October 13, 2020 5:29PM

Jurisprudence Questions for Judicial Nominees That Are Actually Interesting

So far, the Amy Coney Barrett confirmation hearings are proceeding in the way most people probably expected. Judge Barrett is confidently and calmly discussing her approach to judging, ably explaining past comments and decisions, and -- in accordance with the long-standing practice of prior nominees -- refusing to give commitments or comments about particular issues or cases. And the Senators are largely using the hearing to make political speeches. Democrats have mostly made policy arguments in support of the Affordable Care Act, criticized President Trump, and asked case-specific questions they knew Judge Barrett would never answer. Republicans, in turn, have asserted that religious liberty is important and asked fairly banal questions that mostly amount to "Judge Barrett, do you agree judges should interpret the law as written, or should they ignore the law and impose their own policy preferences?"

Given this state of affairs, I tend to agree with my colleague Ilya Shapiro that confirmation hearings no longer serve any valuable purpose, and they should probably be abandoned. While these hearings haven't been as bad as they could have been -- Democrats have, to their credit, mostly avoided character-driven attacks on Judge Barrett's faith -- they're not providing any useful information we didn't already know. And given the case- and issue-specific questions that dominate these hearings, I imagine they undermine judicial independence itself, by exacerbating the misperception that judges simply decide cases based on results they like.

This is unfortunate, however, because despite the caricatured nature of the questions both Republicans and Democrats tend to ask, there actually are interesting, challenging questions about judicial philosophy we could be exploring in these hearings. Judge Barrett has given a pretty standard defense of textualism, originalism, and the more general principle that judges should say what the law is, not what it should be. And Senate Democrats, by focusing nearly all their questions on policy arguments for case-specific outcomes, seem to be trying to do everything within their power to convince people that they actually do just want judges to be "super legislators," as it were.

But the reality is, at least at the level of generality that's been discussed so far, Judge Barrett's jurisprudence is typical not just for Republican nominees, but for the entire federal judiciary. It was, after all, Justice Kagan who famously said in 2015 "we're all textualists now," and who said at her confirmation hearing that, with respect to the nature of deciding cases, "it's law all the way down." Basically all judges agree the job of judging is to apply the law as it exists, not to impose their own value judgments, and basically all judges agree the words of legal texts, whether statutory or constitutional, should be interpreted as written, and given their ordinary meaning as it would have been understood by the people that passed it. While these ideas might once have been controversial in the judiciary, this just isn't where the interesting, challenging disagreements among judges actually are today.

So, it's discouraging that Democrats keep asking judicial nominees about case-specific policy issues, but it's also pretty cringey to hear Republicans talk as if judges appointed by Democrats actually embrace the idea that they should be "super legislators," or that simply being a textualist and originalist is enough to resolve difficult legal questions. As it turns out, judges can agree on abstract jurisprudential theories and nevertheless disagree on how to apply them in particular cases. Why? What explains those differences? What makes a case difficult, even for a textualist and originalist? Why are there certain areas where judicial decisions seem to overlap with political disagreements?

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October 13, 2020 4:20PM

Joe Biden’s Tired Old Infrastructure Plan

The infrastructure plan recently released by the Biden campaign is a collection of tired ideas that have consistently failed in the past. Too much of the plan is based on last year’s groupthink and not enough of the plan recognizes the new realities that have emerged from the pandemic.

A large part of the plan is based on getting people out of their cars and onto transit and bicycles. American cities have been trying to do this for the last fifty years, spending $1.5 trillion subsidizing transit, and it hasn’t worked anywhere. The plan calls for connecting low‐​income workers to jobs by building more transit, yet people can reach far more jobs by automobile than by transit while auto ownership, not transit subsidies, are the key to getting people out of poverty.

The plan is based on assumptions about transportation dollar and environmental costs that are fundamentally wrong. Transit, the plan says, saves money while cars impose a burden on low‐​income people and produce too many greenhouse gas emissions. In fact, when subsidies are included, American transit systems spend five times as much moving a passenger one mile than the average automobile. Ignoring subsidies, average transit fares are still more than the average cost of driving per passenger mile. Transit also uses more energy and emits more greenhouse gases per passenger mile.

The only token acknowledgement of the changes brought about by the pandemic is the use of the word “resilient” in the plan. But the planners seem to think that transit is resilient as it proposes “expanded public transit systems, giving more Americans an affordable, efficient way to get around without their cars.” In fact, as Hurricane Katrina, the Camp Fire, and other natural disasters have shown, highways and private motor vehicles are far more resilient than mass transit.

Just look at the current pandemic: transit agencies are in financial crises, but the highways are there when we need them, 24/7. As of August, transit ridership was still down by 65 percent, while driving was down only 12 percent. None of this is taken into account by the anti‐​auto parts of the plan.

The plan calls for electrifying cars and trains in order to reduce greenhouse gas emissions. It fails to note that most of the electricity in the country comes from burning fossil fuels so electrification doesn’t reduce greenhouse gases.

Of course, planners want to shift to renewable energy, which will cost trillions of dollars. Adding the transportation system to the electrical grid will massively increase the burden and cost of doing so. California is already suffering rolling blackouts due to its emphasis on renewable but unreliable energy; just think how bad it would be if the demand for electricity were doubled.

The plan mentions self‐​driving cars, but suggests that the government needs to spend billions on “smart cities” to make those cars work. Yet the government can’t even coordinate traffic signals in most cities; how is it going to operate and maintain so‐​called smart infrastructure? Biden apparently never got the memo that virtually all of the companies developing autonomous vehicles are designing those vehicles to rely on existing infrastructure and not to need any smart improvements in that infrastructure.

Finally, it is worth noting that the very first item in the plan is to “create good, union jobs.” Unions are among the biggest backers of the Biden campaign and this emphasis shows that Biden is just catering to his constituency. While that’s not a surprise, many of the problems with crumbling infrastructure emphasized in the plan can be traced to the high cost of union labor and union rules that makes it difficult to keep infrastructure in a state of good repair.

In the end, the Biden plan shows that government can be counted on to pick losers, not winners, and to prefer obsolete technologies and solutions that fail to recognize the changes society has made in recent months and years. Implementing this plan will waste trillions of dollars on infrastructure we don’t need and that we won’t be able to afford to maintain. This will cripple our cities and reduce the productivity of our economy.

October 13, 2020 4:16PM

New Research on Illegal Immigration and Crime

Andrew Forrester, Michelangelo Landgrave, and I published a new working paper on illegal immigration and crime in Texas. Our paper is slated to appear as a chapter in a volume published by Oxford University Press in 2021. Like our other research on illegal immigration and crime in Texas, this working paper uses data collected by the Texas Department of Public Safety (DPS) that records and keeps the immigration statuses of those arrested and convicted of crimes in Texas. As far as we’ve been able to tell, and we’ve filed more than 50 state FOIA requests to confirm, Texas is the only state that records and keeps the immigration statuses of those entering the criminal justice system. Texas gathers this information because its runs arrestee biometric information through Department of Homeland Security (DHS) databases that identify illegal immigrants. Unlike other states, Texas DPS keeps the results of these DHS checks that then allows a more direct look at immigrant criminality by immigration status.

The results are similar to our other work on illegal immigration and crime in Texas. In 2018, the illegal immigrant criminal conviction rate was 782 per 100,000 illegal immigrants, 535 per 100,000 legal immigrants, and 1,422 per 100,000 native‐​born Americans. The illegal immigrant criminal conviction rate was 45 percent below that of native‐​born Americans in Texas. The general pattern of native‐​born Americans having the highest criminal conviction rates followed by illegal immigrants and then with legal immigrants having the lowest holds for all of other specific types of crimes such as violent crimes, property crimes, homicide, and sex crimes.

Since Texas is the only state that records and keeps the immigration statuses of those arrested, we can’t make a direct apples‐​to‐​apples comparison between Texas and other states (every state should record and keep this information so we can answer this important question). It could be that illegal immigrants in Texas are the most law‐​abiding illegal immigrant population in the country – or the least ­­law‐​abiding. Until other states start recording and keeping the data, we won’t know for sure. But there is much suggestive evidence that the illegal immigrant criminal conviction rate in Texas is comparable to their crime rates across the country.

For instance, the ratio of the nationwide estimated illegal immigrant incarceration rate to the native and legal immigrant incarceration rates is very similar to the same ratios for the criminal conviction rate in Texas. The similarity is evidence that the pattern in Texas holds nationwide, at least to the extent that convictions and incarcerations are correlated. The only way that illegal immigrants could have a higher incarceration rate is if there is something seriously wrong with our method of estimating their total population in the United States and the actual number is much smaller or we are seriously undercounting illegal immigrants who are incarcerated. Neither is very likely, but it’s important to mention the possibility.

We go a bit further in this working paper by looking at how local variation in the illegal immigrant population is correlated with crime rates on the country level in Texas for the years 2012–2018. The relationship between changes in the illegal immigrant population and crime is known as an elasticity. The elasticity between two variables estimates how one variable, the illegal immigrant population here, affects another variable like the number of illegal immigrant convictions or the total crime rate. We control for the number of law enforcement officers per capita. We basically find no relationship. The only statistically significant relationship worth reporting is a negative association between total violent crime convictions and the illegal immigrant share with a point estimate of -0.104 that is significant at the 5 percent level. This exception suggests that a 10 percent increase in the illegal immigrants share of the population is associated with a 1 percent decline in violent crime convictions in our sample of Texas counties.

Our working paper isn’t the only new research on illegal immigration and crime. Christian Gunadi, an economist who recently graduated from the University of California Riverside, examined how the DACA program affected crime rates. Gunadi tested the theory, based on Gary Becker’s crime research, that issuing work permits to young illegal immigrants increases the opportunity cost of committing crime by making it easier for them to be legally employed. Gunadi found, when he analyzed the individual‐​level incarceration data, that there was no evidence that DACA statistically significantly affected the incarceration rate of young illegal immigrants. Gunadi also looked at crime on the state level and found that the implementation of DACA is associated with a reduction in property crime rates such that an additional DACA application approved per 1,000 population is associated with a 1.6 percent decline in the overall property crime rate. That second finding is consistent with the Beckerian crime model.

Other recent research into immigration and crime similarly find no relationship between immigration and crime or a slightly negative relationship, but their methods are not as robust so I don’t place as much weight on them. However, a recent working paper written by Conor Norris and published at the Center for Growth and Opportunity used difference‐​in‐​differences and the synthetic control method to see how the passage of SB-1070 in Arizona in 2010, which was an immigration enforcement law, affected crime there relative to other states. It found that violent crime in Arizona increased by about 20 percent under both methods.

Norris’ paper is interesting and worth developing further. For instance, most of the research on the economics of crime focuses on how higher opportunity costs lowers crime rates. In that way, increasing legal employment opportunities can lower crime while making it more difficult for illegal immigrants to work can push some of them toward committing crimes because they’d have less to lose. In 2007, the Arizona state legislature passed the Legal Arizona Workers Act (LAWA) that mandated E‐​Verify on January 1, 2008. E‐​Verify is intended to prevent the hiring of illegal immigrants. Forrester and I wrote a short blog post showing that the passage of LAWA may have increased the monthly flow of non‐​citizens into Arizona state prisons, but the effect was short‐​lived as many illegal immigrants either left the state or figured out how to get around E‐​Verify.

The above new research and the vast quantity of papers on how immigration doesn’t increase crime and frequently lowers it leads to an interesting question: Why do so many people think that immigration increases crime? The Christian Science Monitor had an interview segment recently where they asked criminologists why so many Americans think immigrants increase crime even though the weight of evidence says that they are less likely to commit crimes than native‐​born Americans. According to a recent Gallup poll, 42 percent of respondents thought that immigrants increase crime, 7 percent thought that immigrants decrease crime, and 50 percent said immigrants didn’t affect crime.

Much of the effect could be that people who don’t like immigration could just ascribe all types of negative behavior to them in order to justify their dislike. This probably explains a lot of it, but it would be a disservice to stop there. We must examine the possible other reasons. Another potential reason is that many people think that immigrant criminals could have been prevented from coming in the first place, so there’s more of a focus on their crimes (availability bias) because many people think that they are more preventable than crimes committed by native‐​born Americans. In that way, many people could think that allowing any crime by immigrants is a choice and that crime could go away at the stroke of a pen. That’s not how the world works and that doesn’t explain why so many people think that crime rates go up with immigration, but if that form of control bias is combined with a conflation between the number of crimes and the crime rate then the mistake is understandable if not based on an accurate understanding of the variables.

Another reason could be that native‐​born Americans who have the same ethnicity as recent immigrants might have a much higher incarceration rate, so the respondents to these surveys lump them in together and conclude that immigrants boost the crime rate. Among native‐​born Americans, Hispanics do have a higher incarceration rate but Asians have a much lower rate. This is further complicated by the fact that Puerto Ricans, who are not immigrants, likely have the highest incarceration rate of any Hispanic sub‐​group in the United States (see Table 1) and it would be quite silly for someone to blame immigrants for the higher Puerto Rican incarceration rate.

There is more and more evidence that immigrants, regardless of legal status, are less likely to commit crimes than native‐​born Americans. However, a substantial number of Americans still think that immigration increases crime. As more evidence builds over time, we can only hope than Americans respond by updating their opinions so that they fit the facts.

October 13, 2020 3:23PM

Samuel Brittan, RIP

I am saddened to hear that Samuel Brittan has died at the age of 86. He wrote columns on economics and politics in the Financial Times that were often described as “essential reading” for almost 50 years, as well as essays and books. He described himself as a “sort of individualist liberal,” writes the FT, with “lasting hostilities: to politicians (with rare exceptions), the Treasury and economic forecasting.”

In 1973 he wrote a brilliant essay titled “Capitalism and the Permissive Society,” which is included in his book by that name (later reissued as A Restatement of Economic Liberalism) and in The Libertarian Reader. He noted that in recent decades the advocates of personal freedom and of economic freedom have often found themselves on opposite sides of the political spectrum, with supporters of economic liberty lining up with Republicans or the British Conservative party and those who defend civil liberties and personal freedom becoming Democrats or Labour party supporters. In the 18th and 19th centuries no such distinction was made, and those who favored freedom — both personal and economic — were found in the liberal movement. The logical connection among various liberties remains, however, and in that essay Brittan argued that “competitive capitalism is the biggest single force acting on the side of what it is fashionable to call ‘permissiveness,’ but what was once known as personal liberty.” He pointed out that although capitalists and the young people of the Sixties regarded each other as the enemy, both the market economy and the “counterculture” were based on the idea of “doing your own thing.”

Read the whole thing.

The FT notes the themes of some of his other books:

His books included Left or Right: the Bogus Dilemma, in which he argued that Adolf Hitler and Joseph Stalin had more in common with each other than either had with middle‐​of‐​the‐​road politicians, and Is There an Economic Consensus?, in which he showed that economists of all political persuasions agree more closely with each other than they do with non‐​economists.

The FT’s Editorial Board adds:

He was a passionate believer in freedom from any sort of tyranny, political or personal, a true intellectual and a man of conscience.…

He was known for his belief in free markets. But this was more because of his conviction that they expressed and supported liberty than that they would make everybody rich. He was well aware, too, that a society with free markets, such as Victorian England, could be replete with squalid tyrannies. His liberalism was far broader than this. He believed in freedom in all domains — economic, social and political.

That belief made him ambivalent towards Margaret Thatcher and Ronald Reagan. “The greatest paradox of Thatcherism, and to some extent Reaganism,” he wrote, disapprovingly, “is the contrast between their economic individualism and their authoritarianism in other areas”. Brittan hated violence and coercion. Essentially a pacifist, he condemned what he saw as the immoral sales of arms.

Brittan was knighted in 1993, so if I were British I would call him Sir Samuel Brittan. As an American republican, I just call him one of the most insightful economic journalists of the past half‐​century. RIP.

October 13, 2020 3:10PM

No Year Has Seen Legal Immigration Cut Like the 2nd Half of FY 2020

The United States has welcomed more than 85 million legal immigrants to the United States since its founding. But at no time since it has maintained records has the country witnessed as fast a decline in legal immigration as it has seen in the second half of fiscal year 2020 (which finished September 30). Overall, the second half of FY 2020 saw 92 percent fewer immigrants from abroad than the first half, which was larger than any annual decline in the history of the United States. 

Figure 1 shows the monthly immigrant visa issuances under the Trump administration since March 2017. As it shows, legal immigration almost wholly stopped in April and May 2020—after the State Department closed its consulates and President Trump issued a proclamation suspending new visa issuances to most immigrant categories. It has recovered slightly since then, but it remains 84 percent below last year (which was also a down year).

Figure 2 shows the number of new arrivals of legal permanent residents or immigrant visas approved by year from 1820 to 2020, with the third and fourth quarter of FY 2020 added. The United States witnessed a more than 90 percent falloff in new immigration from abroad during the second half of FY 2020. This brings the annualized legal immigration rate from abroad to 0.03 percent of the U.S. population. This is the lowest rate of immigration except for three years during World War II and one year during the Great Depression.

The 92 percent drop in the second half of FY 2020 is larger than the drop during any single year in American history—larger than the 73 percent decline in 1915 coinciding with the start of World War I, larger than the 70 percent decline in 1925 coinciding with Congress closing legal immigration from Europe, larger than the 63 percent declines in 1931, 1942, and 1918 following the onset of the Great Depression and U.S. entries into each world war. Table 1 shows the data for all available years and the change for the second half of 2020 from the first half. While it’s only half a year, Figure 1 indicates how slow the immigration recovery has been. It is unlikely that the 2021 will be much different if President Trump is reelected. 

Before 1924, immigrants were never required to receive immigrant visas abroad to enter and become legal permanent residents, and from 1924 to 1952, nearly all immigrants had to receive immigrant visas abroad to become legal permanent residents. In recent years, about half of all new legal permanent residents have adjusted their status to permanent residence from temporary statuses, such the H-1B visa, refugee status, or illegal status. Generally, the number of new “immigrants” include both the number of new arrivals from abroad and those adjusting in the United States, but it’s also important to see who is entering from abroad because that reflects real changes in the U.S. population. The number of work visas, of course, have also declined just as dramatically.

This historic slowdown is important for both the short‐​term and long‐​term economic growth of the United States. Fewer workers mean that jobs will take longer to fill and slow the economic recovery, and in coming years, fewer workers will support more retirees. If the United States remains closed long enough, it could push worldwide patterns of immigration away toward other countries with more welcoming policies.

October 13, 2020 1:10PM

Update on The State of Private Schools under COVID-19

Launching the Center for Educational Freedom’s new book School Choice Myths: Setting the Record Straight on Education Freedom has taken up a lot of my time over the last couple of weeks, so I haven’t been able to post a summary of our data on the health of private schooling under COVID-19. But it’s not too late to pull it together, even as the state of K-12 schooling continues to evolve.


The good news is we have not seen the kill‐​off of private schools that many—myself included—feared at the outset of lockdowns. Our permanent closure tracker has not recorded a COVID‐​connected closing since September 1 and the total stands at 116 schools, reduced to 111 when school consolidations are considered. That is a tiny fraction of the nation’s approximately 32,500 private schools containing at least one grade K-12.

Permanent Private School COVID Closures by Date 101320

Of course, it is entirely possible that some permanent closures have not come to our attention. Many private schools are very small—almost a third have fewer than 50 students—and some schools may have ceased operations without any public announcement.

In early September we conducted a survey of 400 private schools randomly selected from the federal Private School Universe database and found 6 that had closed since the data was collected in the 2017–18 school year. 4 appear to have closed in 2020, but only 1 with an explicit connection to COVID, 1 before COVID, and 2 announced during the lockdown period but with unknown COVID connections. That suggests that less than 1 percent of private schools have closed due to COVID, consistent with our tracker numbers.


We have also seen private schools lose students, as anticipated. It is difficult for many people to pay tuition when they can access “free” public schools, for which, of course, they have had to pay taxes. It is even harder when families have suffered income reductions and the service was forced online and, hence, was of probably somewhat compromised quality.

According to our survey, about 57 percent of private schools saw enrollment reductions between the previous school year and early‐ to mid‐​September of this year, with 24 percent seeing an increase and 19 percent no change. On average, responding schools lost 14 students, or about a 6 percent enrollment reduction. Those numbers include pre‐​K students, which many schools with kindergarten and above often have. Set aside pre‐​K enrollment and roughly 47 percent of private schools saw declining enrollment, 33 percent increasing, and 21 percent no change. On average schools lost about 6 students.

Private school enrollment changes with pre-k

The 6 percent loss when including pre‐​K students would translate into a loss nationally of about 343,000 students from the most recent federal tally of total private school enrollment, which was from 2017.

This trimming of students—many of whom are likely homeschooling, at least temporarily—has not, apparently, been catastrophic for most schools, and numbers have likely been in flux as public school policies have evolved. But many private schools have thin margins and might not be able to sustain many more losses. As WORLD Radio noted in a story about Christian schools under COVID, which have seen similar enrollment trends to what we found for all privates, “Losing 7 percent of the student body may not sound like a lot, but for Christian schools that operate on tight margins those losses add up.”


Private schools are not folding at the rate we feared, but they are hurting, even as they have responded more quickly to families than have public schools. To retain these diverse institutions—and much more importantly, the ability to choose—money needs to follow children, whether it is via any federal relief that might come down the pike, or state education funding. We need to stop funding institutions and start funding children.

October 12, 2020 5:31PM

COVID-19 Vaccines Depend on Globalization (And, Therefore, So Does the Trump Administration)

Last week, the Wall Street Journal examined government efforts to secure early access to doses of the most advanced COVID-19 vaccines, and how this access could prove to be a game‐​changer for these economies in 2021. As shown in the following WSJ chart, many governments have contracted with multiple pharmaceutical companies in order to ensure that they have access to at least one vaccine that successfully completes “Phase III” trials, which are now underway for most of the listed drugs. Among these governments is the United States, which has thus far secured vaccine commitments from Oxford/​AstraZeneca (0.91 doses per capita); Novavax (0.3); Sanofi/​GSK (0.3); BioNTech/​Pfizer (1.83); J&J/Janssen (0.3); and Moderna/​NIAID (1.52). This puts the United States second, behind only the United Kingdom, in contracting for early vaccine doses and thereby potentially saving thousands of American lives and restarting the struggling domestic economy if one or more of those vaccines pans out.

Governments have contracted with several drugmakers to secure early access to COVID-19 vaccines

Beyond the sheer size and scope of the U.S. effort, what’s perhaps most striking here is the extent to which the Trump administration jettisoned its economic nationalism in pursuit of a game‐​changing COVID-19 vaccine. Indeed, as shown in the chart below (based our own independent research), each of the vaccines that the United States has secured appears to be heavily reliant on globalization — of investment, manufacturing, testing, and research personnel — to produce the final doses at the absolute maximum speed and scale.

This summary, moreover, is only the tip of the iceberg when it comes to the truly‐​global effort to beat COVID-19. Unmentioned in the chart above, for example, are all of the other people from around the world — investors, researchers, production workers, etc. — that make the listed companies, facilities and processes hum, as well as the previous global collaborations that have driven pharmaceutical innovation for decades.

Also unmentioned are the numerous other vaccine candidates that are in earlier stages of development. For example, a recent survey by the Coalition for Epidemic Preparedness Innovations (CEPI), which is working with the World Health Organization to ensure global access to a COVID-19 vaccine, showed over a hundred potential manufacturers of both vaccine‐​related drug substances (inputs) and drug products (doses) located in dozens of countries around the world (including, of course, the United States):

Numerous countries can produce inputs for COVID-19 vaccines
Global COVID-19 vaccine production

Since the unfortunate onset of COVID-19, American politicians of all stripes — but especially in the Trump administration — have blamed “globalization” for the pandemic and promised to re‐​shore U.S. manufacturing to bolster American “resiliency” and national security. Yet these very same officials have quietly embraced that very same globalization when it matters the most.

Lessons abound.