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Surveillance “Reform”: the Fourth Amendment’s Long, Slow, Goodbye

Patrick G. Eddington

Over 16 years after the 9/11 attacks and the subsequent repeated
passage or renewal of draconian “temporary” but
“emergency” domestic surveillance laws in response,
it’s fair to ask: Have we officially abandoned the Fourth
Amendment in the Bill of Rights?

With the expiration of Section 702 of the FISA Amendments Act
(FAA) less than three months away, now is a good time to review the
effects of these surveillance laws in the seemingly endless
“War on Terror.” But first, a quick recap of
America’s embrace of mass surveillance in the post-9/11

Within six weeks of the terrorist attacks in 2001, and with
virtually no serious debate, Congress passed the behemoth PATRIOT Act. The law created vast new
government surveillance powers that abandoned the Fourth
Amendment’s across-the-board probable cause warrant
requirement. In an October 11, 2001 speech discussing the Senate
version of the legislation, Sen. Diane Feinstein (D-Calif.) assured
terrified civil libertarians that the PATRIOT Act’s five-year
“sunset” clause governing 15 of the bill’s
provisions would serve “as a valuable check on the potential
abuse of the new powers granted in the bill.”

Unless the privacy and
civil liberties community revamps its entire approach and structure
for advocacy on these issues, the long, slow goodbye to the Fourth
Amendment will come to an end just before Christmas in

Unbeknownst to the public and most members of Congress, the Bush
administration allowed key authorities of the PATRIOT Act to be
abused, a fact only brought to light in 2013 by Edward
Snowden’s revelations of mass telephone surveillance
conducted under Section 215 of the PATRIOT Act.

Section 215 is one of the 15 “temporary” provisions
that has been renewed repeatedly since 2001, making a mockery
of Feinstein’s assurance that the “sunset”
provision would act as a “check” on any abuse of the
law. Today, 12 of those 15 “temporary” and
“emergency” surveillance measures are permanent

Thanks to another document made public by Snowden, we know that
three days after the 9/11 attacks, then-NSA Director Michael Hayden
initiated a secret warrantless surveillance program
encompassing Americans in contact with anyone in Afghanistan. Over
the ensuing weeks, it would become a multi-pronged warrantless
spying effort code-named STELLAR WIND. After the New York
revealed this unconstitutional surveillance in
December 2005, thanks to the help of a whistleblower at the
Justice Department, the Congress and the Bush administration spent
the next two years trying to make the illegal surveillance legal.
Their final product, passed in 2008, was the FAA—renewed with
little debate in 2012 and now, because of a “sunset”
provision, is set to expire on December 31.

The key provision of the FAA that is the primary focus of debate
is Section 702, which allows the government to target the
communications of foreign entities even if the government knows it
will likely sweep up the emails, text messages, and phone calls of
innocent Americans in the process.

Have FAA’s authorities been used to subvert the Fourth
Amendment and the constitutional rights of Americans, just as the
PATRIOT Act has? Yes. Repeatedly.

In September, the politically progressive group Demand Progress
issued a scathing reporton documented abuses of the FAA, drawing
directly from partially declassified Foreign Intelligence
Surveillance Court (FISC) records. The findings showed that aspects
of the government’s Section 702 information collection,
revealed in 2011, acquired “non-targeted, entirely domestic
communications,” violating the Fourth Amendment. Indeed, the
FISC found that the NSA engaged for 12 years in types of
surveillance that FISC would eventually deem unlawful, with NSA
only ceasing the violations under repeated—but ultimately
empty—threats of criminal sanctions.

This report was preceded earlier this year by the publication of
Stanford law professor (and Just Security editor) Jennifer
Granick’s excellent book American Spies, which chronicles in
detail the rights violations and false claims of effectiveness of
the PATRIOT Act and the FAA by NSA and FBI officials.

Sixteen years after creating the biggest unconstitutional mass
surveillance dragnet in American history, we have documentary
evidence—from the federal government’s own
records—of repeated, systemic abuses of these authorities. We
also know they’re costing taxpayers, whose digital
communications are swept up by these programs, tens of millions of
dollars annually. What we don’t have is any public evidence
that these surveillance practices have made us safer.

What’s the response of Congress? It’s proposing to
reauthorize the same Section 702 program, which has led to these

On Oct. 6, on a bipartisan basis, the House Judiciary Committee
introduced the ill-named USA Liberty Act (HR 3989). In my initial analysis of the bill, I noted that the proposed
legislation ignored every major problem highlighted in the Demand
Progress report. The bill’s authors also ignored an even
longer list of Section 702 reform proposals put forward by nearly 60 civil
society groups.

Meanwhile, the Director of National Intelligence Dan Coats, NSA
Director Adm. Mike Rogers, and FBI Director Christopher Wray have
mounted a public campaign to renew Section 702 unchanged. At a
meeting with reporters on Sept. 25, Coats and
his colleagues argued that 702 is a vital surveillance authority
that has helped thwart numerous terrorist plots. On background, I
asked one of the reporters who attended that meeting whether Coats,
Rogers, or Wray offered a single example of 702 stopping an attack
on the United States. They did not—which tracks with
Granick’s findings in American Spies.

Despite the lack of public, independently confirmed evidence
that 702 has prevented terrorist attacks on America, Coats, Rogers,
and Wray are winning the argument that 702 should remain the law of
the land.

If you think about it, the indifference of the House Judiciary
Committee leadership to these proposals is not terribly surprising.
The overwhelming majority of the groups calling for changes to a
surveillance law that should never have existed have no political

Unlike the National Rifle Association, they operate no political
action committee or similar electoral vehicle that could be used to
strike fear into House or Senate members who dare to put forward
such proposals. Thus, House and Senate members know that they can
safely ignore these groups, no matter how many press releases,
Facebook posts, or completely fact-based reports about surveillance
abuses they churn out-just as they have ignored these same groups
for nearly 20 years as Congress has passed or reauthorized laws
that, bit by bit, have eviscerated the Fourth Amendment.

My prediction: Absent another Snowden-like revelation, Section
702 of the FAA will be reauthorized largely without change, and any
changes will be cosmetic, and almost certainly abused. Whether it
has a “sunset” provision or not is now politically and
practically meaningless.

After this latest assault on the Bill of Rights has been signed
into law by President Donald Trump later this year or early next,
opponents will have one more—and probably final—chance
to roll back the damage already done when the three remaining
PATRIOT Act provisions subject to “sunset” come due at
the end of 2019. Unless the privacy and civil liberties community
revamps its entire approach and structure for advocacy on these
issues, the long, slow goodbye to the Fourth Amendment will come to
an end just before Christmas in 2019.

is a Policy Analyst in Homeland Security and Civil
Liberties at the Cato Institute.

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The Danger of Linking the Rohingya Crisis to Terrorism

Sahar Khan

On August 25, the Arakan Rohingya
Salvation Army
(ARSA) – formally known as the Harakah al-Yaqin

coordinated an attack
on a Burmese army base and 30 police
posts in the state of Rakhine, killing more than 71 people,
including 12 security officers. Calling the ARSA
“extremist Bengali terrorists,”
the Myanmar army’s response was
swift and brutal, and within two weeks,
Rohingyas fled their homes. Dubbing their response as

clearance operations
, the army
villages and even planted
as a way to further target the fleeing Rohingyas. But
the army’s response is grossly disproportional. The ARSA is a small
group with
no links to transnational terrorist groups
and has a very narrow mission:
stop persecution of Rohingyas Muslims. Because of the actions of
this minor group, there are currently half a million refugees in
Bangladesh seeking security, protection, and food in
makeshift camps
, where they are exposed to the elements and
increasingly vulnerable to disease.

While the United Nations declared the persecution and recent
flight of the Rohingyas
“a textbook example of ethnic cleansing,”
the region has a

long history
against them. The clash between Buddhists and
Bengali-speaking Muslims in the in Myanmar’s Rakhine province can
be traced back to the 1980s when the Burmese regime abruptly

stripped them of citizenship
. While the Rohingyas, who are
predominantly Sunni Muslims, claim to be
indigenous to the area, the government of Myanmar has always viewed
them as illegal immigrants from neighboring Bangladesh. The
government further maintains that it will
reinstate their citizenship rights
if they drop the term
“Rohingya” and instead register as “Bengalis.” This condition is
unacceptable to the Rohingyas, who are
protective of this label
as it has become a part of their
identity, and the means why which they can garner international

The perils of portraying
the Rohingya crisis through securitized lens are quickly becoming

Myanmar’s refusal to acknowledge Rohingyas as an ethnic minority
entitled to citizenship rights is not just semantics. It is related
its territory and sovereignty. According to the state’s
1982 citizenship law
, if the government accepts the Rohingyas
as a legitimate Burmese ethnicity, they will have autonomy in
Rakhine, where they are the majority. Myanmar, a predominantly
Buddhist country, fears three potential developments: 1) an
the Rohingyas and Bengalis, both of whom are Muslim, 2)
calls for secession that may follow an alliance, and 3) the

ARSA entrenchment
in Rakhine. To be fair, Myanmar’s fears may
be overstated but they are not misplaced. As a weak postcolonial
state, it is suffering from a myriad of issues, such as
civil-military imbalances
, corruption,
poverty, and
. But persecuting the Rohingyas is a short-sighted
strategy that threatens Myanmar’s credibility – and, by igniting
dangerous religious and ethnic fissures, the security of the

persecution of the Rohingyas continues to put
Bangladesh in a strenuous geostrategic position. While Bangladesh
the refugees, it is also a poor country with

limited resources
. And similar to Myanmar, it also has a
checkered past with the Rohingyas. Earlier this year, Bangladesh
wanted to hold talks with Myanmar to accelerate the process of
resettlement, where one official said, “We want to
see them leave Bangladesh quickly.”
Currently Bangladesh’s
government is working to relocate the new refugees to an
“unlivable island”
to decrease some of the pressure that the
influx has caused. On
closer examination
of Bangladesh’s domestic politics, the
Hasina administration’s reaction to the refugees is a balancing act
between criticizing Myanmar, pacifying Bengali right-wing
Islamists, satisfying Bangladesh’s army, and appeasing India, who
has also
persecuted the Rohingyas in the name of national security.

The ongoing crisis, however, highlights two important
developments that will negatively impact the fate of the Rohingyas.
First, the ARSA, currently an outlier, will be linked to the larger
Rohingya community, increasing its prominence, and potentially
emboldening it. While the ARSA has links to
both Saudi Arabia and Pakistan
, there is
no evidence
that the group has links to al Qaeda and the
Islamic State (ISIS) or that it has been incorporated into larger
transnational Islamist extremist networks. It is a small group
main grievance
– persecution of Rohingya Muslims – can be
solved relatively easily by ending widespread discrimination. While
meeting ARSA’s demands of citizenship and political equality will
expose Myanmar’s poor governance, especially in the Rakhine
province, it will likely eliminate the main root of violence in the
area. But if the situation continues as is, ARSA might grow and

develop real links
to real terrorist groups, a claim already
being made by
, and
. Second, and more troubling, the Rohingyas are set
to become a regional political tool that will continue to be used
to justify a series of predatory and illiberal counterterrorism
strategies as seen, again, in
, and

As yet another boat full of refugees – mainly children –
capsizes and
survivors share stories of
sexual violence
, the current state of Rohingya suffering seems
to have entered a new, more horrific chapter.
Worldwide protests
may pressure the current government in
Myanmar to end the violence and accept the Rohingyas back, but it
will not end the practice of linking a persecuted community to

Sahar Khan is a visiting fellow at the Cato Institute.

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If Anyone Is in Need of a Nudge, It’s the Politicians

Ryan Bourne

Imagine a school canteen. There’s a full array of food on sale,
from healthy salads through to chocolate fudge brownies. But the
canteen deliberately puts the salads in the children’s eye-line at
the front of the counter. Economists describe such a choice as a
“nudge”. Behavioural evidence suggests food placed here is more
likely to be purchased. The canteen is encouraging healthy eating
with this information, but without coercion. The children are,
after all, still free to buy chocolate fudge brownies, should they

Richard Thaler, this week’s Nobel Economics Prize winner, has
made a career observing how humans deviate from perfect rationality
and how applying “nudges” can alter economic decision-making. He
has presented compelling evidence that humans tend to be biased
towards the status quo, value things more when we already own them
and are influenced by the framing of decisions.

Nudgers aim to alter our “choice architecture” to influence
decisions but without restricting our freedom to choose. The UK
Government has a whole unit working on this. The new policy of
auto-enrolment in company pensions, requiring an active opt-out, is
a “nudge” attempting to help people meet their stated desire for
more saving towards retirement. Participation in workplace pensions
has increased by 37 percentage points since it was introduced.
Provided they are based on good evidence, do not use heavy-handed
bans or change the payoffs to choices, Thaler advocates such nudges
as a form of “libertarian paternalism” – guidance in
­decision-making, which does not restrain individual free will.

But the concept is controversial among economists. Just because
some individuals are not rational does not mean regulators and
politicians have better information on their circumstances or
preferences. Some now auto-enrolled in pension schemes, for
example, would need and prefer more cash today, but the same bias
towards inertia prevents them from opting out.

Nudgers aim to alter our
“choice architecture” to influence decisions but without
restricting our freedom to choose.

In many markets regular feedback, repeat decisions and
competition allow people to fulfil their preferences whilst
overcoming individual-level biases. Regulators and politicians have
their own motivations, too, and can be prone to groupthink and
capture by vested interests. The lines between nudging and shoving
are quite often blurry. Auto-enrolment might be a nudge for the
employee, but it seems one hell of a shove to obliged employers
threatened with fines for non-compliance.

The main issue with behavioural economics, though, is that we
appear to be applying its insights to the wrong target group. The
book Nudge has a whole chapter explaining the conditions under
which they are likely to be effective: when the consequences of
choices are delayed, choices are difficult, the choice is made
infrequently, and when it is difficult to predict how the choice
might affect our lives. These seem to apply most aptly to decisions
politicians and regulators make all the time on our behalf.

Yes, individuals have their biases. But politicians do too. They
put the status quo on a pedestal, suffer groupthink, seek to bribe
the electorate, have a bias for budget deficits, continuously
complicate the tax system and grow the size and scope of
government. Absent a constitution that constrains them, why not
change the “choice architecture” they face?

We could, for example, make mandatory five-year sunset clauses
the default on new regulations to try to curb the growth of the
regulatory state. Politicians would have to rubber-stamp the
continuation of each regulation, enabling them to assess and
reflect on their effectiveness. The same concept could be applied
to all repatriated EU law.

To stop taxation by stealth, we could pass a law so that all tax
thresholds rise automatically each year in line with the growth
rate of nominal GDP. If politicians want to raise taxes by playing
with income thresholds or through fiscal drag, they would have to
do so explicitly and transparently, facing the political heat.

The opportunities to apply this thinking are endless. To deter
cronyism, large political donations could be anonymised through a
central clearing house, leaving complete freedom to donate to a
party but dampening the incentive for politicians to appease
specific donor interests. An option for politicians’ salaries to be
tied to economic growth as default could be added to their
contracts too, with the freedom for them to “opt out” and maintain
current arrangements should they wish to signal their lack of faith
in their own policies.

On the spending side, zero-based budgeting should be the norm in
any comprehensive spending review. Any new policy that raises net
spending above a threshold amount should trigger an OBR analysis on
how much it will add to national debt over the coming 30 years,
which must be read out by the relevant minister in Parliament.

“Tax trigger laws” could be passed too, meaning when revenue is
much stronger than expected, the default would be to cut tax rates
so revenues are simply maintained to meet government spending. This
would deter the perceived “windfall” effects the Treasury can
obtain from growth before budgets, often used to bribe the
electorate, and would highlight the trade-off between spending and

Despite Thaler’s interesting work, history suggests bad
government policy can be far more damaging to our welfare than
individuals’ biases. So why not apply the insights of Nudge where
it is most needed, and frame politicians’ choices to encourage the
salad diet for government?

Ryan Bourne holds the R Evan Scharf Chair for the Public Understanding of Economics at the Cato Institute.

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The Real Danger of Refusing to Certify the Iran Deal

John Glaser

President Trump’s decision not to certify the Iran nuclear deal
is reckless and dangerous. By all accounts-including that of the
International Atomic Energy Agency (IAEA), America’s European
allies, the U.S. intelligence community and Trump’s national security team-Iran has complied with
the restrictive terms of the Joint Comprehensive Plan of Action
(JCPOA) and significantly rolled back its nuclear program, while
subjecting itself to the most intrusive inspections regime in the

Undermining a successful nonproliferation agreement in this way
isolates America, sows doubt about its credibility and
trustworthiness, signals to other rogue regimes, like North Korea,
the imperative of a nuclear deterrent, and worst of all, needlessly
puts the United States and Iran back on the road to confrontation.

Indeed, this is why Trump’s advisors convinced him to
technically keep the JCPOA, while calling on Congress to impose
nonnuclear sanctions and to amend the legislation that requires the
president to put him imprimatur on the deal every ninety days. It
is a way of keeping the deal but giving Trump symbolic ways of
broadcasting his distaste for it. This is essentially an exercise
in placating a petulant, fact-resistant commander in chief.

The ominous thing about Trump’s decision not to certify is that
it is entirely unconnected to any kind of discernible strategic

To begin with, undermining the deal leaves America with less
leverage than it had when it negotiated the JCPOA in the first
place, because the international community is no longer on
America’s side. This means there is essentially zero chance of
achieving a better deal that is more punitive than the current one
and that yields greater concessions from the Iranian side.

Scuttling the nuclear
deal leaves America with less leverage than it had when it
negotiated the JCPOA in the first place.

Furthermore, the White House has signaled that while the president is not
certifying the deal, the administration is going to encourage
Republicans in Congress not to reimpose nuclear-related sanctions.
This makes decertification explicitly noninstrumental. It is not
supposed to achieve anything of any strategic value at all. It’s
merely a vehicle for the president to voice his irrational
hostility for the deal itself and for his predecessor’s legacy.

It gets worse. Many critics of the deal believe Iran is
implacably determined to obtain nuclear weapons at some point.
Whether the context is the JCPOA or something else, it is taken
essentially as a matter of faith that Iran wants the bomb; the only
question is how to delay it or coercively prevent it.

This presumption is wrong. It seems rather clear that Tehran has
decided that the benefits of making concessions in exchange for
greater economic engagement and diplomatic relations with the world
far outweigh the costs of doggedly pursuing a nuclear deterrent.
The latter path carries the benefit of ensuring regime survival,
but would also condemn Iran to perpetual isolation, rogue-state
status and a harsh global-economic sanctions regime. Iran does not
want to end up like North Korea, impoverished and without any

This calculus is certainly one explanation for why Iran agreed
to the JCPOA and why they have complied with it. The problem is
that Trump’s subversion of the deal is likely to have an immediate
and counterproductive impact on Iran’s cost-benefit analysis
because it undercuts the benefits Iran gets from pursuing peaceful
international engagement, while making the costs of obtaining a
nuclear deterrent seem tolerable by comparison.

If Iran’s reward for compliance with the JCPOA is American
duplicity, why should Tehran put any stock in negotiations? If
belligerent U.S. leaders demonstrate a strong preference for
hostility and confrontation, as opposed to reciprocal compromise
and probity, what incentive does Iran have to keep its nuclear
program under invasive inspections?

With the United States isolated and the rest of the world intent
on enforcing the JCPOA, Iran still has reason to keep to the deal.
However, the Trump administration’s approach is undoubtedly tipping
the scales in the opposite direction.

This isn’t complicated. One doesn’t need a deep knowledge of
esoteric international-relations theory at some high level of
abstraction to understand why Trump’s new approach is, if anything,
likely to backfire. A sixth grader should be able to figure this
out, which only reinforces the idea that Trump isn’t even
pretending to think strategically about this.

John Glaser is director of foreign-policy studies at the Cato Institute.

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Abandoning the Iran Deal Is Just One Example of Irrational U.S. Diplomacy

Ted Galen Carpenter

All signs indicate that President Trump will rescind
Washington’s adherence to the nuclear agreement reached
between the leading international powers and Iran in 2015. That
agreement, the Joint Comprehensive Plan of Action (JCPOA), placed
significant restrictions on Tehran’s nuclear program—at
the very least greatly slowing any quest for a nuclear-weapons
capability. Nevertheless, hawks in the United States have
excoriated the deal from the very beginning, arguing that Iran was
merely buying time and lulling a gullible Obama administration and
other governments into complacency while continuing to covertly
develop its nuclear capabilities. During the 2016
presidential-election campaign, Trump himself repeatedly blasted
the JCPOA as the “worst deal ever negotiated.” Other
opponents equated the agreement with Neville Chamberlain’s
appeasement of Nazi Germany at Munich in 1938.

The hostility to the JCPOA is merely the latest manifestation of
an unhealthylack of prudence and realism in U.S.
foreign policy on so many issues. Washington’s approach is
characterized too often by impossible objectives, boorish,
ham-handed diplomacy, and an unwillingness to make even the most
imperative concessions to achieve success.

The reality is that the JCPOA was probably the best deal that the United States and the
other signatories could hope to get from any Iranian government.
Indeed, it is surprising that Tehran was willing to accept even
those restrictions. And despite allegations from opponents that
Iran is violating the terms of the deal, the International Atomic
Energy Agency continues to certify that Tehran is in compliance.
Until now, even the Trump administration has had to concede,
however grudgingly, that Iran has abided by the JCPOA’s
requirements. Admittedly, the president did grouse that the
Iranians were violating “the spirit” of the agreement,
whatever that meant.

Pressing for a so-called
“better” nuclear deal reflects the lack of realism that has plagued
overall U.S. foreign policy in recent decades.

JCPOA supporters warn that trashing the accord will create
horrid dilemmas for the United States. The likelihood is that
Tehran would resume its full nuclear development program. U.S.
leaders might then face the choice of accepting Iran as a
nuclear-weapons power within a few years or launching a preemptive
war to thwart that outcome.

Most JCPOA critics deny that they are pushing for a war against
Iran—although there are exceptions, including Sen. Tom
Cotton. Less brazen types insist that they simply want “a
better deal”—one that would impose far more rigorous
restraints on Iran. Even if such individuals are sincere—and
there are substantial reasons to doubt their
sincerity—pressing for a so-called better deal reflects the
lack of realism that has plagued overall U.S. foreign policy in
recent decades.

The only reason that negotiators were able to conclude the JCPOA
with Tehran was because they backed off from some of their original
demands. Hardliners (especially in the United States) wanted Iran
to have no nuclear capabilities whatever—not even the
technology appropriate for developing peaceful nuclear energy. The
usual flock of hawks also wanted any agreement to include a virtual
ban on ballistic-missile development and a commitment from Tehran
to abandon its support of Hezbollah and other “terrorist
movements.” Indeed, critics still insist on those points. Had
negotiators demanded such concessions, however, there never would
have been a JCPOA.

Unfortunately, the lack of prudent realism that hawkish types
continue to exhibit regarding policy toward Iran is not confined to
that issue. Too often, U.S. officials and much of the
foreign-policy community act as though the only legitimate
diplomacy consists of making a laundry list of maximalist demands
to a foreign government—usually without offering any
meaningful concessions in return. That scenario has played out in
recent years regarding policy toward both North Korea and

Since the mid-1990s, Washington has insisted that Pyongyang
abandon its entire nuclear program. Given the U.S. track record of forcible regime change against
nonnuclear adversaries like Serbia, Iraq and Libya, Pyongyang was
not inclined to rely on vacuous assurances that the United States
would refrain from trying to achieve the same outcome in North
Korea. Moreover, Washington’s proposed substantive
concessions to Pyongyang consisted of little more than vague
promises of a partial lifting of the economic sanctions that had
been imposed. There never has been a clear willingness to address
the North Korean regime’s other goals—including a peace
treaty formally ending the Korean War, U.S. diplomatic recognition
of the regime, and the end to Washington’s annual
joint-military exercises with South Korea.

Insisting on Pyongyang’s return to nuclear virginity,
especially without offering major concessions, was not very
realistic even before North Korea conducted multiple nuclear and
ballistic-missile tests. Once developments reached that point and
it was clear that the country already had built a number of nuclear
weapons, U.S. policy became totally unmoored from reality. Yet
there is little indication that the Trump administration has
softened Washington’s negotiating strategy. Instead, the U.S.
position has hardened and become worrisomely belligerent.

Both the Obama and Trump administrations have pursued a similar
futile, uncompromising stance toward Russia. The recent sanctions legislation that Congress
overwhelmingly passed and that the president signed into law
epitomizes that rigid, unproductive attitude. Among other
provisions, the measure cited Moscow’s alleged interference in
America’s 2016 election as a justification for imposing tighter
sanctions. But the legislation offers no hint of how Russia could
atone for that offense and get the sanctions lifted. Would a
written pledge never to engage in such conduct in future elections
be sufficient? Would something additional be necessary? There is no
way to tell.

In addition, the sanctions law codifies the previous White House
demands during the Obama and Trump administrations that the Kremlin
cease supporting separatist rebels in eastern Ukraine and return
the Crimea Peninsula to Kiev’s control. Russia’s compliance with
the former demand is unlikely, especially given the Russian
government’s well-founded fears that the United States intends to
turn Ukraine into a Western client state with membership in both
the European Union and NATO. Brazen Western meddling in Ukraine’s political affairs to help
demonstrators unseat the democratically elected, pro-Russian
president in 2014 certainly does not incline Moscow to soften its
policy toward its neighbor.

Demanding that Moscow relinquish control of Crimea is even more
of a diplomatic nonstarter. The Kremlin will abandon that
acquisition at about the same time that Israel rescinds its
annexation of Syria’s Golan Heights or Turkey repudiates its puppet
Turkish Republic of Northern Cyprus and returns that occupied
territory to the Republic of Cyprus. That is to say, a Russian
capitulation on the Crimea issue likely will never take place.

Such examples underscore that Washington’s overall
diplomacy is dangerously unrealistic on multiple fronts. More
restrained and modest strategies are badly needed. A good place to
start is to refrain from torpedoing the constructive and beneficial
JCPOA. There is no “better agreement” in the offing, and the
consequences of pursuing such a mirage could be very
unpleasant—not only for the Middle East, but the United
States as well.

Ted Galen
, a senior fellow at the Cato Institute and a
contributing editor at the National Interest, is the author of ten
books, the contributing editor of ten books, and the author of more
than 650 articles on international affairs.

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The Legal Resistance to President Trump

Josh Blackman

Hillary Clinton was destined to shatter the glass ceiling and
pack the Supreme Court with liberal lions. The Left dreamed of the
day when federalism, the right to bear arms, and religious liberty
would be exiled from the Constitution, replaced by the progressive
jurisprudence they not-so-patiently waited for. Instead, on
November 8, 2016, Donald Trump shattered those dreams. The Left
awoke from this unfathomable nightmare to a painful hangover: The
45th president would shift the Supreme Court, and the entire
federal judiciary, to the right. Rather than advancing our
constitutional law closer to Justice Sotomayor’s wing of the Court,
the new judges would entrench Justice Scalia’s jurisprudence.

Refusing to accept the outcome of the election, progressive
legal groups rallied around a hashtag that soon became a movement:
#Resist. The New York Times reported that advocacy
organizations “put aside institutional rivalries” to make “legal
resistance one of the defining attributes of the Trump era.” There
is nothing novel about sore-loser litigiousness. Republicans
resorted to this strategy over the last eight years. What is
remarkable, however, is the breadth and speed of the successes of
the anti-Trump lawyers in impeding a presidency. Their movement was
advanced by Obama-administration holdovers within the executive
branch, and even by federal judges, who abandoned their traditional
role out of a fear that Donald Trump posed an existential threat to
the republic.

The self-professed resistance must be understood for what it is:
a thinly veiled legal revolt. Our Constitution has built-in safety
valves to remove an unfit president, whether through impeachment or
through a declaration of incapacity. But the exercise of those
powers was not assigned to the judiciary. Judges can call balls and
strikes; they can’t throw the president out of the game.
Fortunately, the Supreme Court has remained a voice of reason
within the federal judiciary — a role that it must maintain
even as President Trump continues to disrupt legal norms. This
administration will come to an end sooner or later. But the
precedents set during this period will linger far, far longer.

The thinly veiled legal
revolt against President Trump playing out in the courts will set
lasting and dangerous precedents.

The first conflict came very early. Trump’s January 27 executive
order, which restricted entry into the United States, sent
shockwaves throughout our legal order. For 90 days, the admission
of certain aliens from Iraq, Iran, Libya, Somalia, Sudan, Syria,
and Yemen — whose admission was deemed “detrimental” to
American interests — were to be kept out. Almost immediately,
lawyers filed suit on behalf of travelers from these nations who
were being detained at airports, yet the policy would receive no
meaningful defense in court.

Because Democrats had delayed the confirmation of Senator Jeff
Sessions as attorney general, the agency was still headed by Sally
Yates, a holdover from the Obama administration, when Trump signed
the executive order. Finding that the order was not “wise or just,”
she instructed the Justice Department to stand down. Rather than
resigning — the honorable choice if she believed the policy
to be unconstitutional — she simply stood by as federal
courts ruled against the government. President Trump had no choice
but to fire Yates, who willingly served herself up as the first
martyr of the legal resistance.

Then the resistance spread. The Washington Post
reported that lawyers within the Justice Department and other
federal agencies sought to “push back against the new president’s
initiatives” as part of a “resistance from within.” Concerns about
the so-called Deep State have been greatly exaggerated, but lawyers
in the civil service are all too willing to talk to the press about
their efforts to resist the president’s agenda. The public effects
of such internal insubordination are hard to calculate because they
are largely unseen.

Soon, the Washington State attorney general sought a temporary
restraining order to halt the travel ban nationwide — a
challenge that was planned well before the order had even been
signed. With Yates now out of the picture, administration lawyers
mounted a good-faith defense of the policy, though one that was not
victorious in court. After only an hour of oral argument, U.S.
district judge James L. Robart in Seattle ruled that the federal
government must immediately cease enforcing the executive

Robart’s seven-page order offered only the most threadbare
analysis, giving no indication whether he thought the policy
violated the due-process clause, the equal-protection clause, the
establishment clause, or the free-exercise clause. Solely on the
basis of this hasty and incomplete opinion, immigration officials
around the country and consular officials around the globe were now
enjoined from implementing the order. Less than a week later, a
panel of the Ninth Circuit Court of Appeals affirmed the district
court’s order — even though temporary restraining orders are
not subject to appeal. The court nonetheless reached out to resolve
difficult constitutional questions in this preliminary phase of the

This judicial blitz was a dry run of the legal resistance’s game
plan. It would be repeated again and again with respect to the
second iteration of the travel ban, sanctuary-city policies, and
efforts to unwind the Obama administration’s regulatory agenda.
First, President Trump takes an executive action. Second, litigants
file suit in multiple friendly forums. Third, the court disregards
prudential barriers that restrict suits against the executive
— a role exactly opposite to the one that the judiciary
usually plays. Fourth, looking beyond the four corners of the
policy, the court throws out the policy by psychoanalyzing the
commander-in-chief based on his tweets, cable-news interviews, and
even campaign statements. Finally, without affording the president
the traditional deference his office is due, the court issues a
nationwide injunction, stretching far beyond the judges’

By March, with several victories under its belt, the legal
resistance had been fortified. National Public Radio anointed David
Cole, the legal director of the American Civil Liberties Union, as
“the man at the heart of the legal resistance to the Trump agenda.”
Harvard Law professor Laurence Tribe was confirmed as the “Citizen
Attorney General” of a progressive group calling itself the “Shadow
Cabinet.” CNN enthused that the “legal resistance … already has
octopus-like tentacles with different groups seeking to unravel or
block” President Trump’s agenda.

But over the summer, their winning streak would come to an end.
On three separate occasions, the Ninth Circuit Court of Appeals
ruled against the Trump administration concerning the travel ban.
And on all three occasions, the Supreme Court — without
recorded dissent — pushed back on the San Francisco-based
court. While the decisions were not unqualified victories for the
president, the justices consistently voted to restore the scope of
Trump’s executive power to deny entry to aliens he deemed
detrimental to American interests.

Justices Thomas, Alito, and Gorsuch would have allowed the
travel ban to go into effect in its entirety while the appeals
process played out. They explained that the “government has made a
strong showing that it is likely to succeed” on its claim that the
order was lawful, and that a decision against the government would
“interfer[e] with its compelling need to provide for the Nation’s
security.” This opinion, according to Jack Goldsmith of Harvard Law
School, served to “turn down the temperature, and to interject a
better model of behavior into our corroded institutions and
discourteous civil discourse.” The lower courts, alas, have not yet
taken the hint. As it stands now, the justices are considering
whether to dismiss the appeals in light of the president’s
September 24, 2017 proclamation, which imposed a quasi-permanent
travel ban for aliens from seven nations.

The legal resistance often repeats the refrain that our polity
must resist “normalizing” Trump as president. Courts,
unfortunately, have followed the lead. When judges treat this
president as anything other than normal — such as when they
engage in law-office psychiatry — it sends a signal to the
public that the chief executive is not as legitimate as his
predecessors. Trump was elected through the same constitutional
process by which judges received their lifetime commissions. He
should be treated as such. It is true that Trump consistently
disrupts all political norms. The courts should not respond in kind
by disrupting judicial norms.

In Federalist No. 78, Alexander Hamilton wrote that
judges can exercise “neither FORCE nor WILL but merely judgment.”
Judge William H. Pryor Jr. of the Eleventh Circuit Court of Appeals
observed that “Hamilton’s point was that we must depend on the
persuasiveness of our written opinions to command the respect of
our fellow citizens.” As a result, he wrote, judges have “the
foremost responsibility of safeguarding [their own]

The nationwide injunctions against President Trump are grounded
far more in “will” than in “judgment.” They reflect a sincere
concern that the 45th president poses an unprecedented risk and
that his acts warrant far more scrutiny than did those of his
predecessors. This approach, though well intentioned, is profoundly
flawed. In a recent speech, Justice Gorsuch offered some important
words of wisdom for the rest of the judiciary: “Judges should wear
robes,” he explained, “not capes.” Only the political process, and
not what was designed to be the least dangerous branch, can save us
from the consequences of our own decisions.

is a constitutional-law professor at the South Texas
College of Law in Houston, an adjunct scholar at the Cato
Institute, and the author of Unraveled: Obamacare, Religious Liberty, and
Executive Power

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Supreme Court Takes on Public-Sector Unions

Ilya Shapiro and Frank Garrison

At the start of this “momentous” Supreme Court term — as
Justice Ruth Bader Ginsburg called it — most people are
focused on partisan gerrymandering. But it’s not clear that there
are five votes for inserting courts into every redistricting
decision, thereby creating an election-lawyer full-employment act.
Instead, as far as politics are concerned, what the term may become
known for is blunting the power and influence of public-sector

Two cases now before the Court pit the First Amendment rights of
millions of workers against a sort of government-union cartel that
makes the most feverish theories of Russian collusion with the
Trump campaign look like child’s play. Both revolve around one
fundamental question: whether state legislatures can force workers
into unwanted relationships with unions.

The first is Janus v. American Federation of State, County
and Municipal Employees
, which the Court has already announced
it will hear. Alas, the lawsuit does not challenge AFSCME’s disdain
for the Oxford comma. Instead, Mark Janus, who works for the
Illinois Department of Healthcare and Family Services, is
challenging a state law that mandates he pay “agency fees” to
support union collective-bargaining activities that he does not
support. Such a compulsion violates the First Amendment, he argues,
because collective bargaining in the public sector involves
advocacy on quintessentially political questions such as
taxpayer-funded wages and pensions, resource allocation, and
enforcement priorities. (Already this year, Illinois raised taxes
to pay a $100 billion public-pension debt.) Janus thus faces a
Hobson’s choice: Either fund advocacy he doesn’t like or find other

Two cases now before the
Court pit the First Amendment rights of millions of workers against
a sort of government-union cartel that makes the most feverish
theories of Russian collusion with the Trump campaign look like
child’s play.

Although the Supreme Court upheld the constitutionality of
non-union-member fees for public-sector workers in the 1977 case
Abood v. Detroit Board of Education, it has since
questioned Abood’s reasoning. In Abood, the Court
acknowledged that public-sector collective bargaining does
influence policy-making about “ideological” issues. Nonetheless,
the Court held that agency fees passed constitutional muster
because of “free rider” and “labor peace” concerns. The Court began
to scrutinize the flaws of this reasoning 35 years later in
Knox v. SEIU: “By allowing unions to collect any fees from
nonmembers … our cases have substantially impinged upon the
First Amendment rights of nonmembers.” Moreover, Justice Samuel
Alito noted for the majority, “Unions have no constitutional
entitlement to the fees of nonmember-employees.”

The Court then signaled the death knell for Abood in
the 2014 case Harris v. Quinn. Harris also originated in
Illinois, with then-governor Rod Blagojevich’s designation of
certain home-care providers as “public employees” for
collective-bargaining purposes (because they’re paid out of state
Medicaid funds). Despite many workers’ desire to remain
unaffiliated, a subsequent collective-bargaining agreement forced
them to fork over part of their wages to the Service Employees
International Union (SEIU). The Court struck down the law as a
violation of the non-union-member workers’ First Amendment rights
but did not overturn Abood. The Court reasoned that
because the law did not squarely concern “full-fledged public
employees” — as had been the case in Abood
it merely had to rule on whether Abood should be extended
to cover these workers. This is something the Court was unwilling
to do “because of Abood’s questionable foundations.” More
important, the Court, again through Justice Alito’s pen, announced
that it is a “bedrock principle that, except perhaps in the rarest
of circumstances, no person in this country may be compelled to
subsidize speech by a third party that he or she does not wish to

Two terms ago, the Court in Friedrichs v. California
Teachers Association
seemed ready to overrule Abood,
but the untimely passing of Justice Antonin Scalia created a 4-4
deadlock that left the state laws in place. Now with a full Court,
the justices will have the opportunity to finally vindicate
public-sector workers’ First Amendment rights once and for all.

But what about workers who aren’t “full-fledged public
employees”? Thanks to Harris, they no longer must
pay unions, but should they have to be associated with
them at all? That’s the question in Hill v. SEIU, in which
a petition for Supreme Court review is pending. Rebecca Hill and
thousands of other home-care aides are still forced in certain
states to associate with a union that has been designated as their
“exclusive representative” for collective bargaining.

The U.S. Court of Appeals for the Seventh Circuit reasoned that
Abood and subsequent cases only require that Illinois
provide a “rational basis” for forcing workers to associate with
the SEIU — not the heightened scrutiny typically required in
First Amendment cases — and Harris didn’t change
that. But if the rationale for compelled fees in Harris
doesn’t stand up to constitutional scrutiny, neither should being
compelled into an association in the first place — even if
you don’t have to pay for it.

Justice Robert Jackson, one of the Court’s most legendary
members (whose seat Neil Gorsuch now occupies), wrote back in 1943,
“If there is any fixed star in our Constitutional constellation, it
is that no official, high or petty, can prescribe what shall be
orthodox in politics, nationalism, religion, or other matters of
opinion or force citizens to confess by word or act their faith
therein.” With Janus and Hill, the Supreme Court
can uphold this fixed star by correcting a 40-year mistake and
returning some of the freedom (and money!) American workers have

Ilya Shapiro
is a senior fellow in constitutional studies at the Cato Institute,
where Frank
was until recently a legal associate.

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What If We Treated Guns Like Cars? Then We Might Be Able to Enact Truly “Common-Sense” Gun Laws

Trevor Burrus

Another mass shooting has sparked a gun-control debate in
America, and gun-control advocates and gun-rights supporters are
talking past each other as usual.

And there’s one question that often comes up: What if we treated
guns like cars?

Cars, after all, kill around 40,000 people per year-about as many as guns-with 2016 being
the deadliest year on American roads since 2007. Yet, in general,
we regard auto fatalities as an inevitable consequence of allowing
private citizens to own and drive cars. As long as cars are going
to be in private hands, then there will be car accidents, including
large accidents with multiple fatalities. We expect and accept that
the number of auto fatalities increases as more people own cars,
and we expect and accept that sometimes cars would be misused with
tragic consequences.

We can do this because there is broad agreement about the value
of cars and therefore little fear that cars will be banned or
regulated to the point that normal people won’t have access to
commonly used vehicles. And, due to that broad agreement, it is
easier to pass regulations to make both cars and drivers safer.

Through the guns/cars
comparison, we can see how the gun debate is fundamentally a
culture debate.

In fact, many gun-rights advocates would be okay with regulating
guns like cars. There would be no federal registration or
licensing, state-granted licenses would be given to people over 16,
17, or 18 years old after passing a simple test, the license would
be good in all 50 states, and using a gun on private property
wouldn’t require a license. As others have pointed out, in many ways this
would be less onerous than current firearm regulations. Purchasing
a car requires no background check or waiting period, and cars can
be purchased by people who have been convicted of a felony, use
illegal drugs, have been dishonorably discharged from the military,
or are illegal aliens-all of whom are “prohibited persons” under
current federal gun laws.

So why don’t we have such purportedly “common-sense” regulations
for guns? Quite frankly because many gun-control advocates want to
go much further than “common-sense” restrictions. Gun-rights
supporters know that gun-controllers won’t stop after enacting,
say, “universal” background checks. While a significant number of
gun-control advocates ultimately prefer total prohibition, the
majority likely prefer limiting access to guns in a manner that
would be akin to limiting cars to licensed NASCAR drivers on
official NASCAR tracks.

Gun-control supporters don’t get the comparison between guns and
cars. People need cars, but no one needs a gun, they argue. Whereas
they see cars as integral to a modern, flourishing civilization,
guns are throwbacks to a primitive time when we settled disputes
via duels. Moreover, there’s admittedly a significant difference
between an intentional and an accidental killing. If you think a
gun is only a tool for destruction, then the comparison makes no

But gun-rights supporters understand the analogy. A gun, like a
car, is both an effective tool and a deadly instrument. The
qualities that make a car or a gun an effective tool are the same
qualities that make it a deadly instrument. A good car or a good
gun is reliable, easily controllable, and gets the job done. And
while there are some cars and guns that are more dangerous due to
shoddy construction or because they go particularly fast, no car or
gun is good “only for killing.” Yes people die from guns or cars,
sometimes in horrific ways, but that’s no reason to ban either

Through the guns/cars comparison, we can see how the gun debate
is fundamentally a culture debate. Guns divide us like so many
other things. Liberals and conservatives live in different places,
go to different restaurants, and watch
different shows. Conservatives
own guns more often and are more
likely to understand that, while a gun is a tool that can be
misused, it is also enjoyable to spend an afternoon at the shooting
range. For some liberals, an afternoon at the shooting range is
akin to watching dog-fighting or bear-baiting.

There is no analogous culture debate about cars. Liberals and
conservatives alike enjoy cars, understand their value, and
generally understand how they work. We all understand that a car’s
deadliness is inexorably tied to its usefulness. And there is broad
support for “common sense” regulations to make cars and drivers
safer because we don’t worry that safety regulations or licensing
requirements are part of a plan to ultimately ban or severely
restrict cars.

But if only half the country owned cars, and that ownership
roughly tracked political divisions, then we’d see similar Facebook
debates sparked by posts exclaiming “40,000 people did in car
accidents last year. When will we stop the madness?!?” Jeeps might
be described as “military-style” vehicles that are clearly only
meant for war, ignoring the fact that Jeeps are just normal cars.
Car owners would try to explain that one person’s misuse of a car
doesn’t justify banning whole classes of cars; that the only way to
stop auto fatalities entirely is to ban and confiscate cars, an
unreasonable goal in a country with hundreds of millions of cars
and a deeply entrenched car culture; and that the focus should be
on drivers rather than cars because stopping bad drivers is more
effective than banning bad drivers’ cars. Bad drivers, after all,
will just switch to different cars.

If gun-control advocates could better understand the gun/car
comparison, then perhaps more productive conversations can
happen-or at least less hateful. A more productive conversation
about guns-like a more productive conversation about cars-would
look to the conditions that help create fatalities rather than just
focusing on the object itself. The battle against drunk driving
didn’t focus on banning drunk drivers’ cars; it focused on the
conditions that create drunk driving-such as being over-served in
bars-and sought to raise awareness through a variety of
informational campaigns. Similarly, a productive conversation about
guns would also examine the conditions that foment gun violence,
especially a failed and immoral drug war,
rather than just focusing on guns. Instead, gun-control proposals
are often arbitrary, ineffective, based in ignorance about guns, and
seemingly part of a long-term effort to ban guns entirely-and it
drives gun-rights supporters crazy.

Trevor Burrus is a Research Fellow in the Cato Institute’s Center for Constitutional Studies.

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Better Hurricane Forecasting and Preparedness Mean Fewer Deaths

Patrick J. Michaels

What seemed impossible decades ago is now true: When they make
landfall, big hurricanes aren’t killing many people. Only truly
exceptional storms — or more likely exceptionally poor
preparedness — spawn large numbers of fatalities in the
United States when one comes ashore. The big death tolls are now
from flooding, often days later.

Of the top 30 killer hurricanes that have struck the U.S.
mainland since 1850, only three (Floyd in 1999, Katrina in 2005, and Harvey in 2017) were in
the past four decades. Half of the top 10 killer storms occurred
before the widespread adoption of radio.

The lesson? Surviving a landfalling hurricane is becoming
easier, thanks to communication, better forecasting and

Ten years ago, Category 5 Hurricane Dean slammed into Mexico’s
Riviera Maya and killed no one. The lowest barometric pressure at
landfall was 26.72 inches. If it had hit the United States, Dean
would have barometrically ranked third on the all-time monster
list, behind the 1935 Labor Day hurricane in the Florida Keys, and
1969 Hurricane Camille on the Mississippi coast.

A half-century before Dean, Category 5 Hurricane Janet hit in
the same spot, had a similar central pressure, and killed an
estimated 500 people. So what changed?

Preparation was the key. Dean was a well-behaved and
well-forecast storm, and the Mexican government embarked upon a
massive evacuation of vulnerable cities, towns and 80,000 tourists.
Undoubtedly, this saved a large number of people, as some of the
coastal towns were virtually wiped out. The government of Mexico
was rightfully proud of its remarkable achievement.

Irma’s death toll currently stands at 75, tragic but remarkably
low considering the tremendous reach of its damaging wind field,
all the way from Key West to Atlanta, affecting more than 20
million people. At landfall, when the storm’s center first crossed
the coast, there were nine fatalities in the Keys, but half appear
to have been from natural causes.

Apparently, there were only two deaths when Category 4 Harvey
slammed into Rockport and Corpus Christi, Texas. Subsequent inland
flooding, associated with about 80 fatalities, could just as easily
have occurred with a mere tropical storm. For example, in 1979
Tropical Storm Claudette drenched Alvin, Texas, also near Houston,
with 43 inches of rain in 24 hours, still the national daily
rainfall record.

Which goes to show that prediction makes all the difference.
Even with adequate communication, a bad forecast is deadly. An
abominable one resulted in about 700 fatalities (United States and
Canada) in the 1938 Great New England Hurricane. The 1935 Labor Day
hurricane pretty much came out of nowhere, and more than 400 people
died in the Florida Keys.

A bad forecast and bad communication is the worst-case scenario.
In 1900 in Galveston, Texas, an estimated 8,000 to 12,000 people
perished in a Category 4 storm not dissimilar to Harvey at
landfall. When warned by Cuban forecasters that a huge hurricane
was on track between there and the Gulf Coast, Washington’s Weather
Bureau brushed them off with an imperialist flick. By the time the
Galveston forecast office issued a hurricane warming, the island
was already overwashed.

Since the 1950s, forecasts have improved incrementally, and
mega-killers have become rare. Hurricane Audrey in 1957, a top-30
killer, unexpectedly pummeled Lake Charles, La., and led to an
increased research effort that greatly improved forecasts.

Since then, the distance between where a hurricane is forecast
to be and where it winds up has been reduced to about 200 miles for
four and five days in advance. Official three-day forecasts didn’t
even become operational until 1964, and five-day forecasts began in
2001. The combination of improved forecasts and mass communication
has been enhanced by the internet and 24-hour news and weather
channels that clamor for your attention by maximizing plausible

Storms with substantial mortality are now true freaks, or their
effects are enhanced by old-fashioned human bungling.

The 2005 Hurricane Katrina had elements of both. It was well
forecast, but that didn’t matter. While it was technically a
Category 3 storm at landfall, it was huge in extent and piled up
tremendous amounts of water in its northeastern quadrant,
unleashing it on the Mississippi and Alabama coasts. In both
places, the storm surge reached the U.S. record of 27.8 feet high,
and water surged a remarkable six miles inland. Altogether, 238
people died in Mississippi. Under any circumstance, Katrina was
going to be a big killer there.

But New Orleans was where human bungling came in. In 1965,
Category 3 Hurricane Betsy struck New Orleans, killing nearly 60
people in floods. Levees that were supposed to hold back a
wind-whipped Lake Ponchartrain and the Mississippi River failed. In
response, the U.S. Army Corps of Engineers promised a new levee
system that would withstand such a storm.

The new levees failed utterly in Katrina. Congress didn’t
appropriate enough money, and the Corps drilled pilings supporting
the flood walls to only half the planned depth to ensure stability. As a
result, about 1,000 residents (the true number will never be known)
perished in a storm in which the local airport never even recorded
a hurricane-force wind.

Floods, human-assisted or otherwise, that can occur days after a
storm hits, are now the killers. Absent an extreme storm or poor
planning or infrastructure, we are now to the point where
hurricanes that previously killed hundreds or thousands as they
came ashore now produce few fatalities, testimony to our abilities
to increasingly adapt to these terrible storms with better
communication and better science.

Patrick J.
is the director of the Center for the Study of Science
at the Cato Institute.

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Don’t Blame the Librarian, Blame the System

Neal McCluskey

For several hours last Friday, Dr. Seuss sat near the top of the
Twitter trending list. Alas, the renowned children’s author was not
there because an unpublished manuscript had been unearthed, or
something pleasant like that. No, it was because a school librarian
had pointedly rejected free Seuss books from first lady Melania

It set off a firestorm about the librarian, but the true problem
is the public schooling system in which she works.

Cambridgeport Elementary School’s Liz Phipps Soeiro declared her
objections to the donation in an open letter. She had many complaints,
including that there were worse-off districts that could use free
books; Education Secretary Betsy DeVos had “marginalized and
maligned” low-income communities by supporting school choice and
decreased federal spending; and Seuss is “a tired and worn
ambassador for children’s literature” whose work is “steeped in
racist propaganda, caricatures and harmful stereotypes.”

Soeiro could have taken a less condescending tone. Right after
“thanking” Trump for the shipment, she added, “Sent second-day air,
no less! That must have been expensive.”

Photos of Soeiro celebrating Dr. Seuss —
cat hat and all! — just a couple of years ago didn’t help.
But agree with the substance of her points or not, they are matters
on which reasonable people can differ. Ultimately, the problem is
not her opinions or even her tone, but that in rejecting the books
she made values-based decisions for every taxpaying citizen of

Was she allowed to do that? District officials said that
Soeiro was counseledon “all relevant policies,
including donations policies and the policy against public
resources being used for political purposes.” But it is hardly
clear that she exceeded her authority. The “book donation procedures” page on the
district’s website states that a school’s librarian may decline to
stock donated books if, among other things, she decides that their
“content is not appropriate.”

That said, the process would not be any fairer if committees of
parents, or school boards, made the decisions. Taxpayers who found
accepted books inappropriate, maybe even immoral, would still be
compelled to pay to promulgate those views. Likewise, groups seeing
their views underrepresented or absent because books sharing them
were rejected would be rendered unequal under the law. Think Seuss
unacceptably stereotypes and mocks your race? Too bad if libraries
in your public school stock his books. Opposed to gay marriage, but
the public schools reject your offer of books making your case? Tough.

To be fair, the Cambridge situation is extreme in terms of the
heat it has generated. Publicly rejecting books from the wife of a
president, especially one as polarizing as Donald Trump, is bound to raise the temperature.
But book battles are hardly uncommon. Indeed, the hullabaloo
occurred in the midst of Banned Books Week, an observance created
by the American Library Association, among other groups.

Tracking challenges to books primarily in
public libraries, including in schools, the ALA from 2001 to 2016
confirmed between 275 and 547 challenges per year. And the
association estimates that between 82 and 97 percent of challenges
go unreported.

Especially likely is underreporting of decisions not to stock
books to begin with. The “reading material” category on the Cato
Institute’s Public Schooling Battle
draws incidents from media reports about conflicts dealing
with public school libraries, reading lists and class assignments.
Of the almost 240 such conflicts on the map, only a handful deal
with initial decisions about books, which for all intents and
purposes likely go on behind closed doors.

In the case of Cambridgeport Elementary, it seems that —
had she so chosen — Soeiro could have rejected the Seuss
award with nary a peep.

Of course, whether a rejection makes noise or not, or challenges
are relatively rare, the end result is the same: Some have their
views elevated by governments that are supposed to treat all people
equally and others do not. It is patently unjust, but it is
inescapable in a system for which all must pay, but only some
— or one — make decisions.

Thankfully, there is a solution: school choice. Attach money to
kids — preferably through a tax credit for people who choose
to donate to scholarship funds — and let parents select
schools with values they share. Choice is one of the policies to
which Soeiro objected, but if there is one lesson to take from her
run-in with Dr. Seuss, it’s that neither she, nor anyone else,
should get to decide whose speech everyone must support.

is a contributor to the Washington Examiner’s Beltway
Confidential blog.