How To Stop Politicians From Gerrymandering

I’ve got a new piece at the Institute for Humane Studies’ Learn Liberty explaining the basics of how politicians rig district lines to reward friends and punish foes, the entrenchment of an established political class that results, and how it might be combated. Snippet:

In a classic single-party gerrymander, the party in power packs opposition voters densely into as few districts as possible, thus enabling its own voters to lead by a comfortable margin in a maximum of districts. When a legislature is under split party control, the theme is often bipartisan connivance: you protect your incumbents and we’ll protect ours. Third-party and independent voters, as is so common in our system, have no one looking out for their interests….

Geographic information systems (GIS) methods now allow members of the public using inexpensive software to analyze the full data set behind a map. In several states, that has meant members of the public could offer maps of their own or make well-informed critiques of legislators’ proposed maps. In one triumph for citizen data use, the Pennsylvania Supreme Court invalidated a map drawn by lawmakers as clearly inferior to a map that had been submitted independently by an Allentown piano teacher.

Separately, I generally agree with what Aaron Blake writes in a new Washington Post piece: with so many other solid reasons to end gerrymandering, there’s no need to over-sell two arguments frequently invoked against it, the polarization thesis and the “GOP-fixed House” thesis.

On the much-noted trend in national politics toward ideological polarization, it seems clear that gerrymandering is but one contributing factor among many. The U.S. Senate, for which districting is not an issue, has followed a path not too far from that of the House, with virtually all Senate Democrats now to the left of virtually all Senate Republicans and stepped-up party-line cohesion on voting. And states with relatively fair districting maps have experienced polarization with the rest. So, yes, reform will probably make a difference at the margins for those who would like there to be more swing or contestable seats, but don’t expect miracles.

And while gerrymandering today on net benefits Republicans (which has not always been the case), it is probable for reasons Blake explains that fair/neutral districting would still have produced a GOP-run House in 2016. An important reason is that Democratic voters are so concentrated in cities.

For some of the many other reasons the cause is worth pursuing no matter which party (if any) you identify with, check out my IHS piece or, for somewhat more detail, my chapter on the subject in the new Eighth Edition of the Cato Handbook for Policymakers. I’ve previously written several pieces about my experience dealing with the problem in my own state of Maryland.

Sessions Wants to Escalate the Drug War

Attorney General Jeff Sessions apparently plans to entrust criminal justice “reform” to Steven H. Cook,

a former street cop [turned] … federal prosecutor … [who] saw nothing wrong with … life sentences for drug charges [or] … the huge growth of the prison population. 

This news is not surprising given Sessions’ views on the drug war (“good people don’t smoke marijuana”). But the Sessions/Cook perspective is still depressing:

Law enforcement officials say that Sessions and Cook are preparing a plan to prosecute more drug and gun cases and pursue mandatory minimum sentences. The two men are eager to bring back the national crime strategy of the 1980s and ’90s from the peak of the drug war, an approach that had fallen out of favor in recent years as minority communities grappled with the effects of mass incarceration.

The “silver” lining is that Sessions’s position–drug users are bad people–makes the issue as stark as possible: do we, as a society, believe in individual liberty or not? Much opposition to the drug war (e.g., campaigns against mandatory minimums) avoids that question.

Mandatory minimums are misguided, but mainly because drug trafficking and possession should not be crimes in the first place.  

The Drug War will end only when opponents focus on the fundamental issue: drug use is an individual decision, and government has no right to interfere.

Trump Unleashed

Speaking to reporters aboard Air Force One yesterday, President Trump strongly condemned the recent nerve gas attack in Northern Syria: “I think what Assad did is terrible…. a disgrace to humanity,” he declared: “something should happen.” Last night, US forces hit a Syrian airfield with 59 Tomahawk missiles launched from destroyers in the Eastern Mediterranean. This was something, and it it happened. For a political outsider, Trump’s picked up “politician’s logic” pretty fast.  

I won’t hazard a guess at what Trump’s exercise in Tomahawk humanitarianism means for our ongoing involvement in the Syrian civil war. His own Secretary of State is less than coherent on the subject, alternately announcing that “steps are underway” to remove Assad and that there’s been “no change” in US “policy or posture relative to our military activities in Syria.” But the airstrikes are clarifying in one respect: they confirm the worst fears about our 45th president’s hairtrigger temperament and disdain for legal limits on his ability to wage war.

Thus far, the administration has said nothing about the legal authority for the strikes. There’s not much that can be said: they’re plainly illegal. He had neither statutory nor constitutional authority to order them.

Earlier today, Sen. John McCain insisted that the strikes were covered by the Authorization for the Use of Military Force (AUMF) Congress passed in 2001. True, the 2001 AUMF, targeting the perpetrators of the 9/11 attacks, has proven an impressively stretchable statute: in Syria alone it already supposedly covers Al Qaeda affiliates and the ISIS operatives beheading them. But it’s hard to see how it can be stretched far enough to underwrite military action against Assad, who’s at war with both. The legislators who voted for that AUMF in 2001 thought they were authorizing our 43rd president to fight Al Qaeda and the Taliban; it’s safe to say none of them imagined they were giving our 45th president the power to take all sides in a future Syrian civil war.

Without statutory cover, all that’s left is an appeal to presidential power under Article II of the Constitution. But that document vests the bulk of the military powers it grants in Congress, with the aim of “clogging, rather than facilitating war,” as George Mason put it. In that framework, the president retains the power to “repel sudden attacks” against the US; but he does not have the power to launch them. Candidate Barack Obama had it right in 2007 when he told reporter Charlie Savage that “The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.”

As president, Obama violated that pledge repeatedly, but his decision not to attack Syria after its use of chemical weapons in 2013 was one of the few occasions where he honored it. While insisting in public that he had all the authority he needed to wage war without Congress, in private, Obama told aides he agreed with the position he’d outlined to Savage in 2007. Still, Obama aide Ben Rhodes told Savage, “it was still a choice, not a necessity, to go to Congress because ‘it’s not like the lawyers couldn’t have come up with a theory.’”

While we’re waiting to see what legal theory Trump’s lawyers come up with, it’s worth worrying about the practical dangers presented by a system that allows the president to wage war at will. 

Paid Leave: Not a Joke

Here’s a joke: a Republican, a Democrat, the director of a left-wing think tank, three AEI scholars, and Ivanka Trump walk into a bar. What do they agree on?

The answer: they want federally mandated paid leave or child care, effective immediately.

You aren’t laughing? Well, you’re in good company–this joke isn’t funny, especially for women. Paid leave and child care policies have been tried in a variety of contexts, and to advocates’ dismay, the consequences are not universally beneficial to women.

As an example, take Chile, which in 2009 mandated employer-provided childcare for working moms. According to recent research, women employed by affected Chilean firms were paid between 9 and 20 percent lower wages than comparable female Chilean workers following policy implementation.

And the impact of women’s labor policies is arguably worse in Spain, which is struggling with the fallout of a 1999 policy that aims to protect women with children against layoffs [1] but in practice harms them: a natural experiment shows that after policy implementation, Spanish employers were less likely to hire childbearing-aged women, less likely to promote child-bearing-aged women, and more likely to lay child-bearing-aged women off.

Although Spain and especially Chile are different in myriad ways that limit extrapolation to a U.S. context, it’s hard to dismiss home-grown evidence. Though the United States doesn’t have a federally-mandated paid leave policy, it did enact a federally mandated unpaid leave policy, Family & Medical Leave Act (FMLA), in 1993. And despite FMLA being an accepted part of the modern legislative fabric, the consequences of the policy are not all stellar. Analysis suggests women hired after the policy are five percent more likely to be employed but eight percent less likely to be promoted.

Though the U.S. hasn’t adopted a paid leave mandate, a few states have. Research on policy outcomes in California show female labor force participation rising after implementation of paid leave (maybe good?) and childbearing-aged female unemployment and unemployment duration rising, too (unambiguously bad). This is probably because the mandate made women universally more expensive in employer’s eyes, whether professional women intend to use benefits or not.

So why don’t the Ivankas of the world seem to care about these negative repercussions, at least as much as the imagined benefits of women’s policies? The most gracious interpretation is that modern advocates are uninformed. It could also be that it is inconvenient information.

And although advocates would like to paint a rosy picture, the reality is that some women, perhaps many, would be collateral damage under a federally mandated policy. For negatively affected women, that’s a lot more tragic than it is funny.


[1] This protection is granted if the worker had previously asked for a work-week reduction due to family responsibilities.

America’s Increasingly Meritocratic Immigration System

Many have started supporting a so-called merit-based immigration system since President Trump mentioned it a few months ago. A merit-based immigration system could mean just about anything but most define it as a system that admits more highly skilled and educated immigrants, as in Canada, and fewer lower-skilled and family-based immigrants as currently enter under America’s immigration system. Despite the lack of any significant legal or regulatory changes, new immigrants are becoming more highly educated immigrants over time even relative to natives.

The share of admitted immigrants who have at least a college education increased from 22 to 39 percent 1993 to 2015 (Figure 1). Over the same period, the share of admitted immigrants who are high school dropouts dropped from 37 percent to 27 percent. Virtually all of that change occurred since 2007 when illegal immigration slowed down and the number of Chinese and Indian immigrants began to grow relative to Mexicans. Although the American system does not select for education, it does not intrinsically favor the uneducated either.  

Figure 1
Share of New Immigrants by Education & Year of Admission

A New Generation On the Court

By a vote of 54-45, the Senate today concluded the long, bruising battle to confirm President Donald Trump’s nomination of Judge Neil Gorsuch to the U.S. Supreme Court. Chief Justice John Roberts is scheduled to swear Judge Gorsuch in at 9:00 a.m. on Monday morning. We can now look forward to the Court’s return to its normal practices, taking and deciding cases without the prospect of 4-4 decisions hanging over it.

Judge Gorsuch has often been likened to Justice Antonin Scalia, whose seat he will assume, and for good reason, for he too is a textualist and an originalist in his approach to constitutional and statutory interpretation. But he comes from a later generation, one immersed in the debates between liberals, conservatives, and classical liberals over the proper interpretation of the Constitution and the role of judges under it. During his confirmation hearings, for example, Judge Gorsuch spoke favorably of the Court’s decisions in cases like Meyer v. Nebraska and Pierce v. Society of Sisters, where the Court upheld parental rights not expressly found in the Constitution. That bodes well for his appreciation for the rich moral, political, and legal theory that stands behind and informs the often broad language of the Constitution, as his own graduate study at Oxford in natural law would suggest.

Speaking of generational change, an interesting historical note was just brought to my attention by a personal friend with whom I served in the Reagan administration, Chicago attorney Joseph A. Morris. As a law clerk for Justice Anthony Kennedy, Justice Gorsuch will be the first U.S. Supreme Court justice ever to serve on the bench alongside the justice for whom he clerked. The play between them will be fun to watch! Congratulations Judge, soon to be Justice, Neil Gorsuch.

Congratulations, Justice Gorsuch

Congratulations to Neil Gorsuch, who will be sworn in Monday as the newest Supreme Court justice. Gorsuch’s mentor, Justice Byron White, liked to say that each new justice makes for a new court, and I look forward to the breath of fresh air, intellectual rigor, collegiality, and constitutional seriousness that Justice Gorsuch will bring. I’m also glad that our nation’s political debate can move beyond this toxic episode and that we won’t ever have to discuss nuclear options with regard to judges ever again.