EPA plans to do about carbon dioxide emissions. If the agency simply stops any regulation of carbon dioxide, there will surely be some type of petition to compel the agency to continue regulation because of the 2009 endangerment finding. Alternatively, those already opposed to it might petition based upon the notion that the science has changed markedly since 2009, with increasing evidence that the computer models that were the sole basis for the finding have demonstrably overestimated warming in the current era. It’s also possible that Congress could compel EPA to reconsider its finding, and that a watered-down version might find itself at the center of a court-adjudicated policy fight.

Whatever happens, though, it is clear that Brett Kavanaugh clearly prefers Congressional statutes to agency fiat. Assuming that he is confirmed, he will surely exert his presence and preferences on the Court, including that global warming is “urgent and important,” but it is the job of Congress to define the regulatory statutes.

Alexandria Ocasio-Cortez, the recent winner of a Democratic primary for Congress in New York, argued that free-trade agreements (FTAs) have caused the number of refugees and asylum seekers to the United States to grow. This is a somewhat common claim among some critics of trade or FTAs in particular. 

To test this claim, we gathered a list of all the FTAs that the United States has signed and how many asylum seekers and refugees they sent to the United States since the year 2000. We combined all asylum seekers, affirmative and defensive, that were counted by the United Nation Human Rights Commission. Some asylum seekers from these countries are double or triple counted due to the oddities of the asylum system. We then added refugee admissions from the Department of Homeland Security. 

Next, we ran several regressions to see the relationship between having an FTA with the United States and the number of asylum seekers, refugees, or those two categories of humanitarian visas combined who arrive in the United States from those countries. The first regression was a difference-in-differences with two-way fixed effects. The second was a difference-in-differences regression with linear time trends. The third was a triple difference-in-differences with two-way fixed effects that also included asylum seekers, refugees, and humanitarian immigrants from Latin America specifically. To ensure proper statistical inference, we computed robust standard errors clustered at the country level to correct for country-level autocorrelation in these variables.

Our results are that there is no statistically significant change in the number of asylum seekers or refugees that countries send to the United States after they sign an FTA in any of the above regressions. We find very low within R‑squares for these models that suggest that the presence of FTAs has very little predictive power for within-country variability for the number of asylum seekers and refugees. In other words, FTAs don’t explain the flow of asylum seekers and refugees, and other variables that we did not include in our model do. 

Figure 1 shows the number of asylum seekers from countries that have signed an FTA since 2000 in the five years before and after the agreement going into effect. Each line represents a different country. There is no relationship between signing an FTA and the number of asylum seekers.

Figure 1

Asylum Seekers within Five Years of Signing an FTA per Country

Source: United Nation Human Rights Commission

The refugee system is the other half of the humanitarian immigration system and it shows no change in the number of asylum seekers before and after the signing of FTAs (Figure 2). It’s worth noting that nations that send refugees to the United States send very few refugees and almost all of those sent in Figure 2 are Colombian.

Figure 2

Refugees within Five Years of Signing an FTA per Country

Source: Department of Homeland Security.

There are many potential explanations for changes in the number of asylum seekers and refugees coming to the United States. They range from changing conditions in other countries to alterations in American law or policy and everything in between—but let us set aside the notion that FTAs somehow force people to flee their home countries. 

The Trump administration has announced it is suspending so-called “risk adjustment” payments to insurers who participate in ObamaCare’s Exchanges, and cutting spending on so-called “navigators,” who help (few) people enroll in ObamaCare plans. 

The Washington Post’s Catherine Rampell and other ObamaCare supporters are calling these steps sabotage. In fact, what these steps will do is make the costs of ObamaCare’s supposedly popular preexisting-conditions provisions more transparent.

Risk-Adjustment (Bailout) Payments to Insurers

ObamaCare’s so-called “risk adjustment” program exists to funnel money to insurers who enroll lots of sick people who cost more in claims than they pay in premiums. Without it, insurers probably wouldn’t participate in ObamaCare. We may therefore confidently describe the risk-adjustment program as a bailout designed to rescue insurers from the costs of ObamaCare’s preexisting-conditions provisions. 

The risk-adjustment program does a better job of protecting insurance companies than sick patients. Those preexisting-conditions provisions literally punish insurers for offering coverage that the sick find attractive. They therefore create powerful financial incentives for insurers to make their offerings unattractive to the sick.

The risk-adjustment program is supposed to counteract those incentives. Anecdotal evidence and empirical research both show it’s not working. The risk-adjustment program is failing to counteract the perverse incentives that ObamaCare itself creates. ObamaCare coverage is therefore getting worse for many sick patients. Don’t worry, the insurance companies come out okay. Insurers can mitigate whatever losses the bailouts don’t cover with even more restrictive benefit designs to keep the sick away. Sick patients fare less well.

Reducing or eliminating spending on the risk-adjustment program would reveal more of the harms of the preexisting-conditions provisions. More of the cost would fall on insurers, who would respond by offering even more restrictive coverage, or exiting the market. More such transparency might finally push Congress to repeal those provisions and put health care for the sick on a more stable footing. 

In February, a federal district court in New Mexico ordered the Centers for Medicare & Medicaid Services to cease using its methodology for making risk-adjustment payments until the agency adequately explains that methodology. On July 7, the agency announced it will not make any risk-adjustment payments until the issue is resolved.

The insurers will eventually get their bailouts. But the delay will cost them money and add uncertainty to the process. Those effects in turn may lead insurers to take even greater steps to protect themselves from the costs of the preexisting-conditions provisions—thereby making those costs more transparent.

Cutting Navigator Spending

ObamaCare authorizes CMS to make grants to “navigators”—i.e., groups who are supposed to help people enroll in ObamaCare plans. They are a waste of taxpayer money, and likewise hide the costs of ObamaCare’s preexisting-conditions provisions.

According to CMS, navigators received $63 million for plan year 2017 and $36 million for plan year 2018. In both years, they signed up less than 1 percent of ObamaCare enrollees. “During grant year 2016–2017,” CMS reports, “seventeen of those Navigators enrolled fewer than 100 people at an average cost of $5,000 per enrollee.” That’s more than the cost of the health insurance, in many cases. The Wall Street Journal reports, “One grantee took in $200,000 to enroll a grand total of one person. The top 10 most expensive navigators collected $2.77 million to sign up 314 people.” The Las Vegas Review-Journal editorializes, accurately, “the navigator scheme is a make-work government jobs program rife with corruption and highly susceptible to scam artists. It’s a slush fund for progressive constituent groups.”

The navigator program also hides the cost of ObamaCare’s preexisting-conditions provisions. Since the sick will reliably enroll in ObamaCare even without navigators, those whom navigators end up enrolling are going to be disproportionately healthy. Thus navigators are also helping to hide the costs of those provisions by spreading the costs across more (healthy) people. Cutting spending on navigators will likewise reveal more of the costs of those provisions.

The Trump administration announced it is cutting spending on navigators to $10 million for plan year 2019. It should eliminate the program entirely. The less the federal government spends on navigators, the more transparent ObamaCare’s costs will be.

* * * 

When ObamaCare supporters complain about such steps, they are describing transparency as sabotage. Think about what that means.

The anxiety leading up to this week’s NATO summit is unusually intense, thanks in large part to President Trump’s fractious relationship with European allies. Trump’s political values are often in tension with that of his transatlantic counterparts, and the White House is inching ever closer to an all-out trade war with Europe and Canada, but the real drama of the NATO summit will center on Trump’s brash accusations of allied free-riding. He recently sent letters to many European capitals berating them for not meeting their pledge to spend at least 2 percent of GDP on defense.

In a post at the International Institute for Strategic Studies, Lucie Béraud-Sudreau and Nick Childs try to push back on the notion that providing for European defense is all that costly for the United States. While it is true that the $602.8 billion the United States spent on its military in 2017 “was the equivalent of 70.1% of aggregate spending by all NATO member states,” this exaggerates the true cost, they argue.

Direct U.S. spending on European defense, by their estimate, is only about $30.7 billion in 2017 and $36 billion in 2018, or between 5.1% and 5.5% of the total U.S. defense budget.

How do they calculate this number? They tally up the cost of three things: (1) direct funding for NATO, including common procurements; (2) the costs of the U.S. military presence in Europe; and (3) U.S. foreign military assistance.

Now, $30-$40 billion every year is nothing to sniff at. That is an enormous chunk of change for an America that is $21 trillion in debt to be spending on the defense of a region that is remarkably rich, powerful, and safe.

The problem, however, is that this understates the true cost of America’s NATO commitments. It is misleading to count the U.S. contribution to NATO solely as a sum of direct annual costs. The tally should also account for the indirect cost of maintaining a military big enough to fulfill our security commitments in Europe. It must account for some share of the permanent force structure that would shift to the reserves, or disappear entirely, if the United States wasn’t pledged to treating an attack on Paris, France or Podgorica, Montenegro as synonymous with attacks on Paris, Texas, or Portland, Maine. This more inclusive count is very difficult if not impossible to calculate with precision, but it is more honest.

Moreover, if the debate about NATO burden sharing boils down to bickering over budget accounting, it would seem like proponents of the status quo are playing hide the ball. The object of U.S. foreign policy is to discourage other countries from spending more on defense. It is disingenuous to pretend otherwise. Free riding is not a bug of U.S. grand strategy, it is a feature of it — a point made perhaps too candidly by the Manhattan Institute’s Claire Berlinski: “How is it, then,” she asks, “that suddenly, we’re consumed with rage that Europe is ‘taking advantage’ of us? How have we forgotten that this is the point of the system? We designed it this way…”

She’s right. As Hal Brands, one of the leading scholarly proponents of America’s post-war grand strategy, explains in his book American Grand Strategy in the Age of Trump, the United States provides “protection that allows other countries to underbuild their militaries.” Or, as Christopher Layne writes in his book The Peace of Illusions, Washington “used NATO…to foreclose the possibility that the West European states would re-nationalize their security policies.”

If America is going to have a debate about security guarantees, it must be an informed one. It should not rest on downplaying the true costs of such policies, nor should it pretend that free riding is some kind of mistake. It seems rather futile to defend the strategy by arguing against its very logic.

The author thanks Christopher A. Preble and Caroline Dorminey for input on this post.