Starting today and throughout this week, the Cato Daily Podcast (Subscribe!) will drill down into issues related to immigration. First up, Alex Nowrasteh and I discuss the persistent myths surrounding immigrants and crime. Put simply, if you’re going to worry about crime rates among groups, worry relatively more about your fellow Americans and relatively less about immigrants, both legal and illegal.

Late on the night of January 25, the Arizona legislature unanimously approved “The Arizona Opioid Epidemic Act,” introduced at the urging of Governor Doug Ducey (R) just 3 days earlier. The Governor and legislature were in such a hurry that they took no time to request testimony from representatives of the medical profession or from any other experts that might have differing views about the best ways to approach the overdose crisis. The overdose crisis is such an “emergency” that there was no time for that. Yet, most of the Act’s provisions are not scheduled to take effect until 2019.

Among the harmful features of the Act are strict restrictions on the amount and dose of opioids doctors can prescribe to new and postoperative patients. Prescriptions may be for only 5 days, and the dosages are capped. Doctors wishing to exceed these limits must first consult a board-certified pain management specialist which, of course, might take several days. This policy is not evidence-based. It will cause injured patients and those recovering from surgery to suffer needless and agonizing pain. In December, the Arizona Medical Association and the Arizona Osteopathic Medical Association wrote the state Department of Health Services warning of harmful “unintended consequences” that may ensue from one-size-fits-all 5‑day limits on prescriptions and dosages for patients in acute pain.

This policy is not just inhumane, it’s dangerous. Desperate patients might seek to get better relief for their undertreated pain by supplementing their prescriptions with alcohol and/​or other drugs, or by obtaining drugs through the illegal market, increasing the risk of overdose or death.

Another provision requires all providers to use a state-approved E‑prescription system to prescribe opioids, placing a burden on health care providers in remote and rural areas of the state, where broadband internet access is inadequate and where some practitioners lack technological sophistication in their practices.

A “Good Samaritan Law” was a feature of the legislation. This law, a good idea already on the books in over 40 other states, is intended to encourage witnesses of overdoses to call first responders with the rescue antidote naloxone. In many cases, witnesses are afraid to call for help out of fear they might be arrested for possession of an illicit substance or some other offense. A “Good Samaritan Law” assures them they will not be arrested. However, in some states, the laws contain loopholes that have resulted in witnesses being arrested and charged with non-drug related offenses, or even with manslaughter if the overdose victim dies.

Unfortunately, in the rush to pass Arizona’s Good Samaritan Law, such loopholes were included. They allow law enforcement first responders to confiscate any drugs or drug paraphernalia they find on witnesses, and to arrest witnesses for non-drug related crimes. It won’t take long for word to spread after the first such arrest or confiscation. Don’t look for this Good Samaritan Law to reduce many overdose deaths.

It’s not as if the legislators weren’t aware that they were acting in haste and might be making matters worse. Senator Sylvia Allen (R) expressed concerns about the costs of second opinion consultations and how long it may take to obtain them. She also questioned the state’s micromanagement of medical practitioners. She told a reporter for the Arizona Capitol Times, “Here’s a doctor who’s practiced for years, knows that patient, and now they have to get a second opinion. It’s kind of an insult to them. So I don’t like that at all.” Similarly, Senator Steve Smith (R) was unhappy with imposing a new regulatory scheme on doctors, pointing out that only a few “bad doctors” overprescribe, and that adding this new burden is “still not going to solve the problem.” Republican Senator Warren Petersen agreed. 

Senators Rick Gray (R) and Regina Cobb (R) worried about the burden the new E‑prescribing requirements place on rural providers. Senator Gray worried that “some of this software isn’t even developed yet.” And Senator Cobb, pointing out that rural doctors might have to lay out $20,000 to set up their systems, called it an “unfunded mandate” on rural doctors.

Senator Sonny Borrelli (R) openly worried about the Act’s potential harm to patients. The Arizona Capitol Times reported him saying, “I don’t want to restrict the ability of good doctors to do their job and force that patient (who needs painkillers) to black tar heroin.”

Along with many of his colleagues on the other side of the aisle, Senator Borelli lamented the fact that barely any attention was given to harm reduction measures that have a proven record of saving lives and preventing the spread of disease. Short shrift was given to Medication Assisted Treatment, and Senator Borelli was unhappy that nothing was done to promote needle-exchange programs. Safe Syringe Programs have been long supported by the Centers for Disease Control and Prevention.

Even Republican Senate Majority Leader Kimberly Yee was unhappy with the rush to action: “If we’re not implementing this until 2019 I don’t know why we’re voting on this this afternoon…Sometimes when we rush through legislation there are consequences.”

Despite the objections raised by these and many other legislators, they voted for the bill along with everyone else— the bill passed unanimously later that day. It is based on the false premise that the opioid overdose crisis is the result of doctors and pharmaceutical companies teaming up to ensnare unsuspecting patients in the web of drug addiction. Yet all the evidence shows that, to the contrary, the overdose crisis is the result of nonmedical users seeking drugs in the illicit market. And in recent years the majority of overdose deaths are due to heroin and fentanyl.

This Act will not cause any intravenous heroin users to pull the needle out of their arm. But it might add to the growing number of deaths from drug abuse.

This sloppy, ill-conceived, and hasty piece of legislation is best understood as a bipartisan act of political grandstanding by the Governor and the legislature in a year when the Governor and most lawmakers are up for re-election. They have until 2019 to fix it before its harmful effects begin to appear.

In its final ruling issued just minutes ago, the U.S. International Trade Commission determined that the U.S. industry (Boeing) was NOT threatened with material injury by reason of dumped or subsidized imports of 100- to 150-Seat Large Civil Aircraft from Canada (Bombardier). This is big news in the trade world for a variety of reasons.

Typically, domestic industries seeking relief under these statutes (the U.S. Antidumping and Countervailing Duty laws) are successful because the evidentiary thresholds are so low. The antidumping law was changed in 2015 to lower the thresholds even further, which helps explain the near record number of trade remedy case filings in 2017. Boeing seemed to be testing how low that threshold was. As I wrote a few months ago, “The language in the statute would seem to preclude an affirmative threat of material injury finding if there haven’t been any import sales.” 

I’m glad the ITC seems to have agreed. It’s important that a case as meritless as Boeing’s, which was predicated on the notion that the domestic industry was “threatened” with material injury by reason of sales by Bombardier to Delta that haven’t even happened, of airplanes that haven’t even been built, which are of a class of aircraft that Boeing doesn’t even produce, was found wanting by the ITC. Seems like common sense, but the AD/CVD statutes accord very little room for common sense to prevail. It’s good to see some a crucial check on the system working.

But there’s still a lot of work to do to rein in the routine abuses and to make these laws more compatible with economic reality. 

The Ontario bar association has adopted a rule under which all lawyers “must prepare and submit a personal ‘Statement of Principles’ attesting that we value and promote equality, diversity and inclusion,” according to Bruce Pardy in the National Post, who says it’s a bad idea:

In free countries, law governs actions rather than expressions of beliefs. People can be required to obey the speed limit and pay taxes, but they may not be compelled to declare that the speed limits are properly set or that taxes are a good thing. The Supreme Court of Canada has said that forcing someone to express opinions that they do not have “is totalitarian and as such alien to the tradition of free nations like Canada, even for the repression of the most serious crimes.”

The rule and resulting suggested Statements of Principles have been the subject of numerous criticisms, debate, and defenses in Ontario and throughout Canada. According to No Forced Speech, an effort of the Canadian Constitution Foundation, the society rejected a proposal “to create an exemption to the new mandatory Statement of Principles for persons who believe the requirement violates their freedom of conscience.”

Now, per the CBC,

Ryan Alford, an associate professor with the faculty of law at Lakehead University, filed an application in Ontario Superior Court on Monday that seeks an injunction to block the requirement.

“We need to have an understanding about whether or not this is within the law society’s powers under the Law Society Act and whether or not it’s constitutional. I think a lot of people just want clarity on this,” Alford said in an interview.

Good luck to Prof. Alford and the CCF. But the U.S. is not so far behind. In 2016 the ABA adopted Model Rule 8.4 (g), which makes it “professional misconduct” for an attorney to engage in “conduct,” including verbal “conduct,” that “the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.”

Aside from its many other problems — lawyers “discriminate” on the basis of “socioeconomic status” every time they turn down a client they adjudge unlikely to pay their fee — UCLA law professor Eugene Volokh has argued that the ABA rule’s scope “is broad and vague enough to potentially apply to a wide range of political speech, and thus violate the First Amendment.” Texas Attorney General Ken Paxton has declared in an advisory opinion that if his state adopted the ABA model rule, the courts would probably strike it down as an unconstitutional restriction on “freedom of speech, free exercise of religion, and freedom of association.”

The “Test Acts” were a series of enactments in England that excluded from public office and penalized in other ways those who would not swear allegiance to the prevailing religious tenets of the day. There is no good reason to bring back their principles.

Regulation is often portrayed as the use of government authority to alter market outcomes away from the interests of firms and toward those of consumers and employees. In turn, the “story” associated with deregulation is the opposite: Corporations and the powerful use their influence to eliminate public sector controls on their conduct at the expense of consumers and employees.

But if the usual narrative is true how do we explain a full-page ad that AT&T recently published in multiple newspapers, including the Washington Post and the New York Times, calling on Congress to pass new legislation to guarantee internet neutrality? The short answer is that existing companies often favor regulation that reduces competition in ways not well understood by consumers or legislators. 

AT&T, one of the nation’s largest ISPs and a company that recently dedicated significant resources to support the FCC’s recent repeal of Title II net neutrality regulations, seems like an unlikely proponent of net neutrality legislation. But its position on the policy highlights why companies sometimes support regulations that would appear to harm them.

AT&T’s opposition to Title II net neutrality regulations is not based on a general hostility towards all regulations, but instead stems from the specific types of rules that Title II regulations would impose. Title II of the Federal Communications act of 1934 was originally intended to regulate telephone companies, and gave the government the ability to review and accept or reject telephone rates. During the fight for net neutrality regulation over the last ten years, the FCC sought to regulate the internet under other parts of the Communications Act, but courts continually said no, forcing the Commission to regulate under Title II. Because Title II comes with the possibility of price controls like those imposed on telephone companies, AT&T opposed that regulatory system and called for Congressional action to ensure net neutrality without the possibility of price controls.

As I’ve previously argued, net neutrality regulations are an attempt to settle fights between ISPs and content providers, like Netflix or Hulu. Both sides “need each other to satisfy consumers, but they fight each other to capture the larger share of consumers’ payments.” Title II price controls would have disadvantaged ISPs and benefitted content providers. Now that the debate over whether ISPs should be regulated under Title II is, at least temporarily, seemingly in its favor, why is AT&T continuing to call for new legislation?

Whereas Title II regulations disadvantaged AT&T, new legislation could create regulations that would benefit it by reducing the number of dimensions over which firms can compete and differentiate themselves. This would disproportionately hurt smaller companies and new market entrants and aid larger companies with larger networks and economies of scale allowing them to offer lower prices than competitors.

One example of differentiation that would be banned under net neutrality is known as “zero rating,” the offering of internet access plans that allow customers to access specific content or applications that don’t count against a customer’s data cap. Christopher Yoo of the University of Pennsylvania Law School argues that, on the demand side, zero rating would allow companies to tailor plans to different groups and types of consumers, and would help consumers save money by enabling them to buy only the plan they need.

Zero rating is a threat to AT&T because it increases competition. As Yoo contends, “on the supply-side, service differentiation promotes competition by broadening the ways that ISPs can compete. Offering service-specific plans that are targeted at key subsegments of the population can promote entry even by firms that suffer from disadvantages in cost and network.” AT&T’s call for new legislation constitutes an attempt to stifle smaller companies ability to compete through differentiation and specialization.

Instead of enacting new legislation to aid AT&T, the internet should be allowed to operate under the hands-off regulatory framework under which it flourished This would allow continuing innovation and let companies specialize to attract consumers without restricting AT&T’s own ability to differentiate.

The ad says:

AT&T is committed to an open internet. We don’t block websites. We don’t censor online content. And we don’t throttle, discriminate, or degrade network performance based on content.

Regulation is not necessary for AT&T to continue that commitment. It can market its position on net neutrality as a business model and let competitors that don’t support the policy explain to consumers why their position is better. Congress should resist the call for legislation and let the value of net neutrality be determined by consumers.

Written with research assistance from David Kemp.

Recently Sen. Ted Cruz (R‑Texas) criticized the large tech companies who host private forums for speech and association. Having questioned representatives of the companies closely, Sen. Cruz concluded:

The pattern of political censorship we are seeing across the technology companies is highly concerning. And the opening question I asked of whether you are a neutral public forum — if you are a neutral public forum, that does not allow for political editorializing and censorship. And if you are not a neutral public forum, the entire predicate for liability immunity under the CDA [Communications Decency Act] is claiming to be a neutral public forum, so you cannot have it both ways.

Sen. Cruz is wrong about the Communications Decency Act. Section 230 of the Act does not require tech companies to provide a “neutral public forum.” The section does say that Congress finds that “the Internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.” That finding does not create a legal obligation. Even if it did, those who support free markets would maintain that private management of internet forums would be the best way to attain diversity, cultural development, and intellectual activity. Beyond that, Section 230 of the CDA freed tech companies from liability for restricting “access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.” In other words, Section 230 helps tech companies act non-neutrally toward user generated content on their platforms! 

The managers of the tech companies may wish to offer a neutral public forum for speech and association, even though the CDA does not require it. But that is very different from the government requiring neutrality. The Fairness Doctrine sought to enforce neutrality on broadcasters, a dangerous policy for the reasons discussed in this Cato Policy Analysis. Having the government manage speech to attain neutrality or fairness or other goals violates the freedom of speech. The managers of the tech companies (as agents of their owners) have the right to oversee these private forums as they see fit. The forums are, after all, private not government property. 

I feel certain that once Sen. Cruz reconsiders his interpretation of CDA, he will return to form and support strong private property rights on the Internet. In doing so, he will also vindicate the speech and associational rights of the customers of the tech companies. 

Right after he took office, President Trump famously withdrew from the 12 nation Trans Pacific Partnership (TPP) trade agreement that the Obama administration had negotiated. That was not too surprising, given that during the campaign, he had referred to the TPP as “a continuing rape of our country.”

But the other 11 TPP nations decided to move forward without the U.S., and on Tuesday they were able to agree on a revised deal (with key changes to the text undertaken in the form of suspensions, so that the original provisions can be reinstated if the U.S. decides to rejoin). By Thursday, President Trump seemed to be rethinking his TPP opposition:

Trump: I like bilateral, because if you have a problem, you terminate. When you’re in with many countries — like with TPP, so you have 12 if we were in — you don’t have that same, you know you don’t have that same option. But somebody asked me the other day, ‘Would I do TPP?’ Here’s my answer — I will give you a big story. I would do TPP if we made a much better deal than we had. We had a horrible deal. The deal was a horrible deal. NAFTA’s a horrible deal, we’re renegotiating it. I may terminate NAFTA, I may not — we’ll see what happens. But NAFTA was a — and I went around and I tell stadiums full of people, I’ll terminate or renegotiate.

Kernen: So you might re-enter, or? Are you opening up the door to re-opening TPP, or?

Trump: I’m only saying this. I would do TPP if we were able to make a substantially better deal. The deal was terrible, the way it was structured was terrible. If we did a substantially better deal, I would be open to TPP.

Kernen: That’s interesting. Would you handicap … ?

Trump: Are you surprised to hear me say that?

Kernen: I am a little bit, yeah, I’m a little taken aback.

Trump: Don’t be surprised, no, but we have to make a better deal. The deal was a bad deal, like the Iran deal is a bad deal, these are bad deals.

Following up on these remarks, he said this in his speech in Davos today:

As I have said, the United States is prepared to negotiate mutually beneficial bilateral trade agreements with all countries. This includes the countries in TPP 11, which are very important. We have agreements with several of them already. We would consider negotiating with the rest, either individually, or perhaps as a group, if it is in all of our interests. 

What should we make of all this? Perhaps Trump is deviously trying to disrupt the momentum of the TPP 11, by encouraging the others to slow down and wait for the U.S.? More likely, TPP was in the news, and Trump therefore decided to talk about it in his usual incoherent way. I encourage reporters to press Trump and other U.S. trade officials on what exactly the U.S. has in mind now for the TPP, but I would be surprised if these remarks signal any change in U.S. trade policy.