President Biden has continued a policy started by President Trump of “expelling” back to Mexico many asylum‐​seeking families crossing the border. Because Biden has also continued to allow unaccompanied children traveling without their parents to stay, many parents and children make the awful decision to separate either after being expelled or preemptively before they can be. This phenomenon—which I’ve documented here and here—is now well known and recognized by everyone, even the Border Patrol. The question is: how big of a driver of the record increases in unaccompanied children is this?

An interesting statistic emerges from the February and March arrest numbers: the total number of Central American children—with or without a parent—this year (51,269) was similar to, but actually lower than, February and March 2019 (57,795), the year when the most significant migration under President Trump occurred. In both years, unaccompanied children were accepted. The only major policy difference is that in the spring of 2019, nearly all families were being immediately released into the United States and not expelled to Mexico, while 39 percent of Northern Triangle families were expelled to Mexico in 2021.

The result can be seen in Figure 1. In February‐​March 2019, 23 percent of Central American children crossed without a parent. In February‐​March 2021, nearly twice the share—45 percent—crossed without a parent. This meant that even though there were fewer total children in February and March of this year, there were nearly 10,000 more unaccompanied children. If children had crossed with parents in 2021 with the same frequency as in 2019, 11,178 fewer children would have crossed without their parents, roughly cutting the number in half.

The implication is that perhaps as many as 11,000 children separated from their parents to avoid expulsion to Mexico. It’s impossible to know for certain without surveying them all in detail. In Politico piece from a mid‐​March, Immigrant Defenders Law Center’s Yliana Johansen‐​Méndez told journalist Jack Herrera that of the children who the group had interviewed since December, “the number of migrant children whose guardians sent them ahead to cross the border while staying behind make up 33 percent of the total children lawyers met with in shelters.”

Johansen‐​Méndez said that the numbers were increasing rapidly, already up 26 percent to that point in March, and nearly half of all the unaccompanied children arrested in February and March were arrested in the last two weeks of March. Moreover, her numbers wouldn’t account for the minority of affected parents who never made the trip with their teenage children because they heard that they would be expelled. Whether one half or one third, it is clear that this policy is affecting thousands of children.

This should not surprise anyone. It is a natural response to the incentives of U.S. policy. The government has expelled to Mexico more than 22,500 non‐​Mexican children with their parents to Mexico since last March. It was always absurd to believe that these people would just stay there, and the government obviously should have expected many unaccompanied children to recross alone to avoid homelessness, destitution, and violence in Mexico once that option became more available in the late summer last year before becoming guaranteed in November. Many more will preemptively self‐​separate to avoid undergoing expulsion. The Washington Post Mary Beth Sheridan reported this week, yet another family on the brink:

Many migrants say they can’t return home, because they fled violence or spent all their money on the journey. Some are traveling to other border points to cross, or instructing their children to walk into the United States alone, knowing the Biden administration isn’t expelling unaccompanied minors. Xeni said she can’t go back to Honduras because her home was damaged by two devastating hurricanes in November. And she’s desperate to give her children a better life. So desperate, she’s considering a drastic step. “The only option I have is to send the kids over the bridge,” she said.

As long as Biden continues to make that the only option available, the high rates of unaccompanied children and family separations will continue.

In general, no federal law prohibits businesses from asking for proof of vaccination as a condition of consumer services or employment. Kathryn Watson of CBS News interviewed me about this and I hit a few main points, beginning with the relatively few exceptions:

* Religious objections and employment. Title VII, the federal employment discrimination law, forces an employer to accommodate employees’ religious beliefs when it can do so without cost. For that reason, employees with religious objections to vaccination can ask employers to exempt them, and employers must at least consider the request. “Consider,” however, does not mean “accede to”: under a 1977 Supreme Court case called Trans World Airlines v. Hardison, which I’ve written about here, Title VII “does not require an employer to make any accommodation for an employee’s practice of religion if doing so would impose more than a de minimis burden.” (That’s Justice Alito’s description of the holding.) It amounts to a relatively lenient standard for employers, and given that lack of COVID-19 vaccination increases the risk of contagion of a serious illness, I think most courts most of the time will accept employers’ argument that obligatory waivers would ask them to shoulder more than a de minimis burden.

* ADA exceptions. A small minority of persons are medically fragile in ways that make vaccination inadvisable. The federal Americans with Disabilities Act imposes robust duties on both employers and private businesses to accommodate those who are disabled or regarded as such. So this (small) group is the one most likely to prevail in court on a right to accommodation. By the same token, however, the group includes many persons whose medical vulnerabilities would make them reluctant to enter crowded situations anyway. (Some suggest that in practice opportunists could widen this small exception by pretending falsely to have such medical conditions.)

* HIPAA and privacy. It is remarkable how many misconceptions are loose on the Internet about the federal medical privacy law known as HIPAA, or the Health Insurance Portability and Accountability Act of 1996. In general HIPAA imposes data‐​privacy obligations on “covered entities” that include many health care providers, health insurers, data clearinghouses and some others that gather and retain health data. It doesn’t cover employers, except insofar as they enter the category in the course of such activities as offering health plans. Unless the service offered is itself health care, insurance or the like, most businesses have no HIPAA obligations at all toward customers — that goes for restaurants, stadiums, and theaters, for example. HIPAA generally restricts release of data to third parties, which means even a business service that is probably covered, such as a doctor’s practice, can ask you all the medical questions it pleases.

Moreover, HIPAA rights are generally designed to be waivable; that’s why your doctor’s office asks you to sign all those forms. As I observed, “… The answer is, no, HIPAA does not provide you with rights to patronize a business that doesn’t want to serve you, much less to work for an employer.”

That’s the state of the law, I think. As a normative matter, I take what I believe to be the libertarian view based on free association and contract: private businesses should be free to condition their services as they see fit on a customer’s or employee’s being vaccinated.

Earlier today, I wrote about the U.S. Food and Drug Administration’s recommendation that federal and state governments stop administering Johnson & Johnson’s COVID-19 vaccine because the agency was “reviewing data involving six reported U.S. cases of a rare and severe type of blood clot…called cerebral venous sinus thrombosis (CVST).” Here, I thought I would do a back‐​of‐​the‐​envelope comparison of this risk to that of another category of products on which the FDA has not placed a hold: oral contraceptives.

According to one literature review, the baseline risk of CVST among women is 3 per million per year and “the pooled odds of developing CVST in women of reproductive age taking oral contraceptives was 7.59 times the odds of developing CVST for those not taking oral contraceptives.” If so, the risk of CVST among oral contraceptives users is roughly 23 per million per year.

In a recent white paper, my colleague Jeff Singer and I explain that oral contraceptives pose such large benefits and such low risks that American College of Obstetricians and Gynecologists, the American Academy of Family Physicians, and a majority of reproductive health care providers support making them available over the counter.

Now let’s consider the data on CVST and the J&J vaccine. Since the FDA acknowledges those six incidents occurred in a pool of “more than 6.8 million doses,” that means the FDA has evidence that CVSTs have occurred in J&J vaccine recipients at a rate of about 0.9 per million recipients. If we assume half of recipients were women, the CVST rate among female recipients would be about 1.8 per million. Since the FDA approved the J&J vaccine on February 27, and those six cases all occurred before April 12, let’s then conservatively multiply by nine to arrive at an annual estimate of 16.2 CVSTs per million female J&J vaccine recipients per year. That is nearly 30 percent lower than the risk of CVST from taking a product that many physicians and consumers think should be available over the counter.

So why is the FDA putting a hold on the J&J vaccine on this basis?

As the federal government considers spending tens of billions of dollars to counter China and boost U.S. “critical technologies” like artificial intelligence, advocates have all but ignored perhaps the easiest and most cost‐​effective way to do both: substantially expanding immigration. New research from economist Gordon Hanson shows just how effective the policy could be (emphasis mine):

I examine the specialization of US commuting zones in AI‐​related occupations over the 2000 to 2018 period. I define AI‐​related jobs based on keywords in Census occupational titles. Using the approach in Lin (2011) to identify new work, I measure job growth related to AI by weighting employment growth in AI‐​related occupations by the share of job titles in these occupations that were added after 1990. Overall, regional specialization in AI‐​related activities mirrors that of regional specialization in IT. However, foreign‐​born and native‐​born workers within the sector tend to cluster in different locations. Whereas specialization of the foreign‐​born in AI‐​related jobs is strongest in high‐​tech hubs with a preponderance of private‐​sector employment, native‐​born specialization in AI‐​related jobs is strongest in centers for military and space‐​related research. Nationally, foreign‐​born workers account for 55% of job growth in AI‐​related occupations since 2000. In regression analysis, I find that US commuting zones exposed to a larger increases in the supply of college‐​educated immigrants became more specialized in AI‐​related occupations and that this increased specialization was due entirely to the employment of the foreign born. My results suggest that access to highly skilled workers constrains AI‐​related job growth and that immigration of the college‐​educated helps relax this constraint.

Based on his findings, Hanson concludes that U.S. immigration restrictions effectively deter the development of AI in the United States: “access to high‐​skilled immigration relaxes the talent constraint that limits the expansion of AI. The US government, by regulating the volume and composition of high‐​skilled labor inflows from abroad, in effect regulates the pace of growth in AI.” This “regulation,” in turn, will greatly affect whether the United States’ market‐​based model for developing AI has an “advantage” over China’s state‐​directed approach.

Other recent research on AI and U.S. immigration policy comes to similar conclusions:

Countries all over the world are vying for limited AI talent and implementing transparent, straightforward immigration pathways to attract them. Without a similar system, the United States will fall behind. America can no longer rely on only its reputation for stellar research programs and top‐​ranking companies to attract the best talent. If it is too difficult to work, stay, and put down roots in the United States, AI professionals will go elsewhere. With AI so inextricably linked with both future economic and national security advances, the stakes are high.

As I’ve noted previously, immigration has also been found to be similarly essential for semiconductors — another “critical technology” that federal officials now want to subsidize — and for U.S. innovation more broadly. Unfortunately, U.S. tech and China policy today is heavy on subsidies and top‐​down planning and light (at best) on immigration liberalization and other market‐​oriented policies that have been shown to boost U.S. innovation and economic growth. 

U.S. officials thus appear more eager to copy Chinese policy than to effectively counter it.

President Biden’s Border Patrol is on pace to arrest and incarcerate more children this year than the agency has in any year in its entire history. The arrest and detention policy—not that people are seeking safety here—is the “border crisis.” In at least one way, Biden seems to agree because he is criticizing his own department heads for failing to get unaccompanied children out of those jails fast enough. Yet at the same time, he is banning unaccompanied children and families from crossing the border legally at ports of entry, which would head off the whole problem.

In March 2021, the Border Patrol arrested 56,045 children and parents traveling with children (families) from the Central American countries of El Salvador, Honduras, and Guatemala, the Northern Triangle. Customs and Border Protection (CBP) admitted just 138 legally at ports of entry, 0.2 percent of all undocumented families and children crossing the border in the month from the Northern Triangle. Biden is blocking nearly 100 percent of all asylum seeking families and children from the Northern Triangle from entering legally, which is forcing ever greater numbers to cross illegally.

CBP has had a longstanding informal practice of blocking asylum seekers from trying to apply at ports of entry despite the law explicitly allowing anyone who “arrives in the United States” to do so. The goal is to deter requests. In the middle of 2016, as more asylum seekers tried to use this method, the Obama administration introduced a formal policy of “metering” or capping the number of asylum applicants because it wanted to detain them all and claimed it lacked capacity to do so. Then, in 2018, the Trump administration intentionally lowered the caps to prevent asylum‐​seeking “caravans” from applying for asylum there.

As a result of these policies, at no time in the last five years has a majority of asylum‐​seeking families and children from the Northern Triangle crossed at legal ports of entry, but in many months before the Trump administration’s metering restrictions in 2018, the share crossing at ports reached a quarter of all crossers (Figure 1). Overall, in calendar years 2016 and 2017, nearly one in five—or 18 percent—of all Central American families and children crossing the border entered legally at ports of entry. This share fell to 12 percent in 2018 and then 2 percent in 2019 and 2020. In 2021, Biden has let in just 0.3 percent of all Central American children and families.

The legal basis for the current restrictions is supposedly a March 2020 Centers for Disease Control (CDC) finding under Title 42 of the U.S. Code that anyone “who would otherwise be introduced into a congregate setting in a land Port of Entry (POE)” posed a public health risk. The order was made indefinite in October 2020. The order was made over the objections of CDC health experts after the Trump White House ordered the CDC to issue it.

Yet even this order allows that certain individuals to be “with approval from a supervisor, should be excepted based on the totality of the circumstances, including consideration of significant law enforcement, officer and public safety, humanitarian, and public health interests.” Obviously, admitting children and families to avoid having them cross illegally and wind up in border jails should qualify under multiple exceptions listed. Moreover, if CBP chose not to detain children and families in “congregate settings” at ports, they would also be exempt, but it has not chosen to do so. If they cross illegally, the children and families will be held in those exact settings anyway. In fact, those facilities are massively overcapacity, while the ports of entry holding cells are basically empty.

The Biden administration already did exempt unaccompanied children from Title 42 on January 30, so they should be legally entitled to apply for asylum at ports of entry, but CBP is not doing this. CBP is telling U.S. lawyers with unaccompanied child clients in Mexico that it will accept them at ports of entry, which explains the 46(!) who made it across in March. Lawyers believe that in practice, CBP officers are generally only accepting unaccompanied children when an attorney intervenes, which explains why the 46 entries in March are only double the number who entered in September 2020 under Trump when unaccompanied children were subject to Title 42, and why it’s actually a lower percentage of the unaccompanied child crossers overall than under Trump (1.4 percent v. 0.3 percent). Apart from Title 42, there is a separate ban on “non‐​essential” travel that Biden renewed until April 20, 2021, which unaccompanied children and asylum seekers are not specifically excluded under, but which gives CBP broad discretion to exclude anyone not specifically classified as “essential” in the order.

In any case, CBP cannot know whether a particular child is an unaccompanied child without interviewing them to see 1) whether they are under 18 and 2) whether the adults with whom they are traveling are their parents. But CBP is not conducting any interviews at crossing points. They are just standing at the border line and turning away everyone who comes to the ports without a visa or crossing card.

In March 2021, for example, the New Yorker reported on the case of three children—aged 3, 7, and 9—whose mother had died while in Mexico, and an attorney (Florence Chamberlin) worked to get them admitted at ports. Chamberlin said, “People cannot safely approach a port of entry. You can be stopped by Mexican authorities, or by criminals. And we didn’t want to have them blocked, turned back, or expelled.” It was only her intervention that managed to get them across.

To her point about Mexican authorities, the Washington Post reported in March that Mexico has “continued to act as an arm of U.S. immigration enforcement” and detailed cases of unaccompanied children being detained in front of the international bridges between Texas and Mexico. One 15‐​year‐​old girl described begging the agent, “Please, please let us pass,” only to be forced to migrant shelter. This effort directs flows away from ports and toward illegal crossing points, essentially pushing kids into the hands of human smugglers.

Because the Biden administration is still expelling many families, many expelled parents are also sending their children back north alone. But U.S.-Mexico blockade of the ports is preventing these children from being able just to cross legally and driving them into the hands of smugglers where they face dangerous crossings, and it is causing the deaths of children. The children will then undergo arrests, incarceration by Border Patrol, and extended separation from family.

Rather than telling Mexican authorities to interdict migrants coming to the ports, the Biden administration should be telling them to direct them to apply at ports, encouraging a legal and orderly immigration flow. As I explain in Solutions for Migrant Children, ports should process their cases expeditiously, grant them parole status, and admit them in the same manner that Cuban asylum seekers were processed prior to January 2017 under the Wet Foot, Dry Foot policy that Obama cancelled. This would greatly reduce and potentially end the illegal crossings, free up Border Patrol resources, and end the crisis of so many child arrests and detentions.

As school choice continues to expand across the country, you can expect to see a parade of op‐​eds and articles, like this one, decrying private schools as hotbeds of intolerance and general backwardness. And certainly some uphold beliefs and have codes of conduct many would consider intolerant and even loathsome. But here’s the thing: Research shows that private schools overall produce better – more tolerant and knowledgeable – citizens. And we have some new data suggesting that arrestees from the January 6 U.S. Capitol riot disproportionately attended public schools.

Last month I reported on numbers Cato’s Center for Educational Freedom had crunched indicating that nine percent of riot arrestees had attended private schools, a number proportionate to private schooling’s overall share of high school kids. Subsequent to that there have been many additional arrests, and we were able to locate schooling information for 14 more people, all of whom attended public schools. That brings the total to 47 arrestees for whom we have schooling information, only 3 of whom – or 6 percent – attended private schools. 94 percent went to public institutions.

The same important qualifications apply to these numbers as the previous tally – we were unable to locate K-12 education information for the vast majority of arrestees, what we have is almost entirely at the high school level – but this finding is yet another indicator that private schools may be better for the country’s social and civic health than public. And considering that liberty is the bedrock American value, arguing that school choice – educational freedom – is some sort of grave threat to the country may have things completely backwards.

The U.S. Food and Drug Administration is recommending the federal government and state governments stop administering Johnson & Johnson’s COVID-19 vaccine. Some 7 million Americans have received the vaccine, whose regimen requires only one dose. The FDA issued the recommendation after reports that six women between the ages of 18 and 48 developed blood clots after taking the vaccine. One of the women is in a hospital in critical condition. Another died. While the FDA’s recommendation is merely advisory, it is likely to halt vaccinations at federal facilities. States including Ohio, New York, and Connecticut have paused their administration of J&J’s vaccine. Critics fear that stopping the use of the vaccine will leave many Americans without protection from the virus and weaken confidence in all COVID-19 vaccines.

According to the New York Times:

the concerns about Johnson & Johnson’s vaccine mirror concerns about AstraZeneca’s, which European regulators began investigating last month after some recipients developed blood clots.

Out of 34 million people who received the vaccine in Britain, the European Union and three other countries, 222 experienced blood clots that were linked with a low level of platelets. The majority of these cases occurred within the first 14 days following vaccination, mostly in women under 60 years of age.

On April 7, the European Medicines Agency, the main regulatory agency, concluded that the disorder was a very rare side effect of the vaccine. Researchers in Germany and Norway published studies on April 9 suggesting that in very rare cases, the AstraZeneca vaccine caused people to make antibodies that activated their own platelets.

Nevertheless, the regulators argued, the benefit of the vaccine — keeping people from being infected with the coronavirus or keeping those few who get Covid‐​19 out of the hospital — vastly outweighed that small risk. Countries in Europe and elsewhere continued to give the vaccine to older people, who face a high risk of severe disease and death from Covid‐​19, while restricting it in younger people.

Both AstraZeneca and Johnson & Johnson use the same platform for their vaccine, a virus known as an adenovirus. On Tuesday, the Australian government announced it would not purchase Johnson & Johnson vaccines. They cited Johnson & Johnson’s use of an adenovirus. But there is no obvious reason adenovirus‐​based vaccines in particular would cause rare blood clots associated with low platelet levels.

So what’s the right move? Are the benefits of the J&J vaccine worth the very small (and uncertain) risk of blood clots among some women?

The answer is different for everybody. A 35‐​year‐​old woman who is at very low risk of getting seriously ill from COVID-19 but who has reason to fear a blood clot might decide to stay away from the J&J vaccine and wait until she can access the Pfizer or Moderna vaccine. A 65‐​year‐​old man with comorbidities that make him highly vulnerable to Covid‐​19 may decide the benefits of the J&J vaccine vastly outweigh the risk of blood clots.

Leaving such decisions to government, whether federal agencies like the FDA or even state governments, imposes a single answer on all patients, even on patients for whom it’s the wrong answer. It is a good thing that the FDA only recommended that the federal and state governments stop using the J&J vaccine, rather than ban it entirely. A recommendation still allows states, and therefore consumers in those states, to make a different decision. Nevertheless, the FDA and compliant states are blocking untold Americans from accessing an immensely valuable vaccine. This episode thus highlights another downside of having government allocate vaccines and another benefit of leaving such matters to markets. There also remains the risk that the FDA could ban the J&J vaccine just as it is banning the AstraZeneca vaccine.

Defenders of the FDA object that the agency would set back vaccination efforts even more if it ignored what turns out to be a more serious problem. This is, of course, true. The problem is that Congress and the FDA always value lost lives for which they might take the blame more than lost lives for which they will not suffer blame. The late Nobel Prize‐​winning economist Milton Friedman explained why the incentives the FDA faces produce perverse outcomes, and why we would be better off without it:

As I write elsewhere, “Several studies have estimated that the FDA would save more lives if it reduced the length of its new drug approval process.” But Congress and the FDA do not reduce the cost of the drug‐​approval process because they would only take the blame for what goes wrong; they would not get the credit for what goes right.

COVID-19 vaccines are the exception that proves this rule. The FDA approved them in less than a year, rather than the 12–15 years it typically takes to approve new drugs. The agency was able to do so because the public was acutely aware of the costs of blocking these items. But the J&J and AstraZeneca vaccines show the FDA has not changed its stripes.