October 15, 2020 3:09PM

Accusations of Social Media “Election Interference” Put Online Speech at Risk

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Earlier this week, the New York Post published articles containing information about alleged emails between Hunter Biden, the son of Democratic presidential nominee Joe Biden, and employees at Chinese and Ukrainian energy firms. Twitter and Facebook both took steps to limit the spread of the articles, prompting accusations of “election interference.” Prominent Republican lawmakers took to social media to condemn Twitter’s and Facebook’s decisions. These accusations and condemnations reveal a misunderstanding of policy that could result in dramatic changes to online speech.

According to Twitter, the company restricted access to the New York Post’s articles because it violated the company’s policies against spreading personal and private information (such as email addresses and phone numbers) and hacked materials. Twitter cited the same policy when it prohibited users from sharing 269GB of leaked police files. Twitter users who click on links to the two Post articles face a click‐​though “this link may be unsafe” warning. The articles in question include such information in images of the leaked emails. Those accusing Twitter of a double standard because the company allows users to share the recent New York Times article based on the president’s leaked tax documents neglect the fact that the New York Times did not publish images of the documents. Although consistent with Twitter’s policies, the decision to block the spread of the Post’s articles on Twitter absent an explanation or context was criticized by Twitter CEO Jack Dorsey.

According to a Facebook spokesperson, Facebook’s decision to restrict the spread of the Post’s Hunter Biden articles is “part of [Facebook’s] standard process to reduce the spread of misinformation.” Compared to Twitter’s response, Facebook’s was less clear.

Whatever one thinks about Twitter’s and Facebook’s decisions in this case the decisions were legal and consistent with Section 230 of the Communications Decency Act. Much of the online commentary surrounding restrictions on the New York Post (head over to #Section230 on Twitter to take a look for yourself) makes reference to a non‐​existent “publisher” v. “platform” distinction in the law.

In brief, Section 230 states that interactive computer services (such as Twitter, the New York Time’s comments section, Amazon, etc.) cannot — with some very limited exceptions — be considered the publisher of the vast majority of third‐​party content. Twitter is not the publisher of your tweets, but it is the publisher of its own content, such as the warning that appears when users click on the two New York Post article links. Section 230 applies to “platforms” and “publishers,” and does not prevent social media sites from fact‐​checking, removing, or limiting access to links.

Some “Big Tech” critics decided not to focus on Section 230 and instead focus on election interference. The conservative outlet The Federalist issued a statement making this claim, as did many others. According to those making the “election interference” claim, the New York Post articles are embarrassing to Joe Biden, and Twitter’s and Facebook’s actions constitute a pro‐​Biden interference in the 2020 presidential election. Conservative pundits are not the only ones making this kind of claim. Senator Joshua Hawley (R-MO) wrote to Dorsey asking him to appear at a hearing titled “Digital Platforms and Election Interference.” Sen. Ted Cruz (R-TX) wrote to Dorsey accusing Twitter of trying to influence the upcoming election. Later he accused Twitter of election interference and supported the Senate Judiciary Committee issuing a subpoena to Dorsey, which is expected to happen this coming Tuesday.

It is one thing for conservative pundits to accuse a private company of interfering in an election. In today’s political climate it is expected. What should send chills down the spine of everyone who values the freedom of speech and the freedom of association is the sight of two of the most powerful politicians in the country making the same accusation and insisting that Twitter’s CEO appear before a hearing and hand over documents related to how Twitter conducts its business.

To portray how Twitter and Facebook handled the New York Post articles as “election interference” has significant implications. Twitter and Facebook limited access to an article that is potentially embarrassing to a political candidate. If such actions can be considered “election interference,” should every content moderation action by a private company taken against any politician or candidate be considered interference? If The Wall Street Journal rejects an op‐​ed written by the Green Party’s presidential candidate is not that also “election interference”? When a music hall owner decides to allow the Trump campaign, but not the Biden campaign, to host a rally is that not “election interference”?

“Election interference” is a term that ought to mean something useful. Unfortunately, conservative commentators seem intent on warping the term so that it means little more than, “moderating content.”

So‐​called “Big Tech” and content moderation will continue to make headlines next year regardless of who wins the presidential election next month. While conservative commentators and activists are convinced that “Big Tech” is engaged in an anti‐​conservative crusade, they should consider that the political left has its own complaints. Bipartisan anger towards Big Tech could result in Section 230 reform or other legislation that puts the freedom of speech and freedom of association at risk. As lawmakers continue to criticize the most prominent social media companies we should remember that attempts to regulate online speech could have disastrous consequences.

October 15, 2020 1:32PM

Opioid Policymakers Keep Tilting at Windmills, Striking Patients in the Process

The American Psychological Association Dictionary of Psychology defines “denial” as “a defense mechanism in which unpleasant thoughts, feelings, wishes, or events are ignored or excluded from conscious awareness. It may take such forms as refusal to acknowledge the reality of a terminal illness, a financial problem, an addiction, or a partner’s infidelity…”

Many policymakers, including many in Congress, remain in a state of denial about the true cause of the overdose crisis: drug prohibition.

The Centers for Disease Control and Prevention’s October 4, 2020 provisional report on overdose deaths for the 12‐​month period ending March 2020 shows a total overdose death rate of 73,860 (up from 67,726 a year earlier), of which 52,488 are opioid‐​related. 39,535 (75 percent) of the opioid‐​related deaths involved illicit fentanyl and 13,793 (26 percent) involved heroin. Prescription‐​type opioids were found among 12,002 of opioid‐​related deaths (23 percent). Methamphetamine and psycho‐​stimulants were found in 17,435 (33 percent), and cocaine was found in 16,970 (32 percent) of total overdose deaths, also up dramatically over the past year.

Despite these glaring numbers, Senator Elizabeth Warren (D-MA) and Representative Katherine Clark (D-MA) joined with other House and Senate colleagues in sending a letter to the Drug Enforcement Administration urging the agency to finalize new regulations that would allow pharmacists to partially fill opioid prescriptions if they judge that patients don’t require the entire amount of opioids prescribed.

As Josh Bloom of the American Council on Science and Health points out:

On the surface, it would seem that the new regulation would be harmless, possibly even helpful. For example, it would enable someone with a prescription for 20 Vicodin tablets to tell the pharmacist “Gee, I don’t really need 20, just give me 15.” (As if that’s ever going to happen in this universe.) What is far more likely is for the pharmacist to say “you only need 15, not 20″ which isn’t the least bit difficult to believe since pharmacists have been haphazardly imposing their own limitations prescriptions for years :

“As a patient advocate and healthcare writer who is very active in social media, I see reports from thousands of patients who have been denied a refill of valid prescriptions for opioid pain medications. This is particularly true for prescriptions at high doses. And it is a trend reinforced by insurance providers and pharmacy chains as policy without scientific support. It’s pretty obvious that Elizabeth Warren and her colleagues literally don’t know what they are talking about.”—Richard “Red” Lawhern, Ph.D., Co‐​founder of the Alliance for the Treatment of Intractable Pain, and a member of the ACSH Scientific Advisory Board

The supposed rationale is to reduce the number of unused prescription opioids that can get stolen or otherwise diverted into the black market for non‐​medical use.

But the DEA and other policymakers have effectuated a dramatic reduction in opioid prescribing only to see the overdose rate climb, as non‐​medical users have switched over to cheaper and more readily available heroin and fentanyl provided by the efficient black market. Furthermore, there is no correlation between prescription volume and non‐​medical use or addiction among persons age twelve and up.

As millions of patients get abruptly tapered off of their chronic pain medications, and millions of others go under‐​treated for acute pain, policymakers remain in a state of denial and continue to press a quixotic war on prescription opioids in which patients in pain are civilian casualties.

October 15, 2020 12:51PM

DOL Said Its H-1B Wage Rule Should Cost Many Employers $0 But It Imposed Billions in Costs Anyway

The Department of Labor (DOL) released a rule last week that raised the “prevailing wage”—the minimum wage that employers must pay to H-1B and other foreign workers. In justifying the rule, DOL claimed that most employers were paying more than the current prevailing wage, so raising it shouldn’t affect them. Indeed, DOL said that the prevailing wage should approximate the wages that many H-1B employers were already paying to their workers. But it then went ahead and imposed prevailing wage rates that are far higher than the wages that H-1B workers are now receiving.

DOL summarizes its logic for raising the prevailing wage as follows:

the Department’s data show that many of the largest users of the H–1B program pay in many cases wages well over 20 percent in excess of the prevailing wage rate set by the Department for the workers in question.… Employers must pay the higher of the actual wage they pay to similarly employed workers or the prevailing wage rate set by the Department. Both possible wage rates generally should approximate the going wage for workers with similar qualifications and performing the same types of job duties in a given labor market as H–1B workers. It is therefore a reasonable assumption that … the wage rates they produce would, at least in many cases, be similar.

Where the Department’s otherwise applicable wage rate is significantly below the rates actually being paid by employers in a given labor market, it gives rise to an inference that the Department’s current wage rates … are not reflective of the types of wages that workers similarly employed to H–1B workers can and likely do command in a given labor market.… Put another way, when many of the heaviest users of the H–1B program pay wages well above the prevailing wage, it suggests that the prevailing wages are too low, and thus can be abused by other firms. (85 FR 63872, 63886).

To hear DOL tell it, then, most H-1B companies are already complying with both the letter and intent of the law and should have no problem with this new rule because the higher wages will only affect a few low‐​paying employers. It concludes that the prevailing wage rate “should approximate” the actual wage being paid for the “largest users of the H-1B program” and that the actual wage and prevailing wage should “at least in many cases, be similar.” But the prevailing wage rates that the rule actually adopted completely contradict these agency findings.

DOL produced wage rates that are almost entirely dissimilar from the actual wages offered to H-1B workers overall as well as among the top users in 2020. Table 1 shows the new hourly prevailing wage rates compared to the actual hourly wage offers in 2020. Overall, 94 percent of H-1B job offers were below the prevailing wage rates under the IFR. The new IFR prevailing wage rate is 20 percent more or higher than the actual wage offers for 88 percent of H-1B jobs in 2020. Overall, the average H-1B employer will have to increase actual wage offers by more than 30 percent. Among the top H-1B employers that DOL specifically indicates its findings should apply to, the new prevailing wages average 31 percent above, and again, the new prevailing wages are 20 percent above for 89 percent of H-1B jobs among the top users.

Notice that DOL claimed that a 20 percent difference was “significant” and proved the the prevailing wage rates were wrong, but now it has moved the wages more than 20 percent higher than actual wages, despite its clear statements. Far from costing employers nothing, the 30 percent wage hike will cost employers tens of billions of dollars in additional wages.

This is the second way in which DOL has fundamentally misrepresented its rule to the public. I previously noted that DOL made a massive error in its assumptions about where wages would fall under its new methodology. It’s possible that the one bad assumption explains why the prevailing wages are so far from the actual wage offers. Either way, DOL’s rule directly contradicts the agency’s own findings. Hopefully, a court will find that any agency action that contradicts its own findings is arbitrary and capricious and stop the rule.

October 14, 2020 3:33PM

King v. Burwell: A Clear Example of Legislating from the Bench

Confirmation hearings for Supreme Court nominee Judge Amy Coney Barrett have renewed interest in the 2015 case King v. Burwell. In 2017, Barrett told NPR that between Chief Justice John Roberts’ majority opinion and Associate Justice Antonin Scalia’s dissent, “The dissent has the better of the legal argument.” Democrats thus fear Barrett will not treat ObamaCare with due reverence when a new constitutional challenge reaches the Court on November 10.

The U.S. Supreme Court - Photo Credit: Claire Anderson

It was unintentionally fitting when, on the third day of hearings, Sen. Amy Klobuchar (D-MN) quoted a 2017 law review article Barrett authored:

There is a risk that a faction can run away with the legislative process, but there is also a risk that a faction will conscript courts into helping them win battles they have already lost, fair and square.

Klobuchar claimed the quote describes the upcoming ObamaCare challenge. But it is a better description of King, in which the Obama administration and its supporters pressured six Supreme Court justices to grant them a policy victory they lost fair and square in the political arena.

King concerned whether the ACA authorizes the executive to subsidize health insurance premiums and enforce the individual and employer mandates in states that do not establish a health insurance Exchange. The ACA clearly and consistently authorizes such subsidies (nominally, tax credits), and the mandate penalties they trigger, if a taxpayer enrolls in a qualified health plan “through an Exchange established by the State.” The law directs the federal government to establish Exchanges in states that do not establish one themselves. But nowhere does it authorize subsidies in federally established Exchanges. In effect, the ACA thus empowers states to block the subsidies, the employer mandate, and in many cases the individual mandate simply by not establishing an Exchange.

Not only is that what the ACA says–which is the real test of congressional intent–but all available contemporaneous evidence also shows that is in fact what congressional Democrats understood the law would do. It isn’t even a close call. Even the Obama administration’s most ardent defender acknowledged the ACA “clearly say[s]” subsidies are available only in states that establish an Exchange. During litigation, the Obama administration and congressional Democrats admitted that Senate Democrats wanted to withhold premium subsidies in states that failed to implement the federal regulatory scheme. House Democrats literally complained that the ACA would give states so much power to block its subsidies that “millions of people will be left no better off than before Congress acted.” NPR reported many House Democrats from Texas “worry that because leaders in their state oppose the health bill, they won’t bother to create an exchange, leaving uninsured state residents with no way to benefit from the new law.” What Jonathan Adler and I wrote in 2015 remains true: “to this day, neither the government, nor the Supreme Court, nor anyone else has identified even a single contemporaneous statement of any kind asserting that the ACA authorizes, or that its supporters intended for it to authorize, tax credits in federal exchanges.” Not a single ACA supporter claimed anything different until after critics began to take notice of the powers that this feature gave states to block the law.

If the ACA were not a high‐​stakes, highly controversial law—if it were not the culmination of decades of left‐​of‐​center political activism, or a president’s signature accomplishment, or the event that supposedly gave the United States membership in the club of civilized nations—career executive branch officials would have just implemented the statute as written, and left it to Congress to make any necessary changes.

Yet after Democrats took a “shellacking“ in the 2010 elections—public opposition to the ACA gave Republicans control of the U.S. House of Representatives and three‐​fifths of state legislative chambers, which ultimately led to some 38 states not establishing Exchanges—the Obama administration feared that this feature would give the American people a little too much input into the ACA’s survival. It subsequently announced it would dispense those subsidies and impose those penalties in every state, regardless of what the ACA clearly says.

That decision subjected tens of millions of Americans to taxes from which Congress expressly exempted them, and led multiple states, employers, and individuals to file four separate legal challenges. Plaintiffs in these cases secured victories at both the district‐ and appellate‐​court levels. A circuit split led the Supreme Court to grant certiorari.

On June 25, 2015, after the Obama administration and its allies spent months working the ref, six Supreme Court justices let the administration get away with it. Chief Justice Roberts acknowledged that “the most natural reading of the pertinent statutory phrase” is that the administration could implement the disputed taxes and subsidies only in states that establish Exchanges. He acknowledged his ruling flatly contradicted the words Congress used to speak directly to the question before the Court. Yet he and five justices blessed the administration’s extra‐​statutory (and therefore unconstitutional) taxes and spending. Jonathan Adler and I wrote this detailed critique of Roberts’ opinion. Here’s a summary I wrote later in 2015:

In King v. Burwell, six Supreme Court justices commanded the IRS to do what all nine justices agreed is the opposite of what Congress wrote into law…Specifically, the King majority commanded the IRS to subject some 70 million Americans to taxes from which Congress expressly exempted them, and to dispense tens of billions of dollars that all nine justices agreed Congress expressly forbade the agency to spend. Finally, the King majority disempowered states by depriving them of the power to block those taxes and subsidies—a power that all nine justices agreed Congress granted them—and disenfranchised millions of voters who elected the state officials who exercised those powers…

The six‐​justice majority, and the three dissenting justices explicitly agreed on the following points:

  • The ACA plainly authorizes premium‐​assistance tax credits (hereafter, premium subsidies) only, as the operative text says, “through an Exchange established by the State”;
  • Congress expressly defined “State” in a manner “that does not include the Federal Government”; and
  • When the Obama administration chose nevertheless to offer premium subsidies in the 38 states with Exchanges established by the federal government, it had the effect of expanding the reach of the ACA’s individual and employer mandates to millions of Americans…whom “the most natural reading” of the operative text exempted from those taxes.

Moreover, all nine justices implicitly agreed there is no indication Congress intended anything other than what the operative text says.

King enabled an even greater power grab than the Court knew. The ACA conditions the taxes and subsidies in question not only on states establishing Exchanges, but also on states implementing a reinsurance program, a risk‐​adjustment program, and other elements of the Act’s regulatory scheme. Not a single state even tried to implement all of those aspects of the law–which means the federal government has no statutory authority to implement those taxes and subsidies in any state. As I wrote in 2015:

Had the justices simply upheld the ACA as Congress wrote it, they would have immediately freed 70 million Americans in 34 states from unauthorized taxes, and enabled 30 million Americans in the remaining 16 states (California, New York, etc.) to sue for similar relief — if Congress didn’t provide relief first, which is both likely and how democracy is supposed to work. Instead, the Court allowed the IRS to continue implementing a nationwide system of taxes and entitlements in direct conflict with the words Congress chose to govern the question presented.

To reach the policy outcome it desired, the King Court abandoned the usual rules. Yale law professor Abbe Gluck explains the Court “adopted essentially the opposite” approach from what it had in previous statutory‐​interpretation cases. As attorney Dan McLaughlin observes:

In 2018, the Court, when presented with almost exactly the same issue in a less‐​controversial area of the law, unanimously refused to even so much as cite King as a precedent (even when lower courts in the case had followed it), and reached a directly opposite conclusion.

McLaughlin further notes that the five remaining justices in the King majority abandoned their own reasoning again in a case the Court decided in 2020. The King five all signed on to the following language, which flatly contradicts their reasoning in King:

Those who adopted the [statute] might not have anticipated their work would lead to this particular result. Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years…But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.

“In other words,” McLaughlin concludes, “none of the justices who signed onto the King decision actually believed in it.”

Supporters like to say that King upheld the ACA. On the contrary, King tossed out the ACA in favor of something that ACA supporters wish they could have gotten through Congress but couldn’t. It is one of countless unconstitutional executive and judicial revisions that have transformed the statute Congress passed into a law no Congress ever enacted or could have enacted. To defend King v. Burwell is to abandon the ACA in favor of “ObamaCare.”

Thus King v. Burwell is a ruling at war with the idea of law itself. It is a real‐​life example of elites rejecting the idea that the consent of the people should constrain their ability to wield power over the people. It allowed the executive and judicial branches to impose taxes and disburse subsidies that no Congress ever authorized—or could have authorized. It disrespects not only the ACA, but the Constitution, every level of our democracy, the American people, and the idea of law itself. No judicial nominee should ever defend or hesitate to criticize it.

October 14, 2020 3:13PM

Judge Barrett’s Record On Civil Procedure—And On Employment Law

Attorney James Wagstaffe writes for Law360 about Judge Amy Coney Barrett’s surprisingly extensive rulings on issues of civil procedure. A couple of big themes:

On personal jurisdiction, like her mentor Antonin Scalia, Barrett is right in line with the (to me, welcome) modern developments in which the high court has pushed back against state courts’ assertion of “long‐​arm” power over out‐​of‐​state defendants. For example, “Judge Barrett regularly cites Walden v. Fiore, where the Supreme Court, in an opinion authored by Justice Clarence Thomas, held that it is the contacts of the defendant — not the plaintiff — that determine the existence of personal jurisdiction.” (The Court was unanimous in that ruling.) While state courts can properly take jurisdiction over an out‐​of‐​state enterprise that has directly targeted the state for substantial business activity, it will not do to identify just any old way, no matter how incidental or indirect, by which the business has had an effect on or benefited from the state’s market. (More: James Beck takes issue with a decision that Barrett joined but did not write, in Mussat v. IQVIA, Inc., on the topic of personal jurisdiction in class actions).

On the kind of injury needed to confer standing to sue, Barrett has vigorously applied the Supreme Court’s influential 2016 decision in Spokeo v. Robins, which required as a prerequisite to sue that a plaintiff have suffered an actual concrete and particularized injury from the defendant’s conduct, as opposed to, say, tripping it up for some regulatory infraction that occasioned no such injury. The lack of such harm, in fact, deprives the court of jurisdiction altogether over the matter. In one of numerous injury‐​standing cases, she ruled that a “blind plaintiff in an Americans with Disabilities Act case, Carello v. Aurora Policemen Credit Union, suing a credit union for not having a text‐​aloud reader lacked standing since he was ineligible for membership” in the organization he had sued.

Read the whole piece here. Meanwhile, I’ve got a new piece in The Dispatch on Barrett’s record in workplace and employment discrimination cases:

According to Sens. Sherrod Brown (D‐​Ohio) and Sen. Elizabeth Warren (D‐​Massachusetts), Supreme Court nominee Amy Coney Barrett is “anti‐​worker”.…

As a libertarian, it wouldn’t bother me if Barrett were an ardent advocate of freedom of contract and property rights.. … [In fact, however,] Barrett has hewn carefully to the precedent and guidance handed down by the U.S. Supreme Court, just as you’d expect from an accomplished appeals court judge…

But that’s how it tends to go when pressure‐​group ideologues compile tidy checklists of cases meant to provide ammunition against judicial nominees. Much, even most of the day‐​to‐​day work of judges consists of relatively routine and technical issues in which emotion plays little role. The role of groups like Alliance for Justice is to jam this work into a “which side are you on” framework based on the notion that the only thing of interest in a case is which side won.

Speaking of those tidy checklists, Ken White deftly dissects one such story making the rounds, about how Barrett (along with every other judge to rule on the case) wouldn’t let an Illinois highway worker sue even though a racial epithet had been directed at him. In doing so, she applied, as the law directed, the Supreme Court’s formula spelling out the requirements of a hostile environment claim. Ken White concludes: “There are plenty of reasons to oppose Barrett without lying or misinforming people about the law.”

October 14, 2020 12:53PM

Calculating the True Cost of Trump’s “Trade Wars”

Given the centrality of trade policy to President Trump’s time in office and re‐​election campaign, much has been written about the successes and (more often) failures of the President’s tariffs and resulting trade conflicts, which began in 2018 and accelerated in 2019. The Wall Street Journal today, for example, assesses the President’s “unfinished” trade plans by looking at their effect on manufacturing jobs and economic growth. Numerous other reports — several of which I summarized in a recent article — take a similarly narrow approach when determining who “won the trade war.”

Although such analyses helpfully show some of the ways the President’s trade policies have been ineffective or harmful, they ignore a critical part of the last four years of Trump Trade Wars (and any other period of U.S. trade policy): the political dysfunction that that such protectionism always breeds. In the current case, there’s likely no bigger example of this dysfunction than the billions of dollars in new federal subsidies that the Trump administration has provided — with essentially no congressional oversight — since 2018 to politically‐​important American farmers who were harmed by (totally expected) foreign retaliation against U.S. agriculture exports. AAF’s Doug Holtz‐​Eakin today details just how dependent on the government these farmers have become, showing that well over 100 percent of the increase in U.S. farmers’ net income between 2017 and 2019 ($9 billion) came from subsidies — “federal direct payments” — tied to Trump’s tariffs ($10.9 billion):

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According to Politico, direct farm aid in 2020 is scheduled to hit $32 billion — “an all‐​time high, with potentially far more funding still to come… amounting to about two‐​thirds of the cost of the entire Department of Housing and Urban Development and more than the Agriculture Department’s $24 billion discretionary budget” — and many experts fear that “Washington could have a difficult time shutting off the spigot” in the future. Some of these funds are tied to the recession and COVID-19, but most simply wouldn’t exist but for the President’s tariffs and, of course, the subsequent lobbying:

Not all farmers received special payouts during the last three years, but the Trump administration has recently moved to ensure that those in critical states do not miss out. That includes the tobacco industry, which was prohibited from receiving any of the trade assistance because of legal restrictions against subsidizing the sector. In September, the Agriculture Department quietly shifted some of the funds that were allocated to its Commodity Credit Corporation fund — which legally cannot subsidize tobacco — into a separate account that can bankroll the crop. Tobacco farmers will receive up to $100 million in payments, easing some of the financial pain that has been felt particularly hard in the battleground state of North Carolina.…

Graham Boyd, the executive vice president of the Tobacco Growers Association of North Carolina, secured subsidies for his crops after his group and lobbyists from other tobacco growing states demonstrated to the Agriculture Department that farmers were losing hundreds of millions of dollars per year in lost exports to China. North Carolina is America’s largest tobacco growing state and China was its biggest customer, but since 2018 Beijing has not bought American tobacco.

Any assessment of the tariffs and “trade wars” is thus incomplete without a thorough accounting of the immediate and long‐​term cost of these subsidies — and other government efforts to paper over the inevitable problems that the President’s trade policies created — for both the economy and our political system.

Maybe trade wars aren’t good and easy to win after all.

October 14, 2020 11:20AM

The New Deal and Recovery, Part 8 (Supplement): The Brookings Report

In assessing the New Deal's contribution to economic recovery, I've naturally tended to draw on fairly recent research. That keeps me from being accused of being out of date. But it makes me vulnerable to the charge of overlooking the testimony of experts who studied the New Deal's consequences at first hand.

To that charge, I plead an emphatic Not Guilty! Those who know me will back me up when I say that I'm actually an antiquarian at heart, who'd much rather read a musty old report than any recent journal article. So I've read plenty of contemporary writings on the course of the depression and recovery, and the New Deal's contribution to them, including those of several of FDR's own advisors. These works often support the critical assessment of subsequent economic historians. If anyone is guilty of exaggerating the New Deal's contribution to the recovery, it's those popular historians who gloss over its failures while declaring that anyone who points to them must be a Hoover Republican!*

Of those failures, none was more glaring than that of the National Recovery Administration, the subject of my previous post in this series. And that failure was no less evident to those who witnessed its consequences as it has been to most economic historians since. I might cite numerous contemporary works to make the point—no other product of New Deal legislation met with more caustic or widespread criticism. But none makes it more assiduously than the 1935 Brookings Institution publication, The National Recovery Administration: An Analysis and Appraisal.

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