August 13, 2019 8:02AM

The Case against Afghanistan Withdrawal Is Weak

Even in these divisive times, political leaders in Washington are beginning to converge on at least one issue: it’s time to end the longest war in American history and withdraw U.S. forces from Afghanistan. President Trump said in the Oval Office last month that “it’s ridiculous” that we’re still there after almost two decades of stalemate and he reportedly wants to pull out by the 2020 election. His challengers on the Democratic side seem to agree.

Although in 2017 Trump authorized a small surge of troops and left the military strategy essentially unchanged, his special envoy for Afghanistan Reconciliation, Zalmay Khalilzad, has made significant progress in direct negotiations with the Taliban. Daunting obstacles remain, but a political settlement that could include a U.S. withdrawal is at least within reach.

This has advocates of the “forever war” unsettled. Gen. David Petraeus, who once commanded forces in Afghanistan, published an op-ed in The Wall Street Journal, with the Center for a New American Security’s Vance Serchuk, arguing that “under no circumstances should the Trump administration repeat the mistake its predecessor made in Iraq and agree to a total withdrawal of combat forces from Afghanistan.” Notwithstanding the Taliban’s stated promise not to host al Qaeda or other foreign terrorist groups, Petraeus and Serchuk insist that “common sense dictates the U.S. must retain its own means to pressure extremist networks plotting against the American homeland and U.S. allies.”

In making their case for indefinitely extending America’s 18-year quagmire in Afghanistan, they commit three analytical errors. The first is to fault Obama’s withdrawal from Iraq for the rise of ISIS.  The second is to assume that a withdrawal from Afghanistan will, as in Iraq, result in the emergence of a rapacious terrorist army prone to spectacular atrocities and harboring vast territorial ambitions. Their third mistake is buying into the safe haven myth – that is, the claim that the presence of terrorists in Afghanistan represents a major security threat to the United States. In a new Cato Policy Analysis, my colleague John Mueller and I address all of these (and more).

First, the U.S. withdrawal from Iraq didn’t trigger the rise of ISIS; the invasion of Iraq did. As we point out in the paper, ISIS is an outgrowth of al Qaeda in Iraq (AQI), which emerged from the Sunni insurgency that rose up to fight occupying U.S. forces. Its leadership consisted of veteran AQI insurgents and former Baathists in the Saddam Hussein regime. It never could have filled the vacuum left by the United States’ withdrawal without the initial spark provided by the invasion. In any case, the Obama administration merely complied with the Status of Forces Agreement signed by the Bush administration in 2008, which permitted U.S. forces to stay until the end of 2011. Baghdad refused to grant U.S. forces legal immunity beyond that date. Even if the White House had pressured Iraq more, the small contingent of U.S. counter-terrorism forces it was considering leaving behind would never have been enough to prevent the rise of ISIS.

Second, Petraeus and Serchuk fall into a cognitive bias that political scientists call “failure salience.” According to Dominic D. P. Johnson and Dominic Tierney, failure salience refers to the “tendency to remember and learn more from perceived negative outcomes than from perceived positive outcomes.” Negative experiences have a profound impact on the psyche. Citing the rise of ISIS may be a psychologically potent way to scare policymakers away from ending the war in Afghanistan, but it is an argument based on a misunderstanding of a separate case with entirely different actors, dynamics, and context.

Third, the safe haven argument is based on the ill-founded assumption that the presence of al-Qaeda leaders in Taliban-controlled Afghanistan in the lead up to 9/11 was essential for the success of the attacks. In fact, it seems to have had little, if any, operational utility (beyond luring the United States into the graveyard of empires). Al-Qaeda operatives planned and coordinated the 9/11 attacks not just in Afghanistan, but in Germany, Malaysia, and inside the United States. Technological innovation and increasingly widespread access to the Internet has only made instant communication across borders, oceans, and time-zones easier in the ensuing years. A territorial haven in remote, land-locked Afghanistan isn’t much help to jihadists plotting to attack the west. In short, “fighting them over there so we don’t have to fight them over here” is a clever slogan, but it isn’t based on the facts.

Anyone predicting Afghanistan will be all hunky dory after a U.S. withdrawal isn’t properly assessing the risks inherent in a society that has endured 40 years of war and whose leadership is still bitterly (and violently) contested. But the question for Americans is whether we are really made safer by stubbornly clinging to the same failed strategy in Afghanistan. We aren’t.

For further scrutiny of these and related questions about the war in Afghanistan, check out our new Policy Analysis here.

August 13, 2019 8:00AM

Transit Riders Drop 2.9% in June

The nation's heavily subsidized transit industry continued its descent into oblivion with a 2.9 percent decline in ridership in June 2019, compared with June 2018, according to the Federal Transit Administration's most recent data. Ridership dropped in 41 of the nation's 50 largest urban areas, falling even in Seattle, which had previously appeared immune to the decline that is afflicting most of the industry.

Transit is one of the most heavily subsidized industries in the country, receiving more than $50 billion a year from taxpayers. While highways are also subsidized, subsidies to driving average about a penny per passenger mile while subsidies to transit average more than 90 cents per passenger mile. Yet those subsidies haven't prevented the industry from losing customers in each of the past five years.

Hardest hit in June was Philadelphia's Southeastern Pennsylvania Transportation Authority (SEPTA), whose ridership declined by 22 percent, representing 6.2 million fewer riders in June 2019 than in June 2018. Part of this was due to maintenance-related disruption's to the city's trolley system, whose ridership fell 21 percent, but SEPTA's buses lost 31 percent of their riders and its heavy-rail lines lost 15 percent.

While a 22 percent loss is steep, this is just a continuation of trends in Philadelphia since at least 2016. Moreover, SEPTA ridership is falling despite increases in transit service. Since 2013, SEPTA’s vehicle-revenue miles of service have increased by nearly 6 percent, yet ridership has dropped by nearly 18 percent.

Philadelphia is not the only urban area to suffer double-digit losses in ridership. Transit systems in Cleveland, Kansas City, Louisville, Memphis, San Antonio, and Virginia Beach-Norfolk also lost between 10 and 15 percent of their riders. 

Over the last five years, a dozen of the nation's 50 largest urban areas lost at least 20 percent of their riders and 30 lost 10 percent or more. Only seven saw ridership grow. Ridership is dropping in regions in the Rust Belt and Sun Belt, in urban areas that have rail transit and ones that have only bus transit, in older cities with dense downtowns and newer sprawling cities. 

Historically, the key to transit ridership has been the number of downtown jobs, as these are most easily served by hub-and-spoke transit systems. Seattle transit numbers have grown because its downtown grew from around 220,000 jobs in 2010 to more than 310,000 in 2018. But that growth has slowed, partly because of the Seattle city council's open hostility to Amazon and other downtown employers, which helps explain why Seattle's transit ridership is dropping.

Many in the transit industry hope that even more subsidies will help it reverse these losses. But the fundamental reasons for transit's decline are beyond the industry's control: alternatives to transit are faster, more convenient, and less expensive. Most low-income commuters now own their own cars, which University of Minnesota researchers have shown allow them to reach far more jobs than transit. The number of people who work at home is growing rapidly and they outnumbered transit commuters for the first time in 2017. People who once took transit to shops and restaurants now use Uber and Lyft.

The outlook for transit is bleak. The only question is when politicians will recognize this and stop subsidizing a dying industry. For more information about recent transit ridership, see my policy brief on June's numbers, which includes a link to a spreadsheet detailing nearly two decades worth of ridership numbers for every transit agency in the country.

August 12, 2019 7:07PM

Woodstock at 50

I was a little young for Woodstock. In that news-packed summer of 1969, I was entranced by the moon landing and aware of Chappaquiddick, but I don't recall paying much attention to Stonewall or Woodstock. But both of them became symbols of social change and stayed in the news and eventually the history books. 

In 2009 I watched the movie Taking Woodstock, directed by Ang Lee, which led me to the book of the same name by Elliot Tiber. As I say, I knew of Woodstock as a hippie happening a bit before my time. What I found interesting about the movie and the book was the portrayal of the Woodstock Festival, “Three Days of Peace and Music,” as an impressive entrepreneurial venture. 

In 1969 Tiber was a 33-year-old gay designer living in Manhattan, while spending his weekends trying to save his parents’ run-down Catskills motel. One weekend he read that some concert promoters had been denied a permit in Wallkill, N.Y. He came up with the crazy idea of inviting them to hold the festival on his parents’ property. Lo and behold, they showed up to check it out. Taking the lead was 24-year-old Michael Lang, who went on to become a prominent concert promoter and producer. 

The Tiber (actually Teichberg) property wasn’t suitable, but Elliot drove Lang and his team down the road to Max Yasgur’s nearby farm. At least that’s Tiber’s story; other sources say he exaggerates his role. He did play a key role, however, in that he had a permit to hold an annual music festival, which up until then had involved a few local bands. 

There’s a wonderful scene, better in the movie than in the book, when Lang and Yasgur negotiate a price for the use of the farm. We see Yasgur coming to realize that this is a big deal and demanding more money. We see Elliot panicking that the deal will fall through, and that without the festival business his parents will lose their motel. And we see Lang’s assistant reassuring Elliot that both parties want to make a deal, so they’ll find an acceptable price, which indeed they do. 

And then, with 30 days to transform a dairy farm into a place for tens of thousands of people to show up for a 3-day festival, Tiber describes (and Lee shows) a whirlwind of activity. “Within a couple of hours, the phone company had a small army of trucks and tech people on the grounds, installing the banks of telephones that Lang and his people needed.” Helicopters, limousines, and motorcycles come and go. A few hundred people are erecting scaffolding, stage sets, speakers, and toilets. The motel keepers are trying to find rooms and food for the workers and the early arrivals. The local bank is eagerly providing door-to-door service for the mountains of cash flowing into bucolic White Lake, N.Y. 

Meanwhile, there are a few locals who don’t like the whole idea. In Tiber’s telling, they don’t like Jews, queers, outsiders, or hippies. Maybe they just didn’t like a quiet village being overrun with thousands of outsiders. In any case they had a few tools available to them. A dozen kinds of inspectors swarmed around the Teichbergs’ motel. The town council threatened to pull the permit. Tiber writes, “Why is it that the stupidest people alive become politicians? I asked myself.”  At the raucous council meeting Lang offered the town a gift of $25,000 ($175,000 in today’s dollars), and most of the crowd got quiet. Max Yasgur stood and pointed out that “he owned his farm and had a right to lease it as he pleased.” That didn’t stop the opposition, but in the end the concert happened. 

The psychedelic posters and language about peace and love – and on the other side, the conservative fulminations about filthy hippies (see John Nolte’s movie review at Breitbart's – can obscure the fact that Woodstock was always intended as a profit-making venture. That was the goal of Lang and his partners, and it was also the intention of Tiber, Yasgur, and those of their neighbors who saw the concert as an opportunity and not a nightmare. The festival did rescue the Teichberg finances. It ended up being a free concert, however, which caused problems for Lang and his team. Eventually, though, they profited from the albums and the hit documentary Woodstock

In his book Tiber also details his life split between Manhattan’s scene and his parents’ upstate struggles. He tells us that as a young gay man in the ‘60s he encountered Tennessee Williams, Truman Capote, Marlon Brando and Wally Cox, and Robert Mapplethorpe. 

Tiber writes, “One of the great benefits of Woodstock—a benefit that, to my knowledge, has never been written about—was its sexual diversity.” But I think the fact that there were gay awakenings at Woodstock—and three-ways and strapping ex-Marines in sequined dresses—would surprise people less than the realization that Woodstock was a for-profit venture that involved a lot of entrepreneurship, hard-nosed negotiation, organization, and hard work. Taking Woodstock (the book, but better yet the movie) is a great story of sex, drugs, rock-and-roll, and capitalism. 

August 12, 2019 4:03PM

The March Toward a Pre‐​Modern Approach to the Treatment of Pain Continues, Undeterred by Science

It seems that no amount of data-driven information can get policymakers to reconsider the hysteria-driven pain prescription policies they continue to put in place.

I can understand lay politicians and members of the press misconstruing addiction and dependency, but there is no excuse when doctors make that error. Yet National Public Radio reports that surgeons in 18 Upstate New York hospitals have agreed on an initiative to limit the amount of pain medicine they will prescribe to postoperative patients discharged from the hospital. The reporter says that researchers “now know” that patients prescribed opioids for postoperative pain “can become addicted” and that “the new prescription guidelines can prevent this particular gateway to abuse.” 

But what does the research show? One recent study published in the BMJ of more than 568,000 “opioid naïve” postsurgical patients followed for 8 years found a total “misuse” rate of 0.6 percent. (“Misuse” includes a range of non-prescribed drug use, from self-medicating with leftover pills to treat an ankle sprain on one extreme to addiction on the other.) Broken down further, the researchers found the misuse rate was 0.15 percent in patients given just one prescription postoperatively and was 0.29 percent in patients who got a second prescription as a refill. 

Multiple highly-respected Cochrane systematic analyses, the most rigorous reviews in the medical science literature, found the addiction rate in chronic noncancer pain patients on long-term opioid therapy to be around 1 percent.

Addiction and dependency/tolerance are two separate entities, but policymakers and many in the media equate the two. But the doctors in Upstate New York should know better. Physical dependence refers to the physiological adaptation to the drug such that abrupt cessation or tapering off too rapidly can precipitate a withdrawal syndrome, which in some cases can be life-threatening. Tolerance is an aspect of physiological adaptation, in which increasing dose of a medication become necessary to achieve the desired effect. Once a patient is properly tapered off of the drug on which they have become physically dependent, they do not feel a craving or compulsion to return to the drug. Dependence and tolerance are seen with numerous types of drugs, from anti-depressants and anti-epileptics to beta-blockers (used to treat hypertension and other cardiovascular conditions).

Addiction, on the other hand, is defined by the American Society of Addiction Medicine as a “chronic disease of brain reward, motivation, memory and related circuitry…characterized by the inability to consistently abstain, impairment in behavioral control, craving” that continues despite resulting destruction of relationships, economic conditions, and health. Addiction has a biopsychosocial basis with a genetic predisposition and involves neurotransmitters and interactions within reward centers of the brain. Some experts believe addiction is a learning disorder in which behavioral patterns are automatized as mechanisms for coping with stress or trauma. A major feature of addiction is compulsiveness. This compulsiveness is why alcoholics or other drug addicts will return to their substance of abuse even after they have been “detoxed” and despite the fact that they know it will further damage their lives. 

Writing in the New England Journal of Medicine in 2016, Drs. Nora Volkow and Thomas McLellan of the National Institute on Drug Abuse explained, “Unlike tolerance and physical dependence, addiction is not a predictable result of opioid prescribing. Addiction occurs in only a small percentage of persons who are exposed to opioids — even among those with preexisting vulnerabilities.”

In 2016 the Centers for Disease Control and Prevention published guidelines regarding opioid prescribing for pain. Many scholars and clinicians specializing in pain management and addiction treatment criticized the guide as lacking a basis in evidence. Despite the fact that the CDC stated its guidelines were meant to be “voluntary rather than prescriptive standards, “ and that much of the guidelines were based on “Type 4 evidence” (defined as “based upon clinical experience and observations, observational studies with important limitations, or randomized clinical trials with several major limitations”), policymakers on the federal and state level have been quick to adopt many of these guidelines as statutory limitations on opioid prescribing. The guidelines recognized that “clinical decision making should be based on a relationship between the clinician and patient, and an understanding of the patient’s clinical situation, functioning, and life context.” But one-size-fits all limitations on prescription dosages and amounts implemented by policymakers are incompatible with that statement.

An outcry from chronic pain patients experiencing the rapid tapering or termination of their chronic opioid treatment that followed in the wake of statutory enactments of the CDC guidelines led former Food and Drug Administration Commissioner Scott Gottlieb to order a meeting on “Patient-Focused Drug Development for Chronic Pain” on July 9, 2018, stating in the meeting announcement: “In short, having sound, evidence-based information to inform prescribing can help ensure that patients aren’t over prescribed these drugs; while at the same time also making sure that patients with appropriated needs for short and, in some cases, longer-term use of these medicines are not denied access to necessary treatments. We will take the first steps toward developing this framework in the coming months, with the goal of providing standards that could inform the development of evidence based guidelines (emphasis added).” Thus, the Commissioner implied his sympathy with criticisms raised by academic and clinical physicians and their patients regarding the misinterpretation and misapplication of guidelines that lacked a solid basis on the evidence.

Complaints by academiciansclinicians, and the American Medical Association(Resolution 235) finally caused the CDC to issue a clarification in April 2019, noting, “Some policies, practices attributed to the Guideline are inconsistent with its recommendations.” Among the misapplications of the guidelines it noted were those that result in “hard limits or ‘cutting off’ opioids,” stating the “Guideline does not support abrupt tapering or sudden discontinuation of opioids.” 

Yet the statutory and regulatory restrictions remain unchanged. To date 18 states have laws limiting the amount of opioids that can be prescribed for acute and chronic pain. Many have limits on the morphine milligram equivalent daily dose (MEDD) that may be prescribed, despite evidence in the peer-review science literature that MEDD is an inaccurate and inappropriate metric. And it appears that even many actively practicing physicians, such as the surgeons in the 18 upstate New York hospitals, ignore the science as well as pleas from patients. 

So the march continues, undeterred by the facts, toward a pre-modern approach to the understanding and treatment of pain, and a pre-modern understanding of the risks and benefits of opioids, and the subtleties that differentiate dependency from addiction.

August 12, 2019 2:47PM

Public Charge Rule Bans Almost Entirely Self‐​Sufficient Legal Immigrants

The Department of Homeland Security (DHS) finalized a regulation today that would ban legal status to immigrants who its officers determine are likely to become “public charges”—that is, wards of the state. DHS claims that the rule will promote self-sufficiency among immigrants, but the goal is a farce. The rule is designed to exclude immigrants regardless of the degree to which they are supporting themselves and contributing positively to the economy. DHS actually made the final rule worse than the proposed rule.

DHS responded to my comments on the proposed rule in its final rule without naming me specifically. My primary complaint was that DHS’s proposed definition of a public charge was anyone who received more than 15 percent of the poverty line in benefits, which entirely ignored the degree to which they supported themselves. On pages 245 and 246, DHS cites and responds to my comment (and others) on this point. DHS writes:

Other commenters stated that a noncitizen family of four making 250 percent of the federal poverty line could be deemed public charges if they received $2.50 per person per day, although such a family would be about 95 percent self-sufficient. A commenter stated that therefore, DHS’s standard to measure self-sufficiency had no rational connection with actual self-sufficiency.

Yet DHS responded to my comment by significantly worsening this issue. DHS writes that because “a lack of self-sufficiency is a single duration-based threshold,” it will now “consider an alien likely to become a public charge at any time in the future if the alien is more likely than not to receive public benefits for longer than 12 months in the aggregate in any 36-month period.” In other words, it doesn’t even matter the value of benefits received anymore. Use alone will trigger a public charge denial.

This means that the government adjudicator could predict that an immigrant will be 99 percent self-sufficient and still ban them. This rule has almost no connection whatsoever to requiring immigrants to support themselves. It is entirely about banning legal immigrants who this administration sees as a threat—socially and economically.

DHS actually defines a dependent of an immigrant as anyone how receives 50 percent of their support from the immigrant. But it defines an immigrant as dependent on the government if they receive any support at all from the government, even as little as 1 percent of their income. 

My second major complaint in my comments was that the model that “DHS’s model of predicting the likelihood of becoming a public charge is nontransparent and inaccurate” and that “DHS should use administrative or survey data to create a statistically valid factor model that predicts the probability of an immigrant becoming a public charge.”

DHS cited my comment (p. 410) but made no adjustments to its rule as a result. DHS’s response essentially ignores the difficulty of its methodology. Specifically, DHS treats multiple negative factors as having greater weight than those factors in isolation, even though I presented evidence that this isn’t true. Once income is known, for example, immigrant high school dropouts aren’t more likely to receive benefits if they don’t speak English. But DHS will count lack of English against the applicant regardless.

DHS’s flawed definition and the flawed methodology ultimately produce a public charge test that is designed to fail. It will result in denials of legal status to immigrants, including spouses of U.S. citizens. That is the goal and the only goal of this methodologically-challenged administration.

Cato has long advocated walling off the welfare state from immigrants, as opposed to walling off the country from them, but the public charge rule inverts this principle: using the prospect that immigrants might use welfare as an excuse to stop immigrants from coming legally. 

August 12, 2019 12:20PM

An Explanation of the Public Charge Rule: Frequently Asked Questions

The Department of Homeland Security (DHS) finalized a regulation this week that bans “public charges” from receiving legal status in the United States. The public charge rule redefines the historic meaning of this term, which will result in far more immigrants not receiving status in the United States based on a bureaucrat’s suspicions that they could use welfare. The rule is fundamentally flawed and will harm taxpayers, while separating Americans from family members abroad.

What does the public charge statute say?

Section 212(a)(4)(A) of the Immigration and Nationality Act (8 U.S.C. 1182) states, “Any alien who, in the opinion of the consular [or immigration] officer…. is likely at any time to become a public charge is inadmissible.” Someone who is inadmissible cannot receive a visa to travel to the country, be granted admission to it, or receive status in it. This law—which has existed largely in its current form since 1891—does not define “public charge.” Rather, it requires officers to consider at a minimum the person’s age, health, family status, finances, and education or skills.

In addition, the law mandates that family- and employer-sponsored immigrants receive “affidavits of support” from their sponsors in the United States. Affidavits of support are legally enforceable contracts between the U.S. government and the sponsor in which the sponsor agrees to support (and demonstrates support) for the applicant at an income not less than 125 percent of the federal poverty line (in 2019, $32,176 for a family of four) until the immigrant naturalizes to become a U.S. citizen or if the alien has worked 10 years. If the immigrant does receive welfare, the government can sue the sponsor for breach of contract (for at least 10 years) or otherwise seek to collect.

Does the rule or statute ban immigrants from using welfare? 

No. The rule (and statute) bans immigrants from receiving legal status in the United States based on a bureaucrat's projection that they might become dependent on the government in the future. This may discourage some immigrants from applying for welfare indirectly, but it does not prevent them from doing so. Even if an immigrant has never used welfare at any point in their life, a bureaucrat could still determine that they are likely to become dependent on the government at some time in their life in the future. 

Who does the public charge statute apply to?

The public charge statute primarily applies to noncitizens applying for many types of visas or status in the United States. While technically this includes most types of tourists, guest workers, students, and other temporary visitors, these categories will likely not receive the scrutiny of new permanent residents, as permanent residence grants access to far more benefits than temporary status. In 2017, family-sponsored immigrants made up about 80 percent of the new permanent residents who the public charge statute applies to. They are exclusively parents, spouses, and children of U.S. citizens and legal permanent residents (and their spouses and minor children). The law also covers employer-sponsored immigrants and their spouses and children (15 percent), as well as diversity lottery winners (5 percent). Refugees, asylees, and other immigrants admitted for humanitarian reasons are exempt.

How is the statute currently being interpreted?

In order to clarify the meaning of public charge in the wake of welfare reform, the now-defunct Immigration and Naturalization Service (INS) published a proposed rule in 1999 (and field guidance that immediately implemented it) defining a public charge as someone who is “primarily dependent on the government for subsistence, as demonstrated by either (i) the receipt of public cash assistance for income maintenance or (ii) institutionalization for long-term care at government expense.” Cash benefits include Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF), and any state or local equivalents. Non-cash benefits—such as food stamps or Medicaid—are not be considered. Even cash benefits receipt would not automatically result in a public charge denial.

How have prior administration enforced the statute?

In the early 1990s, the State Department had adopted a practice of denying a high percentage of immigrant visa applicants on public charge grounds. In 1998, 18 percent of all immigrant visa applicants received an initial public charge denial (13 percent received a final denial after having a chance to overcome it). But the INS definition in 1999 caused the rate to decline to 1 percent or less (from 2002, it reversed many denials in the 1999 to 2001 period). Last year, the State Department updated its guidance requiring that consular officers begin to consider whether receipt of non-cash benefits might predict future cash benefits use. As a result, the initial denial rate spiked to 3 percent of all applicants for the first time in a decade.

What will the Trump administration’s public charge rule change?

  1. The definition of public charge will change to use of any means-tested public benefits for more than 12 months in any 36-month period. This definition replaces the “primarily dependent” standard (51 percent of someone’s income) in favor of an absolute amount, disregarding the degree of dependency.
  2. The type of benefits considered will now include the likelihood to use both cash and non-cash benefits—federal, state, or local. The most important change here is that Medicaid and food stamps use will count against an applicant. These programs are by far the largest federal means-tested benefits programs. By including them, it increases the likelihood of becoming a public charge nearly tenfold.
  3. A new process of estimating someone’s likelihood of being a public charge will be created. The law and current guidance only require that adjudicators consider five factors— age, health, family status, finances, and education or skills. The public charge rule will define these factors more granularly (e.g., English speaking ability counts as a skill) and weight them positively or negatively. The rule would also create heavily weighted negative factors that would generally trigger a denial: 1) no reasonable prospect of future employment, 2) public benefits receipt in the prior 3-year period, and 3) no health insurance and a medical need. The only heavily weighted positive factor to counteract these is an income of 250 percent of the poverty line.

Why has the public charge rule been criticized?

  1. Immigrants are not “likely” to use public benefits. According to DHS’s analysis in the rule itself, “The data shows that the rate of receipt for either cash or non-cash public benefits was approximately 20 percent among the native-born and foreign-born, including noncitizens” in 2013. In other words, 80 percent of immigrants are not receiving public benefits. No matter how DHS slices the data, it could not find any population of immigrants with a propensity greater than 50 percent. DHS defines "likely" in the final rule to mean more than 50% probability to use benefits.
  2. The public charge rule ignores immigrant contributions. The rule would exclude people based on a projection that they are likely to use benefits in any future 12 months in any 36-month period. This means that people who make 200 percent of the poverty line could still be deemed a “public charge”/ward of the state, even though they are 95 percent self-sufficient. According to DHS’s analysis, only 14 percent of benefits recipients made an income of less than 125 percent of the poverty line, meaning that this rule will target thousands of applicants who will largely support themselves and contribute economically.
  3. The process to identify someone’s likelihood to use benefits is skewed to create denials. DHS’s proposed weighting scheme is scientifically invalid. It proposes a check mark system of positive and negative factors and then will compare the results. Yet it is empirically inaccurate to say that someone who doesn’t speak English and who lacks a high school degree is twice as likely to use benefits as someone who just doesn’t speak English. In fact, English language ability adds nothing at all once education and income is known. Finally, because the rule doesn’t define what it means by “likely” to become a public charge with any statistical exactness (or at all), every adjudicator will determine their own thresholds, resulting in denials when approvals would be appropriate.

What effects will the rule have?

  1. Fewer legal immigrants will receive approvals. DHS admits that the rule will have this effect—indeed, it is the purpose of the rule—but it declines to estimate it. The most modest reading of the rule implies that denials for public charge grounds will skyrocket back to the highs of the late 1990s when 13 percent of applicants received final immigrant visa refusals for public charge grounds. In 2018, this would have amounted to about 115,000 legal immigrants.
  2. Fewer legal immigrants will come legally to the United States. Banning some immigrants in certain backlogged categories will not necessarily reduce legal immigration because other immigrants will just take their slots. But 58 percent of the immigrants that this rule will affect—spouses, parents, and minor children of adult U.S. citizens—are in categories that have no cap. Greater denials will lower legal immigration to the United States, likely by tens of thousands. DHS acknowledges this fact as well, but fails to estimate it.
  3. U.S. citizens will be separated from their spouses and children. Nearly 370,000 immigrants who received permanent residence in the United States in 2017 were spouses or minor children of U.S. citizens. They constitute about 40 percent of all immigrants subject to the public charge rule. When the rule is implemented, they will be at risk of being denied and separated from their U.S. citizen spouses and children. The rule could ban about half of the spouses of U.S. citizens receiving permanent residence, according to an analysis of data on the employment status and incomes of spouses of U.S. citizens by the organization Boundless.
August 12, 2019 10:35AM

Will the ABA Endorse An Affirmative‐​Consent Standard In Sex‐​Assault Prosecutions?

Many colleges have adopted a principle known as "affirmative consent," which makes it easier to infer misconduct (and thus impose expulsion or other discipline) when a record is lacking in verbal or physical evidence one way or the other as to whether a student's sexual encounter with another student was consensual. It might seem unthinkable to apply such a standard in criminal law, where the consequences are not expulsion but imprisonment and the burdens of sex offender registration. 

And yet the American Bar Association is expected to vote as early as today on a resolution sponsored by its Commission on Domestic and Sexual Violence (emphasis added):

RESOLVED, That the American Bar Association urges legislatures and courts to define consent in sexual assault cases as the assent of a person who is competent to give consent to engage in a specific act of sexual penetration, oral sex, or sexual contact, to provide that consent is expressed by words or action in the context of all the circumstances, and to reject any requirement that sexual assault victims have a legal burden of verbal or physical resistance.

The italicized phrase might seem ambiguous, but the chair of the responsible commission, in a Thursday email, spelled out what is intended: "consent to sexual activity must be expressed by words or conduct." No expression of consent, no consent for legal purposes. 

So while the language of the ABA resolution doesn't mention burdens of proof or presumptions, it doesn't need to, as KC Johnson and Stuart Taylor, Jr. argue in today's Wall Street Journal

State laws in California, Connecticut and New York require educational institutions to find against students or personnel accused of sexual misconduct unless they can prove the accuser gave “affirmative consent,” meaning a positive manifestation by words or actions of consent to each sex act during an encounter. In practice, as Janet Halley of Harvard Law School has noted, these statutes authorize “proceedings in which the decision maker effectively presumes guilt and requires the accused to disprove it.”

(Prof. Halley, incidentally, is among four Harvard law professors with feminist bona fides who have challenged the lack of due process in current Title IX proceedings -- the others are Jeannie Suk Gersen, Elizabeth Bartholet, and former federal judge Nancy Gertner -- profiled by Wesley Yang in an excellent new piece for the Chronicle of Higher Education). 

Four days ago more than 100 members of the American Law Institute, the leading scholarly clearing house for discussions of the evolution of the law, came out strongly against the changes, noting that ALI's own membership had overwhelmingly rejected a similar proposal in 2016. The letter was signed by many prominent law professors, judges, and practicing lawyers. Perhaps less surprisingly, the National Association of Criminal Defense Lawyers (NACDL) has helped lead the resistance to the new resolution. 

Also four days ago, per Lara Bazelon on Twitter, the ABA's own Criminal Justice Section "unanimously vote[d] to withdraw co-sponsorship of the sexual assault consent resolution and to ask the House of Delegates to table it."

Let's hope this sends an unmistakable message to the full ABA not to proceed with the resolution. [slightly edited for space and redundancy]