Federal Disaster Spending Boosted by Politics/Population

Despite rising federal deficits, Congress is set to pass another budget-busting spending bill. This time it is a $19 billion package of disaster-related subsidies.

The Washington Post reports “taxpayer spending on U.S. disaster fund explodes.” It documents increases in disaster spending by the Federal Emergency Management Agency (FEMA). In a typical recent year, “spending on the federal disaster relief fund is almost 10 times higher than it was three decades ago, even after adjusting for inflation.”

The story identifies two causes of the spending increases: climate change and population growth in disaster-prone areas. But it ignored perhaps the most important cause: increased federal intervention in the sorts of emergencies that used to be handled by the states, as I discuss here.

The Post is correct that more Americans are moving into disaster-prone areas:

Many more Americans have moved into harm’s way, with growth exploding in the Gulf Coast region and along the Continental Divide, where tornadoes frequently occur, according to a study on the “expanding bull’s eye effect” by Stephen M. Strader of Villanova University and Walker S. Ashley of Northern Illinois University.

Since 1970, 35 million more people and their homes have moved to coastal shoreline “in the direct path of potentially devastating storm surges,” the researchers found, a 40 percent increase.

“We’ve put more stuff in the wrong place the wrong way,” said W. Craig Fugate, a former FEMA administrator under President Barack Obama. “We’ve got a lot more stuff — bigger houses, multiple cars, more people — in high-hazard areas.”

More people are also living in fire-prone areas of California.

The Post does not explore an important reason why Americans are moving into these areas: government subsidies. Federal subsidies for flood insurance, flood control structures, beach replenishment, and disaster rebuilding have encouraged development in coastal areas, as I discuss here. Meanwhile, state policies have contributed to building in California’s fire-prone areas.

American governments are not alone in pursuing policies that increase disaster hazards. A World Bank / United Nations study identified such policies in numerous countries and discussed market-based reforms to mitigate risks.

In the United States, federalism is supposed to undergird our system of handling disasters, particularly natural disasters. Under the 1988 Stafford Act, the federal government is supposed to get involved in disasters only if they are of “such severity and magnitude that effective response is beyond the capabilities of the state and the affected local governments.”

However, presidents and congresses have increasingly ignored this limit. The number of presidential disaster declarations has soared and the costs of disaster bills have increased as politicians shoe-horn subsidies unrelated to immediate emergency response into bills.

Growing federal intervention is undermining the role of the states and private institutions in handling disasters. This intervention stems from politics not practical benefits. State and local governments and the private sector are better positioned to handle most disaster response. Also, states, cities, and private utilities aid each other during disasters.

Rising FEMA spending is not a good metric for measuring the severity of natural disasters striking the United States. Rather, it reflects growing populations living in risky areas and growing disregard for federalism in disaster-related response and rebuilding.

Immigration Form Denials Rise Every Quarter Except One Under Trump, Up 80% Overall

New data from U.S. Citizenship and Immigration Services, the agency that adjudicates applications for immigrants, reveals that the agency is denying applications by immigrants at a higher rate. The denial rate for all applications—everything from travel and work authorizations to petitions for foreign workers—has risen every quarter except one under the Trump administration.

Overall, in the first quarter of fiscal year 2019, USCIS had a denial rate 80 percent above that for the first quarter of FY 17—the last full quarter of Obama’s term (October to December 2016). The denial rate increased from 7.4 percent in quarter 1 of FY 17 to 13.2 percent in quarter 1 of FY 19. Figure 1 shows the trend by quarter from FY 16 to FY 19.

Figure 1: Denial rate for all immigration benefits by quarter

The denial rate in the first quarter of 2019 was the highest for any quarter for the period that USCIS has published records, FY 13 to FY 19. The higher denial rate translates to more than 72,000 denials in quarter one of FY 19. These data exclude applications for citizenship and include all other USCIS applications except those for DACA and TPS—two programs for illegal immigrants that the president has tried to virtually eliminate—but the trends are similar regardless. They do not include visa applications that are made to the U.S. Department of State, though denial rates have increased there as well.

Figure 2 highlights the trend for affirmative asylum applications by quarter from FY 16 to FY 19. These applications do not include those made “defensively” in immigration court by illegal border crossers. The data show that from the first quarter of FY 17 to the first quarter of FY 19, the denial rate for affirmative asylum applications rose from 0.8 percent to 5.1 percent—a 515 percent increase.

Figure 2: Denial Rate for Affirmative Asylum Applications

Figure 3 shows the denial rate for T visa applications by quarter from FY 16 to FY 19. These applications grant legal status to victims of severe human trafficking. From the first quarter of FY 17 to the first quarter of FY 19, the denial rate for T visa applications rose from 11.3 percent to 43.3 percent—a 284 percent increase.

Figure 3: Denial Rate for T Visa Applications (Trafficking Victims)

Figure 4 provides the trend for family-based adjustment of status applications. These applications grant permanent residence (i.e. a green card) to immigrants. The denial rate has increased from 11.2 percent in the first quarter of FY 17 to 14.6 percent in the first quarter of FY 19—a 30 percent increase. As it shows, however, the trend started before FY 17. The increase since quarter 1 of FY 16 has been 60 percent.

Figure 4: Denial rate for family-based adjustments of status (Green Cards)

Figure 5 provides the trend for the denial rate for employment authorization documents (EAD) by quarter from FY 16 to FY 19. Some immigrants whose status doesn’t automatically include it can apply for permission to work. These include applicants for asylum or certain spouses of H-1B visa holders who have pending green card applications. The EAD denial rate has increased from 4.7 percent in the first quarter of FY 17 to 10.5 percent in the first quarter of FY 19—a 123 percent increase.

Figure 5: Denial rate for employment authorization documents

Figure 6 shows the trend for petitions for nonimmigrant workers (I-129 forms). These are applications that employers make on behalf of foreign guest workers, such as H-1B high-skilled workers and H-2A seasonal farm workers. The denial rate has increased from 17.6 percent in the first quarter of FY 17 to 28 percent in the first quarter of FY 19—a 59 percent increase.

Figure 6: Denial rate for petitions for nonimmigrant workers

Figure 7 illustrates the denial rate for advanced parole from FY 16 to FY 19. Advanced parole provides immigrants advanced permission to leave and reenter the United States without triggering certain consequences. Green card applicants often use advanced parole to travel internationally while their green card application is still pending. The denial rate increased from 8.4 percent in the first quarter of FY 17 to 14.7 percent in the first quarter of FY 19—a 75 percent increase.

Figure 7: Denial Rate for Advanced Parole (Travel Authorization)

The higher denial actually comes as the agency has received fewer applications. Total applications—again excluding citizenship, DACA, and TPS—have fallen from 1.7 million in quarter one of FY 17 to 1.3 million in quarter one of FY 19. The higher denials are caused by a variety of immigration changes, including the president’s “Buy American, Hire American” and “extreme vetting” executive orders. USCIS also increased the length and complexity of its immigration forms—doubling or tripling their length—and the government has also changed its standards for asylum. It has made issuing denials easier and is looking over the shoulders of adjudicators.

These denial rates come from only one of the agencies responsible for immigration, but this phenomenon spans the administration. U.S. Department of State and Department of Justice, which handle some types of applications, also have increased denials. The ultimate goal of this administration is simple: less immigration—illegal or legal.

The Federal Election Commission Is Bad Enough

Chris Hughes, a founder of Facebook, has proposed Congress create a new agency to “create guidelines for acceptable speech on social media.”

As Hughes notes, this proposal “may seem un-American.” That’s because it is. At the very least, Hughes’ plan contravenes the past fifty years of American constitutional jurisprudence, and the deeply held values that undergird it. Let’s examine his case for such a momentous change.

He notes that the First Amendment does not protect all speech. Child porn and stock fraud are not protected by the First Amendment. True threats as harassment are also illegal. Incitement to violence as understood by the courts can also be criminalized. All true, though more complex than he admits.

The fact that the courts have exempted some speech from First Amendment protection does not mean judges should create new categories of unprotected speech. Hughes needs to make a case for new exemptions from the First Amendment. He does not do so. Instead he calls for an agency to regulate online speech. But, barring drastic changes to First Amendment jurisprudence, his imagined agency would not have the authority to broadly regulate Americans’ speech online.

However, Hughes’ old firm, Facebook, can and does regulate speech that is protected from government restrictions. In particular, Facebook suppresses or marginalizes extreme speech (sometimes called “hate speech”), “fake news” about political questions, and the speech of foreign nationals.

Facebook is not covered by the First Amendment.  You can support or decry their decisions about such speech, but it would be “un-American” to say Facebook and other private companies do not have the power to regulate such speech on their platforms. And I might add that you can exit Facebook and speak in other forums, online and off. A federal speech agency would not be so easily avoided.

Hughes may think that Facebook is doing a poor job of regulation and that its efforts require the help of a new government agency (which would be subject to the First Amendment). But if we ended up with government speech codes imposed by private companies, the courts might well swing into action on the side of free speech. In that sense, the new agency would actually vitiate private efforts at content moderation. We might well end up with more of the online speech Hughes and other critics want to restrict.

In sum, Hughes’ agency is a bad idea in itself. It is unlikely to accomplish his goals. The agency might even weaken private efforts to limit some extreme speech. Of course, if judicial doctrines changed to accommodate new speech restrictions imposed by this new agency, America really would change for the worse. It is encouraging, however, how little support and how much criticism Hughes’ proposal has received from his fellow Progressives. (See the critiques by Ari Roberts and Daphne Keller linked here).   Conservatives should feel free to chime in.

Why Measles Making the News Is a Sign of Progress

A set of measles outbreaks in Washington state, New York City, and elsewhere, is making national headlines and frightening parents around the United States. Counter-intuitively, measles making the news is a sign of progress. Not long ago, measles was so common that it was simply not newsworthy. Suffering from the extremely infectious disease, which causes spotty rashes and a hacking cough, was widespread and often deadly.

It was once the case that even royalty fell victim to diseases now easily preventable with routine shots given during childhood. Measles killed the un-vaccinated King Kamehameha II of Hawaii, and his queen, Kamamalu, in the 1800s. A century prior to that, King Louis XIV of France lost his brother, son, grandson, and great-grandson to smallpox. Smallpox once claimed approximately 400,000 lives annually in Europe in the late 18th century, and in the 20th century, it caused hundreds of millions of deaths around the world. Thanks to vaccines, smallpox was eradicated in 1980.

As recently as the late 1950s and early 1960s, nearly twice as many children died from measles as from the polio disease. Thanks, once again, to vaccines, polio was eliminated from the United States in 1979.

Recent coverage by the Washington Post of the current measles outbreaks contains an amazing anecdote of a measles victim’s visit to a doctor: “the doctor, who had never seen measles, misdiagnosed the man’s fever and cough as bronchitis.” That measles is now so rare that even a trained medical doctor cannot recognize it, when just a generation ago it was a common childhood ailment, is truly a triumph of medical progress.

 

As recently as 1990, measles caused over 22 deaths per 100,000 people globally. Thanks to the measles vaccine and rising global vaccination rates, that figure fell to just over 1 per 100,000  people by 2016, the most recent year for which there is data. That represents a decline in measles deaths of over 95 percent.

The current uptick in measles cases is troubling. But the fact that measles cases are making the news at all is a testament to medical progress.

Armslist and Bias against Conservatives Online

Last week, conservatives once again cried “bias” after Facebook banned a spate of popular fringe pundits and conspiracy theorists. Meanwhile, the week’s most important content moderation story went, for the most part, unnoticed. Had conservatives paid more attention to the Wisconsin Supreme Court’s ruling in Daniel v. Armslist, they might feel differently about the utility of platform intermediary liability protections like Section 230 of the Communications Decency Act, a bedrock indemnity that prevents internet platforms from liability for user behavior. While usually understood merely as a shield for social media firms, it guards a wide variety of services that utilize user-generated content, such as classified advertising or individual websites’ comments sections.

Armslist is essentially a digital classified ads section for guns. Daniel, the daughter of a shooting victim, sought to hold Armslist liable for the use of its platform by her mother’s murderer. Her suit alleged that certain features of Armslist’s site were negligently designed, without regard for how they might be used by persons prohibited from buying firearms. According to the complaint, Armslist should have anticipated that its lack of user registration requirements and the ability to search for in-state, background check-free sales would be misused by patrons prohibited from possessing firearms. In most states, it is perfectly legal to privately sell a firearm to your neighbor without utilizing the services of a federally licensed dealer. The imposition of broad liability on services that help to coordinate legal activities would burden and perhaps preclude Americans’ right to sell and buy firearms, a legal activity.

The suit against Armslist represents a growing trend of attempts to circumvent CDA 230’s protections by suing platforms for features that enable certain kinds of harmful user behavior, rather than simply suing over the behavior itself. Snapchat was recently sued for the creation of a speedometer filter by plaintiffs who were struck by a Snapchat user driving at over a hundred miles an hour (the driver was speeding in pursuit of a high speedometer reading on the Snapchat app, attempting to impress her friends with her foolishness). Thankfully, in both the Snapchat case and now in Daniel v. Armslist, judges have understood that “no matter how artfully pled”, these suits attempt to hold platforms responsible for user behavior and are therefore precluded by CDA 230.

Digital classified ads services and speedometers are neutral tools. Chief Justice Patience D. Roggensack writes in Armslist: “All of these features can be used for lawful purposes, so the CDA immunizes interactive computer service providers from liability when these neutral tools are used for unlawful purposes.” So long as a given feature can be used lawfully, service providers cannot be held liable for their unlawful use: doing so would unreasonably burden lawful users of the tool in question. Just because Uber can be used to summon a getaway vehicle after a heist does not render Uber a getaway car-hailing service. Had Armslist been decided differently, or if CDA 230’s protections were to be limited or eliminated, these tools would not be commercially viable. 

The conservative claims about social media bias may lead to legislative revisions to CDA 230. Those revisions could easily restrict current CDA 230 protections for businesses like Armslist. Indeed, some on the left would see removing such protections as a goal of revising CDA 230. The Armslist decision shows that the harm done to the Second Amendment would be real and permanent. Are the speculative gains of seizing control of Facebook’s content moderation really worth the risks to the Second Amendment? Won’t this be a case of unintended consequences of the sort conservatives used to warn us about so many, many years ago?

Apple v. Pepper: A Chip Off the Old Illinois Brick?

In yesterday’s decision in Apple v. Pepper, Justice Brett Kavanaugh joined the four liberal Justices to rule that class action lawyers can sue Apple on behalf of consumers who allegedly paid uncompetitively high prices for iPhone apps, even though the consumers bought the apps not from Apple itself but from third-party developers who were paying a commission to the tech giant. The majority rejected Apple’s defense under the so-called Illinois Brick doctrine, under which only direct purchasers of a good or service, but not purchasers further down the distribution chain, can sue over monopoly pricing (everyone agrees that current law empowers the developers themselves to sue Apple for alleged monopolistic behavior). Kavanaugh, on behalf of the majority, said Apple lost the benefit of the Illinois Brick defense when it inserted itself into the supply chain as a retailer through its Apple Store, thus making itself in practice an intermediary even if it was not itself the party deciding what to charge app buyers. 

The significance of yesterday’s ruling is probably not in its proximate consequences for the iPhone supply chain, which are still uncertain (the ruling allows the plaintiffs to proceed, but doesn’t mean they’ll win). As Justice Neil Gorsuch observed in dissent, the Court’s mini-rule is “pointless and easily evaded”: 

To evade the Court’s test, all Apple must do is amend its contracts. Instead of collecting payments for apps sold in the App Store and remitting the balance (less its commission) to developers, Apple can simply specify that consumers’ payments will flow the other way: directly to the developers, who will then remit commissions to Apple. No antitrust reason exists to treat these contractual arrangements differently, and doing so will only induce firms to abandon their preferred—and presumably more efficient—distribution arrangements in favor of less efficient ones, all so they might avoid an arbitrary legal rule.

The wider worry, as Gorsuch points out, is that the majority (significantly joined by Kavanaugh) did not merely resolve a technical puzzle about how the law’s language applies to an unusually designed supply chain, but seemed inclined along the way to adopt an ungenerous and narrow reading of Illinois Brick. And that is significant because in the overall scheme of antitrust law, Illinois Brick serves as a major check against runaway litigation (aside from its own logic, it restrains multiple and duplicative suits over the same behavior). For that reason, the antitrust plaintiff’s bar has long sought to knock down the defense. Yesterday’s outcome gives it a passing chip at most, but will bear watching as a harbinger. 

Montana Governor Bullock Is a Tax-Hiker

Montana Governor Steve Bullock is entering the Democratic race for the White House.

NPR reports that “Bullock’s more moderate positions could be problematic in a party that’s been moving more toward the left.” But Bullock’s frequent pushing for tax hikes since he entered office in 2013 puts him squarely in the Democratic fold.

Cato scores the tax and spending policies of the nation’s governors in its biennial fiscal report cards. We assign letter grades from A to F.

Bullock received a C in 2018, a C in 2016, and a D in 2014. The governor’s grades were pulled down by his support for tax increases. He advocated tax increases on individual income, gasoline, cigarettes, beer, wine, and other items. Bullock also vetoed tax reforms passed by the state legislature.