Education Dollars Should Matter—but Do They?

Education reporters such as Chalkbeat’s Matt Barnum continue to cling to the idea that pouring exorbitant resources into an inefficient school system can make a sustainable difference in the lives of America’s children. To support the claim, Barnum points to a couple of recent studies examining the association between court-ordered education spending increases and student outcomes.

Jackson, Johnson, and Perisco (2016) conclude that an annual 10% increase in per pupil spending for all 12 years of schooling leads to an increase of about a third of a year of completed education. Similarly, Lafortune, Rothstein, and Schanzenbach (2016) find that court-ordered spending increases improve test scores for the least-advantaged students by a little under a hundredth of a standard deviation per year.

However, both of these studies suffer from important methodological issues that limit their ability to identify a strong causal relationship between education dollars and student outcomes.

The Paris Accord and Carbon Tariffs

Since President Trump announced the U.S. withdrawal from the Paris Accord there has been talk of other countries imposing “carbon tariffs” in response. The politics of this are hard to predict. I think (and hope) that such tariffs are unlikely, although if the United States starts imposing tariffs for “national security” reasons, the chances of other countries imposing carbon tariffs on us may go up.

But there is also an international legal question here: Wouldn’t carbon tariffs violate international trade obligations under the World Trade Organization or other trade agreements? There is some dense legal analysis of this question out there already (back when it was people in the U.S. talking about imposing these measures on others, Cato’s Sallie James published a good Policy Analysis of the issue). What I’m going to offer here is a short, non-legalistic explanation, which basically amounts to:  It depends on how exactly the other countries go about formulating these “tariffs.”

At one extreme, you can imagine some government somewhere being so angry with the U.S. withdrawal that it imposes an across-the-board import tariff on all U.S. imported products as a response. This blunt approach would almost certainly violate trade agreement rules.

At the other extreme, you can also imagine a more measured approach, under which a government comes up with objective criteria to assess each country’s climate policies and carbon emissions. Carbon taxes would then be imposed on products, both domestic and foreign, in a way that corresponds to these measurable criteria.  This non-discriminatory approach might not violate trade rules, especially if its focus is on environmental impact, rather than “competitiveness.”

The actual approach is likely to be somewhere in between, and is hard to assess in the abstract.  But in general terms, here is my view:  In theory, some form of “carbon tariff” could be done consistently with trade rules.  However, in practice such a measure is likely to violate, as governments generally aren’t very good at being precise, objective, and non-discriminatory in their laws and regulations.  But hopefully everyone will decide not to impose such measures, and the subject will remain an obscure academic one.

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More Solid Judges

Whatever’s happening with James Comey’s testimony, Donald Trump’s Twitter account, or congressional inaction on Obamacare repeal, tax reform, or much of anything else, from where I stand all that is #fakenews designed to distract your eyes from the prize: we have more judicial nominees! In an echo of how the 21 contenders for the Supreme Court vacancy were announced during the campaign, on top of last month’s stellar list of 10 lower-court nominees come 11 more, including three circuit court judicial candidates: Justice Allison Eid of the Colorado Supreme Court to fill Neil Gorsuch’s vacant Tenth Circuit seat; North Dakota District Judge Ralph Erickson for the Eighth Circuit; and Professor Stephanos Bibas of the University of Pennsylvania Law School for the Third Circuit. 

Of those 11, I know three. Eid, a former clerk for Justice Clarence Thomas, is a thoughtful and intellectual jurist much in the mold of her former boss. Bibas is one of the top criminal-law scholars in the country with whom I’ve worked professionally and had a drink personally; he’ll be outstanding but leaves a gaping hole as faculty adviser for Penn’s Federalist Society chapter. And then there’s Stephen Schwartz, an old friend who was a few years behind me at the University of Chicago Law School and who’s been nominated to the U.S. Court of Federal Claims. He’ll be terrific.

If the other eight are of the same caliber as these three (and the previous 10) – and we have no reason to think otherwise given that the administration’s nominations staff and advisers are the same – then this is the sort of #winning of which I won’t ever tire.

The only curiosity is that again there’s no mention of Justice Don Willett of the Texas Supreme Court – and indeed no nominees to the Fifth Circuit at all. As Hugh Hewitt has pointed out, of the 11 original SCOTUS short-listers, five were state judges. Three of them have now been nominated to the federal appellate courts. The two remaining are Tom Lee of Utah (which has no current vacancies) and Willett (and Texas has two vacancies). Moreover, Willett was apparently one of the five or six finalists for the seat that Gorsuch filled, and is close to Texas Senator Ted Cruz. So you’d think he’d be a shoo-in.

Now, I’ve speculated about the possibility of some grand bargain whereby two other worthies get the Fifth Circuit slots but Willett goes to the high court whenever Justice Anthony Kennedy decides to retire. But that’s pie-in-the-sky because so many other stakeholders are involved at that point. Of course, if this deal – the best deal! – is ratified by the president himself, that would be bigly indeed.

In the meantime, the White House counsel’s office should just keep these black-robe orders coming.

Federal Gas Tax: LaHood Makes No Sense

Former U.S. transportation secretary Ray LaHood lobbied for a federal gas tax increase in a Washington Post letter the other day. The letter captures the illogic and misrepresentation that influences the highway funding debate.

Hugh Hewitt was right on target in his May 31 op-ed, “Trump should raise this tax,” about boosting the federal gas tax to address our nation’s crumbling roads and bridges. The federal gas tax of 18.4 cents a gallon has not been increased in 24 years. Imagine living today on the same salary you made in 1993. That’s the dire situation facing our infrastructure: We’re supporting our roads and bridges using outdated budgets that fail to meet the demands of 2017.

On this important issue, Congress must look to the 22 states that have raised their gas taxes since 2013. States leading the way are “red” states such as Wyoming, Georgia and Idaho and “blue” states such as California, Maryland and Vermont. The list also includes New Jersey, with a Republican governor and Democratic-controlled legislature. Infrastructure is a bipartisan issue. It’s time our federal government takes the action for which Republicans and Democrats have been tirelessly advocating.

Over the years, gridlock and finger-pointing have prevented real action on addressing our infrastructure challenges. All the while, traffic congestion has worsened, potholes have multiplied, and our roads and bridges have further deteriorated.

Here are some problems with LaHood’s position:

First Problem. As former transportation chief, LaHood must know that his own department publishes data showing that the condition of the nation’s bridges has steadily improved for two decades, while the condition of highways has been stable in recent years and improved in some cases since the 1990s. (Highway data summarized here and here. Bridge data here). Why does he say “… bridges have further deteriorated” when he surely knows that is not correct?

Second Problem. The 18.4 cent-per-gallon federal gas tax has not been raised since 1993, and its real value has eroded since then. However, the gas tax rate was more than quadrupled between 1983 and 1993 from 4 cents to 18.4 cents. The 1983 rate would be 9.8 cents in today’s dollars, so the real gas tax rate has risen substantially since then. Even if “potholes have multiplied,” the blame would go to the increasing diversion of plentiful gas tax funds to non-highway uses such as urban rail.

Third Problem. The final issue is the internal inconsistency of LaHood’s position. His first paragraph complains that federal gas taxes are not high enough. But his second paragraph says that 22 states have raised their own gas taxes in just the past four years, which logically negates the need for a federal gas tax increase. The states that have the highest demands for new highway funds are apparently already taking action. Great, problem solved.

In my new Cato study on infrastructure, I note that 98 percent of U.S. streets and highways are owned by state and local governments. The states are entirely capable of funding such infrastructure they own without federal aid. States can tax, borrow, collect user charges, and attract private investment to fund their highways, bridges, airports, and seaports.

Are there any advantages to raising federal gas taxes over raising state gas taxes? How is federal funding of state-owned infrastructure superior to state funding? LaHood and other advocates don’t tell us. Instead, they wave their arms, prattle about crumbling roads and multiplying potholes, and always demand more centralized spending and control.

Trump’s No Good Very Bad Arms Deal

Tomorrow Congress will vote on resolutions of disapproval in response to Trump’s recent arms deal with Saudi Arabia. If passed, Senate Resolution 42 and House Resolution 102 would effectively block the sale of precision guided munitions kits, which the Saudis want in order to upgrade their “dumb bombs” to “smart bombs.” A similar effort was defeated last year in the Senate. How should we feel about this vote?
 
Before the ink was dry President Trump was busy bragging about his arms deal with Saudi Arabia, a deal that he claimed would reach $350 billion and would create “hundreds of thousands of jobs.” The sale bore all the hallmarks of Trump’s operating style. It was huge. It was a family deal—brokered by his son-in-law, Jared Kushner. It was signed with pomp and circumstance during the president’s first international trip. But most importantly, as with so many of his deals, the deal was all sizzle and no Trump Steak.™
 
Trump’s arms deal with the Saudis is in fact a terrible deal for the United States. It might generate or sustain some jobs in the U.S. It will certainly help the bottom line of a handful of defense companies. But from a foreign policy and national security perspective, the case against selling weapons to Saudi Arabia is a powerful one for many reasons.

Freeze That Slush: DoJ Cuts Off Flow of Settlement Cash To Private Groups

In a memo dated June 5, Attorney General Jeff Sessions has ended the practice by which the Department of Justice earmarks legal settlement funds for non-governmental third-party groups that were neither victims nor parties to the lawsuit. This is terrific news and a major step forward in respecting both the constitutional separation of powers and the private rights that litigation is meant to vindicate.

The use of surplus or unclaimed settlement money for causes allegedly similar to those served by the litigation (“cy près,” in the legal jargon) is not itself new. In recent years, however, law enforcers at both state and federal levels have developed it as a way to direct funds to a wide variety of causes, from private charities and advocacy groups to legal aid programs, law schools, and an assortment of other causes that legislatures and their appropriations committees have shown no interest in funding.

Not surprisingly, officials tend to designate as beneficiaries recipients they find ideologically congenial. “With control over big money flows,” as I noted in a piece two years ago, “smart AGs can populate a political landscape with grateful allies.” The Obama administration came under justified criticism for using the mortgage settlement to funnel tens of millions of dollars to “housing counseling” often carried on by left-leaning community-organizing groups.

The problems with this practice begin at the level of constitutional structure. It is the legislative branch, not some combination of executive and judiciary in connivance, that is supposed to wield exclusive power to appropriate public moneys, and moneys extracted by government enforcement and not otherwise owned (as by parties or victims) are a species of public moneys. In the recent D.C. Circuit decision of Keepseagle v. Perdue, arising from the settlement of a lawsuit by Indians shortchanged by agriculture programs, Judge Janice Rogers Brown wrote a slashing and readable separation-of-powers critique of the practice in her dissent (the panel majority dismissed the issue as having been raised too late.)

There are other constitutional issues at stake as well. Cato has argued as amicus, in cases involving settlements by Facebook and Duracell, that the use of cy près endangers the constitutional rights of individual members in class litigation, both as to due process rights protected by the Fifth Amendment and to First Amendment rights of expression (since the practice uses members’ money to advance causes with which they may strongly disagree). Courts including the Eighth Circuit have voiced misgivings as well, and Chief Justice John Roberts has flagged the constitutional status of cy près as an issue that could soon be ripe for Supreme Court consideration. Members of Congress led by Rep. Robert Goodlatte (R-Va.) have proposed the Stop Settlement Slush Funds Act (H.R. 732), and as I note in a chapter of the new Cato Handbook for Policymakers, state lawmakers in places like New Mexico have pursued similar ideas.

A follow-up question is whether the Department of Justice will follow the same logic by moving against the diversion of funds from entered judgments (as distinct from future settlements) to outside groups, as in the Keepseagle case. Logically, there is good reason for it to pursue this further step.

In the mean time, we should applaud Attorney General Jeff Sessions for one of the big wins for constitutional principle so far in the new administration.

Two Kinds of Diversity

Diversity is and has been at the center of many of our debates about higher education and related issues, including freedom of speech. I see two different meanings of diversity, one compatible with free speech and one perhaps incompatible.

The ordinary meaning of diversity can be found in a dictionary, for example the online Oxford Living Dictionaries (is there an Oxford Originalist Dictionary?). There we find that diversity means “the state of being diverse” and diverse in turn means “showing a great deal of variety; very different.” This definition comports with freedom of speech. The First Amendment prevents public officials from imposing a single view on the governed, thereby protecting advocacy of diverse views. Diversity in this sense and free speech go together.

But diversity has another meaning which I think of as “diversity-as-recognition.” Imagine you see  the world divided into two groups: oppressors and the oppressed. The speech of the oppressor dominates the society and the beliefs of its members; speech in this society is both unequal and unitary, not diverse. What should be done? Government officials (or for that matter, university administrators) should seek “true diversity” by promoting recognition of the equality of the oppressed. If this task were accomplished, all groups would speak from an equal place, and diversity of speech would truly exist.

But achieving this change might require censorship. The oppressor tends to utter speech that asserts the inequality of the oppressed. Such speech is incompatible with achieving equality and true diversity. Put otherwise, to just allow “a great deal of variety” in speech is not equal to the task of achieving “diversity-as-recognition.” Public officials or university administrators thus are required to censor extreme speech to achieve diversity-as-recognition. To allow the speech of the oppressor is to endorse oppression. Diversity-as-recognition thus seems to imply the return of “repressive tolerance.”

Some questions follow for me. Should all speech contrary to “diversity-as-recognition” be censored? Or should only extreme and unargued words be suppressed? In other words, should the advocate of diversity-as-recognition seek to suppress both Charles Murray and racial epithets or just the latter? And if the latter only, why?

Contrary to those questions, a second thought. Might diversity-as-recognition be interpreted in a way compatible with freedom of speech?

HT: Donald Downs for prompting thinking about the compatibility of diversity and free speech.