Protesting Trump’s Inauguration

Massive preparations are underway here in the District of Columbia for Donald Trump’s inauguration. Temporary fencing is going up along with bleachers and roadblocks. In addition to thousands of well-wishers, thousands of protesters are expected. It will doubtless be an unforgettable day. 

It is worth remembering that before Mr. Trump can take any official action whatsoever, he must first take an oath to support and defend the Constitution. There are many other checks and balances in our system, but the oath of office is supposed to be the first line of defense. Mr. Trump can use the bully pulpit (and his Twitter account) to respond to his critics, but he must respect their right “to peaceably assemble, and to petition the Government for a redress of grievances,” as the First Amendment makes clear.

Can you imagine the outcry if Mr. Trump were to threaten to arrest protesters at his inauguration? It would be deafening—and fully justified. And yet, if you can believe it, there have been previous attempts to do just that. We should remember such episodes in our history.

In January 1997, Rev. Patrick Mahoney and a few other anti-abortion protesters planned to demonstrate along the sidewalks adjacent to President Bill Clinton’s inaugural parade route. When word got around about these modest plans, something had to be done. Mahoney and his Christian Defense Coalition received oral and written warnings that they would be arrested if they proceeded with their small protest. Shocked by such threats, Mahoney went to court to seek an emergency injunction to protect his group’s constitutional right to protest on the big day: January 20, 1997.

It soon became apparent that this story was bigger than a low-level bureaucrat trying to intimidate some guy that didn’t have any political connections. Attorneys trained at our best law schools arrived in court to double down. Yes, the local U.S. Attorney admitted, Randall Myers, counsel for the National Park Service, had informed Mahoney that his people wouldn’t be arrested if their signs offered congratulations to Clinton, but they would be arrested for signs containing any criticisms of Clinton. This blatant discrimination between viewpoints could be justified, said the local U.S. Attorney.

The Court of Appeals was pretty flabbergasted by such claims. Here is an excerpt from the unanimous ruling: “[A]ll constitutional authority supports the position we would have thought unremarkable, that a government entity may not exclude from a public forum persons who wish to engage in First Amendment protected activity solely because the government actor fears, dislikes, or disagrees with the opinions of those citizens. None of the authorities offered by the government is to the contrary. Indeed, none is on point.” Ouch! That’s a body slam in legal circles. And a well-deserved one.

Let’s fast-forward to recent news. Since Mr. Trump’s election, the left has been busy with plans to organize a resistance movement. California Assembly Speaker Anthony Rendon has promised to “lead the resistance to any effort that would shred the social fabric of our Constitution.” It was recently announced that California has retained former Attorney General Eric Holder to defend the Constitution from the Trump administration. That was not a wise move. In 1997, Holder was the U.S. Attorney in the District of Columbia. He was the one who tried to justify arresting protesters that were critical of President Clinton. If Holder is the Constitution’s defender, we’re in big trouble.

One of the reasons that our Bill of Rights is in trouble is because there are not many people or organizations that make a principled defense when it is attacked. Let’s resolve to do better going forward.

For related Cato scholarship, go here, here, and here.

(In)digesting the DeVos Confirmation Hearing

I got my dinner and a show last night. The dinner was fine, but the show? Not so great. Not much substance was covered in the DeVos confirmation hearing before the Senate Health, Education, Labor and Pensions committee, and when meaty issues were brought up they were too often smothered in gotcha questions and commentary rather than meaningful discussion.

A good part of the hearing was occupied by bickering over each committee member only getting one, five-minute questioning period, and whether or not that was committee tradition or an effort by the GOP majority to protect the witness. Maybe that’s insightful stuff if you care about the politics of all this—though I doubt it—but it doesn’t tell us one whit about where the nominee stands on the federal role in education.

The good news is that when DeVos was asked about her views on federal policy, she was deferential to states and districts. I don’t recall her stating resolutely that the Constitution leaves ed power to the states and the people—she stated little resolutely—but she hit the right notes. Included in that was telling committee chair Lamar Alexander (R-TN) that she would not use the power of her office to try to coerce school choice. She said she would try to convince Congress to push choice—an unconstitutional goal, but at least using the constitutionally correct process—but she would not try to do it unilaterally.

Postdoctoral Fellowship in Foreign Policy

Like the foreign policy commentary you see here on Cato’s blog? If you’re a PhD candidate or recent PhD, you should consider applying for our visiting research fellow position.

The Defense and Foreign Policy department is seeking candidates for a visiting fellow post. This one-year paid fellowship allows candidates to expand upon the policy implications of their dissertation research, and contribute to the work of the Cato defense and foreign policy department.

In order to apply, candidates must be either A.B.D. PhD candidates or a recent PhD graduate in political science, history or a related field, and must have authorization to work in the United States.

Candidates should also share Cato’s commitment to moving U.S. foreign policy towards prudence and restraint, and the policy implications of their work should be broadly compatible with a pragmatic, realist or restrained approach to foreign policy. You can find more information about Cato’s work on defense and foreign policy issues here.

During their time at Cato, the visiting fellow is responsible for:

  • Producing one scholarly paper (8,000-10,000 words) in the Institute’s Policy Analysis series on a foreign policy issue (which may or may not be part of the fellow’s dissertation)
  • Organizing at least two events
  • Authoring op-eds and blog posts
  • Handling media requests on international security issues

Fellows will work from Cato’s Washington, D.C. offices for the 2017-2018 academic year. Predoctoral fellows will receive $40,000, and postdocs will receive $50,000 in addition to health care coverage. Ideally, the fellow’s work at Cato would overlap considerably with his or her dissertation, making the fellowship useful both for policy research and finishing or refining the candidate’s dissertation.

If you are interested in applying, please submit a C.V. and a writing sample via Cato’s online application system no later than February 15, 2017. The application can be found here.

Fair Housing or Federal Agency Running Riot?

In case you missed it, Ben Carson has been labeled as being “at odds with fair housing.” During his senate confirmation hearing last week, Carson was required to defend his position on Affirmatively Furthering Fair Housing (AFFH), the Department of Housing and Urban Development’s (HUD’s) controversial 100-page-plus contemporary interpretation of the Fair Housing Act.

It may sound appalling that anyone anywhere would be against fair housing. Still, there are sane reasons to object to the rule. Carson suggested a couple of possibilities; for example, he worries about Washington, D.C. administrators demanding that local communities “go looking for a [racial] problem” when no evidence of such a problem exists a priori.

If you don’t like intemperate federal agencies running riot, there is another process-related objection that Carson missed: AFFH may insert the federal agency into policy areas not even remotely authorized by the legislation it purportedly interprets.

The table below provides a comparison of the original Fair Housing Act language and AFFH language, so that you can decide for yourself:

Fair Housing Act of 1968 (original legislation) Affirmatively Furthering Fair Housing of 2015 (HUD’s re-interpretation)
1)    Prohibits landlords from discriminating against minority tenants. 1)    Stated objective is to “replace segregated living patterns with truly integrated and balanced living patterns [within cities].” 
2)    Uses the word “segregated” or “segregation” a total of 0 times. 2)     Uses the word “segregated” or “segregation” a total of 126 times and urges“overcoming historic [geospatial] patterns of segregation.”
3)    The original FHA law uses the word “zoning” just 1 time, wherein it instructs the HUD Secretary to refer discriminatory local zoning or land use laws to the Attorney General so that he/she can file a lawsuit. 3)    The AFFH mentions “zoning” 53 times, wherein it suggests that communities change their zoning to improve racial integration (not a bad suggestion, but a departure from the original law).
4) The original FHA law uses the word “affirmatively” 2 times. Each time, it asks executive departments and agencies to administer their programs and activities in a way that affirmatively furthers “the purposes of this subchapter,” where the subchapter focuses on prohibiting a discriminatory relationship between landlord/seller and tenant/buyer. 4) The AFFH rule uses the word “affirmatively” 423 times, wherein it redefines the term to mean “replacing segregated living patterns with truly integrated and balanced living patterns” and “transforming racially and ethnically concentrated areas.”
5) The original FHA law uses the word “concentration,” referring to the concentration of poverty or concentration of minorities in cities, 0 times. 5) The AFFH rule uses the word “concentration” 56 times and urges “reducing racial or ethnic concentrations of poverty.”

HUD believes the rule merely implements the Fair Housing Act’s intent.  You can form your own view.

Victory for Kids: School Choice Safe in Florida

This morning the Supreme Court of Florida declined to hear McCall v. Scott, the Florida teachers’ union lawsuit against the state’s popular scholarship tax credit, which helps nearly 100,000 low-income students attend the school of their choice. That means the lower court’s decision dismissing the lawsuit stands, and the law is safe from further challenge on these grounds.

As I wrote back in August, the union and its allies had alleged that the scholarship program unconstitutionally supported a “parallel” system of public education and violated the state constitution’s historically anti-Catholic Blaine Amendment, which prohibits publicly funding religious schools. However, the trial court judge rejected this claim, holding that the plaintiffs lacked standing to sue because the scholarships were privately (not publicly) funded and that they were unable to prove that the scholarship program adversely impacted the district school system. The union appealed but the appellate court unanimously upheld the lower court decision. (For a more detailed explanation of the history of the case and the tax credit, see here.) Today’s state supreme court decision is the proverbial nail in the coffin for the union’s legal challenge.

Supporters of the scholarship program expressed their satisfaction this morning:

“The court has spoken, and now is the time for us all to come together to work for the best interests of these children,” Doug Tuthill, [president of Step Up for Students, Florida’s largest scholarship organization], said in a statement. “We face enormous challenges with generational poverty, and we need all hands on deck.”

After the lawsuit was filed in 2014, supporters of the program — including parents and clergy members — waged a full-court press supporting the program. Almost exactly a year ago, they staged a massive rally in Tallahassee.

“On behalf of all the scholarship children, their families and their clergy in the Save Our Scholarships coalition, I commend the state Supreme Court on their wise application of the law,” Reverend R.B. Holmes of Bethel Missionary Baptist Church in Tallahassee, said in a statement. “We look forward to working together with all parties to improve the educational outcomes of low income children in our state.”

School choice is safe in Florida. But just north of the panhandle, Georgia’s scholarship tax credit faces a similar legal challenge. Oral arguments in Gaddy v. Georgia Department of Revenue are scheduled for next week, which just happens to be National School Choice Week. For justice to prevail, the Georgia Supreme Court should dismiss that case as well. 

Vetting Vaccines

Last week, President-Elect Trump received a visit from none other than Robert F. Kennedy Jr., who our colleague Walter Olson refers to as America’s Most Irresponsible Public Figure. Keeping with this title, Kennedy will be joining the Trump team on a panel to vet vaccine safety.

This, like many of Trumps moves, will create international debate. For example, the most prominent advocate in Britain of the idea that there is a link between vaccinations (in his case the MMR or measles, mumps and rubella vaccine) and autism was Dr. Andrew Wakefield, whose 1998 Lancet paper (now retracted) attracted vast global interest. But Dr. Wakefield’s conduct of the research behind that paper was judged so unacceptable by the regulatory body, the General Medical Council, that his license to practice medicine was revoked. In that vignette we see a microcosm of the whole debate, because too many of the anti-vaccination advocates are not citing evidence and science at the highest level. And such episodes matter because if public confidence in vaccination falls too low, the rate of uptake of the vaccines will fall, herd immunity will fall, and epidemics of preventable yet dangerous disease will recur.

Much anti-vaccination anxiety focuses on the role of the mercury-based chemical thiomersal, which was once widely used to helped preserve vaccines but which is used less today. Nonetheless systematic reviews of the field have repeatedly affirmed that there is no evidence to suppose that thiomersal precipitates autism (see M Maglione et al, 2014, Pediatrics, 134: 325-337.)

Autism is a serious condition, which deserves serious investigation. No harm need come from this new Trump-inspired investigation as long as it is not in itself used to damage the credibility of existing vaccination protocols.

Education for American Indians

Among the many failures of federal policies over the decades, the failures of Indian policies stand out. The government has deprived American Indians of their lands, resources, and freedom in many ways. It has failed to create an institutional structure supportive of prosperity on reservations. And the Bureau of Indian Affairs has been mismanaged for two centuries, as I discuss here.

Naomi Schaefer Riley addresses the failures of Indian policies in The New Trail of Tears, which she will discuss at an upcoming AEI forum. I will be commenting on Riley’s book at the forum.

One of Riley’s themes is the failure of federal and tribal efforts to provide a decent education for children on reservations. Riley visited numerous schools, and she reports on the disheartening conditions that she saw.  

Last week the Washington Post reported:

The federal government has repeatedly acknowledged and even lamented its failure to provide adequate education for Native American children. Now, nine Native children are taking to the courts to force Washington to take action.

The children are all members of the Havasupai Nation, whose ancestral homelands are in and around the Grand Canyon. They attend an elementary school that is run by the federal Bureau of Indian Education and is, according to a lawsuit filed Thursday, hardly recognizable as a school at all.

Havasupai Elementary School does not teach any subjects other than English and math, according to the complaint; there is no instruction in science, history, social studies, foreign language, or the arts. There aren’t enough textbooks or a functioning library or any after-school sports teams or clubs, according to the complaint. There are so many and such frequent teacher vacancies that students are allegedly taught often by non-certified staff, including the janitor, or they are taught by a series of substitutes who rotate in for two-week stints. The school shuts down altogether for weeks at a time.

The Obama administration has been candid about the federal government’s failure to meet the needs of nearly 50,000 Native young people in nearly 200 schools the Bureau of Indian Education oversees.

“Indian education is an embarrassment to you and to us,” [Interior Secretary Sally] Jewell told the Senate Indian Affairs Committee in 2013.

The Bureau of Indian Education (BIE) oversees 183 Indian schools with 41,000 students, as I discuss in this study. The BIE operates about one-third of the schools, and tribal governments operate the other two-thirds.

The poor performance of the schools does not seem to be caused by a lack of funding. The schools received $830 million of federal aid in 2014, which is $20,000 per pupil. The GAO reports that “the average per pupil expenditures for BIE-operated schools—the only BIE schools for which detailed expenditure data are available—were about 56 percent higher than for public schools nationally.”

If more money is not the answer, what is? How about private management and school choice? Rather than running schools, the federal government could provide education block grants to the tribes, who would then outsource school management to expert education firms. Even better, federal funding could flow directly to Indian parents in the form of vouchers to be used at schools of their choice. I’ll be interested to see what former BIE head Keith Moore says about those options at the AEI forum.

More on school choice here.