Cato Recent Op-eds https://www.cato.org/ The Cato Institute seeks to broaden the parameters of public policy debate to allow consideration of the traditional American principles of limited government, individual liberty, free markets and peace. Toward that goal, the Institute strives to achieve greater involvement of the intelligent, concerned lay public in questions of policy and the proper role of government. en The Brutal Taiwan Dilemma Trump Will Leave for Biden https://www.cato.org/publications/commentary/brutal-taiwan-dilemma-trump-will-leave-biden <p><a href="https://www.cato.org/people/ted-galen-carpenter" hreflang="und">Ted Galen Carpenter</a></p> <div class="lead mb-3 spacer--nomargin--last-child text-default"> <p>Secretary of State Mike Pompeo’s&nbsp;<a href="https://www.state.gov/lifting-self-imposed-restrictions-on-the-u-s-taiwan-relationship/" target="_blank">announcement</a>&nbsp;that the United States was lifting all “self‐​imposed” limitations on U.S. official contacts with Taiwan’s government may have created an immediate foreign policy crisis for the incoming Biden administration. Pompeo’s statement was blunt and uncompromising:</p> </div> , <blockquote class="blockquote"> <div> <p>Taiwan is a&nbsp;vibrant democracy and reliable partner of the United States, and yet for several decades the State Department has created complex internal restrictions to regulate our diplomats, service members, and other officials’ interactions with their Taiwanese counterparts. The United States government took these actions unilaterally, in an attempt to appease the Communist regime in Beijing. No more. Today I&nbsp;am announcing that I&nbsp;am lifting all of these self‐​imposed restrictions. Executive branch agencies should consider all “contact guidelines” regarding relations with Taiwan previously issued by the Department of State under authorities delegated to the Secretary of State to be null and void.</p> </div> </blockquote> <cite> </cite> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>Taiwan’s cheerleaders in the United States&nbsp;<a href="https://project2049.net/2021/01/10/a-message-from-our-chairman-in-support-of-lifting-self-imposed-restrictions-on-the-u-s-taiwan-relationship/" target="_blank">hailed the move</a>, but Beijing’s&nbsp;<a href="https://news.yahoo.com/chinese-state-media-blast-latest-114646957.html?.tsrc=daily_mail&amp;uh_test=1_04" target="_blank">angry reaction</a>&nbsp;was swift and predictable. Chinese officials emphasized that they consider the Trump administration’s latest move a&nbsp;brazen violation of the “one‐​China” policy that Washington has maintained since it switched diplomatic relations from the Republic of China (Taiwan’s official name) to the communist People’s Republic of China (PRC) in 1979.</p> <p>As part of the one‐​China formula, successive U.S. administrations have confined government‐​to‐​government contacts with Taiwan to low‐​level officials only. And most of those contacts have involved economic and cultural, not security, issues. During the Trump administration, though, those restraints noticeably weakened, and with Pompeo’s announcement, they appear to have vanished.</p> </div> , <aside class="aside--right aside--large aside pb-lg-0 pt-lg-2"> <div class="pullquote pullquote--default"> <div class="pullquote__content h2"> <p>No matter what move the new president makes, there will be major drawbacks. </p> </div> </div> </aside> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>This development creates an acute dilemma for the Biden administration. No matter what move the new president makes, there will be major drawbacks. Washington has now substantially upgraded ties with one of East Asia’s most vibrant democracies instead of keeping relations in the shadows. If Biden reverses that policy, it will appear to be appeasement of a&nbsp;brutal dictatorship that already is in the process of&nbsp;<a href="https://www.reuters.com/article/us-hongkong-security-idUSKBN29B01K" target="_blank">extinguishing liberty</a>&nbsp;in Hong Kong. Biden will catch serious flak from Taiwan’s supporters in Congress and conservative news media outlets. On the other hand, Taiwan is a&nbsp;hot‐​button issue for the PRC, and retaining the new policy toward Taipei would become a&nbsp;huge obstacle to Biden’s efforts to improve the U.S.-PRC relationship that became severely strained during the Trump years. Whether or not Trump intended to create such a&nbsp;nasty dilemma for his successor, it will be the inescapable result.</p> <p>In reality, Pompeo’s announcement was the capstone of a&nbsp;policy shift that has been taking place inexorably over the past four years. As the&nbsp;<a href="https://www.japantimes.co.jp/news/2021/01/10/asia-pacific/politics-diplomacy-asia-pacific/taiwan-us-china-pompeo-trump-biden/" target="_blank"><em>Japan Times</em>&nbsp;notes</a>: “As president‐​elect in December 2016, Trump took the rare step of receiving a&nbsp;congratulatory phone call from Taiwan President Tsai Ing‐​wen. The call, the first contact between a&nbsp;leader of Taiwan and an incumbent or incoming U.S. president in nearly four decades, angered China and set the stage for a&nbsp;rapid deterioration of Sino-U.S. ties under Trump.”</p> <p>That incident was a&nbsp;sign of changes to come. The Trump administration provided the principal impetus for those policy changes, but Taiwan’s supporters in Congress also pushed the envelope. One key measure was the passage of the Taiwan Travel Act in 2018, which not only&nbsp;<a href="https://www.reuters.com/article/us-usa-taiwan-china/trump-signs-u-s-taiwan-travel-bill-angering-china-idUSKCN1GS2SN" target="_blank">authorized but encouraged</a>&nbsp;high‐​level defense and foreign policy officials to interact with their Taiwanese counterparts. More recent congressional measures have sought&nbsp;<a href="https://www.cato.org/publications/commentary/america-prodding-taiwan-towards-conflict-china" target="_blank">to emphasize</a>&nbsp;that the United States is&nbsp;<a href="https://www.reuters.com/article/us-taiwan-usa/us-increases-support-for-taiwan-china-threatens-to-strike-back-idUSKBN21E0B7" target="_blank">firmly in Taiwan’s camp</a>. An especially troublesome aspect for Biden is that all of those measures passed with overwhelming, bipartisan majorities. Attempts to execute a&nbsp;policy reversal may encounter significant resistance even within his own party.</p> <p>The Trump administration has taken several steps to emphasize Washington’s political—and military—solidarity with Taiwan. After passage of the Taiwan Travel Act, it became clear that restrictions on high‐​level meetings were disappearing fast. The following year, U.S. National Security Advisor&nbsp;<a href="https://www.scmp.com/news/china/diplomacy/article/3011978/rare-meeting-between-taiwanese-us-security-officials-angers" target="_blank">John Bolton met with David Lee</a>, secretary general of Taiwan’s National Security Council. Since then, there has been a&nbsp;veritable cascade of high‐​level interactions. During 2020, three Cabinet‐​level administration officials made trips to Taipei. This month, that trend reached its culmination with the announcement that&nbsp;<a href="https://www.aljazeera.com/news/2021/1/8/a-cudgel-against-beijing-us-ambassador-to-un-to-visit-taiwan" target="_blank">U.S. Ambassador to the United Nations Kelly Craft</a>&nbsp;would travel to Taiwan. Tsai Ing-wen’s government understandably&nbsp;<a href="https://apnews.com/article/joe-biden-international-news-china-united-nations-taiwan-e6428c0a2a28c418f13144e1e5b3ecec" target="_blank">was thrilled</a>&nbsp;about the decision. That thrill may have faded a&nbsp;bit when the State Department announced a&nbsp;few days later that&nbsp;<a href="https://thehill.com/homenews/administration/533849-state-department-cancels-travel-amid-transition-efforts" target="_blank">all foreign trips</a>&nbsp;scheduled for the last week of President Trump’s term would be canceled. Nevertheless, Washington’s initial decision to authorize Craft’s visit was a&nbsp;crucial gesture of support.</p> <p>In addition to the high‐​profile visits from U.S. officials, new arms sales and other forms of military cooperation between Washington and Taipei have increased during the Trump administration to the point of constituting a&nbsp;<a href="https://www.chinausfocus.com/peace-security/a-reborn-us-taiwan-military-alliance" target="_blank">de facto restoration</a>&nbsp;of the bilateral military alliance that officially came to an end in 1979.</p> <p>This is the situation that Joe Biden inherits. He likely would prefer to roll back the Trump administration’s changes gradually and quietly as part of an overall strategy to improve relations with the PRC. But he will not have that luxury. The Trump innovations are now part of the new status quo, and Taiwan’s friends in Congress and the media would focus hostile attention on any rollback attempt. Public opinion is likely to be with them. Beijing’s actions with respect to Hong Kong and the coronavirus have already generated considerable anger and suspicion among the American people.</p> <p>During the 2020 campaign, conservatives consistently sought to portray Biden himself as “soft” on China, if not in a&nbsp;corrupt relationship with the PRC. Any attempt to rescind the closer ties with Taiwan will leave him vulnerable to charges of appeasement—or worse. At the same time, retaining those ties will exacerbate already serious tensions with Beijing. The new president faces a&nbsp;nasty dilemma with no clear or low‐​cost solution.</p> </div> Ted Galen Carpenter, a&nbsp;senior fellow in security studies at the Cato Institute and a&nbsp;contributing editor at The American Conservative, is the author of 12 books and more than 850 articles on international affairs. Fri, 15 Jan 2021 11:34:31 -0500 Ted Galen Carpenter https://www.cato.org/publications/commentary/brutal-taiwan-dilemma-trump-will-leave-biden Biden Needs to Embrace New Thinking on North Korea https://www.cato.org/publications/commentary/biden-needs-embrace-new-thinking-north-korea <p><a href="https://www.cato.org/people/ted-galen-carpenter" hreflang="und">Ted Galen Carpenter</a></p> <div class="mb-3 spacer--nomargin--last-child text-default"> <p>An especially frustrating aspect of the defense and foreign policy team that Joe Biden is assembling is the pervasive view among its members that U.S. foreign policy was in splendid shape before Donald Trump became president. Given that comforting delusion, it’s not surprising that their “solution” is merely to <a href="https://nationalinterest.org/blog/skeptics/joe-biden%E2%80%99s-foreign-policy-dream-team-disappointing-175924">restore the status quo ante</a> – return US policy to what it was under Barack Obama. Given the train wreck that actually characterized the Obama administration’s foreign policy, it is a&nbsp;very dangerous assumption. Obama and his minions managed to launch three new, disastrous US military interventions in the Middle East – Libya, Syria and Yemen. They also perpetuated the seemingly endless war in Afghanistan and reversed an initial decision to exit the Iraq quagmire.</p> <p>The administration’s performance was not much better elsewhere. By meddling in Ukraine’s internal affairs to help unseat the elected, pro‐​Russia president, Washington further poisoned already fragile relations with Moscow. Tensions also continued to escalate with China, as the United States sought to execute a “strategic pivot” to East Asia, characterized by a&nbsp;buildup of US forces in the region and a&nbsp;surge of “freedom of navigation” patrols by the US Navy in the contested South China Sea.</p> <p>Given that track record, merely returning to the policy status quo ante is a&nbsp;spectacularly bad idea. Nowhere is the need for meaningful change more urgent than with respect to Washington’s policy toward North Korea. Obama did little more than keep on autopilot the longstanding, sterile US strategy of trying to isolate the North Korean regime and compel it to relinquish its nuclear weapons. If Biden embraces that approach, we could be heading for a&nbsp;nasty confrontation with nuclear implications. New thinking and a&nbsp;new strategy is imperative.</p> <p>Unfortunately, Biden and the Democratic Party as a&nbsp;whole show no signs of flexibility or creativity about policy toward North Korea. Indeed, the prevailing attitude has been profoundly reactionary and confrontational. Prominent Democrats, including Biden, even condemned Donald Trump for his modest efforts to promote a&nbsp;rapprochement with Pyongyang. Some of them denounced the president’s willingness even to meet with North Korean leader Kim Jong‐​Un, contending that according Kim such an honor implicitly “legitimized” his brutal dictatorship. President Trump “elevated North Korea to the level of the United States while preserving the regime’s status quo,” intoned then‐​House minority leader <a href="https://www.thenation.com/article/trump-meets-kim-averting-threat-nuclear-war-us-pundits-furious//t_blank">Nancy Pelosi</a>. Sen. Chris Murphy (D-CT) later <a href="https://twitter.com/ChrisMurphyCT/status/1134263207042932736">exuded outrage</a> in a&nbsp;tweet that Trump favored continuing a&nbsp;dialogue with such a&nbsp;monstrous leader. “It’s simply heartbreaking to know tonight that [Kim’s] biggest global cheerleader is the President of the United States of America.”</p> <p>More recent comments from Biden himself offer little cause for optimism. In January 2020, he stated that there was “<a href="https://www.japantimes.co.jp/news/2020/01/15/asia-pacific/politics-diplomacy-asia-pacific/biden-says-no-way-unconditional-meeting-north-koreas-kim//t_blank#.XzlZxzVOnIU">no way</a>” he would agree to meet Kim without “preconditions” – meaning an ironclad commitment to denuclearization. During the final presidential debate with Trump, Biden stated specifically that he would meet with Kim only “<a href="https://asia.nikkei.com/Politics/US-elections-2020/Presidential-debate-Biden-calls-for-nuclear-free-Korean-Peninsula">on the condition</a> that he would be drawing down his nuclear capacity.”</p> </div> , <aside class="aside--right aside--large aside pb-lg-0 pt-lg-2"> <div class="pullquote pullquote--default"> <div class="pullquote__content h2"> <p>Returning to the Obama era policy of issuing impotent demands that Pyongyang give up its nukes is not only pointless, it’s potentially lethal.</p> </div> </div> </aside> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>If the new president wants to prevent a&nbsp;crisis, he must adopt a&nbsp;<a href="https://www.cato.org/blog/needed-better-us-negotiating-strategy-dealing-north-korea">very different approach</a>. Instead of continuing the futile quest of insisting that North Korea implement denuclearization as a&nbsp;precondition for a&nbsp;grudging, partial lifting of sanctions and tepid moves toward more normal relations, Washington should pursue the full normalization of relations with Pyongyang. Such a&nbsp;move would greatly reduce the dangerous, ongoing tensions.</p> <p>Above all, Biden must spurn the advice of hawks (including some in his own party) who would not shy away from a&nbsp;military confrontation with North Korea. Unfortunately, a&nbsp;flirtation with that option goes all the way back to Bill Clinton’s administration. In early 1994, officials were furious when North Korea blocked international inspectors from certifying Pyongyang’s adherence to the Nuclear Nonproliferation Treaty. There was growing evidence that the North Koreans were processing plutonium from a&nbsp;reactor at Yongbyon, and may have already extracted enough fissile material to build two bombs.</p> <p>In his <a href="https://www.amazon.com/My-Life-Bill-Clinton-ebook/dp/B000FC1RJQ/ref=sr_1_1?s=books&amp;ie=UTF8&amp;qid=1492353546&amp;sr=1-1&amp;keywords=bill+clinton+my+life">memoirs</a>, Clinton described his administration’s reaction to those developments. “I was determined to prevent North Korea from developing a&nbsp;nuclear arsenal, even at the risk of war.” He had Secretary of Defense William Perry convey that message in the strongest terms in comments to a&nbsp;group of newspaper reporters and editors. Clinton added: “In order to make absolutely certain that the North Koreans knew we were serious, Perry continued the tough talk over the next three days, even saying we would not rule out a&nbsp;preemptive military strike.”</p> <p>They were not making idle threats. Perry later confirmed that the administration seriously considered conducting “<a href="http://www.upi.com/Top_News/World-News/2015/12/03/US-considered-surgical-air-strikes-against-North-Korea-William-Perry-says/2811449159994/">surgical strikes</a>” against North Korea’s nuclear installations. The world was perilously close to witnessing another armed conflict on the Korean Peninsula. Only a&nbsp;special diplomatic mission headed by former president Jimmy Carter forestalled a&nbsp;potentially horrific conflict by negotiating an accord.</p> <p>Contemplating the military option would be even more perilous today. In 1994, Pyongyang’s nuclear program was in its infancy and the regime was years away from building operational nuclear weapons. Now, North Korea possesses an estimated 10 to 15 such weapons and likely will have 50 to 60 by the end of Biden’s term in January 2025. Likewise, North Korea will likely <a href="https://www.19fortyfive.com/2020/08/north-koreas-long-march-towards-solid-fueled-icbms/">continue perfecting</a> its ballistic missiles in terms of both range and reliability. Those missiles are already capable of reaching the North American continent.</p> <p>Without the normalization of relations, the danger of a&nbsp;catastrophic confrontation will continue to grow. Normalization includes the establishment of embassies in both countries, a&nbsp;treaty formally ending the Korean War, and the lifting of economic sanctions. Normalization also requires Washington to assure Pyongyang that it is out of the forcible regime‐​change business. One of the main reasons why North Korean leaders have doggedly continued to build a&nbsp;nuclear deterrent is that they saw how Washington <a href="https://nationalinterest.org/blog/the-skeptics/libya-the-forgotten-reason-north-korea-desperately-wants-23129">treated non‐​nuclear adversaries</a> such as Serbia, Iraq, and Libya.</p> <p>Returning to the Obama era policy of issuing impotent demands that Pyongyang give up its nukes is not only pointless, it’s potentially lethal. President Biden needs to adopt an entirely different approach.</p> </div> <p>Ted Galen Carpenter, a&nbsp;senior fellow in security studies at the Cato Institute, is the author of 12 books and more than 850 articles on international affairs.</p> Thu, 14 Jan 2021 11:11:53 -0500 Ted Galen Carpenter https://www.cato.org/publications/commentary/biden-needs-embrace-new-thinking-north-korea Judging Biden https://www.cato.org/publications/commentary/judging-biden <p><a href="https://www.cato.org/people/ilya-shapiro" hreflang="und">Ilya Shapiro</a></p> <div class="lead mb-3 spacer--nomargin--last-child text-default"> <p>Judicial appointments are the brightest lights of Donald Trump’s turbulent presidency. Long after his tax cuts have been reversed and regulatory reforms rescinded, indeed long after his tweets have been memory‐​holed, the youthful originalists Trump appointed to the bench, most notably three Supreme Court justices, will still affect our lives.</p> </div> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>But that’s actually one of the least surprising things about the Trump years, because presidents have few constitutional powers, at least in the domestic sphere, more important than appointing judges. Ruth Bader Ginsburg served nearly 30&nbsp;years on the high court, giving President Bill Clinton’s legal agenda a&nbsp;bridge to the 21st century. Antonin Scalia did the same for President Ronald Reagan.</p> <p>As a&nbsp;new administration dawns, it pays to take a&nbsp;close look at what we can expect from Joe Biden, who on Inauguration Day will become not only the oldest president we’ve ever had, but the one most identified with judicial battles. Although Biden presents himself as a&nbsp;centrist unifier, on judicial nominations, he’s been a&nbsp;partisan brawler. During a&nbsp;36‐​year Senate career, the only Republican Supreme Court nominees he voted for were confirmed unanimously or nearly so. And that goes doubly for Vice President‐​elect Kamala Harris, who <a href="https://thefederalist.com/2020/08/12/kamala-harris-was-ringleader-in-brett-kavanaugh-character-assassination-attempt/" target="_blank">smeared Brett Kavanaugh with baseless innuendo</a> and voted against more than 80% of Trump’s judicial nominees.</p> </div> , <aside class="aside--right aside--large aside pb-lg-0 pt-lg-2"> <div class="pullquote pullquote--default"> <div class="pullquote__content h2"> <p>Biden became Judiciary Committee chairman when the Democrats won back that chamber in the 1986 midterm elections, just in time to preside over the Robert Bork hearings. </p> </div> </div> </aside> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>Biden became Judiciary Committee chairman when the Democrats won back that chamber in the 1986 midterm elections, just in time to preside over the Robert Bork hearings. While Ted Kennedy led the anti‐​Bork demagoguery, Biden’s sustained attacks were crucial to derailing the nomination. Four years later, Biden bizarrely went after Clarence Thomas for being too zealous in protecting individual rights. After Anita Hill’s allegations of sexual harassment surfaced, Biden reopened the hearings and led what Thomas characterized as a “high‐​tech lynching.” In April 2019, as he geared up for his presidential run, Biden called Hill to express “regret for what she endured.” No apology to Justice Thomas has been forthcoming.</p> <p>In June 1992, having failed to stop the Thomas confirmation and fearing further Republican appointments, Biden went to the Senate floor to urge President George H.W. Bush not to nominate anyone if a&nbsp;Supreme Court vacancy arose before that fall’s election. That speech would resurface 24&nbsp;years later, when President Barack Obama made a&nbsp;nomination in the final year of his second term, leading to debate over the “Biden rule.”</p> <p>In the meantime, Biden voted against John Roberts’s Supreme Court nomination, which half the Democratic caucus supported, and Samuel Alito’s, which, along with Obama, Hillary Clinton, and incoming Senate Majority Leader Chuck Schumer, he tried to filibuster. Schumer declared in July 2007 that the Senate should not confirm another George W. Bush nominee “except in extraordinary circumstances” because the court was “dangerously out of balance.” That affirmation of the Biden rule would come back to bite the Democrats; after Scalia died in February 2016, then‐​Vice President Biden walked back his earlier position and said the president and Senate should “work together to overcome partisan differences.”</p> <p>But that doesn’t mean he wants centrists on the high court. In December 2019, <a href="https://www.washingtontimes.com/news/2019/dec/31/biden-not-satisfied-until-half-scotus-is-women-vow/" target="_blank">Biden said he’d appoint</a> judges who see the Constitution as a “living document,” echoing his 30‐​year‐​old attacks on Bork and making clear that there would be no olive branch. He also declined to release a&nbsp;list of potential nominees, knowing that whomever he named could hurt him politically, just as Trump’s original list helped him win over swing voters in key states in 2016. Proving the point, the activist group Demand Justice put out a&nbsp;list of 32 names that was attacked for its radicalism, a “shortlist” that <a href="https://demandjustice.org/supreme-court-shortlist/" target="_blank">has since been expanded to 43</a> to reflect political realities.</p> <p>Biden did famously <a href="https://www.nbcnews.com/politics/2020-election/problem-biden-s-pledge-black-woman-justice-n1200826" target="_blank">pledge to appoint a&nbsp;black woman</a>, which rather narrows the pool of plausible candidates. There are only four black, female federal appellate judges, the youngest of whom is 68, so talk <a href="https://freebeacon.com/2020-election/heres-who-joe-biden-could-pick-for-the-supreme-court/" target="_blank">quickly turned to three people</a>: Ketanji Brown Jackson, a&nbsp;50‐​year‐​old federal judge on the D.C. District Court; Leondra Kruger, a&nbsp;44‐​year‐​old California Supreme Court justice; and Leslie Abrams Gardner, a&nbsp;federal district judge in Macon, Georgia, and the younger sister of Stacey Abrams, who became that state’s political queenmaker after losing her 2018 gubernatorial run. Jackson, whom Obama had interviewed for the ill‐​fated 2016 nomination, has previously gained support from former House Speaker Paul Ryan, whose brother‐​in‐​law is the twin brother of Jackson’s husband. Gardner, whose husband was falsely imprisoned in a&nbsp;West Virginia penitentiary for 26&nbsp;years before they met, was <a href="https://lawandcrime.com/2020-election/federal-judge-the-sister-of-stacey-abrams-halts-georgia-voter-purge-ahead-of-runoff-elections/" target="_blank">recently in the news</a> for a&nbsp;ruling that prevented the purging of voter rolls ahead of this month’s Senate runoffs.</p> <p>You’ll be hearing those names a&nbsp;lot as <a href="https://www.politico.com/news/2021/01/06/liberals-to-breyer-retire-455321" target="_blank">pressure mounts on 82‐​year‐​old Justice Stephen Breyer to retire</a> and avoid Ginsburg’s fate of being replaced by someone of a&nbsp;different jurisprudential stripe. If Democrats hadn’t swept both of those Georgia Senate seats and thus secured united control of the political branches — we haven’t had a&nbsp;Supreme Court confirmation process during divided government since 1991 — it’s possible that Breyer would’ve tried to stay on through the 2022 midterm elections, when Democrats face a&nbsp;favorable electoral map. Now, he doesn’t have that excuse, so expect the fourth Supreme Court fight in five years this summer.</p> <p>Past this next vacancy, it’s unclear when the next opportunity to shape the high court will come, and whether it will be under President Biden. The next oldest justices are Thomas (72) and Alito (70). While there was speculation that they had been considering retirement in 2019, there’s no chance they’ll willingly depart during a&nbsp;Democratic administration. After that comes Sonia Sotomayor (66), but she’s only served 11&nbsp;years and, despite living with diabetes, surely feels an obligation to hold up the court’s left wing.</p> <p>Then there’s Chief Justice Roberts, who’s only 65 but has served 15&nbsp;years — he was the youngest chief justice since John Marshall — and, with the confirmation of Amy Coney Barrett, is no longer the median vote. Legal scholar Josh Blackman (my friend and sometimes co‐​author) has suggested that Roberts may retire <a href="https://reason.com/volokh/2020/09/23/a-resignation-in-time-that-saved-nine/" target="_blank">to lessen pressure on Biden to pack the court</a>, but that seems unrealistic. So, I&nbsp;would expect the subsequent justice to be appointed by whoever wins the 2024 election, if not 2028. I&nbsp;could give you <a href="https://www.foxnews.com/politics/possible-supreme-court-nominees-under-a-president-joe-biden-who-might-be-considered" target="_blank">a&nbsp;list for that eventuality</a>, but it would be outdated before becoming useful. For example, leading contender Sri Srinivasan, chief judge of the D.C. Circuit, turns 54 next month and so may miss his chance.</p> <p>Of course, even as the Supreme Court gets all the attention, it only rules on about 70 cases a&nbsp;year (not counting emergency motions), compared to the 50,000 or so decided by the lower courts. All federal judges sit on those benches for life, affecting our law for decades. Every four‐​year term, the president typically appoints about a&nbsp;fifth of all federal judges. Trump’s 234 put him at more than a&nbsp;quarter. The efficiency of Senate Majority Leader Mitch McConnell’s confirmation machine has left only 46 Article III vacancies (as compared to the 105 that Trump had four years ago), almost all in the trial‐​level district courts. And more than half of those are in just three states, California, New Jersey, and Washington, where Democratic senators refused to negotiate any sort of deal, preferring to leave their states shorthanded rather than allowing Trump to get any say in their judges.</p> <p>So, it would seem that Biden’s judicial imprint will be muted, particularly if he ends up serving only one term. Indeed, it’s a&nbsp;certainty that Biden won’t have as much influence over the judiciary as his erstwhile running mate Obama. When Obama took office, only one of the 13 federal circuit courts had a&nbsp;majority of judges appointed by Democratic presidents. After his 55 appointments, nine did. Trump partly reversed that, “flipping” three circuits and getting a&nbsp;record 30 circuit judges confirmed in his first two years — about the same number as George W. Bush and Obama <i>combined </i>at that point in their presidencies. And 54 overall (with one nominee pending), better than anyone in one term except Jimmy Carter, for whom Congress created many new judgeships as a&nbsp;sort of consolation for not having any high court vacancies on his watch.</p> <p>What can Biden do to reverse that? The answer depends on two obvious factors: (1) the number of seats to fill and (2) the power to get nominees confirmed. Regarding the latter, the 50–50 Senate, with Vice President Harris expecting to live at the Capitol breaking tie votes, means that Biden should be able to get confirmed even marginal nominees whose votes break down on party lines. And there may not be many of those, given the judicial voting records of centrist Republican Sens. Susan Collins and Lisa Murkowski.</p> <p>Predicting the number of seats that will be available for filling is more of a&nbsp;parlor game, the key consideration being the potential for judges to take advantage of what is known as “senior status.” This status is governed by the so‐​called Rule of 80: A&nbsp;federal judge who is at least 65&nbsp;years old has the option of going into semiretirement once the judge’s combined age and years on the bench add up to 80.</p> <p>The decision to take senior status has significant consequences: Judges have the option of presiding over reduced caseloads while maintaining their full salaries. In effect, whatever work they do is voluntary at that point because they get their full salary in retirement regardless, so we should be grateful to them for picking up that slack. For those who consider interpreting the law and deciding cases to be a&nbsp;labor of love, doing less work for the same pay can prove enticing. Most relevant to a&nbsp;president wishing to leave a&nbsp;lasting mark on the courts is that these senior judges don’t count against the 179 total appellate judgeships authorized by Congress.</p> <p>There are now only two circuit vacancies: one in the Boston‐​based 1st Circuit, which is already heavily skewed toward Democratic appointees, and one in the Chicago‐​based 7th Circuit, which is equally skewed toward Republican appointees. Beyond those, as of this writing, there are an amazing 61 circuit judges, more than a&nbsp;third of the total, eligible for senior status. Thirty‐​five of those are Democratic appointees (counting two appointed by George W. Bush as unrequited gestures of goodwill), and it’s a&nbsp;fair bet that most of those will give way, allowing Biden to restock the Democratic bench with younger judges.</p> <p>As for the 26 Republican appointees, five are over 80, including one nonagenarian, and another six are in their 70s. If all of them went senior and were replaced by the Biden White House, the only significant shift would be on the 7th Circuit, which would go from an 8R-2D ratio to a&nbsp;6D-5R one (counting the aforementioned vacancy). But that’s a&nbsp;big if.</p> <p>Regardless of ideological balance, one court to watch will be the D.C. Circuit, considered to be the second‐​most prestigious after the Supreme Court. It decides most appeals of federal agency action and sends a&nbsp;disproportionate number of judges to higher office (including three sitting justices, Roberts, Thomas, and Kavanaugh). There will already be one vacancy once Merrick Garland is confirmed as attorney general, and another one when 81‐​year‐​old Judith Rogers undoubtedly retires. The jockeying for those slots has already begun among Washington lawyers, but putting one of the three black female shortlisters on it would signal where Biden’s preferences for future elevation may lie.</p> <p>More broadly, what kinds of judges will the incoming president pick? <a href="https://www.demconvention.com/wp-content/uploads/2020/08/2020-07-31-Democratic-Party-Platform-For-Distribution.pdf" target="_blank">The Democrats’ 2020 platform</a> asserted that Trump “has packed our federal courts with unqualified, partisan judges who consistently rule for corporations, the wealthy, and Republican interests” and pledged to “appoint people to the bench who are committed to seeing justice be served, and treating each case on its merits.” Belying those ideological commitments, however, Democratic presidents have put a&nbsp;premium on checking demographic boxes. Clinton and Obama each built on Carter’s nomination of women and racial minorities, though they were criticized for appointments that weren’t as jurisprudentially strong as they could be, or liberal enough, which is, of course, the trade‐​off for a&nbsp;focus on demographics. Nevertheless, we can expect Biden to be focused on both issue advocacy and identitarian concerns.</p> <p>Finally, in addition to personnel, the new president faces calls to “rebalance” the Supreme Court, with Democratic elites questioning the legitimacy of all six Republican‐​appointed justices for various reasons. Although Biden was against court‐​packing during the primaries, he stayed coy on the issue during the general election, ultimately proposing <a href="https://www.politico.com/news/2020/10/22/joe-biden-court-packing-judicial-reforms-commission-431157" target="_blank">a&nbsp;bipartisan commission to study judicial reform</a>. It’s unlikely that such a&nbsp;commission, if truly representing the range of expert opinion, would agree on much, or that the Senate would eliminate the legislative filibuster to restructure the judiciary radically. Still, it’s more likely than not that Congress would take up an expansion of the lower courts. Despite increased caseload driven by population growth, no new district judgeships have been created since 2002 and no new circuit judgeships since 1990.</p> <p>In the end, the slew of legislative and regulatory priorities Democrats have after four years of frustration may mean that, even as Biden fills what vacancies arise, judges become a&nbsp;back‐​burner issue early on, as they initially were for Obama. But a&nbsp;lot will depend on the court rulings we see in response to those policy initiatives, as well as what controversy the Supreme Court stirs up with its term‐​ending decisions this June.</p> </div> Ilya Shapiro is director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute and author of <a href="https://smile.amazon.com/Supreme-Disorder-Judicial-Nominations-Politics/dp/1684510562/" target="_blank">Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court</a> Thu, 14 Jan 2021 09:38:24 -0500 Ilya Shapiro https://www.cato.org/publications/commentary/judging-biden Populist Indulgence Thwarts Serious Governing https://www.cato.org/publications/commentary/populist-indulgence-thwarts-serious-governing <p><a href="https://www.cato.org/people/scott-lincicome" hreflang="und">Scott Lincicome</a></p> <div class="lead mb-3 spacer--nomargin--last-child text-default"> <p>Dear Capitolisters, </p> </div> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>There’s this throwaway line in the movie&nbsp;<em>Spider‐​Man: Homecoming</em>&nbsp;that has stuck with me for the last few years and seems quite relevant in our current (and depressing) political moment. In the scene, Spider‐​Man arrives at the Staten Island Ferry to break up an alien‐​weapons deal between some random bad guy and Vulture, played by Michael Keaton (one of the Best Marvel Villains, by the way, other than Tony Stark, of course). Comic Book Fighting inevitably ensues, and Spidey steals Keaton’s alien gun (just go with it) and it begins to malfunction, at which point Vulture yells:&nbsp;</p> </div> , <figure class="figure overflow-hidden figure--default figure--no-caption responsive-embed-no-margin-wrapper"> <div class="figure__media"> <img width="315" height="160" alt="lcome-img1.jpg" class="lozad component-image" loading="lazy" data-srcset="/sites/cato.org/files/styles/pubs/public/2021-01/lcome-img1.jpg?itok=Hda4qoGw 1x, /sites/cato.org/files/styles/pubs_2x/public/2021-01/lcome-img1.jpg?itok=PwusXRuZ 1.5x" data-src="/sites/cato.org/files/styles/pubs/public/2021-01/lcome-img1.jpg?itok=Hda4qoGw" typeof="Image" /> </div> </figure> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>It’s a&nbsp;pretty great scene, remembered mainly for the gun cutting the ferry in half, which put hundreds of passengers at risk and led to Spider‐​Man being ostracized by Stark/​Iron Man (who, in typical fashion, jumped in to save everyone and take credit for fixing a&nbsp;problem that&nbsp;<em>he created</em>). Very fun, if cliché, stuff.</p> <p>But that line …</p> <p>Shortly after the 2012 election (which is about 50&nbsp;years ago in U.S. political terms), a&nbsp;few politicians and pundits on the right began to push a&nbsp;brand of Republican‐​aimed policy dubbed “<a href="https://reason.com/2013/07/30/libertarian-populism-and-its-discontents/" target="_blank">libertarian populism</a>” (aka “free market populism”). The basic idea, as espoused by various lib‐​poppers, was that serious, free market politicians, pundits, and wonks could seize on the Republican base’s increasing populism and energy, primarily embodied in the Tea Party, by channeling the emotional, anti‐​elite passion in the furtherance of small‐​l‐​libertarian policies that were inherently “populist.” Indeed, freer markets, deregulation, federalism, localism, and the like had been repeatedly and historically found to benefit the “little guy” and disempower both Big Government and Big Business. (Sort of an&nbsp;<a href="https://voxeu.org/article/quantitative-assessment-repeal-corn-laws" target="_blank">Anti‐​Corn Law League</a>&nbsp;and&nbsp;<a href="https://global.oup.com/us/companion.websites/fdscontent/uscompanion/us/static/companion.websites/9780199338863/whittington_updata/ch_7_sumner_protectionism.pdf" target="_blank">William Graham Sumner</a>&nbsp;for the 21st century.) I&nbsp;fully admit that I&nbsp;was enamored with the idea, as were some prominent Republican politicians who saw the chance to ride the populist wave and use it for political gain by contrasting Lib-Pop’s bottom‐​up, decentralized approach with the top‐​down, centralized technocracy embraced by both the dreaded GOP establishment and the Obama administration.&nbsp;</p> <p>This approach, in retrospect, was misguided. Very,&nbsp;<em>very</em>&nbsp;misguided.</p> </div> , <aside class="aside--right aside--large aside pb-lg-0 pt-lg-2"> <div class="pullquote pullquote--default"> <div class="pullquote__content h2"> <p>There’s a&nbsp;price to be paid for lying to large swaths of people so as not to disrupt their feelings. </p> </div> </div> </aside> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>My (our) error was in assuming that—contra the history of numerous populist movements—new American populism could be channeled to advance a&nbsp;coherent, informed policy agenda relatively free from the emotional, conspiratorial, nativist nihilism that plagued past movements, and that the leaders of the movement—politicians, publications, pundits—would stick to the principles they claimed to adore when the base’s emotions disagreed. Recent political events, of course, show how unwise this approach is: Trump and his acolytes lied to millions of people and convinced them that the election was stolen. Cynical subordinates like Sens. Josh Hawley and Ted Cruz believed they could score political points by riding the same populist tiger all the way to the White House. What’s the harm, right?</p> <p>Well,&nbsp;<a href="https://www.washingtonpost.com/outlook/a-cynical-ploy-like-hawley-and-cruzs-looks-harmless-until-it-isnt/2021/01/07/9ce6d10e-5091-11eb-b96e-0e54447b23a1_story.html" target="_blank">now we know</a>.</p> <p>As both&nbsp;<a href="https://gfile.thedispatch.com/p/capitol-attack-american-benghazi" target="_blank">Jonah</a>&nbsp;and new arrival&nbsp;<a href="https://uphill.thedispatch.com/p/the-consequences-of-lying-to-people" target="_blank">Haley Byrd Wilt</a>&nbsp;discussed in their most recent columns, there’s a&nbsp;price to be paid for lying to large swaths of people so as not to disrupt their feelings and thereby keep the political gravy train rolling. After a&nbsp;while, they start to believe the lies (confirmation bias is a&nbsp;helluva drug, after all). As Jonah put it, “treat people like they’re delicate little flowers and they’ll behave that way.”</p> <p>Jonah and Haley focused on the political/​election side of this issue, but the populist right’s “feelings over facts” approach affects policy, too. Some of this stuff&nbsp;<a href="https://www.washingtonpost.com/news/monkey-cage/wp/2016/09/19/birtherism-was-why-so-many-republicans-liked-trump-in-the-first-place/" target="_blank">predates Trump</a>, but his rise indubitably caused what was&nbsp;<a href="https://www.reuters.com/article/us-usa-campaign-teaparty-agenda21/tea-party-versus-agenda-21-saving-the-u-s-or-just-irking-it-idUSBRE89E04J20121015" target="_blank">bubbling beneath the surface</a>&nbsp;of the right’s populism to&nbsp;<a href="https://www.politico.com/news/magazine/2021/01/07/jan-6-was-9-weeks-and-4-years-in-the-making-455797" target="_blank">engulf</a>&nbsp;the Republican Party.&nbsp;</p> <p>Today, GOP politicians like Hawley and Cruz—and they’re certainly not alone –routinely discard basic facts in an apparent effort to convince an angry populist base that their problems (real or imagined) stem not from their own actions or complex cultural and macroeconomic forces but from “them”—immigrants, globalists, Big Tech, brunching elites, China, you name it. Hawley’s surely the king of this approach, and examples of his malfeasance abound. As we already&nbsp;<a href="https://capitolism.thedispatch.com/p/hawley-walmart-amazon-trade-populism" target="_blank">discussed</a>&nbsp;last week, he echoed Bernie Sanders when mistakenly blaming Walmart for non‐​existent wage suppression. He’s also pushed to have the U.S. withdraw from the World Trade Organization, despite evidencing&nbsp;<a href="https://www.cato.org/blog/senator-hawleys-many-misunderstandings-wto" target="_blank">no</a>&nbsp;<a href="https://twitter.com/scottlincicome/status/1263210548524695553?s=20" target="_blank">understanding</a>&nbsp;of what the body does or how its rules actually work. But those positions had the right culprits and critics, and controversy gets clicks. So who cares, right?</p> <p>Cruz’s devolution has been more depressing, as his pre‐​conversion record was something most fiscal conservatives could appreciate (even if they didn’t always agree with his stance or tactics). But it’s been no less real. Perhaps the starkest example came in mid‐​2015 when Cruz wrote an op‐​ed supporting Trade Promotion Authority (which streamlines congressional consideration of trade agreements and is widely considered innocuous), only to&nbsp;<a href="https://www.politico.com/story/2015/06/ted-cruz-no-support-tpa-trade-bill-119319" target="_blank">reverse himself</a>&nbsp;weeks later—in a&nbsp;<em>Breitbart</em>&nbsp;piece, of course—once Trump made the legislation toxic among the populist right and conspiracies began to spread that it was, among other ridiculous things, a “backdoor” means of liberalizing U.S. immigration law. (<a href="https://www.cato.org/blog/top-nine-myths-about-trade-promotion-authority-trans-pacific-partnership" target="_blank">It wasn’t</a>.) Cruz also ditched his&nbsp;<a href="https://www.theatlantic.com/politics/archive/2013/05/when-ted-cruz-helped-craft-bushs-immigration-reform-plan/276167/" target="_blank">past support</a>&nbsp;for immigration to become a&nbsp;hardliner, going so far as to block recent legislation offering asylum to persecuted Hong Kongers on&nbsp;<a href="https://reason.com/volokh/2020/12/21/ted-cruzs-terrible-case-for-keeping-out-hong-kong-refugees/" target="_blank">supremely dubious</a>&nbsp;fears of Chinese espionage (along with a&nbsp;lot of&nbsp;<a href="https://www.forbes.com/sites/stuartanderson/2020/12/20/ted-cruz-blocks-bill-claims-hong-kong-refugees-could-be-spies/?sh=603b565e12c6" target="_blank">bad stats</a>).</p> <p>Now, look, politicians misleading or following their base is nothing new (and left‐​populist politicians can be similarly fact‐​challenged), but the right’s populist groundswell has also been accompanied by a&nbsp;new cadre of pundits and wonks riding the same wave of emotional discontent, with a&nbsp;similar disregard for the underlying facts at issue. So, for example, we’re now told that:</p> <ul> <li> <p>Workers have suffered from&nbsp;<a href="https://www.sbc.senate.gov/public/_cache/files/4/0/40689b76-80d1-48b8-aa60-3e50e82cb2da/0A806FDC7B1EB24F3A0D732C23566022.cass-testimony.pdf" target="_blank">decades of wage stagnation</a>&nbsp;and widening inequality despite ample evidence of&nbsp;<a href="https://capitolism.thedispatch.com/p/the-annoying-persistence-of-the-income" target="_blank">the</a>&nbsp;opposite.</p> </li> <li> <p>Significant&nbsp;<a href="https://americancompass.org/in-focus/moving-the-chains/" target="_blank">changes</a>&nbsp;to trade and industrial policy are needed to confront American “<a href="https://amgreatness.com/2020/01/07/the-deadly-cost-of-free-trade/" target="_blank">deindustrialization</a>,” despite the fact that developed economies everywhere are experiencing similar trends and that, in terms of output and financials, the U.S. manufacturing sector is healthy and in many ways globally dominant. (My new paper on this issue will be out in a&nbsp;couple weeks, but you&nbsp;<a href="https://www.sciencedirect.com/science/article/pii/S002205311100010X" target="_blank">can</a>&nbsp;<a href="https://fred.stlouisfed.org/graph/?g=zRXY" target="_blank">check</a>&nbsp;<a href="https://www.aei.org/carpe-diem/the-us-produces-40-more-factory-output-today-vs-20-years-ago-with-5m-fewer-workers-technology-job-theft/#ixzz4nyMgspJX&amp;w" target="_blank">these</a>&nbsp;<a href="https://www.piie.com/publications/working-papers/trade-surplus-or-deficit-neither-matters-manufacturing-employment-shares#:~:text=Neither%20matters%20for%20changes%20in%20manufacturing%20employment%20shares&amp;text=This%20suggests%20that%20even%20if,many%20countries%20for%20several%20decades." target="_blank">other</a>&nbsp;<a href="https://twitter.com/scottlincicome/status/1293615545493921792" target="_blank">links</a>&nbsp;if you’re&nbsp;<a href="https://www.cato.org/publications/commentary/do-oren-cass-justifications-industrial-policy-stack-up" target="_blank">interested</a>.)</p> </li> <li> <p>We can&nbsp;<a href="https://t.co/pBD0Vl8VYL?amp=1" target="_blank">easily have</a>&nbsp;abundant, well‐​paying manufacturing jobs if we copy U.S. agriculture policy, leaving aside the&nbsp;<a href="https://www.aei.org/carpe-diem/a-lesson-about-manufacturing-jobs-from-farming/" target="_blank">historic collapse</a>&nbsp;of farm jobs (amid rising output) and the fact that, as I&nbsp;noted&nbsp;<a href="https://capitolism.thedispatch.com/p/examining-americas-farm-subsidy-problem" target="_blank">a&nbsp;few weeks ago</a>, U.S. farm policy is a&nbsp;costly, corrupt boondoggle that countries like New Zealand and Australia prove is wholly unnecessary.</p> </li> <li> <p>Rampant “<a href="https://amgreatness.com/2020/12/13/the-beggaring-of-the-middle-class/" target="_blank">financialization</a>” has&nbsp;<a href="https://amgreatness.com/2019/09/19/toward-a-nationalist-economic-policy/" target="_blank">destroyed</a>&nbsp;the Real Economy, even though financial sector’s&nbsp;<a href="https://www.bea.gov/data/gdp/gdp-industry" target="_blank">share of the U.S. economy</a>&nbsp;has risen only about 1&nbsp;percentage point since the late 1990s (to about 7&nbsp;percent)&nbsp;<em>and</em>&nbsp;was actually expanding faster during the halcyon days of the ’70s and ’80s (and in previous two‐​decade periods that evoke similar nostalgia).</p> </li> <li> <p>Disruptive “<a href="https://claremontreviewofbooks.com/when-market-economists-fail" target="_blank">globalization</a>” is a&nbsp;new phenomenon created by corporatist (probably libertarian) elites, ignoring that people have been trading internationally&nbsp;<a href="https://twitter.com/scottlincicome/status/1346068968122032129" target="_blank">for eons</a>&nbsp;(<a href="https://twitter.com/theindicator/status/1316135144886087683" target="_blank">long before</a>&nbsp;modern nation states), and that much of modern trade integration has been driven by technologies like&nbsp;<a href="https://www.stlouisfed.org/on-the-economy/2020/december/role-innovations-global-trade-shipping-container?utm_source=twitter&amp;utm_medium=SM&amp;utm_content=stlouisfed&amp;utm_campaign=2d1e38fe-725c-46ec-ba78-41eed3b3e709&amp;s=03" target="_blank">the shipping container</a>, not “trade deals” (which also seem&nbsp;<a href="https://www.nationalreview.com/corner/oren-cass-vs-public-choice-economics/" target="_blank">misunderstood</a>).&nbsp;</p> </li> <li> <p>And, of course, heartless libertarians run Washington economic policy, despite the&nbsp;<a href="https://capitolism.thedispatch.com/p/documenting-the-domination-of-libertarian" target="_blank">ample evidence</a>&nbsp;to the contrary.</p> </li> </ul> <p>Or there’s&nbsp;<a href="https://capitolism.thedispatch.com/p/fine-lets-talk-about-section-230" target="_blank">Section 230</a>, or&nbsp;<a href="https://www.cato.org/blog/american-compass-shouldnt-reject-economics-immigration?queryID=526fd037e97825c0d14aeca66d081922" target="_blank">immigration</a>, or—of course—<a href="https://capitolism.thedispatch.com/p/its-time-we-had-a-talk-about-tariffs" target="_blank">tariffs</a>. The list goes on and on. (One could even devote a&nbsp;weekly newsletter to these issues.) Whether out of sincere belief or political expediency, the populist right’s intellectual vanguard often plays fast and loose with the facts, and when they do, it usually reflects or caters to the emotional zeitgeist of the Trumpist moment—heavy on economic pessimism, nativism, and anti‐​establishmentarian resentment; and unfortunately light on facts, analysis, and history. Of course, not everything these budding policy entrepreneurs say and do is bad, but the willingness to embrace narrative over fact to placate a&nbsp;real (or imagined) base is a&nbsp;hallmark of their movement. And “market fundamentalists” need not apply.</p> <p>Now, I&nbsp;do not deign to think that populist elites feeding intellectual comfort food to swing voters—whether intentional or not—is the same as Team Trump peddling self‐​serving election conspiracies to paranoid fanatics marching on the Capitol. But both reflect the movement’s elevation of Populist Truth over&nbsp;<em>actual&nbsp;</em>truth—of feelings over fact. The policy side of this phenomenon, which routinely invents national problems or offers simplistic, ahistorical solutions—protectionism, nativism, industrial policy, etc.—to real ones, fortunately doesn’t lead to violent insurrections, but it&nbsp;<em>does</em>&nbsp;have harmful effects.&nbsp;</p> <p>For starters, it makes reasoned debate extremely difficult, if not impossible, because that requires at least some basic agreement on the underlying facts&nbsp;<em>and</em>&nbsp;the rules of the debate. If legitimate critiques of, say, Josh Hawley’s specific claims about wage stagnation or the WTO are met with emotional responses—“Okay, fine,&nbsp;<a href="https://twitter.com/wellscking/status/1248667943749197824" target="_blank">but</a>&nbsp;The People don’t&nbsp;<em>feel</em>&nbsp;that way, and oh by the way you’re&nbsp;<a href="https://twitter.com/scottlincicome/status/1257786392463249408" target="_blank">basically a&nbsp;lobbyist for China</a>”—there’s little point in engaging again. (The&nbsp;<em>New York Times’</em>&nbsp;Jane Coaston recently called this vague and ever‐​changing use of the emotional trump card “<a href="https://twitter.com/cjane87/status/1348628930673205249" target="_blank">Feelingsball</a>,” after the&nbsp;<em>Calvin and Hobbes&nbsp;</em>schtick, which is pretty much just perfect.)</p> <p>More importantly, by placating these feelings and providing a&nbsp;veneer of intellectual support for them, populist elites not only buttress the True Believers but may very well create new and impassioned converts. (There’s ample evidence, for example, that Republicans have been taking their protectionist cues from Trump, not the other way around.) That approach might be good for votes, donations, and book sales, but—to the extent that these feelings aren’t grounded in actual facts, history, law, or economics—it makes governing more difficult in the future when promised policies inevitably fail and an unpersuaded base demands even more unreality (and politicians who will deliver it, good and hard).&nbsp;</p> <p>That’s not to say, of course, that there isn’t real suffering out there—that there are no cultural or economic problems in America. But serious public policy, not to mention serious governing, requires acknowledging hard truths and complicated realities—no, 1950s manufacturing jobs and lifestyles aren’t coming back; no, ending globalist consumerism won’t restore the American family; and so on—not simply placating the emotional desires (or worse) of a&nbsp;disgruntled base. Populism—on the left and the right, to be clear—makes such seriousness increasingly unwelcome, as it reinforces the worst impulses of an ever‐​more‐​impulsive base. Advocates may think they’re being clever or strategic by ignoring the facts and catering to these forces (or they may very well be true believers themselves), but recent events show that they risk losing not only elections, but the electorate itself.</p> <p>They’re messing with things they don’t understand.</p> <strong><strong>Chart of the Week</strong></strong> <p>Via&nbsp;<a href="https://twitter.com/Mark_J_Perry/status/1348993444962848773" target="_blank">Mark Perry</a></p> </div> , <figure class="figure overflow-hidden figure--default figure--no-caption responsive-embed-no-margin-wrapper"> <div class="figure__media"> <img width="700" height="519" alt="lcome-img2.jpg" class="lozad component-image" loading="lazy" data-srcset="/sites/cato.org/files/styles/pubs/public/2021-01/lcome-img2.jpg?itok=jB05qdFh 1x, /sites/cato.org/files/styles/pubs_2x/public/2021-01/lcome-img2.jpg?itok=U-emMny- 1.5x" data-src="/sites/cato.org/files/styles/pubs/public/2021-01/lcome-img2.jpg?itok=jB05qdFh" typeof="Image" /> </div> </figure> , <div class="mb-3 spacer--nomargin--last-child text-default"> <strong><strong>The Links</strong></strong> <p><a href="https://www.cato.org/blog/usitc-confirms-american-pharmaceutical-resilience" target="_blank">Me on American pharmaceutical resilience</a></p> <p><a href="https://t.co/L2eM01WUuL?amp=1" target="_blank">Content moderation cannot fix elite failure</a></p> <p><a href="https://t.co/ms1LnLyacL?amp=1" target="_blank">Mob rule and liberty</a></p> <p><a href="https://t.co/n1aKtVhgo2?amp=1" target="_blank">Robots and nursing homes</a></p> <p><a href="https://www.bloomberg.com/news/articles/2021-01-11/how-china-won-trump-s-good-and-easy-to-win-trade-war?sref=Yg3sQEZ2" target="_blank">Counting the ways “China won Trump’s trade war”</a></p> <p><a href="https://t.co/iVCM1fXnat?amp=1" target="_blank">Where are Americans moving (and why)?</a></p> <p><a href="https://www.cato.org/cato-journal/winter-2020/once-future-worker-vision-renewal-work-america-oren-cass" target="_blank">Dan Griswold reviews&nbsp;</a><em><a href="https://www.cato.org/cato-journal/winter-2020/once-future-worker-vision-renewal-work-america-oren-cass" target="_blank">The Once and Future Worker</a></em></p> <p><a href="https://t.co/VAJrEHXudL?amp=1" target="_blank">“The End of the GOP.”</a>&nbsp;(<a href="https://hotair.com/archives/ed-morrissey/2021/01/11/republican-no-gops-existential-crisis/?utm_source=Twitter&amp;utm_medium=social&amp;utm_term=republican-no-gops-existential-crisis&amp;utm_content=0&amp;utm_campaign=PostPromoterPro" target="_blank">More.</a>)</p> <p><a href="https://johnhcochrane.blogspot.com/2021/01/fda-vs-astra-zeneca-bureaucracy-vs.html" target="_blank">Fixing the vaccine allocation mess</a>. (<a href="https://www.cato.org/blog/vaccine-allocation-mess-new-york" target="_blank">Econ lessons abound</a>.)</p> <p><a href="https://t.co/OaCTrga4I8?amp=1" target="_blank">BioNTech and Pfizer are boosting vaccine production</a></p> <p><a href="https://www.wsj.com/articles/low-on-workers-manufacturers-recruit-their-executives-for-the-factory-floor-11610168401" target="_blank">U.S. manufacturing worker shortages are roiling supply chains</a></p> <p><a href="https://www.bloomberg.com/news/articles/2021-01-11/u-s-coffee-chains-face-two-year-recovery-from-covid-sales-hit?utm_medium=social&amp;cmpid%3D=socialflow-twitter-economics&amp;utm_source=twitter&amp;utm_content=economics&amp;utm_campaign=socialflow-organic" target="_blank">Tough times ahead for once‐​unstoppable Big Coffee</a></p> <p><a href="https://t.co/nvVA4MfGEL?amp=1" target="_blank">Brexit won’t be easy for import‐​reliant small businesses</a></p> <p><a href="https://xkcd.com/2408/" target="_blank">XKCD gets into Egg Carton Twitter</a></p> <p><em><a href="https://t.co/FIFzi8DonH?amp=1" target="_blank">Calliou</a></em><a href="https://t.co/FIFzi8DonH?amp=1" target="_blank">&nbsp;cancelled, finally</a></p> <p><a href="https://t.co/CtknZ0uxJA?amp=1" target="_blank">The Chicken Sandwich Wars continue apace</a></p> <p></p> </div> Scott Lincicome is an international trade attorney, an adjunct scholar at the Cato Institute, and a&nbsp;visiting lecturer at Duke University Law School. Wed, 13 Jan 2021 11:54:44 -0500 Scott Lincicome https://www.cato.org/publications/commentary/populist-indulgence-thwarts-serious-governing Only Impeachment Is Censure Enough https://www.cato.org/publications/commentary/only-impeachment-censure-enough <p><a href="https://www.cato.org/people/gene-healy" hreflang="und">Gene Healy</a></p> <div class="lead mb-3 spacer--nomargin--last-child text-default"> <p>As the drive toward the second impeachment of President Trump gathers steam, Republican dissenters are scrambling for some way to derail the train. Predictably, congressional censure is at&nbsp;<a href="https://twitter.com/jakesherman/status/1348739778041294851?s=21" target="_blank">the top</a>&nbsp;of the list; House Minority Leader Kevin McCarthy, a&nbsp;Republican from California, recently approached the No. 2&nbsp;Democrat in the House with an&nbsp;<a href="https://www.nytimes.com/2021/01/12/us/mitch-mcconnell-trump-impeachment.html" target="_blank">offer to</a>&nbsp;“deliver a&nbsp;large number of Republican votes for a&nbsp;formal rebuke if Democrats backed off impeachment.” The answer was no, and for good reason: Congressional censure is a&nbsp;cop‐​out and a&nbsp;toothless punishment. It’s only impeachment that leaves a&nbsp;mark.</p> </div> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>On Tuesday, Rep. Brian Fitzpatrick of Pennsylvania, joined by six GOP colleagues, introduced a&nbsp;<a href="https://fitzpatrick.house.gov/_cache/files/2/5/25325971-ba66-4715-b025-b20c0c43735b/F97DA2FE9338DF070A263289C6DEF1C1.h-con-res-final-version-censure.pdf" target="_blank">concurrent resolution</a>&nbsp;“censuring and condemning President Donald J. Trump” for attempting “unlawfully” to “overturn the 2020 Presidential election” and provoking Jan. 6’s violent attack on the Capitol. Opting for censure rather than impeachment would, Fitzpatrick&nbsp;<a href="https://fitzpatrick.house.gov/2021/1/fitzpatrick-colleagues-introduce-concurrent-resolution-to-condemn-and-censure-president-trump" target="_blank">insisted</a>, “provide closure” and “hold the president accountable.”</p> <p>Will it, though?</p> </div> , <aside class="aside--right aside--large aside pb-lg-0 pt-lg-2"> <div class="pullquote pullquote--default"> <div class="pullquote__content h2"> <p>This president spun up a&nbsp;violent mob hoping to intimidate Congress into overturning the results of an election he’d lost. If that’s not impeachable, nothing is. </p> </div> </div> </aside> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>Pop quiz: Name all three presidents who have been impeached by the House. Presidents Andrew Johnson, Bill Clinton, and Trump. President Richard Nixon, remember, managed to skip town before the hammer dropped.</p> <p>Now, name any two presidents who have been tarred with a&nbsp;congressional censure vote. There are four, per&nbsp;<a href="https://www.everycrsreport.com/reports/R45087.html#_Toc505699549" target="_blank">the Congressional Research Service</a>. If you’re a&nbsp;history buff, maybe you came up with President Andrew Jackson. Ironically, Jackson’s 1834 censure by the Senate over the “Bank War” is mainly remembered because, three years later, he had his allies in the Senate&nbsp;<a href="https://www.senate.gov/artandhistory/history/minute/Senate_Reverses_A_Presidential_Censure.htm" target="_blank">expunge it</a>&nbsp;from the record. The remaining cases of congressional censure have faded into obscurity. Did you know that, in addition to dithering while the Civil War loomed, President James Buchanan got dinged by the House for excessive party patronage in naval contracts?</p> <p>Far from holding presidents accountable, censure resolutions are little remembered and thus little feared. Aside from making Jackson really mad once, which was not exactly hard to do, they’ve never cost another president a&nbsp;good night’s sleep.</p> <p>Impeachment, on the other hand, is constitutional censure: the strongest means of repudiation available to the House. Regardless of what happens in the Senate, a&nbsp;House vote to impeach lastingly mars the offender’s legacy, sending a&nbsp;signal to future presidents about the sort of conduct that’s beyond the pale.</p> <p>The vehemence with which Trump’s defenders oppose impeachment gives the lie to their claim that it’s pointless without removal in a&nbsp;Senate trial. Lately, Republican pundit Hugh Hewitt denounced the House effort as&nbsp;<a href="https://twitter.com/genehealy/status/1348997088756047873?s=21" target="_blank">“performance art politics”</a>&nbsp;while simultaneously bemoaning the cruelty of forcing Trump to wear&nbsp;<a href="https://www.washingtonpost.com/opinions/2021/01/08/fast-track-trump-impeachment-pointless-revenge/" target="_blank">“a second scarlet I.”</a>&nbsp;Please do not carry out this empty, performative gesture: I&nbsp;implore you!</p> <p>The formalized disgrace of impeachment is central to the Johnson and Clinton legacies. But making Trump the first president in history to suffer that humiliation twice? That’s going to leave a&nbsp;mark.</p> <p>It’s hard to feel sorry for him. This president spun up a&nbsp;violent mob hoping to intimidate Congress into overturning the results of an election he’d lost. If that’s not impeachable, nothing is. Trump’s reckless, reprehensible act left five people dead, and we’re lucky it wasn’t even worse. If not for some misdirection by a&nbsp;quick‐​thinking Capitol Police officer, the mob might have breached the Senate chamber. “We were very close to actually having members of Congress killed,”&nbsp;<a href="https://www.wsj.com/articles/lawmakers-were-feet-and-seconds-away-from-confrontation-with-the-mob-in-the-capitol-11610481854?st=fg92y9bxhx53iev&amp;reflink=article_copyURL_share" target="_blank" data-saferedirecturl="https://www.google.com/url?q=https://www.wsj.com/articles/lawmakers-were-feet-and-seconds-away-from-confrontation-with-the-mob-in-the-capitol-11610481854?st%3Dfg92y9bxhx53iev%26reflink%3Darticle_copyURL_share&amp;source=gmail&amp;ust=1610635655334000&amp;usg=AFQjCNE01zqToPJGiu-voDUiJKGRNwGsHQ">said</a>&nbsp;Rep. Adam Kinzinger, a&nbsp;Republican from Illinois.</p> <p>McCarthy, of all people, has to know that. After fleeing the Capitol, the&nbsp;<em><a href="https://www.washingtonpost.com/politics/trump-mob-failure/2021/01/11/36a46e2e-542e-11eb-a817-e5e7f8a406d6_story.html" target="_blank" data-saferedirecturl="https://www.google.com/url?q=https://www.washingtonpost.com/politics/trump-mob-failure/2021/01/11/36a46e2e-542e-11eb-a817-e5e7f8a406d6_story.html&amp;source=gmail&amp;ust=1610635655334000&amp;usg=AFQjCNFnXkCXGBddF3TiObEdjAOu0AxFOw">Washington Post</a></em><a href="https://www.washingtonpost.com/politics/trump-mob-failure/2021/01/11/36a46e2e-542e-11eb-a817-e5e7f8a406d6_story.html" target="_blank">&nbsp;reports</a>, the minority leader spent Wednesday afternoon “hiding from the rioters in a&nbsp;secret location,” begging the president’s son‐​in‐​law to wield his influence, then doing TV spots because that was the only way to get a&nbsp;message to Trump about “just how dire the situation was.”</p> <p>It would be normal, healthy even, to take that sort of thing personally and, as a&nbsp;House leader, insist that it be punished with the ultimate constitutional sanction. What Trump set in motion on Jan. 6&nbsp;was as close as you can come, in real life, to testing his boast that he&nbsp;<a href="https://www.npr.org/sections/thetwo-way/2016/01/23/464129029/donald-trump-i-could-shoot-somebody-and-i-wouldnt-lose-any-voters" target="_blank">could</a>&nbsp;“stand in the middle of Fifth Avenue and shoot somebody” and not lose any support.</p> <p>Some Republicans are starting to prove him wrong. On Tuesday, there was a&nbsp;sense that the dam was beginning to break, as&nbsp;<a href="https://www.nytimes.com/article/republicans-impeaching-donald-trump.html?referringSource=articleShare" target="_blank">five GOP members</a>, including Rep. Liz Cheney of Wyoming, the No. 3&nbsp;Republican in the House, announced their support for impeachment.</p> <p>One of them was Rep. Fred Upton of Michigan. On Tuesday morning, Upton had been fully committed to the slap‐​on‐​the‐​wrist option as a&nbsp;co‐​sponsor of Fitzpatrick’s censure resolution. By day’s end, however, he’d changed his mind, revolted by the president’s insistence that his pre‐​riot rally speech was “totally appropriate.” “Enough is enough,”&nbsp;<a href="https://twitter.com/repfredupton/status/1349190793840521219?s=21" target="_blank" data-saferedirecturl="https://www.google.com/url?q=https://twitter.com/repfredupton/status/1349190793840521219?s%3D21&amp;source=gmail&amp;ust=1610635655334000&amp;usg=AFQjCNHNICi5qWRTUjbU4koEefwo0cHGgg">Upton declared</a>. “I will vote to impeach.”</p> <p>Like bankruptcy, when it finally comes, impeachment&nbsp;<a href="https://quoteinvestigator.com/2018/08/06/bankrupt/" target="_blank" data-saferedirecturl="https://www.google.com/url?q=https://quoteinvestigator.com/2018/08/06/bankrupt/&amp;source=gmail&amp;ust=1610635655334000&amp;usg=AFQjCNEF52aY8bmVPLVrROQWPA3dcyVOJg">comes at you fast</a>.</p> </div> Gene Healy is a&nbsp;vice president at the Cato Institute and author of <a href="https://www.cato.org/publications/white-paper/indispensable-remedy-broad-scope-constitutions-impeachment-power" target="_blank">Indispensable Remedy: The Broad Scope of the Constitution’s Impeachment Power.</a> Wed, 13 Jan 2021 11:40:17 -0500 Gene Healy https://www.cato.org/publications/commentary/only-impeachment-censure-enough Donald Trump and the Limits of Free Speech https://www.cato.org/publications/commentary/donald-trump-limits-free-speech <p><a href="https://www.cato.org/people/johan-norberg" hreflang="und">Johan Norberg</a></p> <div class="lead mb-3 spacer--nomargin--last-child text-default"> <p>Is Donald Trump’s expulsion from Twitter an attack on free speech? A&nbsp;great many Republicans are saying so. You certainly can call it ‘deplatforming’: when you lose your speaking invite, your social media posting rights or your book deal. Josh Hawley, a&nbsp;Republican Senator, has&nbsp;<a href="https://twitter.com/HawleyMO/status/1347327743004995585?s=20" target="_blank">claimed</a>&nbsp;that his First Amendment rights were violated by Simon &amp;&nbsp;Schuster when they decided not to publish his book. It’s a&nbsp;problematic definition, since it means that Simon &amp;&nbsp;Schuster are also violating my free speech by not publishing my books. And in fact, the rights of most aspiring authors on the planet.</p> </div> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>But of course, the First Amendment expressly refers to laws made by Congress abridging the freedom of speech. It stops the government from&nbsp;<em>punishing</em>&nbsp;people for their opinions. It does not mean that Simon &amp;&nbsp;Schuster or Twitter — or&nbsp;<em>The Spectator</em>&nbsp;– has an obligation to publish them. And that’s how free speech has usually been seen in the Western Enlightenment tradition, as one of our human rights that are upheld when we abstain from interfering in the lives of others.</p> <p>Think of it as a&nbsp;distinction between negative rights (that grant you liberty, and prevent you from encroachment) and positive rights (things you are entitled to access). This borrows language from Adam Smith. ‘Mere justice is, upon most occasions, but a&nbsp;negative virtue, and only hinders us from hurting our neighbor’, he wrote in 1759, ‘We may often fulfill all the rules of justice by sitting still and doing nothing.’ To Smith, these negative rights guarantee you freedom&nbsp;<em>from</em>&nbsp;interference and persecution. But this is separate from the rights that you have&nbsp;<em>to</em>&nbsp;things: ie. platforms and op‐​ed pages that you think you need to reach an audience.</p> </div> , <aside class="aside--right aside--large aside pb-lg-0 pt-lg-2"> <div class="pullquote pullquote--default"> <div class="pullquote__content h2"> <p>The right to free speech is a&nbsp;negative right. It guarantees you the right to be left alone, to speak your mind. But it does not give others an obligation to lend you their printing press. </p> </div> </div> </aside> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>The right to free speech is a&nbsp;negative right. It guarantees you the right to be left alone, to speak your mind. But it does not give others an obligation to lend you their printing press.</p> <p>Isaiah Berlin’s essay,&nbsp;<em>Two Concepts of Liberty</em>, from 1958 is the most famous description of the distinction. He traced the negative definition to Locke and Constant and the positive definition to Plato and Rousseau. When Unesco looked at the UN declaration of human rights after the second world war it actually admitted that it dealt with two opposite theories of rights, the negative one, based on ‘premises of inherent individual rights’, and the positive one, ‘based on Marxist principles.’</p> <p>The Rousseauan Right thinks that Twitter violates their freedom of speech when they are blocked from it. But Twitter is private property. It has provided you with a&nbsp;megaphone that you would not have if it did not exist, which it never had an obligation to do. If it decides to withdraw the megaphone, you are free to talk without it, or to get another one, or even build your own.</p> <p>hat does not mean that it is a&nbsp;good idea to deplatform. I&nbsp;don’t think that free speech is enough. For society to thrive and for our minds not to stagnate we also need a&nbsp;culture of openness, where we are exposed to a&nbsp;wide variety of ideas. Even (perhaps especially) those we consider mistaken, stupid or even malign. And there is a&nbsp;special rung in squealer hell for those who take any tweet they disagree with to the writers’ employer to demand disciplinary action.</p> <p>In this difficult moment for the American Republic, it might even be dangerous to lose the window into Donald Trump’s soul that his Twitter account has been. And that goes for most of his more radical followers as well. Pushing anger underground rarely calms the situation.</p> <p>On the other hand, when things take a&nbsp;violent turn — and companies find that they have been used to promote conspiracy theories and incite hatred — I&nbsp;understand it gets complicated.</p> <p>So in a&nbsp;few instances, removal might be reasonable. But if it goes too far, it undermines the diversity that made these platforms valuable. Perhaps it’s a&nbsp;terrible and counterproductive mistake. But whatever it is, it is not a&nbsp;violation of free speech. Not in the Lockean Enlightenment tradition, at least.</p> <p>You are still free to shout ‘fire’, but not in my crowded theatre, please.</p> </div> Johan Norberg is a&nbsp;historian of ideas, and a&nbsp;senior fellow at the Cato Institute. Wed, 13 Jan 2021 08:58:08 -0500 Johan Norberg https://www.cato.org/publications/commentary/donald-trump-limits-free-speech The Cancellation of Josh Hawley’s Book Deal Isn’t a First Amendment Issue https://www.cato.org/publications/commentary/cancellation-josh-hawleys-book-deal-isnt-first-amendment-issue <p><a href="https://www.cato.org/people/ilya-shapiro" hreflang="und">Ilya Shapiro</a></p> <div class="lead mb-3 spacer--nomargin--last-child text-default"> <p>Last Thursday, Simon &amp;&nbsp;Schuster&nbsp;<a href="https://www.nytimes.com/2021/01/07/books/simon-schuster-josh-hawley-book.html" target="_blank">canceled its contract</a>&nbsp;with Senator Josh Hawley (R-MO) to publish his planned book,&nbsp;<em>The Tyranny of Big Tech</em>, over criticism of Hawley’s efforts to object to several states’ slates of electors and thus overturn the result of the presidential election. “As a&nbsp;publisher, it will always be our mission to amplify a&nbsp;variety of voices and viewpoints,” Simon &amp;&nbsp;Schuster’s statement said. “At the same time we take seriously our larger public responsibility as citizens, and cannot support Senator Hawley after his role in what became a&nbsp;dangerous threat.” The publisher later added that it was well within its contractual rights to take this action.</p> </div> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>Hawley&nbsp;<a href="https://twitter.com/HawleyMO/status/1347327743004995585" target="_blank">replied on Twitter</a>&nbsp;that his erstwhile publisher was a “woke mob” engaged in “Orwellian” behavior, that “Simon &amp;&nbsp;Schuster is canceling my contract because I&nbsp;was representing my constituents, leading a&nbsp;debate on the&nbsp;Senate&nbsp;floor on voter integrity, which they have now decided to redefine as sedition.” He further said that “this is not just a&nbsp;contractual dispute. It’s a&nbsp;direct assault on the First Amendment. …This is the Left looking to cancel everyone they don’t approve of.”</p> <p>As an academic might say, let’s unpack this. There are (at least) three levels of analysis to be had here: constitutional, legal and cultural. On the constitutional front, the First Amendment concerns government action (“Congress&nbsp;shall make no law…”), so what a&nbsp;private company chooses to publish is of no concern. The First Amendment certainly can’t&nbsp;<em>compel</em>&nbsp;a&nbsp;publisher to publish a&nbsp;book, whether that book is written by a&nbsp;public official or otherwise.</p> </div> , <aside class="aside--right aside--large aside pb-lg-0 pt-lg-2"> <div class="pullquote pullquote--default"> <div class="pullquote__content h2"> <p>The First Amendment certainly can’t compel a&nbsp;publisher to publish a&nbsp;book, whether that book is written by a&nbsp;public official or otherwise. </p> </div> </div> </aside> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>But could this cancellation violate Hawley’s contract? Well, the contract hasn’t been made public, but as I&nbsp;recently experienced with&nbsp;<a href="https://smile.amazon.com/Supreme-Disorder-Judicial-Nominations-Politics/dp/1684510562/" target="_blank">my own book deal</a>, book contracts generally give the publisher great leeway. It could be that Simon &amp;&nbsp;Schuster gets to walk away but Hawley gets to keep his advance, or there could be some other previously agreed‐​upon arrangement. There’s certainly a&nbsp;chance that the publisher is breaching the contract—it may have determined that it would lose money if it published the book, meaning that this is what law‐​and‐​economics scholars call an “efficient breach”—in which case it owes Hawley “liquidated damages” as set out in the contract or under generally accepted principles of contract law. Either way, the First Amendment isn’t at issue.</p> <p>Finally, though, there’s a&nbsp;non‐​legal issue at play: the idea that large corporations, cultural and otherwise, are “canceling” conservatives (and libertarians) in various ways. Indeed, such “censorship” by&nbsp;Facebook,&nbsp;Google&nbsp;and&nbsp;Twitter&nbsp;is the very subject of Hawley’s book. The extent to which this phenomenon is real or concerning depends a&nbsp;lot on specific facts. Surely, if it had turned out that an author was a&nbsp;neo‐​Nazi Holocaust denier—or a&nbsp;Klan member, or a&nbsp;Stalinist—few would object to “de‐​platforming” him. So this is largely a&nbsp;debate about the “Overton window” of appropriate public discourse and policing what I’ve previously called&nbsp;<a href="https://www.forbes.com/sites/ilyashapiro/2014/04/06/mozillas-ceo-showed-the-cost-of-disclosure-laws-by-crossing-the-satan-scherbatsky-line/?sh=1eb7716c4c67" target="_blank">the Satan‐​Scherbatsky line</a>.</p> <p>It’s certainly troubling that, for example,&nbsp;<em>The New York Times</em>’ publication of an&nbsp;<a href="https://www.nytimes.com/2020/06/03/opinion/tom-cotton-protests-military.html" target="_blank">op‐​ed</a>&nbsp;by Senator Tom Cotton (R-AR) on how best to quell last summer’s rioting caused the opinion editor to lose his job, while the Gray Lady publishes regular apologies for Communist regimes (as recently as&nbsp;<a href="https://www.nytimes.com/2021/01/04/business/china-covid19-freedom.html" target="_blank">last Monday</a>). And there are indeed “woke mobs” out there, most notably on social media, even if that choice of words was unfortunate in light of the actual mob that Hawley fist‐​pumped last Wednesday.</p> <p>These are real cultural pathologies that our society must grapple with. But that doesn’t mean there’s a&nbsp;role for government to fix these issues—and they’re certainly not First Amendment violations.</p> </div> Ilya Shapiro is director of the Robert A. Levy center for constitutional studies at the Cato Institute and author of the new book </em><a href="https://www.amazon.com/Supreme-Disorder-Judicial-Nominations-Politics/dp/1684510562/" target="_blank">Supreme Disorder: Judicial Nominations and the Politics of America's Highest Court</a>. Mon, 11 Jan 2021 09:28:12 -0500 Ilya Shapiro https://www.cato.org/publications/commentary/cancellation-josh-hawleys-book-deal-isnt-first-amendment-issue How North Korea and Japan Could Open Dialogue https://www.cato.org/publications/commentary/how-north-korea-japan-could-open-dialogue <p><a href="https://www.cato.org/people/doug-bandow" hreflang="und">Doug Bandow</a></p> <div class="lead mb-3 spacer--nomargin--last-child text-default"> <p>Half a&nbsp;century ago&nbsp;North Korea&nbsp;engineered an exodus of sorts from&nbsp;Japan. With the support of Tokyo, more than 93,000 people made the journey to the Democratic People’s Republic of Korea. Alas, almost all quickly regretted their decision.</p> </div> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>In November the Seoul‐​based Citizens’ Alliance for North Korean Human Rights called for a&nbsp;UN investigation of the program, including the role of the Japanese and North Korean governments. To help move out of international isolation, the&nbsp;<a href="https://www.19fortyfive.com/tag/north-korea/" target="_blank">DPRK</a>&nbsp;should address the issue and push to normalize relations with Japan.</p> <p>The Kingdom of Korea long lived in the shadow of the Chinese Empire. However, after the latter’s defeat by Imperial Japan, Korea’s orbit shifted. In 1905 it became a&nbsp;protectorate of Japan. Five years later it was swallowed as a&nbsp;colony. Foreign rule was not gentle and left an abundance of hatred. Tokyo was forced to disgorge the peninsula after surrendering in 1945.</p> </div> , <aside class="aside--right aside--large aside pb-lg-0 pt-lg-2"> <div class="pullquote pullquote--default"> <div class="pullquote__content h2"> <p>It would be easier to forge a&nbsp;U.S.-North Korea accord if Pyongyang and Tokyo improved their relationship. </p> </div> </div> </aside> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>The victorious United States and USSR split Korea into occupation zones, which resulted in two separate countries in 1948 and a&nbsp;low‐​level civil war turned&nbsp;<a href="https://nationalinterest.org/tag/korean-war">global contest</a>&nbsp;two years later. The division was hardened by the effusion of blood. When I&nbsp;first visited the North in 1992, I&nbsp;discovered that the only issue upon which people on both sides of the DMZ appeared to agree was hatred of Japan. A&nbsp;North Korean scholar suggested that Japan might be an issue on which the&nbsp;<a href="https://www.19fortyfive.com/2020/12/nsa-robert-c-obrien-sounds-off-on-coronavirus-north-korea-and-china/" target="_blank">United States and DPRK</a>&nbsp;could cooperate, without spelling out any specifics. (I suspected that he was hoping for a&nbsp;joint bombing raid over Tokyo!)</p> <p>Some Korean subjects came to Japan voluntarily, seeking a&nbsp;better life. Others were conscripted as laborers during&nbsp;<a href="https://salvatorebabones.com/how-world-war-ii-gave-birth-to-the-peace-of-1945/" target="_blank">World War II</a>. Most were accorded dismissive, second class treatment in Japan; some were even rendered essentially stateless. Japanese nationalism was inflamed by the brief success of the&nbsp;<a href="https://www.britannica.com/topic/Greater-East-Asia-Co-prosperity-Sphere" target="_blank">Greater East Asia Co‐​Prosperity Sphere</a>, in which everyone else in the region, including Koreans, labored to make Tokyo prosperous. Even after the war, some Japanese viewed the Korean minority as a&nbsp;potential Fifth Column.</p> <p>So the DPRK reached out and urged some of its&nbsp;lost Korean brethren to come home. They were aided by the Chosen Soren or Chongryon, the General Association of Korean Residents of Japan, which functioned as a&nbsp;quasi‐​embassy, propagandizing on behalf of the DPRK—and sending back money to Pyongyang, much of it from pachinko, a&nbsp;recreational and gambling game. Chongryon rather generously described the North as&nbsp;<a href="https://www.hrw.org/news/2018/08/21/japan-protect-victims-enticed-north-korea#:~:text=The%20North%20Korean%20government%2C%20mostly,%2C%20clothes%20are%20fully%20guaranteed.%E2%80%9D" target="_blank">“a paradise on Earth.”</a></p> <p>So frustrated Japanese‐​Koreans, tired of mistreatment in a&nbsp;hostile home in which the best jobs were closed to them, began arriving in the North in December 1959. Of course, those “repatriated”—most of whom, ironically, originated in the South but had never visited either Korea—found a&nbsp;life of hardship. Indeed, their new rulers did not trust people raised in a&nbsp;foreign and much freer society.</p> <p>Alas, the&nbsp;<a href="https://thediplomat.com/2020/06/whats-behind-north-koreas-dwindling-defection-rate/" target="_blank">ticket was one‐​way.</a>&nbsp;Tokyo seemed happy to have them leave. And the DPRK controlled communication with those left behind, lest warnings be sent about the disastrous bait and switch scheme. But bad news eventually trickled out. The program formally ended in 1984, when the reality had become impossible to hide. Money sent from family members who remained in Japan made life more bearable, but political suspicions landed many in prison or the countryside. However, as border controls loosened some 200 defected and ultimately returned to Japan. Their stories were sad but predictable.</p> <p>Not going voluntarily were the scores or even hundreds kidnapped along the Japanese coast between 1977 and 1983. Most apparently were taken by North Korean agents to teach Japanese language and customs to spies. Some may have witnessed the kidnapping of others. A&nbsp;few may have been grabbed to use their identities or provide wives for Japanese airline hijackers who had fled to the DPRK. North Korea admitted to a&nbsp;limited number of abductions while allowing a&nbsp;few victims to return to Japan after Pyongyang and Tokyo opened talks in 2002 over normalizing relations. However, DPRK dissembling and Japanese popular anger led to a&nbsp;breakdown in talks two years later.</p> <p>Never addressed were the “repatriates,” whose numbers were far greater. Although they nominally went voluntarily, they were at least criminally naïve. Arguably they also were kidnapped, only through fraud rather than force. Indeed, the Citizens’ Alliance goes further, contending that “In reality, the victims were subject to duress, oppression, abuse of power, and their ‘consent’ was not genuine nor informed. They were coerced by sustained disinformation, deception, emotional blackmail, and social pressure, and did not genuinely consent. This operation amounted to forced displacement, enslavement, and/​or human trafficking as we understand it today, and led to many cases of enforced disappearance.”</p> <p>The DPRK brazenly celebrated the escapade by issuing a&nbsp;commemorative stamp on December 16, 2019, the sixtieth anniversary of the arrival of the first Japanese‐​Koreans. It pictured the “repatriation ship” and people holding flowers and the North Korean flag. Explained the Korean Central News Agency: “Thanks to the warm compatriotism and energetic leadership of President Kim Il‐​sung, repatriation of Koreans in Japan was realized.” Of course, the world&nbsp;<a href="http://kcna.co.jp/item/2019/201912/news16/20191216-06ee.html" target="_blank">took note</a>: “The repatriation to the socialist homeland from capitalist Japan was a&nbsp;historic event that brought about a&nbsp;radical turn in hewing out the destiny of Korean residents in Japan.”</p> <p>Well, that is one way of putting it.</p> <p>Obviously, the North is not known for admitting past misbehavior. However, it would be easier to forge a&nbsp;U.S.-North Korea accord if Pyongyang and Tokyo improved their relationship. History hangs heavy over the peninsula, as is evident from the ongoing discord between Japan and South Korea. However, that gives the Kim and Suga governments an opening.</p> <p>Fear of the North’s improving nuclear and missile programs has spurred Japan’s modest but real increase in military assertiveness. That obviously is not to the DPRK’s advantage. Kim Jong-un’s spate of summit diplomacy had led to speculation about the&nbsp;<a href="https://www.reuters.com/article/us-northkorea-japan-abe/japans-abe-signals-shift-on-north-korea-says-will-meet-kim-without-conditions-media-idUSKCN1S90K1" target="_blank">possibility of a&nbsp;meeting</a>&nbsp;with Japanese prime minister Shinzo Abe. That didn’t happen, but there is no reason the Supreme Leader could not reach out to Tokyo today.</p> <p>Repatriation began under Kim’s grandfather and was his responsibility. (Ironically, Abe’s grandfather was Japan’s prime minister at the same time and approved the program.) The kidnappings occurred in the elder Kim’s final years, but after Kim’s father had taken over significant responsibility for governing. With them gone, Kim could admit past errors to the Suga government—there would be no need to discuss the issue at home.</p> <p>In particular, Kim should allow surviving repatriates to return and fess up on the fate of those kidnapped, putting right a&nbsp;terrible injustice that derailed prior reconciliation efforts. In return, of course, Tokyo could acknowledge the injustices committed during the colonial period as well as the maltreatment of ethnic Koreans in Japan. That would be an achievement that Pyongyang could herald internally, making up for any embarrassment caused by allowing Japanese‐​Koreans to return.</p> <p>Such an effort could accompany discussions on the normalization of relations. The current sanctions regime would complicate attempts to forge the same kind of deal made between the South Korean and Japanese governments years ago, which included a&nbsp;substantial payment as de facto compensation for wrongs committed during the colonial era. However, any U.S. agreement including sanctions relief could accommodate the financial aspects of Pyongyang‐​Tokyo normalization. From Washington’s and Seoul’s standpoint, such an agreement would reinforce their efforts to encourage North Korean cooperation, while drawing the DPRK further into the international system.</p> <p>Every step or two taken toward better relations in Northeast Asia, such as the Kim‐​Trump summitry, seems to result in a&nbsp;step or two backward, such as the North’s recent obloquy directed at the Moon government. Japan played a&nbsp;minor role in recent events surrounding North Korea but offers another avenue of potential reconciliation. That could prove particularly useful with America’s approach also subject to change as a&nbsp;new,&nbsp;<a href="https://nationalinterest.org/blog/korea-watch/symposium-we-asked-world%E2%80%99s-top-experts-what-america%E2%80%99s-north-korea-policy-would-look">untested U.S. administration</a>&nbsp;takes office.</p> </div> Doug Bandow is a&nbsp;Senior Fellow at the Cato Institute. A&nbsp;former Special Assistant to President Ronald Reagan, he is author of Tripwire: Korea and U.S. Foreign Policy in a&nbsp;Changed World and co‐​author of The Korean Conundrum: America’s Troubled Relations with North and South Korea. Mon, 11 Jan 2021 09:11:15 -0500 Doug Bandow https://www.cato.org/publications/commentary/how-north-korea-japan-could-open-dialogue Stop Protecting Unconstitutional Judges https://www.cato.org/publications/commentary/stop-protecting-unconstitutional-judges <p><a href="https://www.cato.org/people/thomas-berry" hreflang="und">Thomas A. Berry</a></p> <div class="lead mb-3 spacer--nomargin--last-child text-default"> <p>Imagine your amateur softball league has a&nbsp;bylaw that all umpires must be hired by the league commissioner. Before a&nbsp;big game, some emergency umps‐​for‐​hire pile out of a&nbsp;van and start officiating without the commissioner’s approval. You’re skeptical, but it’s pointless to object during the game — the league has a&nbsp;hard rule that umpires won’t respond if you challenge their credentials. They make some terrible calls, and after a&nbsp;tough loss, you protest the game to the league — both because of the bad calls and because they shouldn’t have been allowed to umpire in the first place. Then comes the surprise: The league answers that despite its policy that umps must ignore all arguments about their hiring, you should have objected during the game anyway. And because you didn’t object during the game, you’ve lost your chance to object after the game.</p> </div> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>Sound ridiculous? It may be, but it’s basically what happened to Willie Carr in his ongoing saga with the Social Security Administration. The SSA denied Carr’s application for social security disability payments. To challenge that denial, Carr first had to make his case to one of the SSA’s own administrative law judges. But those judges all suffered from a&nbsp;serious constitutional defect: They weren’t appointed by the social security commissioner, which is the bare minimum the Constitution&nbsp;<a href="https://constitution.congress.gov/browse/essay/artII-S2-C2-2-1-3-2/ALDE_00001139/" target="_blank">requires</a>&nbsp;for “officers of the United States.”</p> <p>The SSA knew the appointment of its judges might be a&nbsp;problem. It explicitly warned all of its judges that people making claims before them might bring up the judges’ appointments. The SSA&nbsp;<a href="https://bit.ly/2WZSCso" target="_blank">told those judges</a>&nbsp;in no uncertain terms&nbsp;<em>not</em>&nbsp;to address any such arguments. That means even if Carr had stood up in his hearing and objected to the judge, “<a href="https://www.youtube.com/watch?v=sA0glbG6c-8&amp;t=47s" target="_blank">you’re out of order!</a>” it wouldn’t have made a&nbsp;lick of difference.</p> </div> , <aside class="aside--right aside--large aside pb-lg-0 pt-lg-2"> <div class="pullquote pullquote--default"> <div class="pullquote__content h2"> <p>The Supreme Court should hold that judicially imposed exhaustion rules make no sense when an agency refuses even to address an issue. </p> </div> </div> </aside> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>Carr lost his administrative hearing, and sure enough, not long after that the Supreme Court&nbsp;<a href="https://supreme.justia.com/cases/federal/us/585/17-130/" target="_blank">held</a>&nbsp;that administrative judges of the Securites and Exchange Commission are indeed “officers of the United States” who must be appointed by their department head (if not by the president). That decision removed all doubt that Social Security judges are also officers of the U.S. and that they were appointed improperly. The acting commissioner of Social Security acknowledged as much by&nbsp;<a href="https://secure.ssa.gov/apps10/reference.nsf/links/08062018021025PM" target="_blank">attempting</a>&nbsp;to “ratify” the appointments of every judge in her agency.</p> <p>Carr’s case, meanwhile, had shifted to federal court, where he reasonably asked for a&nbsp;new hearing before a&nbsp;social security judge whose appointment complied with the Constitution. That’s when the SSA first argued that Carr had lost the right to make this request by not raising an earlier (futile) protest before the invalid SSA judge herself. The Court of Appeals for the 10th Circuit accepted the SSA’s argument and&nbsp;<a href="https://www.ca10.uscourts.gov/opinions/19/19-5079.pdf" target="_blank">barred</a>&nbsp;Carr from challenging the judge’s appointment. The Supreme Court took Carr’s&nbsp;<a href="https://www.scotusblog.com/case-files/cases/carr-v-saul/" target="_blank">case</a>&nbsp;and will soon decide whether he and hundreds of others in his position will ever have the opportunity to get a&nbsp;constitutionally compliant hearing.</p> <p>Carr’s case is an opportunity for the Supreme Court to settle an important question of administrative law. People who are unhappy with an agency action are generally required to go through every stage of that agency’s complaint procedure before suing in court. Surviving the slog through an agency’s bureaucratic appeals process is known by the legal term “exhaustion” (probably because that’s what happens to people who endure it). Beyond this general requirement that people must progress through each&nbsp;<em>stage</em>, some agencies also have laws explicitly requiring that every specific&nbsp;<em>issue</em>&nbsp;a&nbsp;person wants to raise in federal court must have first been raised in those agency proceedings.</p> <p>It’s this stricter form of exhaustion, known as “issue exhaustion,” that the SSA wants to impose on Carr. But as explained in an&nbsp;<a href="https://www.cato.org/sites/cato.org/files/2021-01/carr-v-saul-updated.pdf" target="_blank">amicus&nbsp;brief</a>&nbsp;filed by the New Civil Liberties Alliance and the Cato Institute, imposing an “issue exhaustion” requirement in this context would be wrong for two key reasons. First, no statute or rule mandates any such requirement, meaning the SSA is asking the judiciary to&nbsp;<em>create</em>&nbsp;an exhaustion rule with no textual basis. And second, barring someone from raising an argument in federal court is justified&nbsp;<em>only</em>&nbsp;if that person avoided raising the issue before the agency to sidestep an agency decision on the question purposefully. We know from the SSA’s own policy that it&nbsp;<em>wouldn’t&nbsp;</em>have addressed or decided the appointment issue even if Carr had raised it, so that justification simply doesn’t apply here.</p> <p>The Supreme Court should hold that judicially imposed exhaustion rules make no sense when an agency refuses even to address an issue. The court should give Carr what he should have gotten a&nbsp;long time ago: a&nbsp;new hearing before a&nbsp;social security judge who was appointed as the Constitution requires.</p> </div> Thomas A. Berry is a&nbsp;research fellow at the Cato Institute’s Robert A. Levy Center for Constitutional Studies and managing editor of the Cato Supreme Court Review. He co‐​authored an amicus brief supporting the petitioners in Carr v. Saul. Fri, 08 Jan 2021 10:16:41 -0500 Thomas A. Berry https://www.cato.org/publications/commentary/stop-protecting-unconstitutional-judges No Forever‐​Guarantee to Europe: Refuting NATO’s Latest Dumb Ideas https://www.cato.org/publications/commentary/no-forever-guarantee-europe-refuting-natos-latest-dumb-ideas <p><a href="https://www.cato.org/people/doug-bandow" hreflang="und">Doug Bandow</a></p> <div class="lead mb-3 spacer--nomargin--last-child text-default"> <p>When it became evident that Joe Biden had won the U.S. presidency, European officials, NATO bureaucrats, Eurocratic elites, and most other Europeans collectively exhaled in relief. Washington think tanks produced a&nbsp;swarm of papers and webinars featuring the same advocates celebrating the return of the consensus that Americans must forever pay for the continent’s defense.</p> </div> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>The Atlantic Council&nbsp;<a href="https://www.atlanticcouncil.org/wp-content/uploads/2020/10/NATO-20-2020-Final-Volume.pdf" target="_blank">issued a&nbsp;report</a>&nbsp;with 20 grand new ideas which were supposed to help the transatlantic alliance “again capture the public’s imagination.” The injunction to be bold resulted in some truly loopy proposals. Unfortunately, no one addressed the most fundamental problem. Washington remains stuck doing what the Europeans should be doing: organizing the continent’s defense.</p> <p>One bizarre new thought was to create a&nbsp;bank—we all know who would be expected to provide most of the financing!—to subsidize military spending by those allies which currently lag well behind the two percent of GDP alliance standard. If only Washington provides cheap credit, maybe&nbsp;<em>then</em>&nbsp;they will do a&nbsp;little more.</p> </div> , <aside class="aside--right aside--large aside pb-lg-0 pt-lg-2"> <div class="pullquote pullquote--default"> <div class="pullquote__content h2"> <p>Thanks to Joe Biden’s election, the Eurocrats and establishment are breathing a&nbsp;sigh of relief. </p> </div> </div> </aside> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>The authors contend: “an alliance built on collective defense must do more than just come to the defense of its members. It must also, as Article 2&nbsp;of the Washington Treaty holds, ‘encourage economic collaboration.’ As such, NATO should create its own bank.”</p> <p>Should the U.S. help the Europeans underwrite high welfare outlays, transportation infrastructure, space exploration, and anything else they set their minds to? European governments should treat defense as an essential duty and military outlays as a&nbsp;necessity. NATO members then should meet their responsibilities by setting priorities, perhaps cutting non‐​essential outlays, and arranging financing.</p> <p>Another flawed idea is to transform NATO essentially into NAMPTO, the North Atlantic Mid‐​Pacific Treaty Organization. That is, turn NATO into as much an anti‐​China as an anti‐​Russia organization. As the authors explain: “In the coming decade, NATO should establish itself as the central node of a&nbsp;global network dedicated to countering China’s hostile and malign activities by formalizing an Atlantic‐​Pacific Partnership (APP).”</p> <p>However, NATO is at its core a&nbsp;military alliance intended to ensure its members’ security by deterring and winning wars. Beijing threatens no European state militarily. Heck, the People’s Republic of China doesn’t even threaten America—no one imagines a&nbsp;Chinese naval task force heading east to conquer the Hawaiian Islands or California. India along with a&nbsp;handful of states with competing territorial claims in Asian‐​Pacific waters are militarily vulnerable to the PRC, but none of them fear Russia. Without common enemies or threats, alliance activity makes little sense.</p> <p>Moreover, Europeans are not going to war with China. Under any circumstances. After all,&nbsp;<em>they don’t even want to arm themselves against Russia</em>, preferring to leave that job to America. And what European population is going to support a&nbsp;military build‐​up to attack the nation from which they are seeking business investment and purchasing consumer goods?</p> <p>China’s challenge is primarily economic and political. The U.S. and Europe should cooperate, but their views and interests remain very different, as was highlighted during the Trump years. This is a&nbsp;problem NATO cannot solve.</p> <p>A really dumb idea is to bring Mexico into the alliance. The reason: to convince Americans they should love paying to protect the feckless Germans, irrelevant Montenegrins, and cheapskate Spanish by motivating “the US Latinx community to become champions of the Alliance.” Seriously.</p> <p>What enemy does Mexico fear? Certainly not an invasion by Russia! And who imagines Mexican legions showing up in Europe to battle the Moscow’s hordes as they pour forth seeking to overrun Berlin, Paris, and Rome? Finally, what part of Mexico touches the North Atlantic?</p> <p>Worse is a&nbsp;slightly redone perennial proposal to bring Georgia into NATO. This newest variant would slightly limit America’s defense liability by inviting “Georgia—including the Abkhazia and the Tskhinvali Region—to join NATO, but only covering the areas outside of the two occupied regions under NATO’s Article 5&nbsp;security guarantee.”</p> <p>However, NATO is supposed to be about security for America, not welfare for the rest of the world. How does bringing into the alliance a&nbsp;nation that has never mattered for American security make the U.S. safer? Anyway, exempting occupied areas from the defense guarantee would be mostly cosmetic. Washington would still be adding a&nbsp;country with an ongoing military dispute with nuclear‐​armed Russia. And in a&nbsp;war with Russia over Georgia, the U.S., not Portugal, Italy, Hungary, or Germany, would do the fighting.</p> <p>Also bad is the proposal that NATO effectively increase the size of America’s nuclear umbrella. Not only should the U.S. protect nations able to defend themselves, but, explain the authors, “NATO can reduce the dangers inherent in growing Russian reliance on nuclear weapons by warning unequivocally of symmetrical nuclear retaliation for Russian first use. We call this ‘Decisive Response’.”</p> <p>This discussion demonstrates the desperate need for an effective European nuclear deterrent. Britain and France possess nuclear weapons, but would they do what the U.S. is expected to do—use them even at the risk of their destruction? Extended deterrence is wonderful until it fails. And if it fails Americans will die by the millions.</p> <p>It isn’t Washington’s place to prescribe the right policy for Europe, but U.S. officials should tell Europe to should begin planning to take responsibility for its own defense, including nuclear. A&nbsp;good start might be Germany&nbsp;<a href="https://www.nytimes.com/1989/05/02/opinion/the-germans-need-a-nuclear-arsenal.html?searchResultPosition=1" target="_blank">developing its own deterrent</a>, or at least&nbsp;<a href="https://www.foreignaffairs.com/articles/europe/2017-03-27/case-european-nuke" target="_blank">contributing toward a&nbsp;European arsenal</a>.</p> <p>Another bad proposal is to downplay burden-sharing—which, the authors contend, shouldn’t even be discussed in public, lest doing so result in criticism of members over disparities—and drop the two percent of GDP standard for military outlays. Indeed, it turns out, America has little to complain about since&nbsp;<em>its outlays are inflated by spending so much more on so many other military contingencies!</em>&nbsp;As the authors explained: “Unlike most other NATO nations, the United States is a&nbsp;global actor with commitments extending to the Middle East and Indo‐​Pacific as well as Europe.”</p> <p>That is, America shouldn’t mind spending a&nbsp;lot to protect Europe. After all, the former also spends money to defend the Middle East, from which Europe gets oil, Asia, with which Europe trades, and Africa, with historic connections to Europe. So Americans should stop complaining about also paying for Europe, whose countries don’t see any need to spend much on their own defense.</p> <p>How does this make the slightest sense?</p> <p>Perhaps the worst “new” idea is to launch a&nbsp;new anti‐​Russia campaign, hyping Moscow as a&nbsp;threat and ignoring the West’s share of blame for deteriorating relations. In a&nbsp;rather hilarious example of self‐​delusion, the proposal to “ramp up on Russia” predicts: “by pushing back against Russia more forcefully in the near and medium term, allies are more likely to eventually convince Moscow to return to compliance with the rules of the liberal international order and to mutually beneficial cooperation as envisaged under the 1997 NATO‐​Russia Founding Act .”</p> <p>Alas, Moscow did not perceive the previous relationship as mutually beneficial. Vladimir Putin, an authoritarian, nevertheless was not originally hostile toward the West. But the grievances piled up, including NATO’s expansion to a&nbsp;hundred miles from St. Petersburg contra assurances (“lies”) given to Soviet and Russian officials. Moscow’s behavior still was wrong, of course, but no one should have any illusions how Washington policymakers would have reacted if the situation was reversed—with hysteria and little concern for such quaint ideas as “democracy.”</p> <p>Moreover, allied hypocrisy and sanctimony are unmatched. Russia is said to have engaged in “unchecked adventurism in the Middle East, Africa, and Afghanistan.” What would one call America’s invasion of Iraq, NATO’s attack on Libya, allied support for Saudi and Emirati aggression against Yemen, and the allies’ nearly 20‐​year campaign in Afghanistan, which collectively have created humanitarian catastrophes many magnitudes greater than Ukraine? And if the Europeans really feared a&nbsp;revived Red Army ready to march to the Atlantic, they would spend a&nbsp;bit more than one or two cents of every Euro on defense.</p> <p>Finally, new sticks are unlikely to force Moscow’s submission any more than did the last six years’ worth of sticks. A&nbsp;better alternative would be to consider what motivates Russia’s behavior and look for possible compromises, starting with threatened inclusion of Georgia and Russia into NATO.</p> <p>Some alliance acolytes suggested adding new tasks for the transatlantic alliance: “Bolster NATO as an alliance of free, democratic states; ensure NATO can compete in an era of geoeconomics by protecting allies’ economic security in the midst of rapid technological change and great power competition; rebalance the transatlantic bargain and bolster NATO’s role as the forum for political consultation to ensure common strategies; and put NATO at the center of a&nbsp;global network of democratic alliances and strategic partnerships.”</p> <p>Uh, what about defending Europe from foreign threats? If that’s still a&nbsp;concern, then NATO should concentrate on it and allow other institutions old and new to handle other issues. If Europe’s security no longer is a&nbsp;concern, then disband the military alliance and decide how best to deal with the other matters.</p> <p>Finally, better propaganda naturally is on the “new idea” list. Of course! Too many people just don’t know what is good for them: “NATO is vitally important; but unless you work there, or at the Atlantic Council, you wouldn’t necessarily know that.”&nbsp;Thus, one proposal would expand alliance self‐​promotion. The authors explain: “NATO’s Public Diplomacy Division (PDD) should reach out beyond its current network to the next generation of voters and leaders who often don’t see themselves as direct beneficiaries of the Alliance in the same way people did at the time of NATO’s founding more than seventy years ago and throughout the Cold War.” Actually, it would be better to reshape the alliance to meet members’ needs, which most importantly means reducing America’s role.</p> <p>U.S. and European cooperation on a&nbsp;range of military, economic, digital, environmental and social issues benefits all participants. But the world has changed since NATO’s creation. Just as America is expected to handle its own security in its own region, the Europeans, with commensurate economic strength and a&nbsp;larger population than America, should do the same for their continent. Having secured their respective home bases, Americans and Europeans should work together against common security threats. Some of that cooperation should be military, led by a&nbsp;European‐​led NATO or some other continental defense organization.</p> <p>Thinking creatively about future security needs obviously is a&nbsp;good idea. However, that should include considering what arrangement would best promote the security of friends on both sides of the Atlantic. The only certain thing is that is not today’s NATO. What it is remains to be discovered.</p> </div> Doug Bandow is a&nbsp;senior fellow at the Cato Institute. A&nbsp;former special assistant to President Ronald Reagan, he is author of Foreign Follies: America’s New Global Empire. Thu, 07 Jan 2021 09:18:50 -0500 Doug Bandow https://www.cato.org/publications/commentary/no-forever-guarantee-europe-refuting-natos-latest-dumb-ideas Avoiding Latin America’s Currency Disasters https://www.cato.org/publications/commentary/avoiding-latin-americas-currency-disasters <p><a href="https://www.cato.org/people/steve-hanke" hreflang="und">Steve H. Hanke</a></p> <div class="lead mb-3 spacer--nomargin--last-child text-default"> <p>For decades, Latin America has been littered with one currency crisis after another. The best way to avoid these is to dump their disaster‐​prone currencies and replace them with the U.S. dollar, as Panama, Ecuador, and El Salvador have done. Dollarization occurs when residents of a&nbsp;country use a&nbsp;foreign currency instead of the country’s domestic currency. The term “dollarization” is used generically and covers all cases in which a&nbsp;foreign currency is used by local residents. Even though other foreign currencies, such as the euro, are sometimes used instead of local currencies, it is the U.S. dollar that dominates; hence, the use of the term dollarization.</p> </div> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>There are different varieties of dollarization. Unofficial dollarization occurs when a&nbsp;country issues domestic currency but foreign currencies, or assets denominated in foreign currencies, are also used as a&nbsp;means of payment and/​or a&nbsp;store of value. Data on the magnitude of total unofficial dollarization are unavailable. However, estimates of U.S. dollar notes held abroad provide a&nbsp;sense of the magnitude. The U.S. Federal Reserve estimates that as much as 72% of all dollar notes are held abroad. Today, the stock of dollar notes outstanding is $1.99 trillion. So, as much as $1.43 trillion worth of dollar notes are held overseas. And this is just the tip of the iceberg. Indeed, that number only includes U.S. dollar notes held overseas. If we add in all the uses of the U.S. dollar as a&nbsp;unit of account and vehicle currency for the execution of foreign trade and capital transactions, a&nbsp;simple fact emerges: The world is unofficially highly dollarized.</p> <p>Another class of dollarization is semiofficial. In this case, a&nbsp;monetary system is officially multimonetary. Both domestic and foreign currencies are legal tender. Peru is an example. With semiofficial dollarization, foreign currency bank deposits are often dominant, but a&nbsp;domestic currency is still widely used for transactional purposes and mandated for the payment of taxes.</p> <p>Semiofficial systems force local central banks to compete with foreign challengers. Consequently, a&nbsp;domestic central bank in such a&nbsp;system should, in principle, be more disciplined than would otherwise be the case. However, the economic performance of unofficially and semiofficially dollarized emerging‐​market countries has been highly variable and generally unimpressive.</p> <p><strong>Who Does It?</strong><br> Official dollarization occurs when a&nbsp;country does not issue a&nbsp;domestic currency but instead adopts a&nbsp;foreign currency. With official dollarization, a&nbsp;foreign currency has legal tender status. It is used not only for contracts between private parties but also for government accounts and the payment of taxes. Today, the following 37 countries and territories have dollarized systems: American Samoa, Andorra, Bonaire, the British Virgin Islands, the Cocos (Keeling) Islands, the Cook Islands, Northern Cyprus, East Timor, Ecuador, El Salvador, Gaza, Greenland, Guam, Kiribati, Kosovo, Liechtenstein, the Marshall Islands, Micronesia, Montenegro, Monaco, Nauru, Niue, Norfolk Island, the Northern Mariana Islands, Palau, Panama, Pitcairn Island, Puerto Rico, San Marino, Tokelau, the Turks and Caicos Islands, Saba, Sint Eustatius, Tuvalu, the U.S. Virgin Islands, Vatican City, the West Bank. This list does not include monetary unions, like the European Monetary Union, in which member countries all use a “foreign” currency, namely the euro.</p> <p><strong>The Case of Panama</strong><br> Panama, which was dollarized in 1903, illustrates the important features of a&nbsp;dollarized economy. Panama is part of the dollar bloc. Consequently, exchange rate risks and the possibility of a&nbsp;currency crisis vis‐​à‐​vis the U.S. dollar are eliminated. In addition, the possibility of banking crises is largely mitigated because Panama’s banking system is integrated into the international financial system. The nature of Panamanian banks that hold general licenses provides the key to understanding how the system as a&nbsp;whole functions smoothly. When these banks’ portfolios are in equilibrium, they are indifferent at the margin between deploying their liquidity (creating or withdrawing credit) in the domestic market or internationally. As the liquidity (credit‐​creating potential) in these banks changes, they evaluate risk‐​adjusted rates of return in the domestic and international markets and adjust their portfolios accordingly. Excess liquidity is deployed domestically if domestic risk‐​adjusted returns exceed those in the international market and internationally if the international risk‐​adjusted returns exceed those in the domestic market. This process is thrown into the reverse when liquidity deficits arise.</p> <p>The adjustment of banks’ portfolios is the mechanism that allows for a&nbsp;smooth flow of liquidity (and credit) into and out of the banking system (and the economy). In short, excesses or deficits of liquidity in the system are rapidly eliminated because banks are indifferent as to whether they deploy liquidity in the domestic or international markets. Panama can be seen as a&nbsp;small pond connected by its banking system to a&nbsp;huge international ocean of liquidity. Among other things, this renders unnecessary the traditional lender‐​of‐​last‐​resort function performed by central banks. When risk‐​adjusted rates of return in Panama exceed those overseas, Panama draws from the international ocean of liquidity, and when the returns overseas exceed those in Panama, Panama adds liquidity (credit) to the ocean abroad. To continue the analogy, Panama’s banking system acts like the Panama Canal to keep the water levels in two bodies of water in equilibrium. Not surprisingly, with this high degree of financial integration, there is virtually no correlation between the level of credit extended to Panamanians and the deposits in Panama. The results of Panama’s dollarized money system and internationally integrated banking system have been excellent when compared with other emerging market countries.</p> <p>For example, since Panama is part of a&nbsp;unified currency area, its inflation rate mirrors, broadly speaking, the rate of inflation in the United States. Over the past 16&nbsp;years, inflation in Panama has averaged 2.8% per year; whereas, the U.S. inflation rate has averaged 2.1% per year.</p> </div> , <figure class="figure overflow-hidden figure--default figure--no-caption responsive-embed-no-margin-wrapper"> <div class="figure__media"> <img width="700" height="436" alt="Hanke - JPC - 1-7-2021 - Chart 1" class="lozad component-image" loading="lazy" data-srcset="/sites/cato.org/files/styles/pubs/public/2021-01/hanke-jpc-1-7-2021-1.png?itok=TMSC2dUv 1x, /sites/cato.org/files/styles/pubs_2x/public/2021-01/hanke-jpc-1-7-2021-1.png?itok=NOP1LTBu 1.5x" data-src="/sites/cato.org/files/styles/pubs/public/2021-01/hanke-jpc-1-7-2021-1.png?itok=TMSC2dUv" typeof="Image" /> </div> </figure> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p><strong>Creating Stable Growth</strong><br> In addition to lower and less variable inflation rates, officially dollarized countries produce higher and more‐​stable economic growth rates than comparable countries with central banks that produce domestic currencies. Dollarization is, therefore, desirable. The figure above shows the normalized values of real gross domestic product (GDP) in terms of U.S. dollars between 2001 (index value = 100) and 2019 for nine Latin American countries. Three—Panama, Ecuador, and El Salvador—are officially dollarized, while Peru is semiofficially dollarized. In the three officially dollarized countries, real GDP growth has been more stable and generally superior to growth in the countries that issue their own domestic currencies. While Peru’s growth has only been surpassed by Panama’s, it is less stable than growth in the three officially dollarized countries. The sharp changes in terms of trade, which were associated with the commodity cycle, affected the volatility of real GDP measured in U.S. dollar terms much more in the countries that issued their own domestic currencies than it did in those that were officially dollarized.</p> </div> , <figure class="figure overflow-hidden figure--default figure--no-caption responsive-embed-no-margin-wrapper"> <div class="figure__media"> <img width="700" height="148" alt="Hanke - JPC - 1-7-2021 - Chart 2" class="lozad component-image" loading="lazy" data-srcset="/sites/cato.org/files/styles/pubs/public/2021-01/hanke-jpc-1-7-2021-2.png?itok=3docFFDX 1x, /sites/cato.org/files/styles/pubs_2x/public/2021-01/hanke-jpc-1-7-2021-2.png?itok=LkCqdRNM 1.5x" data-src="/sites/cato.org/files/styles/pubs/public/2021-01/hanke-jpc-1-7-2021-2.png?itok=3docFFDX" typeof="Image" /> </div> </figure> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p><strong>Montenegro and Zimbabwe</strong><br> Whereas Panama has been dollarized for over a&nbsp;century, several non‐​Latin American countries have dollarized only recently. One is Montenegro, where I&nbsp;served as a&nbsp;State Counselor and adviser to President Milo Djukanović (1999–2003). In 1999, Montenegro was still part of the rump of Yugoslavia. Montenegrins were fed up with the depreciating Yugoslav dinar and Yugoslavia’s endemic inflation. This should be no surprise. Yugoslavia’s great hyperinflation peaked in January 1994, when the monthly inflation rate was 313 million percent.</p> <p>Montenegro’s official currency in 1999 was the discredited Yugoslav dinar. But the mighty German mark was the unofficial coin of the realm. Indeed, Montenegro was unofficially dollarized. Montenegro’s president, Milo Djukanović, knew that the German mark was his trump card. If Montenegro officially adopted the mark, it would not only stabilize the economy but also pave the way for reestablishing Montenegro’s sovereignty. On November 2, 1999, he boldly announced that Montenegro would officially adopt the German mark as its national currency. This was Montenegro’s first secession step.</p> </div> , <aside class="aside--right aside--large aside pb-lg-0 pt-lg-2"> <div class="pullquote pullquote--default"> <div class="pullquote__content h2"> <p>The adjustment of banks’ portfolios is the mechanism that allows for a&nbsp;smooth flow of liquidity (and credit) into and out of the banking system (and the economy).</p> </div> </div> </aside> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>The Montenegrin economy stabilized immediately and began its steady growth amid falling inflation. In May 2006, voters in Montenegro turned out in record numbers to give a&nbsp;collective thumbs‐​down to their Republic’s union with Serbia. Montenegro was once again independent. And, on March 15, 2007, Montenegro signed a&nbsp;stabilization and association agreement with the European Union (EU), the first step toward EU membership. Then, on December 17, 2010, Montenegro received word that it was a&nbsp;candidate to join the EU.</p> <p>Another recent case is that of dollarization that occurred in Zimbabwe. In 2008, Zimbabwe realized the second‐​highest hyperinflation in world history with a&nbsp;monthly inflation rate in November of that year at 79,600,000,000% (79.6 billion percent). Faced with that inflation rate and 100‐​trillion‐​dollar (ZWD) bills, Zimbabweans simply refused to use the Zimbabwe dollar notes. Consequently, Zimbabwe unofficially and spontaneously dollarized. In April 2009, the government was forced to officially dollarize. With that, the “printing presses” were shut down, the government accounts became denominated in U.S. dollars, a&nbsp;new national unity government was installed, and the economy boomed.</p> <p>That rebound persisted during the term of the national unity government, which lasted until July 2013. During this period, real G.D.P. per capita surged at an average annual rate of 11.2 percent. And, with the imposition of dollarization and the inability for a&nbsp;monetary authority (read: a&nbsp;central bank) to extend credit to Zimbabwe’s fiscal authorities, Zimbabwe’s budget deficits were almost eliminated.</p> <p>Zimbabwe’s period of stability was short lived, however. With the collapse of the unity government and the return of President Robert Mugabe’s Zimbabwe African National Union – Patriotic Front party in 2013, government spending and public debt surged, resulting in economic instability. To finance its deficits, the government created a “New Zim dollar,” and Zimbabwe de‐​dollarized. The New Zim dollar was issued at par to the U.S. dollar, but traded at a&nbsp;significant discount to the U.S. dollar. The money supply exploded in Zimbabwe, and so did the inflation rate. Indeed, on September 14, 2017, Zimbabwe entered its second bout of hyperinflation in less than ten years.</p> <p>It’s time for Latin America to dump its junk currencies and dollarize.</p> </div> <p>Steve H. Hanke, Ph.D., is a&nbsp;Professor of Applied Economics at The Johns Hopkins University in Baltimore and a&nbsp;Senior Fellow at the Cato Institute.</p> Thu, 07 Jan 2021 09:07:04 -0500 Steve H. Hanke https://www.cato.org/publications/commentary/avoiding-latin-americas-currency-disasters Ministers Must Speed up the Pace of Vaccination. Here Are Some Ways of Doing So. https://www.cato.org/publications/commentary/ministers-must-speed-pace-vaccination-here-are-some-ways-doing-so <p><a href="https://www.cato.org/people/ryan-bourne" hreflang="und">Ryan Bourne</a></p> <div class="lead mb-3 spacer--nomargin--last-child text-default"> <p>Back in May 2020,&nbsp;<a href="https://www.telegraph.co.uk/business/2020/05/14/virus-drag-economy-effective-stimulus-remains-working-vaccine/" target="_blank">I&nbsp;wrote that</a>&nbsp;a&nbsp;high‐​efficacy vaccine was the biggest economic stimulus available to us. Removing whatever barriers existed to its approval and rollout, so accelerating the end of the pandemic, was worth billions of pounds per week in GDP and hundreds of lives. Stock market reactions last year implied vaccines were potentially&nbsp;<a href="https://news.illinois.edu/view/6367/1350590669" target="_blank">worth 5–15 per cent of global wealth</a>. But it’s now clear there’s a&nbsp;need for even greater urgency in getting the UK vaccinated.</p> </div> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>The disease outlook is grim. As of Sunday, the number of people hospitalised with Covid‐​19&nbsp;in England was&nbsp;<a href="https://twitter.com/chrischirp/status/1345834343239999488?s=20" target="_blank">32 percent higher than its April peak</a>, with new daily admissions above those seen last Spring. In the South East, the number of Covid‐​19 patients in hospital is near double the 2020 peak. Chris Whitty explained yesterday how case curves are trending upwards in other regions. Given recent trends and mobility data less responsive so far than to lockdown one, things will get worse before they get better.</p> <p>So a&nbsp;national lockdown was perhaps inevitable. To judge by Twitter, people were gearing up to revive their pro‐ and anti‐​lockdown talking points beforehand. But the armchair cost‐​benefit analysis from Spring 2020, or even November, is no longer valid. First, because we have vaccines already being rolled out that will, at the very least, mitigate against Covid’s worst effects. Second, because the new mutation appears more highly transmissible in the face of given suppression measures. Both realities strengthen the case for reducing interactions now. Both increase the urgency for rapid vaccination.</p> </div> , <aside class="aside--right aside--large aside pb-lg-0 pt-lg-2"> <div class="pullquote pullquote--default"> <div class="pullquote__content h2"> <p>Both the public health and economic consequences suggest we must do everything possible to speed up the vaccination process. </p> </div> </div> </aside> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>The benefits of measures that reduce transmission of the disease are more certain with vaccines available. Lockdown sceptics had a&nbsp;point when they said at least some “lives saved” from government mandates last year were deaths deferred until the next wave. Now, with only 20 million full vaccination courses required to inject demographic groups making&nbsp;<a href="https://t.co/uAEc3UDd3U?amp=1" target="_blank">up 97 per cent of cumulative deaths</a>&nbsp;so far, avoiding infections today means avoiding Covid‐​19 deaths forever. That makes the case for breaking up social networks all the stronger, including through closing schools (evidence suggests children are&nbsp;<a href="https://www.gov.uk/government/publications/tfc-children-and-transmission-update-paper-17-december-2020" target="_blank">seeding the virus into households</a>).</p> <p>The high transmissibility of the new strain supports this action. A&nbsp;more rapidly spreading virus increases the risk of “overshooting” ICU capacity. Such is the speed of spread (one in 50 people had the virus last week), each day of&nbsp;<em>societal</em>&nbsp;delay in reducing the transmission rate below one accelerates the crunch. So quickly are we becoming infected, herd immunity may even come this year. The choice before us is whether we achieve it through the route strewn with significant deaths and bad illnesses, or via a&nbsp;path where injections eliminate almost all severe cases.</p> <p>It feels almost lame to say it—as if nobody ever thought of it—but both the public health and economic consequences suggest we must do everything possible to speed up the vaccination process. We are in a&nbsp;straight race between vaccinations and the virus, and I&nbsp;fear even Boris Johnson’s revised timetable is too slow.</p> <p>In an ideal world, with plentiful vaccines, logistics ready, and vaccines preventing transmission, the best path to&nbsp;herd immunity would be to vaccinate high transmitters first in a&nbsp;geographically concentrated way. However, we do not know whether the vaccines actually reduce transmission yet, and Chris Whitty contends that there will be supply shortages for months. If that is true, prioritising those at highest personal risk, as the government is doing, makes sense.</p> <p>The UK regulator was admirably swift in vaccine approval. But doses available have been&nbsp;<a href="https://www.channel4.com/news/factcheck/factcheck-qa-how-much-coronavirus-vaccine-do-we-have" target="_blank">revised down massively since November</a>&nbsp;and it’s not obvious why things aren’t moving faster. Reported vaccinations in week two (through 27 December) were not even half the number of those in week 1. Sure, this was Christmas week, but why not have longer working hours on other days to compensate? With a&nbsp;spreading virus, delay costs lives. Oxford/AstraZeneca’s vaccine was approved last Wednesday. It was not rolled out until Monday. Why? The virus doesn’t take time off to celebrate New Year’s Eve and a&nbsp;bank holiday.</p> <p>Yesterday, Johnson said that 1.3 million vaccinations had now been undertaken. That’s only around 350,000&nbsp;in the past eight days – nowhere near fast enough given the balance of costs and benefits. By mid‐​February, he hopes that 13.4 million first doses will be achieved. That requires two million per week from now until then. Yet even that seems tardy given the costs of lockdowns.</p> <p>We must be pulling every lever here. Constraints to early roll‐​outs should have been foreseen. And if there are unforeseen roadblocks, economists would advise that raising the price you are willing to pay encourages supply. If, as reported elsewhere, a&nbsp;lack of vials is really the problem, what incentives are being given to ensure manufacturers work round the clock, seven days per week? Making the activity more profitable increases the willingness to pay overtime, train new workers, and run machines hot. If not vials, identify the production or staffing bottleneck and apply the same logic.</p> <p>Eliminating barriers to vaccinator volunteers is a&nbsp;no brainer. So it’s heartening that the government is “reviewing” red tape that says vaccinators must be diversity, terrorism, and fire‐​safety trained. But financial incentives could help too. The NHS is giving GPs an extra £10 for every care home resident they vaccinate this month, which makes sense given 36 per cent of deaths have been in homes. Yet what about financial inducements for extended hours, weekend work, and more?</p> <p>This would not only help in getting more vaccinations delivered, but potentially space them out a&nbsp;bit too. So prevalent is the virus right now, hordes of people packed into waiting rooms could lead to infections even prior to vaccines being administered. Is anyone establishing drive‐​through or outdoor sites, as seen in Israel?</p> <p>Nor can we afford wasted vaccines. The zero out‐​of‐​pocket price means no penalty for people or providers for missed shots. With the possibility of vaccines wasted or appointments missed, GPs, hospital workers, and (hopefully) pharmacies should have the decentralised authority to administer them to “ineligible” individuals without the threats of repercussions to avoid waste. A&nbsp;vaccine dose to&nbsp;<em>someone</em>&nbsp;is better than no one. Let’s not sacrifice lives on the altar of “fairness.”</p> <p>The Government’s “first doses first” policy shows that Ministers understand inoculating more people sooner is essential, even with a&nbsp;potential efficacy trade‐​off. But this strategy only helps in the medium‐​term if the supply is ramped up. The economy and the public health effort require getting the manufacture, logistics, and physical delivery expanded in the swiftest time possible. It’s not easy, but the language from government sometimes treats the stated constraints fatalistically, rather than seeing them as an economic problem that prices, incentives, and regulations could affect.</p> </div> Ryan Bourne is Chair in Public Understanding of Economics at the Cato Institute. Wed, 06 Jan 2021 10:37:37 -0500 Ryan Bourne https://www.cato.org/publications/commentary/ministers-must-speed-pace-vaccination-here-are-some-ways-doing-so Joe Biden’s Foreign Policy Dream Team Is Disappointing https://www.cato.org/publications/commentary/joe-bidens-foreign-policy-dream-team-disappointing <p><a href="https://www.cato.org/people/ted-galen-carpenter" hreflang="und">Ted Galen Carpenter</a></p> <div class="lead mb-3 spacer--nomargin--last-child text-default"> <p>Anyone hoping that&nbsp;<a href="https://nationalinterest.org/tag/joe-biden">Joe Biden’s presidency</a>&nbsp;might embrace new thinking on foreign policy and a&nbsp;greater receptivity to the concept of restraint needs to abandon such hopes at this point. Most of the president-elect’s personnel selections for defense and foreign policy posts were members of the Obama administration’s junior varsity. Their undeserved elevation to the varsity team reflects the pervasive attitude within the establishment wing of the Democratic Party that everything was just fine with&nbsp;<a href="https://www.19fortyfive.com/2020/11/trumpism-will-survive-donald-trump/" target="_blank">U.S. foreign policy</a>&nbsp;until the irresponsible, “isolationist” Donald Trump wrecked America’s position in the world. The proper goal, according to that view, is to restore the status quo ante.</p> </div> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>But everything was not fine with U.S. foreign policy when Obama left office. Far from it. The administration had launched not one, not two, but three disastrous military interventions—in Libya, Syria, and Yemen—thereby sowing more destruction and chaos throughout the Middle East. Obama and his minions also had further damaged already frayed relations with Russia by supporting demonstrators who overthrew the duly elected, pro‐​Russian president of Ukraine, Viktor Yanukovych. Too many of Biden’s announced appointees were proponents of those misadventures.</p> </div> , <aside class="aside--right aside--large aside pb-lg-0 pt-lg-2"> <div class="pullquote pullquote--default"> <div class="pullquote__content h2"> <p>Surveying the views of the Biden foreign policy team, one is struck by the extent of utterly conventional thinking. </p> </div> </div> </aside> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>As I’ve&nbsp;<a href="https://www.theamericanconservative.com/articles/joe-biden-might-have-good-instincts-but-his-foreign-policy-team-doesnt/" target="_blank">written elsewhere</a>, Biden himself was surprisingly cautious regarding the missions in the Muslim world. He strongly opposed the decision to overthrow Libya’s Muammar Qaddafi—for very good reason, as the subsequent tragic situation in that country confirmed. Biden also was extremely worried that radical Islamist elements were dominating the Syrian rebellion against Bashar al‐​Assad that Washington and its allies were supporting. His instincts proved to be correct in that case as well.&nbsp;<a href="https://www.amazon.com/The-World-As-It-Is/dp/1784708259/ref=sr_1_2?crid=2W32DZOT6ILDB&amp;dchild=1&amp;keywords=ben+rhodes+the+world+as+it+is&amp;qid=1609959459&amp;s=books&amp;sprefix=Ben+Rhodes%2Caps%2C189&amp;sr=1-2" target="_blank">According to Ben Rhodes</a>, Obama’s deputy national security adviser, “the only senior official who consistently opposed sending more troops to Afghanistan was Joe Biden.”&nbsp;</p> <p>Unfortunately, Biden exhibited no such worthwhile instincts regarding U.S. policy toward Ukraine and&nbsp;<a href="https://www.19fortyfive.com/2020/12/how-the-russian-military-plans-to-keep-its-edge/" target="_blank">Russia</a>. Indeed, as the transcript of the&nbsp;<a href="https://www.bbc.com/news/world-europe-26079957" target="_blank">infamous leaked phone</a>&nbsp;call between Assistant Secretary of State Victoria Nuland and U.S. Ambassador to Ukraine Geoffrey Pyatt showed, Biden was the designated point man to bless the successor regime in Kiev that Washington was helping to take power. Nuland was confident the vice president was ready and willing to play that role.</p> <p>While Biden’s views on foreign policy appear to be mixed, those of his new appointees are almost uniformly troubling.&nbsp;<a href="https://www.19fortyfive.com/2020/11/tony-blinken-is-europes-dream-u-s-secretary-of-state/" target="_blank">Biden’s choice for secretary of state</a>, Tony Blinken, favored an activist, militarized approach in both&nbsp;<a href="https://www.politico.com/story/2013/09/tony-blinkens-star-turn-096847" target="_blank">Libya</a>&nbsp;and Syria. In the latter case, his policy preference&nbsp;<a href="https://www.wsj.com/articles/SB10001424127887324049504578545772906542466" target="_blank">included arming</a>&nbsp;the motley Syrian rebels. Several of Biden’s other choices for key positions, including&nbsp;<a href="https://www.vox.com/2015/5/11/8569345/hillary-clinton-hawkish-foreign-policy" target="_blank">Jake Sullivan</a>, designated to be national security adviser, and Avril Haines, the nominee for director of national intelligence, have&nbsp;<a href="https://jacobinmag.com/2020/11/joe-biden-administration-cabinet-picks-pro-war-hawks" target="_blank">well‐​earned reputations</a>&nbsp;for embracing regime‐​change wars and other dubious positions. His choice for secretary of defense, retired Gen. Lloyd Austin, was the head of the U.S. military’s Central Command, and there is little evidence that he ever dissented regarding Washington’s ill‐​starred Middle East interventions&nbsp;Perhaps worse, Austin comes from the board of Raytheon, one of the corporations&nbsp;<a href="https://www.nytimes.com/2020/05/16/us/arms-deals-raytheon-yemen.html" target="_blank">profiting the most</a>&nbsp;from Washington’s continued, heavy‐​handed military presence in that region. We’re unlikely to get consideration of a&nbsp;more restrained Middle East policy from the crew that Biden is forming.</p> <p>Prospects are no better for new thinking on other foreign policy issues. Members of Biden’s team seem fully on board with respect to maintaining, or even intensifying, a&nbsp;hardline policy toward Moscow. In a&nbsp;November 25, 2020 interview,&nbsp;<a href="https://www.cbsnews.com/news/biden-foreign-policy-adviser-antony-blinken-on-top-global-challenges/" target="_blank">Blinken stated</a>: “President Biden would be in the business of confronting Mr. Putin for his aggressions, not embracing him. Not trashing NATO, but strengthening its deterrence … and give robust security assistance to countries like Ukraine, Georgia, the Western Balkans.” There was no indication of flexibility on Blinken’s part about extending even a&nbsp;small olive branch to Moscow.</p> <p>Equally sterile thinking on European issues is evident from the comments of other Biden nominees. His choice for deputy secretary of defense, Kathleen Hicks, even&nbsp;<a href="https://thehill.com/opinion/national-security/510477-pentagon-action-to-withdraw-from-germany-benefits-our-adversaries" target="_blank">opposed</a>&nbsp;Trump’s tepid plan to withdraw some 11,900 U.S. troops from Germany. She did so even though approximately half of those forces were simply going to be redeployed to other North Atlantic Treaty Organization (NATO) countries—including some&nbsp;<a href="https://www.bbc.com/news/world-us-canada-48585045" target="_blank">1,000 to Poland</a>, a&nbsp;move in line with a&nbsp;more confrontational policy toward Russia. Moreover, the move had little operational military significance: Washington still intended to retain nearly 25,000 military personnel in Germany. It’s worth recalling that during portions of the Cold War, the United States had nearly 400,000 troops in Europe—most of them in Germany. If reducing force levels from that figure all the way to 34,500 (the level that existed when the Trump administration announced the drawdown) didn’t drastically alter the military equation, it’s difficult to see how withdrawing another 11,900 would have much impact.</p> <p>The attitude that Hicks exhibited confirmed that proposals for even the mildest change in NATO policy toward a&nbsp;less dominant U.S. role likely will be summarily dismissed in a&nbsp;Biden administration. Once again, that is not a&nbsp;blueprint for policy innovation.</p> <p>Surveying the views of the Biden foreign policy team, one is struck by the extent of utterly conventional thinking. That might not be so bad if the underlying assumption that U.S. foreign policy was in good shape before Trump took office was true. But U.S. policy exhibited multiple signs of dysfunction during the pre‐​Trump era, and those problems badly need to be addressed and corrected. Unfortunately, the policy team that Biden has assembled exhibits little or no ability to undertake that vital task.</p> <p></p> </div> Ted Galen Carpenter, a&nbsp;senior fellow in defense and foreign policy studies at the Cato Institute and a&nbsp;contributing editor at the National Interest, is the author of 12 books and more than 850 articles on international affairs. Wed, 06 Jan 2021 08:50:10 -0500 Ted Galen Carpenter https://www.cato.org/publications/commentary/joe-bidens-foreign-policy-dream-team-disappointing A Reality Check on Walmart, Amazon, and E‐​Commerce https://www.cato.org/publications/commentary/reality-check-walmart-amazon-e-commerce <p><a href="https://www.cato.org/people/scott-lincicome" hreflang="und">Scott Lincicome</a></p> <div class="lead mb-3 spacer--nomargin--last-child text-default"> <p>Dear Capitolisters, </p> </div> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>I hope you all had a&nbsp;great holiday and have jumped into 2021 with the unbridled enthusiasm of a&nbsp;<a href="https://www.wcvb.com/article/112-year-old-mass-resident-hazel-plummer-receives-covid-19-vaccination/35104331" target="_blank">recently vaccinated supercentenarian</a>. While we were away, a&nbsp;minor kerfuffle—no, not&nbsp;<em>that one</em>—erupted when a&nbsp;Walmart social media employee&nbsp;<a href="https://www.politico.com/news/2020/12/30/walmart-apology-josh-hawley-452517" target="_blank">accidentally used</a>&nbsp;the corporate Twitter account to taunt Sen. Josh Hawley after he announced his (depressing, cynical) plan to object to the election results. The senator&nbsp;<a href="https://twitter.com/HawleyMO/status/1344355788303855617?s=20" target="_blank">responded</a>&nbsp;in typical fashion, calling on the company to “apologize for using slave labor” and “for the pathetic wages you pay your workers as you drive mom and pop stores out of business.” In doing so, he echoed other leaders of Trumpen Proletariat, who have recently taken&nbsp;<a href="https://nypost.com/2020/12/24/christmas-under-lockdown-let-us-vow-never-again/" target="_blank">to the interwebs</a>&nbsp;to lament how Walmart and other large retailers (especially e‐​commerce sites like Amazon)—fueled in part by pandemic‐​induced lockdowns—have destroyed small businesses and, in turn, the local communities that supposedly depend on them.</p> <p>If such commentary had remained on the populist right (and, of course, the populist left before it), I&nbsp;may have left it alone. However, only a&nbsp;couple days before Hawley’s Sanders‐​esque eruption, GOP Ways and Means Committee ranking member Kevin Brady took a&nbsp;similar, albeit less hostile, angle when he&nbsp;<a href="https://twitter.com/thehill/status/1343705613763825665" target="_blank">complained</a>&nbsp;on the House floor that increased COVID relief payments wouldn’t stimulate local economies because recipients would merely be making “new purchases online at Walmart, Best Buy or Amazon.” Heaven forbid.</p> <p>Given this newfound bipartisanship, now seems as good a&nbsp;time as any to dig into the reality—good and bad—of Walmart, big box retail and e‐​commerce in the United States. So that’s what we’ll do today.</p> <p><strong>‘Slave Labor’ and the World’s Poor</strong></p> <p>Hawley’s comment about Walmart and “slave labor” is likely a&nbsp;throwaway line about China trade generally, but it’s still good to note that Walmart&nbsp;<em>hasn’t</em>&nbsp;actually been linked to the most recent&nbsp;<a href="https://dailycaller.com/2020/12/30/uighur-slave-labor-companies-brands-china/" target="_blank">claims</a>&nbsp;of&nbsp;<a href="https://www.aspi.org.au/report/uyghurs-sale" target="_blank">Uighur forced labor</a>&nbsp;in China. Nevertheless, Walmart&nbsp;<em><a href="https://www.vox.com/the-goods/2018/10/10/17953106/walmart-prison-note-china-factory" target="_blank">has</a></em>&nbsp;had to deal with these claims in the past, and the issue of trade, China and forced labor remains an important one, given its serious moral and ethical implications and recent headlines. So let’s run down some basic points.&nbsp;</p> <p>First, some perspective. Contrary to what you may hear or read, forced labor is not merely, or even mainly, a “China manufacturing problem” (though China is a&nbsp;major source). According to a&nbsp;<a href="https://www.ilo.org/wcmsp5/groups/public/---dgreports/---dcomm/documents/publication/wcms_575479.pdf" target="_blank">2017 report</a>&nbsp;from the International Labor Organization, for example, approximately 20 million people—16 million by private actors and 4.1 million by state actors—were at that time engaged in some form of “forced labor,” spanning every continent. Most of this, however, is unrelated to trade or “sweatshops”: 70 percent of private “forced labor” is “debt bondage” (meaning someone is forced to work to pay off a&nbsp;debt); manufacturing accounted for only 15 percent of all cases (most were domestic work or construction); and the ILO further&nbsp;<a href="https://www.ilo.org/wcmsp5/groups/public/---ed_norm/---ipec/documents/publication/wcms_733916.pdf" target="_blank">estimates</a>&nbsp;that 10 percent to 28 percent of this labor is actually linked to trade. Total annual profits from all forms of forced labor (about $150 billion in 2015), moreover, are a&nbsp;relatively small share of global GDP (<a href="https://data.worldbank.org/indicator/NY.GDP.MKTP.KD" target="_blank">$76 trillion</a>&nbsp;that same year).&nbsp;</p> <p>Furthermore,&nbsp;<a href="https://www.cbp.gov/trade/programs-administration/forced-labor#:~:text=USMCA-,Forced%20Labor,labor%20%E2%80%93%20including%20forced%20child%20labor." target="_blank">U.S. law already bans</a>&nbsp;imports of “merchandise mined, produced or manufactured, wholly or in part, in any foreign country by forced or indentured labor—including forced child labor”—a longstanding provision that Congress actually tightened in 2015. Pursuant to this law, the federal government regularly issues&nbsp;<a href="https://www.cbp.gov/trade/programs-administration/forced-labor/withhold-release-orders-and-findings" target="_blank">new enforcement actions</a>, either independently or as a&nbsp;result of a&nbsp;private petition, against products and specific companies found to have engaged in forced labor. (Several of these actions relate to China, but dozens of others don’t.)</p> <p>It’s therefore misguided to pretend that unchecked imports of goods made by slave labor are somehow flooding the U.S. market. They exist, and they certainly warrant attention, but the problem is already addressed under the law and not nearly as pervasive as&nbsp;<em>some</em>&nbsp;(ahem) would have you believe.</p> <p>Second, it’s pretty misguided to think that things would be much better if places like Walmart (or Amazon or Target) didn’t exist or if Hawley had his way and, as he’s proposed, started snooping through their supply chains. For one thing, whether for moral or simple public relations reasons, Walmart and other large multinational companies have evolved to take “slave labor” and related allegations pretty seriously—constantly auditing their supply chains (usually via independent third‐​party auditors) and&nbsp;<a href="https://www.vox.com/the-goods/2018/10/10/17953106/walmart-prison-note-china-factory" target="_blank">terminating contracts</a>&nbsp;of suppliers found in violation of various labor rules. (For a&nbsp;deep dive into Walmart’s practices in this regard, see this&nbsp;<a href="https://etikkradet.no/walmart-inc-revocation-of-exclusion/" target="_blank">recent review</a>&nbsp;from Norway’s Government Pension Fund, which reinstated the company’s eligibility in its socially responsible investment portfolio.) Given the size and complexity of large retailers’ supply chains and supplier networks, things will inevitably slip through the cracks, but these companies do make an effort and react quickly when problems arise.&nbsp;</p> <p>More importantly, there’s a&nbsp;<a href="https://www.cato.org/publications/commentary/case-free-trade?queryID=7d09351b377e7b189458bac481477b34" target="_blank">wide body of evidence</a>&nbsp;showing that global trade has contributed to dramatic improvements in working conditions around the world and that efforts to cut it off would make things worse for the global poor. For example, the last few decades have seen massive declines in child labor and the number of people working in extreme poverty, as well as disproportionate improvements for women and girls. Walmart was a&nbsp;pioneer in this area, establishing incredibly efficient supply chains that rely on developing country workers, but it also led the way in delivering these very same goods to the world’s poorest people. As Charles Kenny&nbsp;<a href="https://foreignpolicy.com/2013/04/29/give-sam-walton-the-nobel-prize/" target="_blank">explained</a>&nbsp;a&nbsp;few years ago when arguing that Sam Walton deserved the Nobel Prize, “many [of the world’s poorest] have more access to goods and services than they did only a&nbsp;few years ago… in part because companies around the world have figured out how to make and ship the stuff that poor people want at lower cost, which makes lives better. Call it the global Walmart effect.” Scholarly&nbsp;<a href="https://www.nber.org/papers/w21176" target="_blank">research</a>&nbsp;backs this up, with the arrival of foreign retailers in developing countries found to increase competition and substantially decrease locals’ cost of living.</p> <p>And as I&nbsp;explained in a&nbsp;<a href="https://www.cato.org/blog/only-senator-hawley-could-legislate-away-unintended-consequences" target="_blank">recent blog post</a>, both economic theory and recent history—in particular the reporting requirements for “conflict minerals” in the 2010 Dodd‐​Frank Act that forced companies to map their supply chains—show that onerous regulations like the ones Hawley has proposed for “forced labor” would make things worse, not better for the global poor. This is because multinationals would most likely work to avoid new disclosure requirements by moving their supply chains from poor and needy countries—not just China—to wealthier places clearly free of sketchy labor practices. This is precisely what happened with Dodd‐​Frank, encouraging more—not less—conflict and misery in the Democratic Republic of Congo, and it’s why most human rights advocates typically oppose such measures (and other forms of protectionism). Although we can and should lament that forced labor still exists around the world, it’s essential to have a&nbsp;clear head about what can and can’t work to alleviate the problem. Discouraging trade and “big box” retail probably can’t.</p> <p><strong>But What About Mom and Pop?</strong></p> <p>That leaves Hawley’s other criticism—the one apparently shared by Brady and others—that Walmart and other retailers are destroying “mom and pop” businesses and harming American workers. Leaving aside that these large companies&nbsp;<a href="https://twitter.com/scottlincicome/status/1343712604070563842?s=20" target="_blank">employ millions of Americans</a>&nbsp;across the country, there is a&nbsp;nugget of truth to the complaint:&nbsp;<a href="https://www.nber.org/system/files/working_papers/w11782/w11782.pdf" target="_blank">Economic research</a>&nbsp;shows that Walmart’s arrival in a&nbsp;local community causes a&nbsp;small but significant reduction in&nbsp;<a href="http://onlinelibrary.wiley.com/doi/10.1111/j.1540-6237.2012.00857.x/abstract" target="_blank">local retail establishments</a>&nbsp;and total retail jobs.&nbsp;<a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2589175" target="_blank">Other studies</a>&nbsp;show similar trends, attributing big box stores’ growth to their stability and productivity (which are good things!). Just as surely, e‐​commerce has thrived during the pandemic, while many retail establishments have suffered.&nbsp;</p> <p>However, the Death of Brick‐​and‐​Mortar Independent Retail has also been&nbsp;<a href="https://nrf.com/insights/economy/state-retail" target="_blank">oversold</a>, with high‐​profile bankruptcies masking new business entry and evidence of smaller businesses&nbsp;<a href="https://nrf.com/blog/retailers-are-betting-bricks-and-mortar" target="_blank">improving</a>&nbsp;or diversifying in the face of heightened competition. Even last quarter,&nbsp;<a href="https://www.census.gov/retail/mrts/www/data/pdf/ec_current.pdf?" target="_blank">only 14.3 percent</a>&nbsp;of all retail sales were online, and&nbsp;<a href="https://www.wsj.com/articles/new-business-owners-look-beyond-covid-19-and-winter-11608120001?mod=djemMoneyBeat_us" target="_blank">initial data</a>&nbsp;show new businesses replacing ones that unfortunately went under during the lockdowns.</p> </div> , <figure class="figure overflow-hidden figure--default figure--no-caption responsive-embed-no-margin-wrapper"> <div class="figure__media"> <img width="540" height="435" alt="lincicome-1-5-2021-1.jpg" class="lozad component-image" loading="lazy" data-srcset="/sites/cato.org/files/styles/pubs/public/2021-01/lincicome-1-5-2021-1.jpg?itok=VUTHF3cP 1x, /sites/cato.org/files/styles/pubs_2x/public/2021-01/lincicome-1-5-2021-1.jpg?itok=2-gESMom 1.5x" data-src="/sites/cato.org/files/styles/pubs/public/2021-01/lincicome-1-5-2021-1.jpg?itok=VUTHF3cP" typeof="Image" /> </div> </figure> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>Furthermore, there is strong evidence that Walmart and other big box retailers are a&nbsp;net positive for workers and consumers. For example,&nbsp;<a href="https://www.nber.org/papers/w20313" target="_blank">a&nbsp;2014 paper</a>&nbsp;found that large retail chains like Walmart and Home Depot “pay considerably more than small mom‐​and‐​pop establishments,” and provide good opportunities for promotion into even‐​higher‐​paying managerial roles. As a&nbsp;result, “the growth in modern retail, characterized by larger chains of larger establishments with more levels of hierarchy, is raising wage rates relative to traditional mom‐​and‐​pop retail stores.” This remains true today: Entry level wages of&nbsp;<a href="https://www.indeed.com/cmp/Walmart/salaries" target="_blank">Walmart</a>,&nbsp;<a href="https://www.usatoday.com/story/money/2020/06/17/target-starting-pay-increasing-15-workers-get-covid-19-bonus/3204652001/" target="_blank">Target</a>,&nbsp;<a href="https://www.indeed.com/cmp/Costco-Wholesale/salaries" target="_blank">Costco</a>&nbsp;and other&nbsp;<a href="https://marker.medium.com/retailers-throwing-low-wage-workers-a-bone-by-the-numbers-e99eb165bf4d" target="_blank">large brick‐​and‐​mortar retailers</a>&nbsp;range from $12 to $17 per hour (well above the federal minimum wage of $7.25), while retail or warehouse salaries start around $30,000/year and go much higher. Several of these retailers also provide benefits like health insurance or 401(k) plans, or&nbsp;<a href="http://t.co/6r5A7P4tc9%20http:/t.co/Vqw7mPC0af" target="_blank">training systems</a>&nbsp;for low‐​skill workers to help with their advancement—programs that mom‐​and‐​pop stores likely wouldn’t have (due to lack of resources or positions).&nbsp;</p> <p>Things look even better when moving to e‐​commerce, where retailers like Walmart (and, of course,&nbsp;<a href="https://www.indeed.com/cmp/Amazon.com/salaries" target="_blank">Amazon</a>) are currently focused. As explained in a&nbsp;<a href="https://t.co/E5RMRXCXuV?amp=1" target="_blank">recent piece</a>&nbsp;by the Progressive Policy Institute’s Michael Mandel, during the “e‐​commerce era” (2013–19), hourly earnings for production and nonsupervisory workers in the warehousing industry increased 11.5 percent (inflation-adjusted)—a much better pace than brick‐​and‐​mortar retail, manufacturing, health care, and other industries. In the last year, moreover, wage gains in retail/​warehousing/​delivery (5.2 percent) outpaced private sector wage gains (4.4 percent).</p> </div> , <figure class="figure overflow-hidden figure--default figure--no-caption responsive-embed-no-margin-wrapper"> <div class="figure__media"> <img width="360" height="298" alt="lincicome-1-5-2021-2.jpg" class="lozad component-image" loading="lazy" data-srcset="/sites/cato.org/files/styles/pubs/public/2021-01/lincicome-1-5-2021-2.jpg?itok=5HmwuNB6 1x, /sites/cato.org/files/styles/pubs_2x/public/2021-01/lincicome-1-5-2021-2.jpg?itok=DKaYzjGZ 1.5x" data-src="/sites/cato.org/files/styles/pubs/public/2021-01/lincicome-1-5-2021-2.jpg?itok=5HmwuNB6" typeof="Image" /> </div> </figure> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>In fact, Mandel finds that “blue collar” and administrative jobs in e‐​commerce/​warehousing now pay better than in manufacturing or the private sector overall, while the “picking and packing” jobs done by e‐​commerce fulfillment workers “are clearly better paid than the typical jobs in the brick‐​and‐​mortar retail sector, by about 30 percent.”&nbsp;</p> </div> , <figure class="figure overflow-hidden figure--default figure--no-caption responsive-embed-no-margin-wrapper"> <div class="figure__media"> <img width="645" height="374" alt="lincicome-1-5-2021-3.jpg" class="lozad component-image" loading="lazy" data-srcset="/sites/cato.org/files/styles/pubs/public/2021-01/lincicome-1-5-2021-3.jpg?itok=cA1Meomb 1x, /sites/cato.org/files/styles/pubs_2x/public/2021-01/lincicome-1-5-2021-3.jpg?itok=6h1bKqPZ 1.5x" data-src="/sites/cato.org/files/styles/pubs/public/2021-01/lincicome-1-5-2021-3.jpg?itok=cA1Meomb" typeof="Image" /> </div> </figure> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>With e‐​commerce&nbsp;<a href="https://www.statista.com/statistics/873492/total-number-of-warehouses-united-states/" target="_blank">fulfillment centers</a>&nbsp;popping up all over the country—there are&nbsp;<a href="https://fba.help/list-of-amazon-fulfillment-centers#:~:text=Amazon%20currently%20has%20110%20active,US%20and%20185%20centers%20globally." target="_blank">110 Amazon centers</a>&nbsp;in the U.S. alone, and they’re planning&nbsp;<a href="https://www.bloomberg.com/news/articles/2020-09-16/amazon-plans-to-put-1-000-warehouses-in-neighborhoods" target="_blank">1,000 more</a>&nbsp;(to compete with Walmart!)—these jobs are increasingly “local,” too. (Mandel highlights one such center in Mercer County, NJ; there’s another huge one a&nbsp;few miles from my home here in Raleigh.)&nbsp;</p> <p>Beyond the benefits for workers, Walmart, Amazon, and other large retailers also help American consumers. Economist Jason Furman, for example,&nbsp;<a href="blank" target="_blank">calculated</a>&nbsp;that Walmart alone generated savings of $2,329 per U.S. household in 2004.&nbsp;A&nbsp;more recent (2018) study found that Walmart Supercenters&nbsp;<a href="https://www.nber.org/papers/w24750" target="_blank">significantly improve</a>&nbsp;food insecurity in the United States, with the largest benefits accruing (unsurprisingly) to low‐​income households and children.&nbsp;<a href="https://www.cnn.com/2020/12/21/business/walmart-returns-at-home/index.html" target="_blank">Competition</a>&nbsp;between Walmart, Amazon, and other large retailers should help maintain or increase these consumer benefits in the future. Other studies show benefits for&nbsp;<a href="https://www.nber.org/papers/w18111" target="_blank">local home prices</a>&nbsp;and&nbsp;<a href="https://www.nber.org/papers/w19912" target="_blank">the environment</a>. (Walmart&nbsp;<a href="https://www.bloomberg.com/news/articles/2020-08-26/walmart-cut-230-million-tons-of-emissions-with-supplier-help" target="_blank">reportedly cut</a>&nbsp;230 million tons of greenhouse gas emissions from its supply chain in 2018 and is battling Amazon for renewable energy bragging rights.)</p> <p>Finally, it’s important to note that trying to regulate mom‐​and‐​pop stores into competitiveness won’t necessarily work. In fact, economist Rafaella Sadun&nbsp;<a href="https://www.cato.org/blog/does-banning-walmart-help-mom-pops?queryID=0c5db6b78eda8e99e7ef7003a271c34a" target="_blank">found</a>&nbsp;that a&nbsp;U.K. prohibition on big box stores in the 1990s actually&nbsp;<em>harmed</em>&nbsp;independent retailers: “Instead of simply reducing the number of new large stores entering a&nbsp;market, the entry barriers created the incentive for large retail chains to invest in smaller and more centrally located formats, which competed more directly with independents and accelerated their decline.” The market … uh …&nbsp;<a href="https://knowyourmeme.com/memes/life-uh-finds-a-way" target="_blank">finds a&nbsp;way</a>.</p> <p><strong>Where Real Problems Arise</strong></p> <p>None of this is to say, of course, that big box retail and e‐​commerce are faultless. Beyond the disruption that can surely prove painful for certain companies and workers, these companies also have been known to lobby for new regulations that harm their (usually smaller) competitors. For example, Walmart in 2009 reportedly&nbsp;<a href="https://www.cato.org/blog/why-wal-mart-supports-employer-mandate?queryID=0c5db6b78eda8e99e7ef7003a271c34a" target="_blank">lobbied</a>&nbsp;for a&nbsp;federal law requiring companies to provide a&nbsp;government‐​defined health benefit package to their workers, at least in part because it would hurt Walmart’s chief competitor, Target (not to mention companies with even shallower pockets).&nbsp;<a href="https://www.businessinsider.com/amazon-lobbies-for-15-wage-weapon-over-walmart-target-2018-10" target="_blank">Amazon</a>&nbsp;and&nbsp;<a href="https://www.ocregister.com/2019/06/14/walmarts-cynical-altruism-on-minimum-wage/" target="_blank">Walmart</a>&nbsp;have also lobbied for higher federal minimum wages, which many have speculated is motivated (again, in part) by a&nbsp;desire to hobble smaller brick‐​and‐​mortar competitors. Given the aforementioned data on wages and mom‐​and‐​pop retail, it’s easy to see why this might be the case.</p> <p>So, by all means, criticize these large companies for this (and other) legitimate anticompetitive behavior, or when there’s solid evidence of them knowingly encouraging or engaging in illegal activities (including the importation of goods made from slave labor). But maybe tone down the baseless populist insults in the meantime.</p> <p><strong>Chart of the Week</strong></p> <p><a href="https://www.wsj.com/articles/covid-19-pandemic-likely-improved-your-commute-to-work-11609669801" target="_blank">Silver linings.</a></p> </div> , <figure class="figure overflow-hidden figure--default figure--no-caption responsive-embed-no-margin-wrapper"> <div class="figure__media"> <img width="540" height="348" alt="lincicome-1-5-2021-4.jpg" class="lozad component-image" loading="lazy" data-srcset="/sites/cato.org/files/styles/pubs/public/2021-01/lincicome-1-5-2021-4.jpg?itok=Drwg4KAJ 1x, /sites/cato.org/files/styles/pubs_2x/public/2021-01/lincicome-1-5-2021-4.jpg?itok=1HyzgMxw 1.5x" data-src="/sites/cato.org/files/styles/pubs/public/2021-01/lincicome-1-5-2021-4.jpg?itok=Drwg4KAJ" typeof="Image" /> </div> </figure> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p><strong>The Links</strong></p> <p><a href="https://www.bloomberg.com/opinion/articles/2020-12-31/republican-populists-like-hawley-are-not-pro-worker?sref=1pnqJ0TR" target="_blank">Strain on populism</a></p> <p><a href="https://www.wsj.com/articles/why-we-cant-stop-longing-for-the-good-old-days-11608958860" target="_blank">Nostalgia and neurology</a></p> <p><a href="https://www.wsj.com/articles/how-tariffs-deepened-the-d-c-swamp-11609198016?st=2iloqozsfnj5b1o&amp;reflink=share_mobilewebshare" target="_blank">“How Tariffs Deepened the D.C. Swamp”</a></p> <p><a href="https://t.co/vatzafVVnl?amp=1" target="_blank">Horseshoe crabbing</a></p> <p><a href="https://www.usitc.gov/press_room/news_release/2020/er1222ll1692.htm" target="_blank">USITC report on COVID supply chains</a></p> <p><a href="https://www.bloomberg.com/news/articles/2021-01-04/europe-s-workers-seen-losing-in-post-pandemic-world-study-finds" target="_blank">European workers may be in for a&nbsp;rough time</a></p> <p><a href="https://www.cato.org/blog/going-after-scapegoats-easier-confronting-truth?queryID=0c5db6b78eda8e99e7ef7003a271c34a" target="_blank">Opioid scapegoats</a></p> <p><a href="https://t.co/1QD5ulIywL?amp=1" target="_blank">Why does the U.S. have the best research universities?</a></p> <p><a href="https://t.co/3KXa1qKZmk?amp=1" target="_blank">Globalization is really old</a></p> <p><a href="https://www.nytimes.com/2021/01/04/upshot/work-office-from-home.html" target="_blank">The future of offices</a></p> <p><a href="https://www.cato.org/blog/market-allocation-would-treat-covid-19-vaccines-valuable-resource-they-are" target="_blank">Market allocation of COVID-19 vaccines</a></p> <p><a href="http://levittownnow.com/2020/12/29/large-u-s-steel-site-in-falls-twp-sold-for-160-million/" target="_blank">Keystone Trade Center to replace abandoned U.S. Steel complex</a></p> <p><a href="https://www.econlib.org/connect-the-dots/" target="_blank">Scott Sumner on taxes and migration</a></p> <p><a href="https://www.cato.org/blog/fdas-history-telling-italians-how-make-italian-food" target="_blank">The FDA and Italian food</a></p> <p><a href="https://thewhiskeywash.com/whiskey-styles/bourbon/kentuckys-new-law-allowing-online-sales-of-spirits-goes-into-effect/" target="_blank">Kentucky allows online booze sales.</a>&nbsp;(<a href="https://t.co/z892u7m4Yl?amp=1" target="_blank">And the feds allow new whisky imports.</a>)</p> <p><a href="https://t.co/yJ3lrKccgs?amp=1" target="_blank">Science prefers dogs</a></p> <p></p> </div> Scott Lincicome is an international trade attorney, an adjunct scholar at the Cato Institute, and a&nbsp;visiting lecturer at Duke University Law School. Tue, 05 Jan 2021 15:23:38 -0500 Scott Lincicome https://www.cato.org/publications/commentary/reality-check-walmart-amazon-e-commerce GOP Senators’ Electoral College Stunt Is a Dead End https://www.cato.org/publications/commentary/gop-senators-electoral-college-stunt-dead-end <p><a href="https://www.cato.org/people/thomas-berry" hreflang="und">Thomas A. Berry</a></p> <div class="lead mb-3 spacer--nomargin--last-child text-default"> <p>On&nbsp;Saturday,&nbsp;<a href="https://www.nationalreview.com/2021/01/trumps-allies-become-the-swamp-the-electoral-commission-gambit/" target="_blank">eleven Republican senators</a>&nbsp;led by Ted Cruz (R., Texas) announced a&nbsp;<a href="https://www.cruz.senate.gov/?p=press_release&amp;id=5541" target="_blank">plan</a>&nbsp;to vote “to reject the electors from disputed states” when Congress convenes to count the electoral votes and declare a&nbsp;winner of the presidential election, unless and until an “emergency 10‐​day audit is completed.” These senators want Congress to “immediately appoint an Electoral Commission, with full investigatory and fact‐​finding authority” based on the model of the Electoral Commission created to resolve the disputed 1876 election.</p> </div> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>To better understand why this plan is both illegal and&nbsp;<a href="https://www.nationalreview.com/2021/01/the-folly-of-the-cruz-eleven/" target="_blank">a&nbsp;terrible idea</a>, some background history is necessary. The Constitution’s&nbsp;<a href="https://constitutioncenter.org/interactive-constitution/amendment/amendment-xii" target="_blank">Twelfth Amendment</a>&nbsp;stipulates that the electors from each state must meet, vote, and record their votes in two separate lists, one for president and one for vice president. They must then “sign and certify” those lists and transmit them “sealed to the seat of the government of the United States, directed to the President of the Senate.” Once the lists make their way to Congress, the “President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.”</p> <p>This passive‐​voice phrasing crucially leaves out&nbsp;<em>who</em>&nbsp;does the counting. And the Twelfth Amendment is also silent on the extent to which the power to count includes the power to judge whether particular votes&nbsp;<em>should</em>&nbsp;count. As Justice Joseph Story&nbsp;<a href="https://press-pubs.uchicago.edu/founders/documents/a2_1_2-3s11.html" target="_blank">observed</a>&nbsp;in his 1833&nbsp;<em>Commentaries on the Constitution</em>, “no provision is made for the discussion or decision of any questions, which may arise, as to the regularity and authenticity of the returns of the electoral votes,” and it “seems to have been taken for granted, that no question could ever arise on the subject.”</p> </div> , <aside class="aside--right aside--large aside pb-lg-0 pt-lg-2"> <div class="pullquote pullquote--default"> <div class="pullquote__content h2"> <p>Both legally and practically, a&nbsp;commission to ‘audit’ the results of the presidential election is a&nbsp;terrible idea. </p> </div> </div> </aside> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>Unfortunately, that assumption turned out to be overly optimistic. Controversies did arise, culminating in the disputed&nbsp;<a href="https://www.history.com/news/reconstruction-1876-election-rutherford-hayes" target="_blank">Hayes–Tilden</a>&nbsp;election of 1876, which legislators settled by passing an emergency bill after the electors had cast their ballots but before Congress had counted them. The bill established a&nbsp;<a href="https://bit.ly/38Y5RPN" target="_blank">commission</a>&nbsp;to determine the winner of each disputed state, but it did not attempt to set any long‐​term precedent.</p> <p>After decades of uncertainty and ad hoc answers good for one election only, Congress resolved to definitively settle the Twelfth Amendment’s ambiguities in 1887 with the passage of the&nbsp;<a href="https://constitutioncenter.org/blog/explaining-how-congress-settles-electoral-college-disputes" target="_blank">Electoral Count Act</a>&nbsp;(ECA). Avoiding the chaos and uncertainty of the 1876 election was a&nbsp;key goal of the bill; Representative Charles Baker&nbsp;<a href="https://bit.ly/3ofryRT" target="_blank">expressed</a>&nbsp;the common desire to “provide against a&nbsp;recurrence of the vexed questions that once threatened the welfare and peace of our country” and to select a&nbsp;president in such a&nbsp;way “so that the possibility of dissension and strife shall be avoided.” Representative John Eden&nbsp;<a href="https://bit.ly/2LgCP5S" target="_blank">noted</a>&nbsp;the fraught history of election procedures being “decided upon the spur of the moment and amid the excitement of party contests.” Representative Hilary Herbert, putting it even more starkly,&nbsp;<a href="https://bit.ly/3pR8qKz" target="_blank">recalled</a>&nbsp;that eleven years earlier “the country was on the eve of civil war because we had a&nbsp;disputed Presidential election” and because there was no law in place “under which the count could be made.”</p> <p>Congress believed that filling the gaps in the text of the Twelfth Amendment was the way to prevent such chaos in the future. During the congressional debate over the ECA, Representative Samuel Dibble&nbsp;<a href="https://bit.ly/38e9ouq" target="_blank">remarked</a>&nbsp;with consternation that it had been “a question ever since [the Twelfth Amendment] was adopted, by whom the votes shall be counted.”</p> <p>There was also significant disagreement and uncertainty over how much adjudicative authority the power to count entailed. To some members of Congress, the count was purely a&nbsp;formality. Representative Dibble&nbsp;<a href="https://bit.ly/38e9ouq" target="_blank">described</a>&nbsp;it as “the kind of ascertainment that the clerk of a&nbsp;court or a&nbsp;registering officer exercises when he reads the decree of the court, in order to record it,” which is to say, “a ministerial act, not a&nbsp;judicial act.” But others took a&nbsp;different view. Representative William Cooper&nbsp;<a href="https://bit.ly/3b5CgXn" target="_blank">argued</a>&nbsp;that the power to count included the power to ascertain whether each list was “in fact the lawful vote of a&nbsp;State.” Representative George Adams similarly&nbsp;<a href="https://bit.ly/3baQ3Mn" target="_blank">believed</a>&nbsp;that legal judgment is implied in the duty to count and that Congress’s “determination that [an] alleged return is the legal return is the counting of the vote of that State within the meaning of the Constitution.”</p> <p>Representative Andrew Caldwell, one of the primary drafters of the ECA,&nbsp;<a href="https://bit.ly/3hFoGvb" target="_blank">proclaimed</a>&nbsp;that its passage would end these debates and “settle all the questions which have arisen from time to time as to the electoral count.” The act, he said, would&nbsp;<a href="https://bit.ly/3hFoGvb" target="_blank">establish</a>&nbsp;“first, that the power to count the vote is not in the President of the Senate” but&nbsp;<a href="https://bit.ly/3ngR2wW" target="_blank">instead</a>&nbsp;“in the two Houses of Congress,” and,&nbsp;<a href="https://bit.ly/3hFoGvb" target="_blank">second, that</a>&nbsp;the “power of the two Houses in counting the vote is something more than ministerial and perfunctory merely.” Congress would have the power “to determine what are legal votes, and who has a&nbsp;majority of legal votes” because the “power to judge of the legality of the votes is a&nbsp;necessary consequent of the power to count.”</p> <p>To that end, the ECA gave Congress the&nbsp;<a href="https://www.law.cornell.edu/uscode/text/3/15" target="_blank">authority</a>&nbsp;to reject an illegal electoral vote by a&nbsp;majority vote of both houses. But the ECA’s drafters knew how explosive and consequential that power could be if it were ever exercised, so they laid out narrow grounds for rejecting an electoral vote as illegal: Only those votes that have not been “regularly given by electors whose appointment has been lawfully certified” can be rejected.</p> <p>Thus, the ECA creates two specific categories of illegality: To be illegal, an electoral vote must either have been not “regularly given” or not “lawfully certified.” And at the time of the bill’s passage, neither category was understood to cover a&nbsp;belief that the election of an elector was flawed.</p> <p>The inquiry into whether an electoral vote was “regularly given” involves questions&nbsp;<em>not</em>&nbsp;about how the elector was chosen, but instead about the elector’s&nbsp;<em>act</em>&nbsp;of voting for president itself — whether it complied with the basic, facially apparent requirements of procedure. Those who drafted and passed the ECA provided a&nbsp;helpful litany of examples of valid reasons for Congress to reject an electoral vote as not “regularly given,” including: if the vote was not cast “<a href="https://bit.ly/35ak2jL" target="_blank">by ballot as the law requires</a>,” if the vote was not cast “<a href="https://bit.ly/35ak2jL" target="_blank">upon the day appointed by law</a>,” if an elector failed to “<a href="https://bit.ly/3nh6hWx" target="_blank">sign and certify</a>” the vote, if an elector failed to cast at least one vote for “<a href="https://bit.ly/3nh6hWx" target="_blank">a citizen of another State</a>,” and if the vote were for someone not constitutionally “<a href="https://bit.ly/35ak2jL" target="_blank">eligible to the office</a>” of president (such as someone not “a native‐​born citizen, or over thirty‐​five years of age”).</p> <p>Complementing these potential&nbsp;<em>procedural</em>&nbsp;deficiencies, the category of votes not “lawfully certified” encompassed attempted certifications of persons rendered ineligible to be electors, most likely by some structural constitutional provision. Examples included: if the vote was cast by an elector “<a href="https://bit.ly/3rNr5sx" target="_blank">ineligible to that office</a>” (such as someone already holding another office), if a&nbsp;state attempted to cast a&nbsp;total number of electoral votes not “<a href="https://bit.ly/3nh6hWx" target="_blank">equal to her number of Senators and Representatives</a>,” if a&nbsp;state attempted to cast electoral votes after&nbsp;<a href="https://bit.ly/3ngR2wW" target="_blank">abandoning a&nbsp;republican form of government</a>, or if a&nbsp;territory not yet admitted as a&nbsp;state (or&nbsp;<a href="https://bit.ly/3rUUGQw" target="_blank">not yet&nbsp;<em>re</em>admitted as a&nbsp;state</a>) attempted to cast electoral votes (a much more plausible problem for those who had lived through the gradual readmission of the seceded states after the Civil War).</p> <p>Although Congress contemplated the unlikely event of someone claiming to be an elector despite the legally mandated election for electors having&nbsp;<a href="https://bit.ly/3rNr5sx" target="_blank">not occurred</a>, conspicuously&nbsp;<em>absent</em>&nbsp;from the debate over the ECA was any discussion of objections based on a&nbsp;wholesale relitigation of the conduct of an election for the electors. Both the structure and history of the ECA support the view that general concerns about the administration of an election were&nbsp;<em>not&nbsp;</em>viewed as falling under either category of valid objection when the law was passed.</p> <p>The ECA was expressly written to&nbsp;<em>prevent</em>&nbsp;a&nbsp;repeat of the interminable 1876 dispute. Rather than allowing Congress to kick the can of accountability to a&nbsp;commission, it requires that a&nbsp;decision on each objection to an electoral vote must be reached after a&nbsp;debate strictly limited to two hours. This structure makes sense only if objections are of a&nbsp;type that can be meaningfully considered and decided in two hours, i.e., if they involve&nbsp;<em>facial</em>&nbsp;legal problems with the electors rather than complex&nbsp;<em>factual&nbsp;</em>allegations of problems with their election.</p> <p>What does all this history tell us about the eleven Republican senators seeking to “reject the electors from disputed states” when Congress meets to count the electoral votes and declare a&nbsp;winner on Wednesday? Well, first and foremost, none of their disputes with the 2020 election plausibly qualify as a&nbsp;challenge to an electoral vote as having not been “regularly given” or “lawfully certified.” Indeed, the senators’ stated plan to object to the votes as&nbsp;<em>both&nbsp;</em>“not ‘regularly given’ and ‘lawfully certified’ (the statutory requisite)” without differentiation between the two demonstrates that they are not even attempting to take seriously the text of the bill as it was understood at the time of passage. To be sure, the ECA can always be altered by the passage of a&nbsp;new bill, which is presumably the vehicle by which these senators will demand a&nbsp;new electoral commission. But unless and until such an amendment to the ECA passes, the ECA is still binding. And the very fact that these senators acknowledge they would need a&nbsp;commission to meaningfully investigate their issues with the election shows that their challenge does not faithfully qualify as an ECA challenge.</p> <p>The ECA codified an important lesson learned from 1876 and earlier elections: Congress as an institution is ill‐​suited to the type of quick, fact‐​intensive, and impartial investigation necessary to competently resolve questions about the administration of an election. Those questions are better left to the courts, so the ECA, among other things, moved the counting of electoral votes back to “<a href="https://bit.ly/389RZmm" target="_blank">more than double</a>&nbsp;the time the states had to determine the outcome of their elector elections.”</p> <p>That is what happened, successfully, in the 2020 election. Although the letter by the eleven Republican senators disingenuously notes that the Supreme Court has twice declined review of cases arising from the 2020 election, this does not mean, as the letter implies, that courts have not “heard evidence and resolved these claims of serious election fraud.” The state and federal judiciary encompasses vastly more than the Supreme Court, and cases have been heard and decided in dozens of courts across the country, as the ECA contemplates.</p> <p>Speaking in support of the ECA’s passage in December 1886, Representative Herbert presciently&nbsp;<a href="https://bit.ly/3pR8qKz" target="_blank">observed</a>&nbsp;that the “country never will be satisfied in any political case with a&nbsp;temporary expedient or device under a&nbsp;law passed at the moment, after parties had taken sides on the question.” The 1876 commission failed to attain legitimacy, he argued, because the people “want laws passed before cases arise, and not with reference to any special case that may have arisen” already.</p> <p>Those senators inviting a&nbsp;repeat of the chaos of 1876 today would do well to consider the wisdom of Herbert and other men who lived through it.</p> </div> Thomas A. Berry is a&nbsp;research fellow at the Cato Institute’s Robert A. Levy Center for Constitutional Studies and the managing editor of the Cato Supreme Court Review. Tue, 05 Jan 2021 11:58:08 -0500 Thomas A. Berry https://www.cato.org/publications/commentary/gop-senators-electoral-college-stunt-dead-end Why the US‐​Europe ‘Front’ Against China Is Pure Fantasy https://www.cato.org/publications/commentary/why-us-europe-front-against-china-pure-fantasy <p><a href="https://www.cato.org/people/ted-galen-carpenter" hreflang="und">Ted Galen Carpenter</a></p> <div class="lead mb-3 spacer--nomargin--last-child text-default"> <p>One unmistakable goal of the incoming Biden administration is to repair the damage that the Trump administration inflicted on America’s relations with its traditional diplomatic and strategic partners, especially the European allies. Biden and his advisers have explicitly&nbsp;<a href="https://www.nytimes.com/2020/11/09/us/politics/biden-foreign-policy.html" target="_blank">criticized</a>&nbsp;Trump’s “America First” approach with respect to both economic and security policies. Instead, they emphasize strengthening multilateral efforts to achieve common objectives in those arenas.</p> </div> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>Biden himself has made it clear that one of those objectives is to induce Europe to join the United States in a&nbsp;common front to deal with China. “As we compete with China and hold China’s government accountable for its abuses on trade, technology, human rights, and other fronts,” he said in remarks delivered on&nbsp;<a href="https://buildbackbetter.gov/speeches/national-security-agency-review-teams-briefing-remarks-as-prepared-for-delivery-by-president-elect-joe-biden-in-wilmington-delaware/" target="_blank">December 28</a>, “our position will be much stronger when we build coalitions of like‐​minded partners and allies to make common cause with us in defense of our shared interests and values.”</p> </div> , <aside class="aside--right aside--large aside pb-lg-0 pt-lg-2"> <div class="pullquote pullquote--default"> <div class="pullquote__content h2"> <p>Such actions suggest that European governments have little interest in being part of a&nbsp;U.S.-led common front to deal with Beijing even on diplomatic and economic issues, much less security problems.</p> </div> </div> </aside> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>Biden added that “on any issue that matters to the U.S.-China relationship,” including “ensuring security and prosperity in the Indo‐​Pacific region, [we]are stronger and more effective when we are flanked by nations that share our vision for the future of our world.”</p> <p>Biden’s quest is likely to fail. Indeed, just two days after the president-elect’s comments, the European Union signed a&nbsp;<a href="https://www.aljazeera.com/economy/2020/12/30/eu-china-deal-will-give-euro-firms-greater-access-to-china" target="_blank">major investment deal</a>&nbsp;with Beijing. RealityChek blogger Alan Tonelson contended that the EU’s action constituted a “<a href="https://nationalinterest.org/feature/european-union-bludgeoning-joe-biden-china-175720" target="_blank">punch in the mouth</a>.”&nbsp;That may be an exaggeration, but negotiations had been going on for seven years, and there was no reason why EU leaders could not have held off and consulted with the Biden administration after it took office before taking final action. Their failure to do so indicated that the EU will chart its own course regarding economic relations with China based on an assessment of European interests, not U.S. policy preferences.</p> <p>Evidence is even stronger that Washington cannot count on European solidarity with the United States if it comes to a&nbsp;diplomatic confrontation with Beijing over human rights or other issues. That point became glaringly apparent last year when the Trump administration tried to enlist Europe in a&nbsp;united response to the PRC’s imposition of a&nbsp;new national security law on Hong Kong. U.S. leaders wanted a&nbsp;joint statement of condemnation as well as the imposition of some sanctions in response to Beijing’s brazen erosion of Hong Kong’s autonomy.</p> <p>Allied backing was tepid and grudging, at best. Among the major European powers, only Britain (Hong Kong’s former colonial ruler) joined the United States in embracing a&nbsp;hardline approach. . German Foreign Minister Heiko Maas argued that the best way for the European Union to influence China on the Hong Kong dispute was merely to&nbsp;<a href="https://uk.reuters.com/article/uk-hongkong-politics-china-germany/germany-stresses-dialogue-with-china-key-when-asked-about-possibility-of-sanctions-idUKKBN2350XU" target="_blank">maintain a&nbsp;dialogue</a>&nbsp;with Beijing.</p> <p>The European Union’s response was anemic and evasive as well. Apparently determined to avoid becoming entangled in America’s escalating rivalry with China, EU foreign ministers embraced Germany’s approach and&nbsp;<a href="https://www.wsj.com/articles/chinas-hong-kong-law-drives-wedge-between-eu-western-allies-11590777632?emailToken=0910313fec8cc8bdcc4985de5bf7e048Ua41v+BPIz6IanSqqie1A/RkJNRTWDxR9UDnBFzxry4MBPqNBybwAgF+GkAuqz7arBnDOrU1LP2LJbBmESRc5aaentVMpuRQ9fife7+yBTV49NTNjNPjzX+KGR4HUEa2&amp;reflink=article_email_share" target="_blank">emphasized the need for dialogue</a>&nbsp;about Hong Kong.&nbsp;After a&nbsp;videoconference among the bloc’s 27 foreign ministers, EU foreign policy chief Josep Borrell emphasized that only one country bothered to raise the subject of sanctions. Borrell added that the EU was not planning even to postpone diplomatic meetings with China.</p> <p>Such actions suggest that European governments have little interest in being part of a&nbsp;U.S.-led common front to deal with Beijing even on diplomatic and economic issues, much less security problems. In adopting that stance, they accurately reflect European public opinion.</p> <p>Europeans want no part of a&nbsp;possible confrontation with China. When a&nbsp;September 2019&nbsp;<a href="https://ecfr.eu/archive/page/-/popular_demand_for_strong_european_foreign_policy_what_people_want.pdf" target="_blank">survey</a>&nbsp;by the European Council on Foreign Relations asked, “Whose side should your country take in a&nbsp;conflict between the United States and China?” the results were emphatic against backing America.</p> <p>Support for Washington was meager even among the usually Amerophile populations in Central and Eastern Europe. Just 19 percent in the Czech Republic, 17 percent in Romania, and 13 percent in Hungary supported the U.S. position. The outcome among Washington’s long‐​standing economic and security partners in Western Europe was similar. Only 18 percent of French respondents, 20 percent of Italians, and 10 percent of Germans chose solidarity with the United States in a&nbsp;showdown with China. Overwhelming majorities in all countries surveyed favored neutrality.</p> <p>Such a&nbsp;stance is unsurprising. The United States is a&nbsp;Pacific power with extensive economic and security interests in East Asia. China’s economic and military rise poses a&nbsp;serious challenge to the status of regional hegemon that the United States had enjoyed since the end of World War II.</p> <p>Europe’s situation is fundamentally different. The European powers have limited economic interests and even fewer security concerns in the region. The risks associated with waging even a&nbsp;diplomatic feud with China — to say nothing of a&nbsp;trade war or a&nbsp;military confrontation — would appear to most Europeans to outweigh any conceivable benefits. From the standpoint of European interests, discreet neutrality regarding relations between the United States and China is the prudent course.</p> <p>Given that reality, the Biden administration is likely to be disappointed in the probable European response to calls for a&nbsp;joint response to China’s transgressions. The new president may scorn the “America First” doctrine and seek to revitalize the coalition of Western democratic powers. But at least when it comes to policy toward China, Biden will find that the United States is a&nbsp;leader with few followers.</p> </div> Ted Galen Carpenter, a&nbsp;senior fellow in security studies at the Cato Institute, is the author of 12 books and more than 850 articles on international affairs. Tue, 05 Jan 2021 11:10:44 -0500 Ted Galen Carpenter https://www.cato.org/publications/commentary/why-us-europe-front-against-china-pure-fantasy The Assange Extradition Decision: No Time to Celebrate https://www.cato.org/publications/commentary/assange-extradition-decision-no-time-celebrate <p><a href="https://www.cato.org/people/patrick-g-eddington" hreflang="und">Patrick G. Eddington</a></p> <div class="lead mb-3 spacer--nomargin--last-child text-default"> <p>On January 4, Westminster Magistrates’ District Court Judge Vanessa Baraitser finally handed down her long‐​awaited&nbsp;<a href="https://www.judiciary.uk/judgments/usa-v-julian-assange/" target="_blank">decision</a>&nbsp;regarding the American government’s extradition request on radical transparency activist Julian Assange. In short, she denied the U.S. government’s extradition request—not because she bought Assange’s arguments that he’s the victim of a&nbsp;political prosecution, but because she doesn’t believe Assange would survive long in an American prison. There’s a&nbsp;lot to digest in the 132‐​page decision, but for now I’m going to focus on what I&nbsp;believe are the key takeaways.</p> </div> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>One of the key pillars of Assange’s defense was the assertion that his actions and those of Wikileaks constituted the practice of journalism and publishing, and that any extradition or related prosecution for publishing leaked or electronically purloined data would constitute prosecution for “political offenses” under Article 10 of the European Convention on Human Rights (EHCR), which protects freedom of expression. Judge Baraitser rejected that argument, noting that extradition treaties are “an agreement between governments which reflects their relationship for the purposes of extradition. It is made between sovereign states on the proviso that it is not governed by the domestic law of either state.” (p. 21) Baraitser then went on to note that since the U.K. parliament removed the “political offense” exception language from the 2003 Extradition Act indicated “…a deliberate intention by Parliament to remove this protection” (p. 22) and that “In light of this, there is no need for me to determine whether the allegations in this request amount to political offences.’” (p. 24)</p> <p>Judge Baraitser also gave credence to U.S. government claims vis a&nbsp;vis the Computer Fraud and Abuse Act (CFAA) that Wikileaks (and specifically Assange’s) computer hacking assistance to then-U.S. Army soldier Chelsea Manning went well beyond any established journalistic standard, and certainly beyond established EU and UK case law.</p> </div> , <aside class="aside--right aside--large aside pb-lg-0 pt-lg-2"> <div class="pullquote pullquote--default"> <div class="pullquote__content h2"> <p>You don’t have to be an Assange groupie to understand the absolutely huge First Amendment threat this prosecution represents. </p> </div> </div> </aside> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>In her ruling, Baraitser specifically cited the European Court of Human Rights (ECHR) 2016 decision in&nbsp;<a href="https://hudoc.echr.coe.int/app/conversion/pdf?library=ECHR&amp;id=003-5415795-6778471&amp;filename=Judgment%20Brambilla%20and%20Others%20v.%20Italy%20-%20interception%20of%20law-enforcement%20officers%27%20radio%20communications%20by%20journalists.pdf" target="_blank"><em>Brambilla and others v. Italy</em></a>&nbsp;“…in which three journalists were convicted of offences after intercepting carabinieri radio communications in order to obtain information on crime scenes for the purposes of reporting.” (p. 41) Baraitser further noted that “Had Mr. Assange decided not to assist Ms. Manning to take the information in the various ways described above, and merely received it from her, then the Article 10 considerations would be different.” (p. 42)</p> <p>In other words, if Assange/​Wikileaks had simply taken data given to them, and not (as alleged) provided direct technical hacking assistance, the U.S. government request might well have been dismissed outright.</p> <p>What Baraitser failed to address was a&nbsp;core allegation that Assange, Manning and others (including this author) have made that national governments routinely and deliberately misuse the classification system to conceal their own crimes. In the case of Manning and Wikileaks, it was exposing potential U.S. Army war crimes in Iraq.</p> <p>I discussed this hypocritical legal and moral double standard in 2019&nbsp;in a&nbsp;previous&nbsp;<a href="https://www.cato.org/publications/commentary/assange-espionage-indictment-classified-hypocrisy-prosecutorial-trojan-horse?queryID=be915e35a25869f945ee03eb747e2c2a" target="_blank">piece</a>, from which I’ll quote again:</p> </div> , <blockquote class="blockquote"> <div> <p>In the Assange Espionage Act indictment, federal prosecutors specifically invoke Manning’s sharing and Assange’s receipt of classified information as also involving violations of Executive Order 13526, National Security Information, which states (Sec. 1.4(a)) that “military plans, weapons systems, or operations” are considered classified under the executive order.</p> <p>But the Army officials who classified the 2007 Apache helicopter video released by Assange showing the killing of Iraqi civilians misused the classification system to conceal criminal conduct — something expressly forbidden by Sec. 1.7(a) of the very same Executive Order federal prosecutors cited in the Assange indictment.</p> <p>So where are the indictments against Pentagon or CIA officials who knowingly and deliberately misused the classification system to conceal acts of torture or other war crimes in Iraq, Afghanistan or elsewhere? The hypocrisy and selective application of federal laws, regulations and executive orders in matters of national security is on full display in the Assange indictment.</p> </div> </blockquote> <cite> </cite> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>To be clear, I’ve never approved of Wikileaks’ release of the names of individuals who’ve provided information to the U.S. government under an expectation of confidentiality, particularly those who’ve provided information on known or suspected terrorists or foreign spies trying to steal legitimate U.S. government secrets. But right now, about the only way the public can reliably, if infrequently, learn about secret wrongdoing by their own governments is through whistleblowers exfiltrating incriminating data out of government systems and into the hands of journalists. Baraitser completely elided that issue in her ruling, much to the satisfaction of U.S. government officials I’m sure.</p> <p>Assange’s only reprieve came through Baraitser’s conclusion, based on expert witness testimony in the case, that were he extradited to the U.S. Assange might well face conditions that would drive him to kill himself. “I am satisfied that, if he is subjected to the extreme conditions of SAMs, Mr. Assange’s mental health will deteriorate to the point where he will commit suicide with the ‘single minded determination’ described by Dr. Deeley,” Baraister wrote. (p. 116).</p> <p>The acronym in question stands for “special administrative measures”—a Department of Justice euphemism for solitary confinement and other measures designed to maximize the isolation of an inmate or someone awaiting trial. It’s normally reserved for only the most violent of offenders, although Baraitser noted that “It is an agreed fact that there are currently nine inmates subject to a&nbsp;SAMs for espionage…” (p. 96) and that the U.S. government had given no guarantee that Assange would not be subjected to SAMs.</p> <p>American authorities are expected to&nbsp;<a href="https://www.theguardian.com/media/2021/jan/04/julian-assange-cannot-be-extradited-to-us-british-judge-rules" target="_blank">appeal</a>&nbsp;Baraister’s decision, and although Assange has a&nbsp;bail hearing on Wednesday it’s unlikely he’ll be freed at this point. If U.S. government authorities pledge not to subject Assange to solitary confinement or other isolating measures in their appeal, it’s possible Assange could still be extradited to the United States to face trial.</p> <p>What I&nbsp;fear here is that the CFAA argument being put forward by DoJ lawyers is a&nbsp;legal Trojan Horse. The password cracking and other hacking techniques they cite as violations of law are not the only kinds of technology they want to connect to the crime.</p> <p>Count 18 of the DoJ indictment against Assange focuses on alleged CFAA violations by Assange (via Manning) to “knowingly access a&nbsp;computer … to obtain information that has been determined by the United States Government … to require protection against unauthorized disclosure” and to “willfully communicate, deliver, transmit, and cause to be communicated, delivered, or transmitted the same, to any person not entitled to receive it.”</p> <p>Also getting three mentions in the indictment is Assange and Manning using “a cloud drop box” for the exchange of the exfiltrated documents. Thus, DoJ lawyers are claiming that the employment of a “cloud storage” capability was a&nbsp;key feature of the crime,&nbsp;<em>rendering the entire chain of digital traffic between Wikileaks and Manning illegal</em>.</p> <p>The Freedom of the Press Foundation’s encrypted SecureDrop system for receiving documents from sources is used by dozens, if not hundreds, of media outlets globally. It’s a&nbsp;portal for whistleblowers seeking to out illegal or questionable government conduct to get relevant material into the hands of journalists. A&nbsp;DoJ court victory on Count 18 of the Assange indictment would put every news organization in the world utilizing SecureDrop or a&nbsp;similar system at risk of a&nbsp;future CFAA prosecution, something that would effectively nullify the Supreme Court decision in the&nbsp;<em>Pentagon Papers</em>&nbsp;case—all while deliberately ignoring an actual crime in this case: the deliberate misuse of the U.S. government classification system to conceal war crimes. You don’t have to be an Assange groupie (which I’m definitely not) to understand the absolutely huge First Amendment threat this prosecution represents.</p> </div> Former CIA analyst and ex‐​House Senior Policy Advisor Patrick Eddington is a&nbsp;Research Fellow at the Cato Institute and a&nbsp;DRAD board member. Mon, 04 Jan 2021 15:10:38 -0500 Patrick G. Eddington https://www.cato.org/publications/commentary/assange-extradition-decision-no-time-celebrate Why Are Conservative Populists Pushing $2,000 Checks as ‘Pro‐​Worker’? https://www.cato.org/publications/commentary/why-are-conservative-populists-pushing-2000-checks-pro-worker <p><a href="https://www.cato.org/people/ryan-bourne" hreflang="und">Ryan Bourne</a></p> <div class="lead mb-3 spacer--nomargin--last-child text-default"> <p>In a&nbsp;2018&nbsp;<em><a href="https://www.wsj.com/articles/conservatives-and-the-politics-of-work-1543014553" target="_blank">Wall Street Journal</a></em><a href="https://www.wsj.com/articles/conservatives-and-the-politics-of-work-1543014553" target="_blank">&nbsp;interview</a>, Oren Cass, a&nbsp;former Mitt Romney adviser and now executive director of the think tank American Compass, made his case for a&nbsp;supposedly pro‐​labor conservatism. Economic anxiety was real, he said. But that didn’t mean low‐​income Americans wanted to be patronized for their struggles to find dignified work by having money thrown at them. He suggested that such ideas were the naïve preference of those at “the top of the income distribution.”</p> </div> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>For years, the self‐​styled populists and “national conservatives” who see themselves as the heirs to Trump have claimed that this kind of economic approach is central to their project. Fast forward to mid‐​December 2020, however, and national conservative poster boy Missouri Sen. Josh Hawley has teamed up with progressive Sen. Bernie Sanders to prioritize $2,000 checks to most Americans for COVID relief. Buoyed by President Trump’s endorsement, Hawley now wants a&nbsp;vote in the Senate on the proposal, which&nbsp;<a href="https://www.cnn.com/2020/12/28/politics/house-vote-direct-payments-2000/index.html" target="_blank">passed the House</a>&nbsp;275–134. This push for widespread support is the latest example of how the substance of a&nbsp;national conservative economic agenda time and again fails to live up to the rhetoric of its proponents.</p> <p>Consider Hawley’s own COVID-19 journey. Back in April 2020, he proposed a&nbsp;massive federal program to “protect every single job in the country.” He wanted the federal government to cover 80 percent of wages for any job up to the national median wage right through the pandemic. The feds, according to this plan, would have offered a&nbsp;rehiring bonus too, designed to get the&nbsp;<a href="https://dictionary.cambridge.org/us/dictionary/english/headline-unemployment" target="_blank">headline unemployment</a>&nbsp;rate back down quickly and to keep workers attached to their existing firms for a&nbsp;swift rebound when the pandemic was over.</p> </div> , <aside class="aside--right aside--large aside pb-lg-0 pt-lg-2"> <div class="pullquote pullquote--default"> <div class="pullquote__content h2"> <p>A&nbsp;movement that started with a&nbsp;call to restore the dignity of work and emphasized the importance of American institutions has already been reduced to peddling the kind of “patronizing” handouts and constitutional vandalism they once attacked the left for. </p> </div> </div> </aside> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>There were clear problems with this plan: it would have hindered America’s adaptiveness to the crisis, for example, and led to a&nbsp;host of zombie jobs. But there was at least a&nbsp;pro‐​worker logic to it. Companies are a&nbsp;unique bundle of relationships that are carefully developed and easily lost. Joblessness can have scarring effects on workers beyond the lost income, which can at least be mitigated by unemployment insurance. Seeking to bridge those roles into the recovery, like many European governments did, was a&nbsp;gamble. But with a&nbsp;vaccine now around the corner, the case for that type of support, rather than income support, is now somewhat stronger still.</p> <p>But Hawley soon moved on from this job‐​targeted plan. He now regularly&nbsp;<a href="https://twitter.com/HawleyMO/status/1343919654637600770" target="_blank">emphasizes</a>&nbsp;that “working” Americans “deserve $2000&nbsp;in COVID relief” because they have “borne the brunt of this pandemic.” His push for checks is part of a&nbsp;shift to what Hawley has characterized as a “worker‐​focused approach” to policymaking. But what dignity for workers is there in the federal government delivering unearned income? And what specifically is “pro‐​worker” about the checks, other than that people who work are among those who will get them?</p> <p>In economic terms, a&nbsp;drop of $2,000 checks will do little or nothing to eliminate joblessness, raise wages, or improve working conditions. It won’t encourage people to re‐​enter the labor force, or greatly reduce the number of Americans who have been unemployed for more than six months, or help businesses adjust their premises to operate safely, which in turn provides workers with new opportunities.</p> <p>The crudest Keynesians might argue direct checks will stimulate demand in the economy, saving jobs indirectly. But while the last stimulus checks did increase spending among&nbsp;<em>low‐​income&nbsp;</em>households,&nbsp;<a href="https://opportunityinsights.org/wp-content/uploads/2020/05/tracker_paper.pdf" target="_blank">research shows</a>&nbsp;“little of this increased spending flowed to businesses most affected by the Covid‐​19 shock, dampening its impacts on employment.” Consumer spending remains somewhat depressed&nbsp;<a href="https://tracktherecovery.org/" target="_blank">among the middle class</a>&nbsp;because consumers are either unable or unwilling to go to restaurants, travel, or splash out on entertainment, not because they lack the incomes to do so.</p> <p>Given the uneven way in which the pandemic has hit different industries and types of worker,&nbsp;there is a&nbsp;much stronger case for targeted support—which the new relief bill contains in the form of elevated unemployment insurance, more PPP funding, and industry‐​specific funds. Yet Hawley dismisses these funds for the unemployed and payroll as evidence of workers being put at the back of the line, while railing against “corporate bailouts.”</p> <p>A genuinely pro‐​worker brand of conservatism should draw a&nbsp;sharp distinction between those who really do need the government’s help and those who have been able to work safely from home and whose incomes have been largely unaffected by social distancing. Instead, Hawley, as well as Sen. Marco Rubio, President Trump and others, find themselves pushing for the federal government to provide money to people who do not need it. These self‐​defined champions of the working class would dish out $5,500 of taxpayer funds to a&nbsp;family earning $200,000 per year with two kids. A&nbsp;married couple with five kids would still obtain a $4,000 check, even if the family had a $350,000 annual household income.</p> <p>To illustrate just how untargeted this measure is in helping the poorest working families, the&nbsp;<em>Wall Street Journal</em>’s Greg Ip&nbsp;<a href="https://www.wsj.com/articles/yes-it-is-possible-to-have-too-much-stimulus-11609341559" target="_blank">calculated</a>&nbsp;that returning the bottom 50 percent of the entire population to their February level of income would cost $16 billion per month. Even if the pandemic kept household income subdued for two years, in other words, the federal government could afford to maintain incomes for the bottom half of households for the same cost to taxpayers as the House‐​approved checks ($435 billion).</p> <p>Instead of tweaking their plans to fit with a&nbsp;more coherent, conservative argument for targeted support, the national conservatives continue undeterred in pursuit of short‐​term political rewards from more than tripling the amount of government support to most American households. But national conservatives should beware the superficial appeal of such a&nbsp;move. Indeed, as Cass himself has said, “the further down the income ladder you go, generally speaking the less enthusiasm there is for redistribution as a&nbsp;solution. People will tell you they want to work.”</p> <p>As Cass appears to realize, Republicans won’t win in a&nbsp;spending arms race with the left. Nor is that what working‐​class Americans necessarily want to see. And yet, time and again, when given the opportunity to set out distinctly conservative pro‐​work policies, national conservatives fail to come up with anything meaningfully different from the government largesse that defines left‐​wing answers to these problems. The stimulus checks are an especially clear example of that, with Hawley and Sanders on exactly the same page. Economic populists in the Republican party should ask themselves whether accepting the logic of the far‐​left will pay off in the long run.</p> <p>Searching for an argument for generous checks in keeping with the tenets of right‐​wing economic populism,&nbsp;<em>National Review</em>’s Michael Brendan Dougherty&nbsp;<a href="https://www.nationalreview.com/2020/12/trumps-covid-relief-missed-opportunity-for-populism/" target="_blank">wonders whether</a>&nbsp;they “might simply be necessary for national morale and the esteem of the government in the eyes of the people.” It’s a&nbsp;valiant effort, but you hardly need to be a&nbsp;free‐​market fundamentalist to wonder whether cash transfers as pro‐​state propaganda are a&nbsp;sustainable, sensible way to govern.</p> <p>After Trump’s defeat in November, Republicans took some heart from the signs that a&nbsp;multiracial working‐​class coalition was within their reach. They were right to do so, but instead of&nbsp;<a href="https://thedispatch.com/p/what-policies-are-really-in-the-interests" target="_blank">focusing on the ways in which Republican economic policies have delivered for low‐​income Americans</a>, the party’s most prominent national conservatives find themselves teaming up with Bernie Sanders to push for expensive, unsustainable middle‐​class handouts at the same time many of them are undermining American democracy to indulge the president’s stolen‐​election fantasy.</p> <p>A movement that started with a&nbsp;call to restore the dignity of work and emphasized the importance of American institutions has already been reduced to peddling the kind of “patronizing” handouts and constitutional vandalism they once attacked the left for. Is this really the best the national conservatives have to offer?</p> </div> Ryan Bourne occupies the R. Evan Scharf Chair for the Public Understanding of Economics at the Cato Institute. Oliver Wiseman is U.S. editor of The Critic. Mon, 04 Jan 2021 09:25:07 -0500 Ryan Bourne https://www.cato.org/publications/commentary/why-are-conservative-populists-pushing-2000-checks-pro-worker South Korea Should Stop Acting as North Korea’s Doormat https://www.cato.org/publications/commentary/south-korea-should-stop-acting-north-koreas-doormat <p><a href="https://www.cato.org/people/doug-bandow" hreflang="und">Doug Bandow</a></p> <div class="lead mb-3 spacer--nomargin--last-child text-default"> <p>Dealing with&nbsp;<a href="https://www.19fortyfive.com/2020/11/north-korea-kim-jong-un-given-coronavirus-vaccine/" target="_blank">North Korea</a>&nbsp;is always painful. South Korea’s President Moon Jae‐​in found that to be the case when the North rejected his advances after the collapse of the Hanoi summit between the North’s Supreme Leader&nbsp;<a href="https://www.nknews.org/2021/01/kim-jong-uns-nixed-new-years-speech-shows-just-how-stressed-he-really-is/" target="_blank">Kim Jong‐​un</a>&nbsp;and President Donald Trump. Moon’s humiliation was made complete in June when Pyongyang destroyed the liaison office built by Moon’s government just a&nbsp;couple of years before.</p> </div> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>That act was accompanied by a&nbsp;diatribe from Kim’s sister, Kim Yo‐​jong, against groups, which used balloons to send leaflets into the Democratic People’s Republic of Korea. Acting in seeming obedience to her orders, last month the South’s government‐​controlled National Assembly voted to outlaw the practice. Observers were left to wonder: what would Pyongyang next demand? And would Moon satisfy that dictate as well?</p> <p>Last month South Korean foreign minister Kang Kyung‐​wha commented on the North’s policy toward&nbsp;<a href="https://www.wsj.com/articles/north-korea-requests-covid-19-vaccines-from-global-group-11609756202" target="_blank">the coronavirus</a>, also known as the&nbsp;<a href="https://www.19fortyfive.com/2020/12/nsa-robert-c-obrien-sounds-off-on-coronavirus-north-korea-and-china/" target="_blank">coronavirus</a>, suggesting that the DPRK should join “a regional mechanism aiming to safeguard the health and safety of our people” while noting that “North Korea has not been very responsive to our offer of help on the COVID-19 front.”</p> </div> , <aside class="aside--right aside--large aside pb-lg-0 pt-lg-2"> <div class="pullquote pullquote--default"> <div class="pullquote__content h2"> <p>The North is the Korea that should be changing its attitude and moderating its position. </p> </div> </div> </aside> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>Seemingly uncontroversial, even tame sentiments. However, not to Kim, who reemerged publicly for the first time since July and again played attack dog, terming the remarks “impudent” and “reckless” and intended “to further chill the frozen relations between the north and south of Korea.” “We will never forget her words and she might have to pay dearly for it,” he said.</p> <p>Kim’s verbal roundhouse worked last time. Why not try again, appeared to be her view? Presumably, Pyongyang wants the Republic of Korea to make some profitable concessions to warm those relations, perhaps even toss in a&nbsp;public apology of sorts.</p> <p>Going forward, the ROK should stop cowering and recognize that it is acting from a&nbsp;position of strength. The North is the Korea that should be changing its attitude and moderating its position.</p> <p>Most important is the DPRK’s notable economic weakness. The regime compounded lackluster economic reform and tough international sanctions with self‐​isolation in response to the coronavirus pandemic. The results thwarted the fulfillment of Kim Jong-un’s promise of economic growth to his people. He even failed to deliver a&nbsp;New Year’s talk to the nation—breaking a&nbsp;tradition running back through his father to his grandfather. Presumably, this happened because he had nothing new and positive to say. Russia’s Andrei Lankov, of NKNews and Kookmin University, contended that “The North Korean leader is stressed, bitter and almost certainly sick, too.”</p> <p>The North’s economic failure leaves the DPRK even more dependent on the People’s Republic of China (PRC) than before. Which is not to Pyongyang’s liking.</p> <p>Relations between the two nominal allies after Kim’s ascension were poor at best. Xi Jinping refused to meet until early 2018, more than six years after Kim took over. During that period Xi met with South Korea’s Park Geun‐​hye several times. North Korean officials did little to hide their irritation with, even antagonism toward, Beijing, which approved a&nbsp;series of United Nations sanctions.</p> <p>The PRC shifted course once Kim and Trump agreed to hold a&nbsp;summit. Likely Xi feared being sidelined by a&nbsp;U.S.-North Korea agreement. Kim and Xi then met five times and China markedly eased sanctions enforcement. Today Beijing almost certainly is providing food and energy aid.</p> <p>However, this is an embarrassing position for the DPRK, which ostentatiously emphasizes Juche, or self‐​reliance. When I&nbsp;visited the North in 2017, officials highlighted their desire not to be dependent “on any nation,” and it was apparent that they had their northern neighbor in mind even though they wouldn’t specifically name Beijing. However, the regime’s ability to feed its people, especially after repeat typhoon hits, now depends on the PRC’s generosity.</p> <p>Kim also is losing his American negotiating partner, Trump, and the best hope of easing sanctions. No one is sure what to expect from President‐​elect Joe Biden, but he is unlikely to be an easy mark for Kim. Biden said he would be willing to meet, but only with preconditions, which could be a&nbsp;dealbreaker for the North.</p> <p>Moreover, incoming Secretary of State Antony Blinken helped set President Barack Obama’s policy of “strategic patience,” which sought to wait out the North while strengthening alliance ties with the South. Avril Haines, slated to be Biden’s Director of U.S. Intelligence, also played a&nbsp;role under Obama. The two “<a href="https://www.commondreams.org/views/2020/12/06/old-obama-hands-korea-policy-could-pose-new-problems-peace" target="_blank">developed their policies</a>&nbsp;in close consultation with the conservative South Korean governments of Lee Myung‐​bak and Park Geun‐​hye.” The resulting approach was tougher and more confrontational.</p> <p>The Biden team may realize that this strategy is even less appropriate today, given the North’s continuing&nbsp;<a href="https://nationalinterest.org/blog/reboot/kim-jong-un-dying-get-his-hands-these-weapons-175574" target="_blank">missile and nuclear developments</a>. Nevertheless, the incoming administration likely will follow its predecessor in insisting on serious disarmament concessions before granting the North the sort of serious sanctions relief that Kim craves.</p> <p>Moreover, he appears to recognize that he can bully South Korea only so far. The 2010 sinking of the Cheonan and bombardment of Yeonpyeong Island pushed Seoul&nbsp;<a href="https://nationalinterest.org/blog/reboot/would-north-koreas-air-force-commit-suicide-attacking-rok-175606" target="_blank">to the breaking point</a>, with threats of retaliation that the DPRK apparently took seriously since it offered no further provocations. At that point, Kim was being groomed to take over by his father and reportedly was involved in the decisionmaking process.</p> <p>In September, North Korean border guards killed a&nbsp;South Korean maritime official under bizarre circumstances, using shoot‐​to‐​kill orders intended to control the coronavirus. The public reaction in the South was sharp and Kim surprisingly offered what amounted to an apology. Presumably, he worried about turning even the Moon government hostile. With his approval rating sagging badly, Moon has shrinking political room to placate persistently implacable Pyongyang.</p> <p>Instead, Seoul should press North Korea. There should be no more sovereignty sacrifices like honoring the North’s demand that the ROK restrict the ability of its citizens to contact people in North Korea. Getting more information into the DPRK should be the foundation of both America’s and South Korea’s policy toward the North.</p> <p>The next outburst by Kim Yo‐​jong or other important North Korean leaders should be brushed aside with the contempt that it deserves. However, the South would gain nothing by mimicking Trump in trading insults with the Pyongyang. Instead, Moon should respond that he remains eager to bring Koreans together but insists on due respect for his government. Then he should set forth Seoul’s willingness to provide humanitarian assistance and move forward on areas highlighted by Kim in the Singapore declaration, most notably improving bilateral relations and promoting regional peace.</p> <p>Moon should seek to engage the incoming Biden administration and indicate the urgency of increasing South Korea’s ability to suspend some sanctions in order to move selected bilateral projects forward. Although Kim’s behavior reflects much of the same calculated unreasonableness of his father and grandfather, the younger Kim has implemented more economic reform and engaged in much more international diplomacy than they did. The ROK should test his continuing commitment to both.</p> <p>Perhaps the best evidence that North Korea has become a&nbsp;normal country will be when diplomacy with Pyongyang looks and feels no different than that with the ROK. No ideological rants. No political breakdowns over trivial incidents. No threats of retaliation and even war.</p> <p>Of course, today the North is nowhere near acting “normally,” which puts a&nbsp;greater premium on the South insisting on responsible behavior by the DPRK. Insults will be ignored. Demands will be dismissed. Threats will be countered. And Seoul&nbsp;<a href="https://nationalinterest.org/blog/reboot/why-korean-war-never-legally-ended-175492" target="_blank">will move on</a>, waiting for the tantrum to pass.</p> <p>This approach might not improve North Korea’s behavior. But at least the ROK would no longer reward Pyongyang’s seeming endless misbehavior.</p> </div> Doug Bandow is a&nbsp;senior fellow at the Cato Institute. A&nbsp;former special assistant to President Ronald Reagan, he is the author of&nbsp;<a href="https://www.amazon.com/Foreign-Follies-Americas-Global-Empire/dp/1597819883" target="_blank"><em>Foreign Follies: America’s New Global Empire.</em></a> Mon, 04 Jan 2021 09:21:13 -0500 Doug Bandow https://www.cato.org/publications/commentary/south-korea-should-stop-acting-north-koreas-doormat Jehovah’s Witnesses Under Siege in Russia https://www.cato.org/publications/commentary/jehovahs-witnesses-under-siege-russia <p><a href="https://www.cato.org/people/doug-bandow" hreflang="und">Doug Bandow</a></p> <div class="lead mb-3 spacer--nomargin--last-child text-default"> <p>Religious persecution is on the rise internationally. No faith is exempt from both hostility and brutality. The worst persecutors are <a href="https://spectator.org/media-christian-persecution-nigeria/" target="_blank">Muslim‐​majority states</a>. The next largest category of governments that limit religious liberty are authoritarian, many formerly communist. Unfortunately, Russia, historic home of Orthodoxy, has become increasingly inhospitable to smaller, disfavored faiths.</p> </div> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>Some regimes that favor one religion or another accommodate traditional beliefs. For instance, Muslim regimes often accord minimal respect to “people of the book,” meaning Christians and Jews, though fierce hostility and discrimination, if not violent persecution, often still occur. Similar has been the approach of Russia, which favors the Orthodox Church but does not ban other leading faiths.</p> <p>At much greater risk, however, are smaller, non‐​traditional sects. Baha’is may be the most brutally mistreated religious people in Iran. Yazidis suffered especially under Islamic State rule. In Russia Jehovah’s Witnesses (JWs) have been targeted for no logical reason.</p> </div> , <aside class="aside--right aside--large aside pb-lg-0 pt-lg-2"> <div class="pullquote pullquote--default"> <div class="pullquote__content h2"> <p>Putin should put his professed doubt about the attack on Jehovah’s Witnesses into action and end a&nbsp;legal terror campaign that serves no legitimate purpose. </p> </div> </div> </aside> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>There are some 8.7 million JWs worldwide, with the largest concentrations in America, Mexico, and Brazil. Some of my distant relatives were JWs, and a “kingdom hall” was located just a&nbsp;few blocks away from my parents’ California home, which I&nbsp;passed when jogging. They are a&nbsp;Christian offshoot, non‐​trinitarian and thus not orthodox. They are mostly known for their opposition to military service and blood transfusions, and reliance on door‐​to‐​door proselytism.</p> <p>JWs are not politically active but tend to irritate governments by refusing to respect symbols of state authority, including flags. They are serious about their faith: thousands ended up in Nazi concentration camps. They also were plaintiffs in two U.S. Supreme Court cases challenging the Pledge of Allegiance (the first upheld the practice; a&nbsp;few years later the high court reversed the earlier decision and blocked the requirement).</p> <p>In Russia’s case the main issue appears to be the fact that JWs are guilty of “social hostility” in Moscow’s view. The faith is doctrinally odd and poorly understood, while believers form a&nbsp;distinct, even insular community. To some Russians, at least, JWs don’t fit in. Which appears to be the basis for the campaign against JWs and some other groups.</p> <p>Reported the U.S. Commission on International Religious Freedom: “During 2019, religious freedom conditions in Russia deteriorated. The government continued to target ‘nontraditional’ religious minorities with fines, detentions, and criminal charges under the pretext of combating extremism. Russian legislation criminalizes ‘extremism’ without adequately defining the term, enabling the state to prosecute a&nbsp;vast range of nonviolent religious activity.”</p> <p>JWs obviously pose no threat to the state. Indeed, a&nbsp;couple years ago Russian President Vladimir Putin was asked about the campaign against them. He treated the church dismissively, opining that “our society does not consist solely of religious sects. Ninety percent of citizens of the Russian Federation or so consider themselves Orthodox Christians…. It is also necessary to take into account the country and the society in which we live.” Yet he admitted the state should not “label representatives of religious communities as member of destructive, much less terrorist organizations” and he did not “quite understand why they are persecuted.” Although he allowed “this should be looked into, this must be done,” nothing has changed.</p> <p>Even if originating more from a&nbsp;bureaucratic than presidential imperative, the attack on JWs has been sustained and severe. Observed USCIRF:</p> </div> , <blockquote class="blockquote"> <div> <p>The Jehovah’s Witnesses, whom the government banned outright as ‘extremist’ in 2017, faced intensified persecution in 2019. By the end of the year, hundreds of members remained in detention, had travel restrictions imposed upon them, or were under investigation.</p> </div> </blockquote> <cite> </cite> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>The U.S. State Department’s findings were similar:</p> </div> , <blockquote class="blockquote"> <div> <p>Throughout the year, authorities continued to enforce the Supreme Court’s 2017 ruling that banned and criminalized the activity of Jehovah’s Witnesses as “extremist” by raiding homes, seizing personal property, detaining hundreds of suspected members, and sentencing individuals to prison. There were reports that authorities physically abused Jehovah’s Witnesses and members of other religious minority groups in detention.</p> </div> </blockquote> <cite> </cite> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>State cited an especially egregious case in which seven JWs were detained, stripped, and tortured.</p> <p>Human Rights Watch also noted “escalating” persecution in 2019: “At least 313 people are facing&nbsp;charges, are on trial, or have been convicted of criminal ‘extremism’ for engaging in Jehovah’s Witnesses’ activities, or are suspects in such cases. About two‐​thirds of them found out about their status as suspect or accused in 2019.” Prison terms were imposed “for such activities as leading or participating in prayer meetings.”</p> <p>Unfortunately, this mistreatment continued throughout 2020. As of November, Russian police had raided 1219 private homes, charged 409 JWs, restricted 196 from traveling, imprisoned 45 pre‐ or post‐​trial, and placed 32 under house arrest. Church property was confiscated and between 5,000 and 10,000 JWs are thought to have left the country. Even these awful numbers do not adequately convey the brutality of Russian enforcement practices.</p> <p>The JW organization released a&nbsp;report in November detailing the latest abuses:</p> </div> , <blockquote class="blockquote"> <div> <p>Russian authorities have been amplifying their attack on the Witnesses in a&nbsp;campaign of terror rivaling the Soviet era. Even in the midst of a&nbsp;worldwide pandemic, authorities continue to persecute and terrorize the Witnesses for merely practicing their peaceful worship.</p> </div> </blockquote> <cite> </cite> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>Explained the report:</p> </div> , <blockquote class="blockquote"> <div> <p>Heavily‐​armed police and special forces raid homes of the Witnesses, forcibly entering as if they were dealing with hardened criminals. The authorities often point guns at the heads of the residents — including children, the elderly, and the disabled — and treat them roughly, causing emotional and physical harm. Police confiscate belongings, including Bibles, electronic devices, money, and personal items that have nothing to do with religion.</p> </div> </blockquote> <cite> </cite> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>Those arrested are sometimes placed in pretrial detention. Cases can take months or years to complete. While in custody JWs face physical and mental abuse. The report noted that in February “prison guards beat and tortured five Witnesses in Orenburg. As a&nbsp;result of the abuse, one Witness suffered a&nbsp;broken rib, a&nbsp;punctured lung and damage to his kidneys.” All for simply holding a&nbsp;different belief in the nature of God.</p> <p>Among those convicted because of their faith: Dennis Christensen, a&nbsp;Danish citizen, in May 2017 sentenced to six years; Sergey Klimov in November 2019 sentenced to six years; Konstantin Bazhenov, Aleksey Budenchuk, Feliks Makhammadiyev, Roman Gridasov, Gennadiy German, and Aleksey Miretskiy, in September 2019 sentenced to terms ranging from two to three‐​and‐​a‐​half years; and Gennady Shpakovskiy, in March 2019 sentenced to six‐​and‐​a‐​half years (suspended in August by an appellate court).</p> <p>The needless cruelty entailed by their treatment was highlighted by USCIRF in describing Christensen’s situation:</p> </div> , <blockquote class="blockquote"> <div> <p>Christensen was granted parole on June 23, but the decision was quickly challenged by a&nbsp;state prosecutor. Rather than being released, Christensen was instead placed in a&nbsp;poorly ventilated punishment cell for allegedly violating prison rules. He has been eligible for early release for a&nbsp;year, due to time served in pre‐​trial detention, and his health has noticeably deteriorated in custody.</p> </div> </blockquote> <cite> </cite> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>And the campaign continues. In November, CBS News reported: “Russian authorities have carried out dozens of raids and detained several people as they pursue a&nbsp;new criminal case accusing the country’s Jehovah’s Witnesses of extremism, the national Investigative Committee said.” Indeed, added authorities, “searches were underway in more than 20 different Russian regions in connection with the case. A&nbsp;video of one of the raids, posted online by the Investigative Committee … shows men in black balaclavas breaking through an apartment door and later bundles of Russian and Western banknotes are seen lying on a&nbsp;briefcase inside.” JWs were said to hold “secret gatherings,” study “religious literature,” and engage in “recruiting new members.” Just like members of other faiths.</p> <p>On November 30 Sergey Polyakov was convicted and sentenced to three years in prison. His wife received a&nbsp;suspended sentence. They spent 154&nbsp;days in solitary confinement and then 91&nbsp;days under house arrest. Two other women involved were convicted and given shorter suspended sentences.</p> <p>All this for peaceful believers who mostly ignore rather than challenge the state.</p> <p>More than 30 other countries ban JWs, mostly Islamic nations that mistreat anyone other than Muslims — or, more accurately, the right variant of Muslims. Also targeting JWs are the worst non‐​Muslim persecutors, most notably North Korea, Eritrea, and China.</p> <p>Although an authoritarian state, Russia does not belong in this company. A&nbsp;nation that ostentatiously showcases Orthodoxy should not treat religion as an enemy. Putin should put his professed doubt about the attack on JWs into action and end a&nbsp;legal terror campaign that serves no legitimate purpose.</p> <p>Religious hostility and intolerance blight the globe. Putin could win political credit by doing what is right, separating his nation from the likes of Saudi Arabia, Iran, North Korea, and China when it comes to religious liberty. That would finally do justice to thousands of Jehovah’s Witnesses who merely want to be left alone to worship God.</p> </div> Doug Bandow is a&nbsp;Senior Fellow at the Cato Institute. A&nbsp;former Special Assistant to President Ronald Reagan, he is a&nbsp;graduate of Stanford Law School and a&nbsp;member of the California and D.C. bars. He is the author of <a href="https://www.amazon.com/gp/product/0887383092/ref=as_li_tl?ie=UTF8&amp;tag=amspectator-20&amp;camp=1789&amp;creative=9325&amp;linkCode=as2&amp;creativeASIN=0887383092&amp;linkId=087d587830ef1193ca79d1315a7a7c17" target="_blank">The Politics of Plunder: Misgovernment in Washington</a>. Sat, 02 Jan 2021 09:37:43 -0500 Doug Bandow https://www.cato.org/publications/commentary/jehovahs-witnesses-under-siege-russia Here Come the Leftie Judges https://www.cato.org/publications/commentary/here-come-leftie-judges <p><a href="https://www.cato.org/people/doug-bandow" hreflang="und">Doug Bandow</a></p> <div class="lead mb-3 spacer--nomargin--last-child text-default"> <p>Joe Biden hasn’t even taken the oath of office yet, and the Left is preparing to emulate President Donald Trump by appointing true believers as judges. For them that means those committed to the principle that the proper standard for interpreting the Constitution is what those of the socialist‐​lite faith fantasize that it should say. The judicial wars are likely to grow even more intense.</p> </div> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>The American Constitutional Society (ACS), headed by former U.S. Sen. Russ Feingold, has turned over a&nbsp;list of more than 100 names of progressive legal thinkers to the Biden transition, so the latter is ready to start filling the courts on day one of the Biden ascendency. Nan Aron of the Alliance for Justice&nbsp;<a href="https://postintrend.com/breaking/progressive-groups-urge-biden-to-move-quickly-on-diverse-slate-of-judges/" target="_blank">explained</a>, “The process started earlier so we would be ready.” Too bad the ACS didn’t make its list available during the campaign, as did the Federalist Society, which provided then‐​candidate Trump a&nbsp;roll of possible Supreme Court nominees in the 2016 campaign.</p> <p>It would be interesting to see which judicial liberals made the cut, and then ask them what their favorite new constitutional rights would be. What do they see as just waiting to be discovered by the most innovative, imaginative, creative, and courageous jurists?</p> </div> , <aside class="aside--right aside--large aside pb-lg-0 pt-lg-2"> <div class="pullquote pullquote--default"> <div class="pullquote__content h2"> <p>The opportunities resulting from progressive jurisprudence, untethered by text, intent, or history, are truly endless! </p> </div> </div> </aside> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>Perhaps to have no minimum voting age. Or to apply the right to an abortion retroactively to children already born. Possibly to receive two votes if assessed to be a “two‐​thirds world” person. Or to receive a “living” wage from employers. Maybe to collect reparations for life if possessing Elizabeth Warren’s degree of Native American blood. Or to be authorized to steal as much of your neighbor’s property as necessary to equalize your wealth — and to repeat the process every year. There are so many possibilities. The opportunities resulting from progressive jurisprudence, untethered by text, intent, history, or anything else other than a&nbsp;passion for social engineering, are truly endless!</p> <p>The process of filling the courts is likely to be bloody. Justice Stephen Breyer already is being asked by eager progressives if he might retire. Activists also have identified about 100 lower‐​court liberal jurists eligible to retire, that is, to take senior status. These judges also are likely to be encouraged to “do the right thing” for the progressive team and create a&nbsp;vacancy Biden to fill, lest a&nbsp;Republican win in 2024.</p> <p>Aron opined that “The Democrats will need to fight for the judges they want.” If the GOP maintains Senate control one can expect some tough horse‐​trading. The&nbsp;<em>New York Times</em> <a href="https://www.nytimes.com/2020/12/11/us/progressive-groups-biden-judges.html" target="_blank">observed</a>,&nbsp;“Both sides believe that any movement will be mainly transactional, with the two parties negotiating packages that lead to confirmations sought by each side.”</p> <p>But the two Senate&nbsp;<a href="https://spectator.org/a-rampaging-biden-presidency-not-with-a-gop-senate/" target="_blank">runoffs</a>&nbsp;on January 5&nbsp;create the possibility of a&nbsp;wild left‐​wing takeover of the federal government, complete with real court‐​packing, ending the filibuster, adding new states (no reason to stop at D.C. when the states of Detroit, Newark, and Boston also are waiting to be born!), and implementation of the rest of the Left’s agenda. But West Virginia Sen. Joe Manchin, coming from a&nbsp;bright red state, might block such a&nbsp;process. He opposed the nomination of Amy Coney Barrett, but only on procedural grounds — “this nomination should have waited until after the election,” he explained — and said he would not vote to eliminate the filibuster.</p> <p>The ultimate judicial problem is left‐​wing jurisprudence, which basically means making everything up as one goes along. As a&nbsp;result, the Constitution and laws as written are irrelevant, since this legal vision can — and frankly should — be implemented ex nihilo. That is, it would be more honest to forget formal lawsuits and just let judges meet and decide what new rules they want to implement that day. What injustice must be remedied? What practices should be proscribed? What conduct should be mandated? After all, their job is to turn mountaintop musings into practical dictates for the average folk living below the clouds in what is commonly known as the real world. There’s no reason to require something called a&nbsp;constitution or law to make such decisions.</p> <p>Of course, there would be an obvious PR problem in admitting to the public that what legislatures do is just Kabuki theater, helping tee up lawsuits where the real policymakers, the judges, do their work. People without sufficiently well‐​developed progressive consciousness might object to being governed by robed politicos serving for life without the slightest accountability (except for those local and state judges who are elected). Sometimes the Great Unwashed make the crusade for social justice unnecessarily difficult, but such is the cross that must be borne by principled progressives today.</p> <p>Thus, progressive judges must pretend to interpret what is written. They must write opinions that make at least an occasional reference to some text, even if only to cite its penumbras, emanations, whispers, and vapors. There obviously is no need to admit that they would make same ruling even if no such text existed. After all, why risk a&nbsp;serious popular backlash if the public realized that traditional law‐​making really is irrelevant, since judges don’t feel bound by constitutions or laws as written? That also would risk a&nbsp;popular demand to treat judges like other politicians, spoiling the good life as lifetime appointees with a&nbsp;job that involves excessive respect and minimal heavy lifting.</p> <p>While there are divisions among judicial “conservatives,” most notably between emphasizing text or original public meaning of the text (I believe the latter should prevail where there is a&nbsp;conflict, as in&nbsp;<em>Bostock v. Clayton County</em>, which involved the application of the Civil Rights Act to sexual orientation, earlier this year). But all believe that the job of lawmaking is interpreting, not creating. If you want to make law, run for the legislature. If you want to be a&nbsp;judge, then limit yourself to doing your best to implement laws passed by other people.</p> <p>If the GOP retains Senate control, though, or if centrists like Manchin moderate the impact of Democratic control, it would be worth exploring the possibility of making bipartisan reforms that might bring a&nbsp;measure of judicial peace to Washington. It won’t be easy. In the 1960s and 1970s liberal Democrats gloried in an activist Supreme Court that overrode democratic decisions. For example,&nbsp;<em>Roe v. Wade</em>&nbsp;discovered a&nbsp;never‐​before‐​recognized right to abortion and voided the laws of every state. Progressives were ecstatic: Glory, hallelujah, a&nbsp;new judicial age had arrived!</p> <p>These days they proclaim themselves to be shocked and saddened when rightish judges block democratic decisions, which they claim results in appalling injustice. No doubt if they regained a&nbsp;Supreme Court majority they would do another political pirouette and pronounce themselves pleased to find jurists overriding legislatures and the people at every possible opportunity, just as the judiciary was, they would insist, always meant to do.</p> <p>Still, it might be possible to set some limits, political guardrails of sorts, to the process. Consider a&nbsp;constitutional amendment to create a&nbsp;new judicial framework:</p> <ul> <li>Reduce requirements to amend the Constitution. For instance, allow a&nbsp;60 percent vote of Congress to propose an amendment and two‐​thirds of the states to ratify it. Also allow 26 state legislators to call for a&nbsp;convention to amend the Constitution while limiting any proposed amendment to a&nbsp;single specified subject. Two‐​thirds of the states would have to ratify the result.</li> <li>Set a&nbsp;fixed number of justices for the Supreme Court. The current membership of nine would be easiest. In fact an increase would be desirable, but would have to be phased in to win support from both parties, since neither would want the other side to select a&nbsp;large number of justices at once.</li> <li>Move from life tenure to fixed terms for Supreme Court justices. The same could be done for federal appellate and trial judges — in many states judges at all levels serve set terms and even run for election. But the high court is the focus of Washington’s judicial wars. The most common suggested term is 18&nbsp;years, which would allow two appointments per presidential term. Even better would be 12‐​year terms, with reappointment possible but subject to another confirmation vote. Unless current justices were forced to retire, the system would have to be phased in over many years.</li> <li>Make the chief justiceship a&nbsp;separate office for a&nbsp;set term and rotate the position among the nine justices. Selection could be by lot or seniority, with the choice made from those who had not yet held the office, before considering a&nbsp;repeat candidate.</li> </ul> <p>The U.S. Constitution is difficult to amend, as it should be. The nation’s fundamental law shouldn’t be trifled with. Many states and foreign countries seem to change their constitution every other day. The supreme law of the land ends up scores of pages long and covers just about everything. States also have this problem. Alabama’s constitution has been amended nearly 1000 times and runs more than 300,000 words, about 44 times as long as the U.S. Constitution.</p> <p>Still, making the document almost impossible to change leads to a&nbsp;different ill, frustrating people over the difficulty of adopting even popular changes. Then people begin looking for informal hacks and quick fixes. Judicial law‐​making has become the answer. Ask judges to reinterpret the document and voila! The problem is solved. Of course, once jurists start acting like lawmakers, ever more people bring forth their petitions for their preferred constitutional changes. And the nation’s fundamental law breaks down. Now the Constitution is barely secondary, if that, to lawmaking. Collect five Supreme Court votes and the legal system is yours.</p> <p>Making it easier to amend the Constitution would help push amendment of the nation’s fundamental law back to the political process where it belongs. That alone won’t be enough. But attempting to reverse judicial lawmaking without easing requirements for formal amendment has little chance of success.</p> <p>The purpose of setting court membership would be to prevent genuine court‐​packing, that is, increases for the sole purpose of shifting philosophical control of the panel. There would be no quicker way to politicize the high court and ruin its reputation. And to ensure retaliation by the other side when it exercised full political control. This provision would more firmly root the Supreme Court in the Constitution to ensure that that its membership could not be changed for partisan gain.</p> <p>Increasing the size would allow a&nbsp;broader membership — including legal backgrounds and training. Moreover, the Court would be more likely to “look like America.” While that serves little direct legal purpose, it would strengthen public support and enhance the institution’s credibility, especially when ruling on difficult and political explosive issues.</p> <p>Setting terms would have multiple advantages, which would increase as the term shortened. One benefit would be to reduce the value of each appointment, at least moderating the tendency to make high court appointments into a&nbsp;mini‐​political Armageddon since the impact of any nomination would be a&nbsp;predictable number of years, rather than a&nbsp;lifetime, which with appointees in their 40s could mean three or even four decades on the bench.</p> <p>Moreover, terms would prevent some presidents from ending up with extraordinary influence over the court’s direction and others with none — compare the legacies of three recent one‐​term presidents, Jimmy Carter (zero Supreme Court appointments), George H. W. Bush (two), and Donald Trump (three). This approach also would slow changes in court direction, making them more evolutionary.</p> <p>Regular appointments would ensure a&nbsp;steady infusion of new blood and different perspectives on the body. Serving on the federal appellate bench obviously is good training, but it might be useful to add members from district courts, which try cases; state supreme courts, which reflect state concerns; the criminal defense bar, which well understands the importance of constitutional protections; civil practice, which is concerned about the enormous economic impact of government rules; and academia, which offers broader historical and philosophical training.</p> <p>Further, judicial terms would moderate some of the ugly quirks of life tenure. One would be to reduce the temptation of justices to hang on despite ill health and time their retirements for political advantage. So, too, this reform would end macabre health watches, such as for Justice Ruth Bader Ginsburg over the last year. Under the new system, if a&nbsp;justice died his or her replacement would only complete the unfulfilled term. Premature death would be less likely for younger justices, and the advantage gained from such unplanned appointments would be relatively small.</p> <p>Finally, making judicial appointments regular and routine would help set less partisan norms likely to prevail in any but the most exceptional circumstances. After all, “what goes around comes around” would be a&nbsp;powerful discipline, knowing that your president will have two appointments just like their president, and that tactics you employ may be used against you in just a&nbsp;couple years if the White House changes hands.</p> <p>With shorter judicial tenures, older and wiser nominees could be selected without fear of prematurely “losing” the position to the other side. A&nbsp;Supreme Court appointment could be the capstone of a&nbsp;great career, rather than the beginning of an unknown future. The tendency to look for younger nominees also afflicts circuit and district courts. Presidents should be considering legal qualifications rather than birthdates in filling positions.</p> <p>This set of changes would not be a&nbsp;panacea. Partisanship already has deeply pervaded the appointment process and would not disappear easily or swiftly. Even shorter‐​term appointments would be worth some political fight. More frequent membership changes would create a&nbsp;less stable court, which could result in more frequent legal changes. Such a&nbsp;body might lose some gravitas and credibility with the public.</p> <p>Nevertheless, no one benefits from today’s judicial wars. The ultimate solution would be to reduce the role of judges by returning them to the more limited role of interpreting rather than making the law. If courts are going to act like continuing constitutional conventions where five people can sidestep the Constitution’s complicated amendment process and change the nation’s fundamental law, they inevitably will be the fulcrum of bitter political disputes.</p> <p>But changing the process might ease the bitter feuds of recent years. And the time to try is at the start of a&nbsp;new presidency with a&nbsp;closely divided Congress and before another Supreme Court vacancy. Perhaps that would begin a&nbsp;move of the judiciary to better reflect Alexander Hamilton’s description of it as the “least dangerous” branch of government.</p> </div> Doug Bandow is a&nbsp;Senior Fellow at the Cato Institute. A&nbsp;former Special Assistant to President Ronald Reagan, he is a&nbsp;graduate of Stanford Law School and a&nbsp;member of the California and D.C. bars. He is the author of <a href="https://www.amazon.com/gp/product/0887383092/ref=as_li_tl?ie=UTF8&amp;tag=amspectator-20&amp;camp=1789&amp;creative=9325&amp;linkCode=as2&amp;creativeASIN=0887383092&amp;linkId=087d587830ef1193ca79d1315a7a7c17" target="_blank">The Politics of Plunder: Misgovernment in Washington</a>. Fri, 01 Jan 2021 09:30:17 -0500 Doug Bandow https://www.cato.org/publications/commentary/here-come-leftie-judges Biden Needs To Repudiate Obama’s Policy Legacy: The Case of Libya https://www.cato.org/publications/commentary/biden-needs-repudiate-obamas-policy-legacy-case-libya <p><a href="https://www.cato.org/people/ted-galen-carpenter" hreflang="und">Ted Galen Carpenter</a></p> <div class="lead mb-3 spacer--nomargin--last-child text-default"> <p>If Joe Biden wants to produce a&nbsp;constructive record in foreign policy, he needs to repudiate much of the Obama‐​Biden administration’s foreign policy legacy. In particular, he must demonstrate that the United States is out of the forcible regime‐​change business. Washington’s so‐​called humanitarian military interventions and regime‐​change wars have done little except create havoc. From Bosnia and Kosovo to Iraq, Syria, and Yemen, Washington’s ministrations have caused enormous human suffering.</p> </div> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>Libya is a&nbsp;prominent example. The country’s longtime dictator, Muammar Qaddafi, was hardly a&nbsp;model of good governance; corruption and repression were indelible characteristics of his rule. Nevertheless, Qaddafi was able to maintain a&nbsp;modicum of stability and order, and Libya was a&nbsp;modernizing society with increased signs of prosperity. However, like many of the colonies that the European powers had slapped together, Libya was a&nbsp;fragile entity with some major societal and political divisions. Rival tribes in the western and eastern portions of the country feuded frequently, and rebellions against Qaddafi’s western‐​based regime had flared on several occasions.</p> <p>When another of those periodic rebellions erupted in early 2011, Barack Obama’s administration (along with several European members of NATO) decided to aid the eastern rebels in their insurgency. Although masked as a&nbsp;purely humanitarian effort to protect civilians, the resulting military intervention quickly became a&nbsp;flagrant regime‐​change war, and it succeeded in the short‐​term, as the insurgents overthrew and killed Qaddafi. U.S. officials took great satisfaction in NATO’s achievement, with Secretary of State Hillary Clinton making the <a href="https://www.cbsnews.com/news/clinton-on-qaddafi-we-came-we-saw-he-died/">flippant observation</a>: “We came, we saw, he died.”</p> </div> , <aside class="aside--right aside--large aside pb-lg-0 pt-lg-2"> <div class="pullquote pullquote--default"> <div class="pullquote__content h2"> <p>In short, the Obama administration created a&nbsp;colossal political mess and humanitarian tragedy in Libya.</p> </div> </div> </aside> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>Obama was more dignified in his comments, but his assessment of the regime‐​change campaign was equally positive, and he exuded optimism about Libya’s future. On the eve of the rebel triumph, the president <a href="https://edition.cnn.com/2011/POLITICS/08/22/obama.libya.statement/index.html?hpt=hp_t1">stated</a> that “Tripoli is slipping from the grasp of a&nbsp;tyrant. The people of Libya are showing that the universal pursuit of dignity and freedom is far stronger than the iron fist of a&nbsp;dictator.” Following Qaddafi’s death, Obama <a href="https://www.c-span.org/video/?302203-4/presidential-remarks-death-moammar-qadhafi">asserted</a> that “the dark shadow of tyranny has been lifted” from Libya.”</p> <p>The actual aftermath was <a href="https://www.cato.org/sites/cato.org/files/articles/carpenter-medquarterly-v29n4.pdf">horrifyingly different</a>. Libya descended into bloody chaos, as numerous militias – some with decidedly Islamist orientations – vied for power. The Obama administration itself received a&nbsp;rude awakening in September 2012 when one of those militias attacked the US consulate in Benghazi, <a href="https://www.npr.org/sections/thetwo-way/2012/09/12/160992840/u-s-ambassador-to-libya-three-other-americans-killed-in-benghazi-attack">killing</a> Ambassador Christopher Stevens and three other Americans. Hundreds of thousands of Libyans became refugees, with many of them desperately trying to reach sanctuary in Europe by braving the waters of the Mediterranean in overcrowded, leaky boats and <a href="https://news.un.org/en/story/2020/11/1077552">perishing</a> in the attempt. Instead of a&nbsp;stable, albeit repressive, country, Libya had become Somalia on the Mediterranean. The breakdown of social order is now so extensive, that <a href="https://www.theguardian.com/world/2017/apr/10/libya-public-slave-auctions-un-migration">slave markets</a> featuring captured black African migrants have made a&nbsp;reappearance.</p> </div> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>Over the years, the fighting has coalesced into a&nbsp;struggle for power between two rival regimes, the Government of National Accord (GNA), recognized by the United Nations and most countries, including the United States, and the Libyan National Army (LNA), headed by one‐​time CIA asset, “Field Marshal” Khalifa Haftar. Libya also is increasingly the geopolitical plaything of outside powers, with Egypt, Russia, and other countries backing Haftar, while Turkey provides ever‐​escalating support for the GNA.</p> <p>In short, the Obama administration created a&nbsp;colossal political mess and humanitarian tragedy in Libya. In fairness, Joe Biden opposed launching the military intervention. In their memoirs, Obama’s secretary of defense, Robert M. Gates, and his deputy national security adviser, Ben Rhodes, both confirm that point. Rhodes <a href="https://www.amazon.com/World-Memoir-Obama-White-House/dp/0525509372">recalls</a> that at a&nbsp;key meeting of the president and his foreign policy team, “Biden said that intervention was, essentially, madness – why should we get involved in another war in a&nbsp;Muslim‐​majority country?” The new president should firmly re‐​commit to practicing such wise caution when he takes office.</p> <p>The Trump administration generally has kept US Libya policy on autopilot. Fortunately, the president at least has not taken the bait from the latest contingent of well‐​meaning meddlers and deepened US involvement. Typical of such advice that Trump received (and which Biden will certainly receive) were <a href="https://www.washingtonpost.com/opinions/global-opinions/the-united-states-is-missing-in-action-in-libya/2019/10/03/c6b3715e-e61b-11e9-b403-f738899982d2_story.html">the comments</a> of <em>Washington Post</em> columnist Josh Rogin. “Whatever you think of President Barack Obama’s decision to militarily intervene in Libya in 2011, the fact is that the United States has a&nbsp;responsibility in making sure that country has the best possible chance of achieving stability and democracy, and remains our partner in fighting terrorism. But the Trump administration is missing in action.”</p> <p>It is imperative that Biden spurn such views. The last thing America needs is to re‐​engage in the Libya quagmire. US officials already have inflicted far too much suffering on that poor country. The best that Washington can do now is not make matters even worse, and urge other countries, especially NATO ally Turkey, to exercise similar restraint. Finally, it is important that Biden explicitly acknowledge the extent of the harm that the Obama‐​Biden administration inflicted, and make it clear that there will be no repetition of such folly in Libya or anywhere else.</p> </div> <p><em>Ted Galen Carpenter, a&nbsp;senior fellow in security studies at the Cato Institute, is the author of 12 books and more than 850 articles on international affairs.</em></p> Thu, 31 Dec 2020 11:36:04 -0500 Ted Galen Carpenter https://www.cato.org/publications/commentary/biden-needs-repudiate-obamas-policy-legacy-case-libya Pushing Vapers Back to Cigarettes? a Dangerous New Provision in Federal Law https://www.cato.org/publications/commentary/pushing-vapers-back-cigarettes-dangerous-new-provision-federal-law <p><a href="https://www.cato.org/people/trevor-burrus" hreflang="und">Trevor Burrus</a></p> <div class="lead mb-3 spacer--nomargin--last-child text-default"> <p>On about page 5,000 of the 5,500-page federal COVID relief law is a&nbsp;hidden and largely undiscussed section that could push thousands of vapers back to traditional cigarette smoking. I&nbsp;know, because I’m one of them. The new restrictions on vaping equipment and supplies, in particular the ban on mailing them, will force me and thousands of others to look for substitutes to the products we prefer. In many instances, we will return to dangerous combustible cigarettes.</p> </div> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>Title VI of the COVID relief bill was first introduced to Congress in April as the Preventing Online Sales of E‐​Cigarettes to Children Act. The bill&nbsp;<a href="https://rules.house.gov/sites/democrats.rules.house.gov/files/BILLS-116HR133SA-RCP-116-68.pdf#page=5136" target="_blank">redefines</a>&nbsp;the term “cigarette” to include all types of vaping devices and accessories, even those that do not contain nicotine. Yes, under the new law, a&nbsp;CBD vaping device — a&nbsp;non‐​psychoactive chemical in marijuana — is now considered an “electronic nicotine delivery system” because it is “any electronic device that, through an aerosolized solution, delivers nicotine, flavor,&nbsp;<em>or any other substance to the user inhaling from the device</em>.” Moreover, even a&nbsp;bottle of CBD vaping liquid is now a “cigarette” because the definition includes “any component, liquid, part, or accessory” of a&nbsp;vaping system.</p> <p>The bill then requires the U.S. Postal Service to clarify, within 120&nbsp;days, that the general prohibition on shipping cigarettes now applies to all the newly deemed “cigarettes.”</p> </div> , <aside class="aside--right aside--large aside pb-lg-0 pt-lg-2"> <div class="pullquote pullquote--default"> <div class="pullquote__content h2"> <p>We continue to impose ineffective and harmful restrictions on vaping. </p> </div> </div> </aside> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>This heavy‐​handed approach to keeping e‐​cigarettes and other vaping devices out of the hands of children is certain to backfire against responsible adults who use e‐​cigarettes to mitigate the harm that nicotine addiction can cause.</p> <p>I am chemically addicted to nicotine, and I&nbsp;got that way through cigarettes. I&nbsp;wish I&nbsp;weren’t addicted, but there’s no button I&nbsp;can press to make it disappear. About seven years ago, I&nbsp;began vaping to supplement and replace some cigarettes. After about four years, I&nbsp;finally found a&nbsp;flavor and a&nbsp;vaporizer I&nbsp;enjoyed enough to mostly replace cigarettes.</p> <p>Then, one day, I&nbsp;realized I&nbsp;hadn’t smoked a&nbsp;cigarette in months. That wasn’t the plan; it just happened. I&nbsp;liked my vape, and I&nbsp;suddenly didn’t like cigarettes and all the bad things that came with them. But my preferred flavor and device comes from a&nbsp;mail order‐​only company, and under the new law, they will likely be unavailable in a&nbsp;few months.</p> <p>My story is not unique. Thousands if not millions of ex‐​smokers have a&nbsp;similar tale. The wide variety of vape flavors and vaping devices have allowed smokers to search for the one that tastes the best and works for them. If they find the right one, they can ditch smoking entirely. The new law will make many ex‐​smoker vapers have to find a&nbsp;new vaping system that will accommodate their needs.</p> <p>Many people argue that such consequences are the inevitable result of the estimable and crucial goal of keeping children and teenagers from vaping. That danger, however, is overblown. According to a&nbsp;<a href="https://www.nyu.edu/about/news-publications/news/2020/january/youth-vaping.html" target="_blank">recent study from NYU</a>, the vast majority of teenage vapers are also users of combustible tobacco products. As the authors write, “while there has been fear that e‐​cigarettes are introducing nicotine to many young people who otherwise would not have smoked, the data show otherwise — only a&nbsp;small proportion of tobacco‐​naïve youth report vaping.”</p> <p>While the rate of youth vaping increased from 2017–2018, most of that increase was from&nbsp;<a href="https://www.nyu.edu/about/news-publications/news/2020/january/youth-vaping.html" target="_blank">infrequent users</a>: “while 13.8% of students had vaped in the past 30&nbsp;days, more than half of them vaped five days or fewer.” Moreover, all this has occurred while teen smoking rates are at an&nbsp;<a href="https://truthinitiative.org/press/press-release/study-reveals-major-victory-teen-smoking-ticking-time-bomb-youth-vaping-numbers" target="_blank">all‐​time low</a>, a&nbsp;phenomenon that is almost assuredly connected to teens using vaping as a&nbsp;replacement for combustible cigarettes.</p> <p>But anti‐​vaping public health officials prefer to demonize e‐​cigarettes rather than treat them as a&nbsp;net gain for public health. Yes, it would be better for me to not vape at all, but I&nbsp;first decided to mitigate the harms caused by smoking combustible cigarettes.</p> <p>Rather than championing the benefits of vaping, anti‐​vapers have leaned hard on the precautionary principle (“we don’t know the long‐​term effects”) and downplayed the many studies that show vaping to be much safer than smoking. For example, in 2018, the British public health service&nbsp;<a href="https://www.gov.uk/government/publications/e-cigarettes-and-heated-tobacco-products-evidence-review/evidence-review-of-e-cigarettes-and-heated-tobacco-products-2018-executive-summary" target="_blank">wrote</a>: “Vaping poses only a&nbsp;small fraction of the risks of smoking, and switching completely from smoking to vaping conveys substantial health benefits over continued smoking.”</p> <p>Nevertheless, on this side of the pond, we continue to impose ineffective and harmful restrictions on vaping. We’ll see more smokers as a&nbsp;result. Public health, which is supposed to be something we all care about a&nbsp;great deal these days, will suffer.</p> </div> Trevor Burrus is a&nbsp;research fellow at the Cato Institute’s Robert A. Levy Center for Constitutional Studies Thu, 31 Dec 2020 09:06:26 -0500 Trevor Burrus https://www.cato.org/publications/commentary/pushing-vapers-back-cigarettes-dangerous-new-provision-federal-law As We Usher in 2021, It’s Time to Adopt a Permanent Calendar https://www.cato.org/publications/commentary/we-usher-2021-its-time-adopt-permanent-calendar <p><a href="https://www.cato.org/people/steve-hanke" hreflang="und">Steve H. Hanke</a> and <span class="text-semibold">Richard Conn Henry</span></p> <div class="lead mb-3 spacer--nomargin--last-child text-default"> <p>For more than 500&nbsp;years, the most popular and influential book after the Bible was <em>The Golden Legend</em> by Jacobus de Varagine. At the end of the 13th century, Varagine was grappling with how medieval Christians perceived time: He mapped the liturgical calendar and the stories of feast‐​day Saints associated with it.</p> </div> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>Flash forward to today. We now waste a&nbsp;great deal of time fumbling around with the flawed Gregorian calendar. For one thing, new calendars have to be printed every year. What a&nbsp;waste of both time and money.</p> <p>But this isn’t the only cost dished up by our Gregorian calendar: The scheduling of holidays, sporting events, and school curricula — to name but a&nbsp;few — must be redone each year. The Gregorian calendar also causes confusion when it comes to the age‐​old idea of “time is money.” For example, a&nbsp;wide variety of financial instruments — bonds, mortgages, swaps, forward rate agreements, etc. — accrue interest by the day. The current calendar contains complexities and anomalies that make calculating the value of these instruments needlessly burdensome.</p> <p>And there are other financial problems generated by the Gregorian calendar. For example, back in 2013, Apple was caught up in a&nbsp;quarterly reporting fiasco. Following its Q1 2013 earnings announcement, Apple suffered its worst one‐​day loss in four years as a&nbsp;result of the company’s failure to meet Wall Street’s expectations. This was largely due to a&nbsp;simple calendar‐​generated error — most analysts failed to account for the fact that Apple’s Q1 2013 was one week shorter than the same quarter the year before.</p> </div> , <aside class="aside--right aside--large aside pb-lg-0 pt-lg-2"> <div class="pullquote pullquote--default"> <div class="pullquote__content h2"> <p>Our calendar is cumbersome and outdated. We should adopt a&nbsp;consistent alternative.</p> </div> </div> </aside> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>The past 400&nbsp;years have only seen a&nbsp;handful of cohesive efforts to standardize the modern calendar or iron out its kinks. For example, the crusade for calendar modernization found one of its most prominent champions in 19th‐​century industrialist George Eastman, the founder of the Eastman Kodak Company. Driven by a&nbsp;desire to create a&nbsp;more business‐​friendly calendar, he developed the “Eastman plan.” It was one of the first cogent models of a&nbsp;fixed (or permanent) calendar designed to eliminate the practical and financial inefficiencies generated by the Gregorian calendar system.</p> <p>However innovative, the Eastman plan was in many respects crude, failing most crucially to account for and preserve the Sabbath. Like many past attempts at calendar reform, the Eastman plan was doomed by its failure to address religious and cultural concerns. Indeed, one of the major criticisms of past calendar reforms is that they interfered with religious days of rest, which play an integral role in the organization of the work week.</p> <p>To solve the problems generated by the Gregorian calendar and avoid the Sabbath pitfall that plagued George Eastman, we developed the <a href="http://hankehenryontime.com/" rel="noopener" target="_blank">Hanke‐​Henry Permanent Calendar (HHPC)</a>.</p> </div> , <figure class="figure overflow-hidden figure--default figure--no-caption responsive-embed-no-margin-wrapper"> <div class="figure__media"> <img width="700" height="390" alt="Hanke - National Review Online - 12/31/2020 - Calendar" class="lozad component-image" loading="lazy" data-srcset="/sites/cato.org/files/styles/pubs/public/2021-01/hanke-nro-12-31-2020.png?itok=hpWhSTvj 1x, /sites/cato.org/files/styles/pubs_2x/public/2021-01/hanke-nro-12-31-2020.png?itok=9OwfgieK 1.5x" data-src="/sites/cato.org/files/styles/pubs/public/2021-01/hanke-nro-12-31-2020.png?itok=hpWhSTvj" typeof="Image" /> </div> </figure> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>The HHPC offers a&nbsp;comprehensive template for revising the contemporary calendar. It adheres to the most basic tenet of a&nbsp;fixed calendar: Every date would fall on the same day of the week every year. New Year’s Day, for instance, would always be a&nbsp;Monday. The year would be divided into four three‐​month quarters, with first two months of each quarter lasting 30&nbsp;days and the third lasting 31&nbsp;days. Each quarter would contain 91&nbsp;days resulting in a&nbsp;364‐​day year comprised of 52 seven‐​day weeks. This is a&nbsp;vital feature of the HHPC: By preserving the seven‐​day Sabbath cycle — and by not inserting “extra days” that break up the weekly cycle — it would avoid the major complaints from ecclesiastical quarters that have doomed all other attempts at calendar reform.</p> <p>As for holidays, with the HHPC, they predictably fall on the same date and day of the week year‐​after‐​year. For example, seven existing federal holidays, such as Christmas Day and New Year’s Day, fall on Mondays. The HHPC would also pin down floating holidays, such as Memorial Day, which would eternally fall on Monday, May 27, and Labor Day, which would fall on Monday, September 4. The calendar places both Christmas Eve and New Year’s Eve on Sundays.</p> <p>There would be a&nbsp;disparity between the necessary length of our calendar (364&nbsp;days) and that of the astronomical calendar (365.24&nbsp;days), which the HHPC would account for by tacking an additional week on to every fifth or sixth year. So there would be an extra seven days added to the calendar in, for example, 2026, 2032, 2037, and so on. This additional week would serve the same purpose as the extra day we count in a&nbsp;leap year in the current system and keep the calendar in line with the seasons.</p> <p>Julius Caesar, the <em>dictator perpetuo</em>, introduced the Julian calendar on January 1, 45&nbsp;B.C. Today, the president of the United States could do much the same. Indeed, with the stroke of a&nbsp;pen, the president could sign an executive order writing a&nbsp;better calendar into law. With the federal government operating on a&nbsp;new calendar, state governments would follow suit immediately. Businesses and schools would follow shortly thereafter. Teachers would love it. Once they designed their syllabus and teaching schedules, it would be permanent. No more annual and aggravating committee meetings to decide school schedules.</p> </div> <p>Steve H. Hanke is a&nbsp;professor of applied economics at the Johns Hopkins University in Baltimore. He is a&nbsp;senior fellow and the director of the Troubled Currencies Project at the Cato Institute in Washington, D.C. Richard Conn Henry is an academy professor of physics and astronomy at the Johns Hopkins University and the director of the Maryland Space Grant Consortium.</p> Thu, 31 Dec 2020 03:00:00 -0500 Steve H. Hanke, Richard Conn Henry https://www.cato.org/publications/commentary/we-usher-2021-its-time-adopt-permanent-calendar Why a Racial Priority for COVID-19 Vaccine Distribution Poses Problems https://www.cato.org/publications/commentary/why-racial-priority-covid-19-vaccine-distribution-poses-problems <p><a href="https://www.cato.org/people/walter-olson" hreflang="und">Walter Olson</a></p> <div class="lead mb-3 spacer--nomargin--last-child text-default"> <p>The federal government has been flirting — and in some cases more than flirting — with a&nbsp;policy that is both unconstitutional and wrong: distributing COVID-19 vaccines on the basis of race. It’s time to close the door on this bad idea.</p> </div> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>Already, the Veterans Administration has <a href="https://www.stripes.com/news/us/minority-veterans-to-receive-priority-for-coronavirus-vaccines-1.654624" rel="noopener" target="_blank">adopted</a> explicit preferences of this sort. In a&nbsp;Dec. 10 document, it announced that it would prioritize Black, Hispanic, Native American and Asian veterans in vaccine distribution because these communities “have been disproportionately affected by COVID-19.”</p> <p>This runs into the Fourteenth Amendment to the Constitution, which says citizens of all races are entitled to the equal protection of the laws. The Supreme Court has long interpreted this to mean that the government may ordinarily not dole out valuable benefits, or impose harms, based on a&nbsp;citizen’s race.</p> <p>Courts thus apply “strict scrutiny” to any race‐​conscious law or policy, requiring proponents to show that it fulfills a “compelling purpose” for the government and is “narrowly tailored” to achieve that purpose, tests that this policy would be unlikely to pass.</p> <p>There are a&nbsp;few major exceptions but they do not apply here. Compensatory preference is OK when there has been recent, systemic discrimination against a&nbsp;minority group by the same level of government that wants to adopt the preference. (Inequality by itself, even when traceable to society‐​wide discrimination, isn’t good reason.)</p> </div> , <aside class="aside--right aside--large aside pb-lg-0 pt-lg-2"> <div class="pullquote pullquote--default"> <div class="pullquote__content h2"> <p>It’s time to close the door on this bad idea.</p> </div> </div> </aside> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>Two members of the U.S. Commission on Civil Rights, Gail Heriot and Peter Kirsanow, have already sent the VA a&nbsp;<a href="http://www.newamericancivilrightsproject.org/wp-content/uploads/2020/12/Letter-to-Secretary-Wilkie-12.15.2020.pdf" rel="noopener" target="_blank">sharp letter</a> outlining the reasons the courts would be quite likely to strike down racial preferences of this sort on equal protection grounds.</p> <p>It should be noted that some background facts are agreed on. Minorities disproportionately fill some front‐​line jobs that are at high risk of virus exposure, such as hospital workers and bus drivers. They also suffer disproportionately from some conditions, such as diabetes and cardiovascular disease, that predispose them to worse COVID-19 outcomes.</p> <p>It’s a&nbsp;straightforward application of public health principles, and not greatly controversial, to give earlier access to vaccines to many persons in these groups. Priority for those with pre‐​existing ailments may reduce overall mortality, and priority for those in front‐​line jobs pays off in reducing contagion.</p> <p>Thus, many sensible priority rules do incidentally protect relatively more minority persons — and that’s fine, so long as the decision is based on the neutral grounds rather than being a&nbsp;pretext aimed at getting results based on race.</p> <p>Pretext, however, is more than just a&nbsp;theoretical worry at this point.</p> <p>While state and local health authorities make most of the ultimate decisions, the Centers for Disease Control’s Advisory Committee on Immunization Practices (ACIP) puts out non‐​binding guidelines that are expected to sway their work. As early as the summer, it became clear that many of those involved in ACIP were pressing for a&nbsp;social‐​justice‐​oriented <a href="https://www.cato.org/publications/commentary/government-must-not-assign-coronavirus-vaccine-race" rel="noopener" target="_blank">approach</a> that would elevate race and ethnicity as conscious factors in vaccine allocation.</p> <p></p> </div> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>This weekend a&nbsp;furor broke out after the New York Times published a&nbsp;<a href="https://www.nytimes.com/2020/12/05/health/covid-vaccine-first.html" rel="noopener" target="_blank">report</a> based on interviews with several persons involved in the CDC process. One University of Pennsylvania medical ethicist “said that it is reasonable to put essential workers ahead of older adults, given their risks, and that they are disproportionately minorities. ‘Older populations are whiter. … Society is structured in a&nbsp;way that enables them to live longer. Instead of giving additional health benefits to those who already had more of them, we can start to level the playing field a&nbsp;bit.’&nbsp;”</p> <p>Yikes! That’s no way to treat someone’s grandmother.</p> <p>Perhaps in part influenced by the outcry, ACIP has now revised its recommendations so as to raise the priority designation for <a href="https://thehill.com/policy/healthcare/531072-cdc-panel-recommends-people-over-75-certain-frontline-essential-workers-be" rel="noopener" target="_blank">persons over 75</a> while concentrating worker preference on a&nbsp;more targeted group of front‐​line workers. I’m no expert on the public health trade‐​offs involved, so I&nbsp;won’t venture any opinion on whether those are the right calls.</p> <p>Nor do I&nbsp;know whether the talk of putting minorities first in line will backfire by making members of these groups uneasy about being first to try the new. The risks of the Pfizer and Moderna vaccines appear exceedingly low and far lesser than the risks of COVID-19 itself, yet memories are slow to fade of unethical medical experiments of the past.</p> <p>We should avoid these stumbling blocks by making clear from the start that race should not be a&nbsp;factor in who gets the vaccine and when.</p> </div> <p><em>Walter Olson is a&nbsp;senior fellow at the Cato Institute’s Robert A. Levy Center for Constitutional Studies and is known for his writing on the American legal system.</em></p> Wed, 30 Dec 2020 09:52:29 -0500 Walter Olson https://www.cato.org/publications/commentary/why-racial-priority-covid-19-vaccine-distribution-poses-problems