How Effective Is Border Security?

Alex Nowrasteh and Patrick G. Eddington

Border security is a major issue this election cycle. Republican Presidential candidates Donald Trump, Marco Rubio and Ted Cruz are all calling for a border wall and vast increases in Border Patrol to stop the flow of illegal immigrants. The truth is, over the past 15 years, we’ve dramatically increased border enforcement. And instead of needing more, we may be going too far already.

Since 2000, the number of Border Patrol agents has more than doubled. These days, the number of illegal immigrants apprehended by Border Patrol is 80 percent lower than in 2000.

But the rapid expansion of Border Patrol has multiplied their use of controversial tactics — like military-style Forward Operating Bases (FOB) in remote areas and interior checkpoints — that are finally be questioned (off the campaign trail, at least) for their civil liberties violations and ineffectiveness. They need even more scrutiny.

A new federal report written by Department of Homeland Security inspectors found some serious problems with these FOBs. The facilities are sometimes unlivable and poorly maintained. Potable drinking water is unavailable — a serious problem in the desert. At least one FOB is not even continuously manned and many others don’t even have functional security cameras, undermining their very purpose.

Every new Border Patrol tactic should be justified by a rigorous cost-benefit analysis to make sure taxpayer funds are spent effectively and that civil rights aren’t violated.

If the FOBs are so necessary for controlling the border then Border Patrol should be maintaining them better. But even aside from maintenance, are they even effective? How many human traffickers, drug smugglers, or illegal immigrants have been apprehended as a result of these FOBs? Are they a wise investment of scarce security resources? Are there violations of human rights that occur in these remote areas that are unreported? These are important unanswered questions and we cannot just take Border Patrol’s word for it. They need to be investigated.

Another controversial Border Patrol tactic is the widespread use of checkpoints inside of the United States — some of them operating almost 100 miles from the border. These checkpoints don’t just stop illegal immigrants; they stop everyone driving on the roads. At best, they waste the time of motorists and occasionally arrest a real criminal. At worst, they violate Fourth Amendment rights on a terrifying scale without contributing to border security.

One such checkpoint in the Arizona town of Arivaca is 11 miles from the Mexican border. Established about a decade ago, residents of this small town have been protesting it for years. Warrantless searches, property destruction and other alleged rights violations by Border Patrol have escalated to the point of a federal lawsuit. Tensions are running so high that local residents are operating their own surveillance operation to watch the watchmen.

These problems were predicted forty years ago. The 1976 Supreme Court decision in U.S. v. Martinez-Fuerte allowed Border Patrol to establish these checkpoints 100 miles from the border to help immigration enforcement, but not to be a Constitution-free zone. In prescient dissents to that case, Justices Brennan and Marshall predicted the very violations that the residents of Arivaca are now complaining about.

Interior checkpoints raise serious civil liberty concerns but, just as worryingly, it’s impossible to judge whether they are even effective at stopping illegal immigration. The last serious audit of these interior checkpoints was completed in 2005 — when Border Patrol was 45 percent smaller. The Government Accountability Office investigated these checkpoints and published their findings in 2009. The big result of these audits is that Border Patrol isn’t keeping enough records or data to even tell if their efforts are effective.

The scant information we have shows gross Border Patrol inefficiency. In 2008, 4 percent of Border Patrol agents were assigned to such checkpoints but they only apprehended 2 percent of the illegal immigrants detained that year. The situation is even worse in the vicinity of Arivaca in Southern Arizona.

A 2013 ACLU report, “Record of Abuse,” analyzed Border Patrol records for the Southern Arizona border sectors called Tucson and Yuma. Tucson Sector checkpoints only accounted for 0.67 percent of the sector’s total apprehensions. Nine out of the 23 checkpoints produced zero arrests of deportable illegal immigrants. In the same year, checkpoints in the neighboring Yuma Sector arrested eight U.S. citizens for every non-citizen. Shockingly, that ratio is an improvement over 2011 when 11 U.S. citizens were arrested for each non-citizen.

One checkpoint in Yuma Sector that is 75 miles from the border reported a single non-citizen apprehension in three years but multiple complaints by Americans who allege that their civil rights were violated. The ACLU report, based on Border Patrol documents, shows a clear need for a comprehensive audit of the checkpoints and a complete reevaluation of their very existence.

The border is not a war zone where civil liberties need to make room for security concerns. The DHS investigation of Border Patrol Forward Operating Bases is a small first step that needs to go further and target interior checkpoints too. Every new Border Patrol tactic should be justified by a rigorous cost-benefit analysis to make sure taxpayer funds are spent effectively and that civil rights aren’t violated. Building a wall along the border with Mexico and other harebrained schemes should be subject to the same analysis. That is the minimum we should expect from our government and serious presidential candidates.

Alex Nowrasteh is an immigration policy analyst at the Cato Institute; Patrick G. Eddington is a policy analyst in homeland security and civil liberties at the Cato Institute.

Don’t Step In Trump’s Trade And Manufacturing Indiscretions

Daniel J. Ikenson

Correcting the record after a Donald Trump policy diatribe is a bit like cleaning up after a St. Bernard in intestinal distress. His logic is sloppy and he’s loose with the facts. Consider Trump’s recent op-ed on trade and manufacturing in USA Today: So many messes; so few plastic bags.

Trump’s eulogy for U.S. manufacturing is dead wrong.  He writes:

One of the factors driving this economic devastation is America’s disastrous trade policies. Throughout history, at the center of any thriving country has been a thriving manufacturing sector. But under decades of failed leadership, the United States has gone from being the globe’s manufacturing powerhouse — the envy of the world — through a rapid deindustrialization that has evaporated entire communities.

Trump is not the first to assert that trade killed manufacturing or to call for trade restrictions or industrial policy to bring it back. But the fact is that manufacturing is not only alive, it’s thriving. By any relevant measure — output, value-added, revenues, exports, imports, investment, R&D expenditures — U.S. manufacturing remains a global “powerhouse.”With respect to most of those metrics, year-after-year (with the exception of during recessions), the sector sets new records.

U.S. manufacturing attracts more foreign direct investment than any other country’s manufacturing sector. After 12 straight years of net growth, the stock of FDI in U.S. manufacturing surpassed $1 trillion in 2014. By comparison, the stock of FDI in China’s manufacturing sector — the world’s second largest manufacturing investment destination, which is now famously rife with overcapacity — is less than half the value of the U.S. stock. And Mexico’s is less than half of China’s. So, if low wages and lax environmental standards were really an investment magnet or an impetus to “ship jobs overseas” — if there really were this “race to the bottom” — we wouldn’t see foreign companies choosing to own $1 trillion worth (and growing) of U.S. manufacturing assets.

Correcting the record after a Donald Trump policy diatribe is a bit like cleaning up after a St. Bernard in intestinal distress.

Sure, output in manufacturing contracts and expands from month to month (as it does in other sectors), but the trend has always been upward. If by “rapid deindustrialization,”Trump means that manufactured goods account for a smaller share of U.S. output than in the past, I grant him the point, but not the characterization. Manufacturing’s share of the U.S. economy peaked in 1953 at 28.1 percent, whereas today manufacturing accounts for only 12.1 percent of GDP.  But in 1953, U.S. manufacturing value added amounted to $110 billion, as compared to a record $2.1 trillion in 2015. A sector that produces, today, more the six times the value in real terms what it produced when it actually was the engine of the U.S. economy, can hardly be described as having deindustrialized.

For a nation whose consumers spend twice as much on services than on goods, and where 90% of the workforce is employed outside the manufacturing sector, the obsession with manufacturing is misplaced.

Trump continues:

I am the only candidate in this race who will bring our manufacturing jobs back. I have been warning for decades what would happen if we didn’t confront foreign trade cheating, and sadly, my fears have come to pass as the United States has seen its trade deficit in goods soar to $759.3 billion last year.

U.S. manufacturing employment reached its peak of 19.4 million jobs in 1979 — fourteen years before the implementation of the North American Free Trade Agreements and 22 years before China joined the World Trade Organization. So the downward trend in manufacturing employment, along roughly the same trajectory for 37 years, began long before the common scapegoats for manufacturing job loss even existed. Manufacturing employment stands at about 12.6 million jobs today.

Trump and others like to say that trade — specifically the North American Free Trade Agreement — caused those job losses.  But the data don’t support that conclusion.  In the 14 years between the 1979 peak and 1993 (the last year before NAFTA implementation), the manufacturing sector shed 2.7 million jobs.  In the 14 years between 1993 and 2007, manufacturing shed 2.9 million jobs.  In other words, the pace of job decline in manufacturing was virtually unchanged between the periods.  Something else (hint: productivity gains) explains much of the reduction in manufacturing jobs. It’s worth mentioning that manufacturing jobs actually increased by 800,000 in the first 5 years following NAFTA’s implementation, which is not to suggest that NAFTA created those jobs, but to reinforce the fact that the data do not even remotely support the assertion that NAFTA destroyed U.S. manufacturing jobs.

Manufacturing job decline was most pronounced and continuous between the post-NAFTA peak of 17.6 million jobs in 1998 and the post-recession trough of 11.6 million jobs in 2010.  The causes of that decline are many, but Trump and others blame China. Trade with China increased rapidly during that period, but alongside revolutions in information technology, consumer technology, and communications.  It wasn’t trade that caused U.S. film and camera manufacturing jobs to disappear, but digital cameras.  It wasn’t trade that reduced the demand for jobs manufacturing digital cameras, paper maps, day planners, metal compasses, wrist watches, calculators, parking meters, CD players, garage door openers, and numerous other products.  The iPhone and the app industry spawned by the ubiquity of smart phones had a lot to do with waning demand for employment in those industries.

There is no doubt that shedding 6 million manufacturing jobs in 12 years — 500,000 jobs per year — constitutes wrenching change. But it doesn’t mean that U.S. manufacturing is in decline.  To the contrary, record levels of output with a declining number of workers means that U.S. manufacturing has become more efficient, capable of producing more with less — in fact, much more with much less.

For those worried about whether U.S. factories can continue to compete globally, this should be reassuring. Trump’s suggestion that our economic future and national security are threatened by the alleged frailty of U.S. manufacturing is total bunk. U.S. manufacturing is strong and thriving.

But that doesn’t mean we should be cavalier about jobs. If producing one ton of widgets in a day required 10 workers on the production line last year, but only 5 workers and a new piece of capital equipment this year, we should call that progress.  Widget workers are now twice as productive — output per capita has doubled. But what about the 5 workers who are no longer needed in widget production? For the economy to actually grow, for wealth to be created and standards of living to be improved, those 5 workers must be redeployed elsewhere in the economy, where they can create value.

The U.S. economy used to be quite adept at this process — at facilitating and accommodating job churn. Historically, there has been a strong relationship between economic growth, trade, and job creation in the United States. In the quarter century between 1983 and 2007 (the last year before the Great Recession), as real GDP more than doubled and the real value of U.S. trade increased five-fold, the U.S. economy created 46 million net new jobs, or 1.84 million net new jobs per year. That engine seems to have blown a cylinder or two in the past decade.

Trade, technology, adoption of more efficient production methods, changing consumer demands, and business failures all contribute to job churn. Policymakers should be less concerned about which of these factors is most responsible for job loss. After all, each makes society better off.

Instead, policymakers should aim to reduce the impediments to labor mobility and job creation. The collective residue of decades of piling bad policies on top of bad policies has gummed up the works. Fixing a tax code that deters the repatriation of an estimated $2 trillion of U.S. corporate profits abroad is one idea. A regulatory audit and overhaul designed to eliminate superfluous regulations and reduce the costs of regulatory compliance could induce massive amounts of investment. Eliminating import duties on industrial inputs and intermediate goods to reduce U.S. production costs would make a big difference. Reining in the protectionist practices of occupational licensing would facilitate cross-state labor mobility. Potential reforms abound.

But Trump’s ideas would make matter much worse. Taxing imports from China at 45 percent or to taxing imports of Fords assembled in Mexico would do nothing to fix the U.S. engine. It would spur massive job loss, reduce labor mobility, and make all Americans vastly poorer. Hey, but at least we’d get our revenge.  Montezuma’s Revenge!

Garland Nomination Shouldn’t Change the #NoHearingsNoVotes Strategy

Ilya Shapiro

Now that President Obama has nominated an unassuming “moderate” with a sterling resumé, should Senate Republicans abandon their position—which I endorsed in these webpages right after Justice Scalia’s passing—of not considering any nominee until after the election? In a word, no.

For one thing—the most important thing—the #NoHearingsNoVotes strategy has always been about the Supreme Court as an institution, not any particular nominee. We live in a polarized political world, with the most turbulent election campaign of my lifetime. President Obama was reelected in 2012, but the Tea Party response to crony capitalism and ever-growing government solidified the opposition in the House and brought the Senate to the GOP in 2014. (And I would argue that the only reason Obama was reelected was that the Republicans managed to nominate the one person who couldn’t credibly run against the ever-unpopular Obamacare.)

The Senate is fully within its rights, given the unique nature of this judicial vacancy, to fulfill its “advice and consent” function by telling the president that we should let this fall’s election determine the Supreme Court’s direction.

I can’t emphasize enough how unprecedented this event is in our legal and political history. The last time that an election-year high-court vacancy was filled before the presidential election was 1916—which was also the first time there were confirmation hearings, which came about largely due to anti-Semitic opposition to Justice Louis Brandeis. The last time that a Senate of the opposing party confirmed someone to fill such a vacancy was 1888, when a handful of Republicans joined the minority Democrats to approve Grover Cleveland’s appointment of Chief Justice Melville Fuller.

Sorry Merrick Garland, it’s not you, it’s the fate of the nation.

You’ll recall that this was the time of tall hats and bushy sideburns, when the federal government satisfied Grover Norquist’s test of being small enough to drown in a bathtub. It was a different world.

More importantly, it was a different Supreme Court, one not known for ideological divisions and that did not loom large in the nation’s political debates, annually deciding cases that roil our culture and economy. Because this isn’t simply an argument from (mostly irrelevant) precedent.

Here we have the unexpected death of a titan of American jurisprudence, someone who irrevocably changed the way judges interpret law and also was one of the locomotives of the modern conservative legal movement. And at a time when the Court has never been more ideologically split: three conservatives (one of whom, John Roberts, elevates minimalism and deference over the originalism and textualism that Justice Scalia pioneered), four progressives who never defect on major cases, and a swing vote who represented the last bulwark against the evisceration of the First and Second Amendments, the separation of powers, federalism, and any other limits on federal power.

The idea that in these circumstances, a pivotal seat should be filled by the most radical president in American history who has easily surpassed even the heady standard of his predecessors for abuse of executive power is not to be taken lightly. Hence no hearings, no votes; sorry Merrick Garland, it’s not you, it’s the fate of the nation.

But second, even when you look into Garland’s impressive qualifications, you realize that, as the indispensable Kevin Williamson points out, a “moderate” appointed by a Democratic president isn’t much different from a “radical.” After all, someone who would only do “moderate” damage to the rule of law shouldn’t be acceptable as a “compromise” pick. Heck, the New York Times says that he’s to the left of Justices Breyer and Kagan, almost as far gone as Justices Ginsburg and Sotomayor.

But even if Chief Judge Garland isn’t the second coming of Justices William Brennan or Thurgood Marshall—the most progressive justices we’ve had—his extreme deference to administrative agencies and law enforcement (and any other government actors he can find) make him in many ways scarier than some firebrand who wants to constitutionalize Bernie Sanders’s platform. To those of us who toil in the legal trenches, fighting to restore the constitutional order after decades of doctrinal deviance, this simply will not do.

And so I’m heartened, and very pleasantly surprised, by the steel we’ve seen thus far in Republican senatorial spines. There will always be time to reconsider this principled stance should conditions on the ground change—even a Hillary Clinton nominee with a Democratic Senate may simply be a “diversity” pick of the same basic ideology—but for now, there’s no reason not to wait for the voters to weigh in on whether we can keep this republic we have.

Ilya Shapiro is a senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review.

Why Cap and Trade Doesn’t Work

Jason Scott Johnston

Many people, including many highly trained economists, seem to think the economics of decarbonizing the U.S. economy are simple and straightforward. Reduce the use of fossil fuels for producing goods and services by imposing taxes equal to the estimated economic cost of the CO2 emissions generated by their production. Increase the production and use of power from wind and solar by subsidizing power from these sources.

The actual impacts of such taxes and subsidies are not this simple. Consider first the tax side. A carbon tax is intended to increase prices of goods or services whose production generates CO2 emissions, lowering demand and ultimately production and emissions. But in the U.S., demand for many carbon-intensive things — such as gasoline for automobiles and electricity for heating and cooling — is highly inelastic. This means higher prices don’t significantly reduce the number of miles that people drive or how much electricity they use. What higher prices for carbon intensive goods and services will almost certainly do is to severely punish poor and middle class households with higher costs for life’s necessities — like driving to work and heating the house, leaving less money for truly discretionary spending.

If carbon taxes do more than this, and actually reduce CO2 emissions, then they actually may succeed too well. A major justification for carbon taxes is that the revenues from such taxes can be used to lower other taxes that distort incentives while allowing funding of public services to remain unaffected. But as the history of state cigarette taxes — used to fund public schools — shows, once governments become dependent on a tax source, their incentive is to increase the tax level to get more funding, even if the data show that this increase may not be achieving its ostensible aim.

What higher prices for carbon intensive goods and services will almost certainly do is to severely punish poor and middle class households with higher costs for life’s necessities.

Indeed, if CO2 emissions did not fall or even increased — as would happen if by some miracle the future U.S. economy somehow escaped its Obama-era no growth doldrums — the pressure to increase carbon taxes would be enormous. But if producers of coal, oil, and natural gas and other carbon intensive goods and services were to expect higher future carbon taxes, and hence lower future revenues, then they would have an incentive to produce as much as possible now. In this way, the imposition of a carbon tax could very plausibly increase current CO2 emissions.

The flip side of this coin consists of subsidies for or mandated use of renewable energy sources of electric power. These are ostensibly designed to create incentives for a long-term transition toward renewables and away from fossil fuel energy sources. As experience in Germany has shown, however, subsidies for wind and solar not only punish consumers with massive increases in electricity prices, but perversely can ultimately require subsidies for thermal, fossil fuel-fired power plants.

The economics behind this is illuminated by an excellent recent report by the Swiss firm Finadvice. In Germany, producers of electricity from renewable energy sources get fixed price subsidies for power produced called Feed-In Tariffs (FIT’s). Costing more than $412 billion to date, and estimated (by former German Minister of the Environment Peter Altmeier) to end up costing $884 billion by 2022, the German FIT has been so high that it has doubled household electricity prices in Germany since 2000, with taxes and charges (subsidies) increasing from 25 percent of total price in 1998 to 40 percent in 2012.

Logically enough, the German FIT has also has induced massive increases in solar and wind power production capacity. To utilize all the new renewable power, the German power grid operators are in the process of spending up to an additional $40 billion on a new national transmission line network. But this cost (also to be paid by electricity consumers) is actually much less a problem than is the impact of subsidized solar and wind power on power markets.

When available, solar and wind power have zero variable cost to produce (as there is no fuel cost). With a guaranteed, high FIT and no variable cost, solar and wind producers flood the market with cheap power when they have it, lowering prices paid to power producers. Wind and solar producers can sell power at such low prices and stay in business because the government has paid all or most of their fixed costs.

But wind and solar power is, to stress again, only intermittently available. Indeed, in Germany, at most, wind and solar supply about one-third of average daily power consumption. To ensure a steady electric power supply, the Germans rely for backup power production on old style, thermal plants powered with coal. But these old style, fossil-fueled thermal plants cannot realize economies of scale when they are being used as backup. Their average costs go up when they are used less often. With thermal power average costs going up but renewable driven prices plummeting, the Germans face the prospect of having to subsidize old style coal burning plants in order to ensure that they survive in order to cover the two-thirds of power demand that wind and solar leave unmet.

Apparently surprised by the massive in increase in solar and wind power capacity induced by the high FIT, in 2012, the German government announced that in the future, the FIT will fall and a cap will be imposed on overall power production under the FIT program. Given the long lifetimes of power plants, if developers believe that this policy is credible, then they have every incentive to build even more capacity today, before the FIT goes down and the capacity cap is imposed. This would actually increase the need to subsidize backup coal power production.

Whether one is considering carbon taxes or renewable energy subsidies, the impact of such a policy is almost surely to increase prices for the basic energy and transportation necessities of life, harming especially the poor and middle class. If, as in Germany, renewables subsidies require subsidies for coal-burning power plants, and if, as economics predicts, expectations of a permanent and rising carbon tax generate increases in present day CO2 emissions, then where will be the environmental benefits to justify the enormous burden put on poor and middle class households? It would seem that the case for carbon taxes and renewables subsidies is not so simple after all.

Jason Scott Johnston is an economist, Professor of Law at the University of Virginia Law School, and Adjunct Scholar at the Cato Institute.

The Iran Deal Bears Some Fruit

Doug Bandow

Iranians have seemed to vindicate the Obama administration’s decision to try diplomacy after years of confrontation with the Islamic republic by electing moderate reformers.

The most important objective with the nuclear agreement was to stop movement toward a nuclear weapon. There never was any reason to believe the GOP hawks who argued that the U.S. need only maintain sanctions while huffing and puffing a little more to make Tehran surrender to American dictates.

When Washington rejected previous Iranian overtures Tehran added centrifuges. The deal was struck because it was a deal, which meant Iran’s government received benefits too.

So far the agreement has pushed Tehran back from developing nuclear weapons and triggered a stronger fight for reform in Iran. That’s a much better start than many observers expected.

The accord ended any potential nuclear weapons program for now. And so far Tehran is living up to the accord.

Another line of attack against the settlement was that it did not cause the Islamic republic to turn itself into a liberal democracy, adopt unilateral conventional disarmament, abandon regional security interests, and accept Saudi dominance. But no nation, including America, would voluntarily surrender to its greatest potential military adversary.

Moreover, most of these demands have little to do with America’s own security interests. For instance, Syria is a humanitarian tragedy, but the U.S. gains nothing from ousting President Bashar al-Assad, which likely would turn more of the country over to the Islamic State.

Iran’s election confirms that the administration was right to negotiate. One of the chief criticisms of the agreement is that it is temporary and dependent on transformation of the Islamic regime. But the accord depends on offering enough benefits to convince whoever rules Iran that they do better by not building nuclear weapons.

Still, President Obama expressed his hope that the agreement “would serve as the basis for us trying to improve relations over time.” The possibility of such a transformation is why Trita Parsi of the National Iranian American Council called these “the most consequential non-presidential elections in Iran at least for the last two decades.”

No surprise, resistance from Iranian hardliners has been strong. The Guardian Council disqualified many reformist candidates.

But, noted author Hooman Majd, “No matter how undemocratic and how compromised the system is, there’s no question that the elections matter.” Moderates have prospered despite their manifold handicaps. The regime will face greater challenges.

Of course, change remains uncertain and will take time. Indeed, many “moderates” seem reasonable only in comparison with hard-liners who have run the nation into the ground. However, the alternative favored by American hardliners, especially neoconservatives who think of nothing other than continued economic sanctions and military threats, would ensure no domestic change in Iran.

Washington has no magical ability to reach inside Iran and install a friendly regime. It isn’t 1953 again, and that play ended badly. Moreover, intensifying threats against Iran would increase the likelihood of Tehran cracking down domestically while reactivating its weapons program.

Washington should play the long game. More than 60 percent of the population is under 30 and many younger Iranians already favor the West and its liberal values.

There is, of course, no guarantee for the future. However, the nuclear accord appears to have triggered or at least accelerated a process which offers the best chance for the future.

U.S. policy in the Middle East has been a catastrophic failure. Yet Washington appears largely oblivious. One positive step has been the nuclear accord.

The future remains uncertain. But administration critics offer only the likelihood of more antagonism and conflict. So far the agreement has pushed Tehran back from developing nuclear weapons and triggered a stronger fight for reform in Iran. That’s a much better start than many observers expected.

Doug Bandow, author of “Foreign Follies: America’s New Global Empire,” is a senior fellow at the Cato Institute.

Merrick Garland Is the Best Conservatives Could Hope For

Trevor Burrus

In a move of masterful politicking, President Barack Obama nominated Merrick Garland, Chief Judge of the United States Court of Appeals for the D.C. Circuit, to fill the seat left by the untimely death of Supreme Court Justice Antonin Scalia. Garland is the consummate moderate, and he’s likely the best that libertarians and conservatives could have reasonably hoped for from this president.

With the looming prospect of either a President Donald Trump, whose philosophy on judicial nominations is as unknown and variable as the rest of his positions, or a President Hillary Clinton, who would certainly nominate much more ideologically extreme justices, Senate Republicans should give Garland the hearing he deserves. Whether Republicans should vote to confirm him, however, is a little more complicated. One thing is clear, however: “Letting the people decide” could get us something much worse.

In fact, many liberals are probably disappointed in this nomination. As we move forward in the nomination process, many committed liberals will probably wonder if Obama nominated an ideological squish, like David Souter was for President George H.W. Bush or Earl Warren was for President Dwight Eisenhower. In many ways, Garland has been so moderate that his commitment to some left-wing ideological causes is unclear. During the hearing for his nomination to the D.C. Circuit, Garland told the Senate that “[f]ederal judges do not have roving commissions to solve societal problems. The role of the court is to apply law to the facts of the case before it.”

Some Republicans will keep saying ‘let the people decide,’ but if there’s one thing we’ve learned this election year, it’s that ‘the people’ are terrifying.

Of course, it is obligatory for every judicial nominee to say that they will neutrally “apply law to the facts of the case before it.” Yet, it seems that in Judge Garland’s case, he’s often telling the truth about that.

For example, in 2003 in al Odah v. United States, in a decision that riled liberals, Garland agreed with a three-judge panel that federal district courts lack jurisdiction to hear habeas corpus claims of prisoners in Guantanamo Bay. The Supreme Court later overturned that decision by a vote of 6-3 in Rasul v. Bush. Garland’s vote in the case, however, seems to have been determined by an honest reading of then-existing Supreme Court precedent. If he had a burning desire to give Guantanamo detainees a day in court, then it was overcome by his neutral application of the law.

Furthermore, Garland hasn’t been as friendly to the rights of criminal defendants as many liberals would want. Conservatives may find solace in this, but libertarians who are committed to the protection of criminal defendants’ rights should be wary. Garland has rarely voted for criminals who are appealing their convictions. Again, however, and underscoring his reputation for neutrality, it seems that Garland has consistently applied the law to these cases rather than act out of a fervent desire to help or hurt criminal defendants.

Libertarians and conservatives should be concerned about Garland’s position on gun rights, however. When the landmark case of District of Columbia v. Heller—in which the Supreme Court would eventually rule that the Second Amendment conveys an individual right to own a firearm—was before the D.C. Circuit, Garland voted to re-consider the three-judge panel’s decision that found an individual right to own a gun. Garland also once voted to uphold a Clinton-era practice of holding onto firearm background check files, essentially creating a gun registry, despite the fact that federal law prohibits the government from holding onto the files.

That is certainly concerning, yet even in that case the dispute was over whether the words “destroy all records” mean “immediately destroy all records.” An honest judge could interpret the statute differently than the National Rifle Association without being completely antagonistic to Second Amendment rights.

This is not to say, however, that we should expect Garland to be a reliable vote in favor of the Second Amendment. Certainly not. But, given his record of neutrality, the behavior of a “Justice” Garland is not easily predictable, and that can be a good thing for libertarians and conservatives when comparing him to other possible Obama nominees or likely Clinton nominees.

All this is why Senator Orrin Hatch, who has been a dogged proponent of the Republican Senate refusing to consider an Obama nominee, said in 2010 that Garland would be a “consensus nominee” and that there would be “no question” that he would be confirmed. Such is the pickle that Republicans are now in and that President Obama strategically placed them in.

Republicans best bet is to play naked politics: the Supreme Court is too important to do otherwise. Read the polls and watch the Republican nomination process. If Trump emerges from the convention as the nominee, and the polls still show that he will take a shellacking from Clinton, then Garland should be confirmed. If something crazy happens, and there are many crazy things that could happen, then it could be cause to delay the nomination until after the election.

Some Republicans will keep saying “let the people decide,” but if there’s one thing we’ve learned this election year, it’s that “the people” are terrifying.

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

Candidates Should Start Thinking about Taiwan

Eric Gomez and A. Trevor Thrall

During a presidential election campaign, candidates tend to dumb down the issues, delivering sound bites instead of nuanced policy prescriptions. That’s bad enough, but it’s even worse when candidates completely ignore looming challenges.

Such has been the case with Taiwan. Despite the fact that Taiwan is a major flashpoint for U.S.-China relations and the situation there is getting tense, Taiwan has been mentioned only once so far in the nineteen Republican and Democratic primary debates.

Politically speaking, the lack of discussion on Taiwan is understandable. Although in the long run China’s rise presents the most critical challenge to U.S. national interests, today terrorism and ISIS loom much larger in the minds of most Americans.

Generating more debate about how the United States should respond to China/Taiwan issues is imperative for U.S. national security in the long run.

But with China flexing its muscles in the South China Sea and renewed uncertainty about the future of its relationship with Taiwan, the next president of the United States won’t have the luxury of ignoring China. Taiwan may not be the primary foreign policy issue of the campaign, but generating more debate about how the United States should respond to China/Taiwan issues is imperative for U.S. national security in the long run.

Economic turmoil in mainland China and political changes in Taiwan are contributing to a very uncertain environment in the Taiwan Strait. The last eight years of economic rapprochement, championed by Taiwan’s outgoing president Ma Ying-jeou, reduced tensions with Mainland China. However, popular opposition to the speed and depth of his policies helped bring the opposition Democratic Progressive Party (DPP), which strongly supported formal independence from China in the past, into power in the January 2016 elections. During the last DPP administration (2000-08) the Taiwan-China relationship was antagonistic. In China, a slowing economy has already causedturmoil in the stock market and announcements of big layoffs in state-owned enterprises. It is unclear how the economic slowdown will impact China’s Taiwan policy, but economic troubles combined with growing ideological tension within Chinese society makes for an unpredictable future. 

Antagonism could return to the Taiwan-China relationship if Taiwan’s president-elect, Tsai Ing-wen, does not commit to the 1992 Consensus. This agreement affirmed both Taiwan’s and China’s commitment to the “one China” concept, and was the foundation of Taiwan’s cooperative approach to cross-strait relations for the past eight years.

During her presidential campaign and since winning the election, Tsai has repeatedly stated a desire to maintain stability in cross-strait relations, but she has not explicitly referenced the 1992 Consensus. This does not sit well with Chinese officials. During this year’s National People’s Congress, Chinese President Xi Jinping clearly stated the importance of the 1992 Consensus to good relations. Other officials responsible for relations with Taiwan have echoed this sentiment. If Tsai does not accept the consensus, maintaining the status quo in cross-strait relations will likely be very difficult.

A hostile Taiwan-China relationship would be impossible for the U.S. to ignore. For starters, China could easily restrict cross-strait tourism or increase diplomatic pressure against the handful of countries that have full diplomatic relations with Taiwan. Should tensions escalate to military posturing or exercises, as happened during the 1995-96 Taiwan Strait Crisis, regional allies such as Japan would pressure the U.S. president to help stabilize the situation, especially given concerns over China’s recent, more aggressive activities in the South China Sea.

Though actual military conflict is unlikely, in the event that tensions spiral out of control the 1979 Taiwan Relations Act requires the President and Congress to determine “appropriate action” to aid Taiwan, which could include military intervention. Americans might be surprised to learn that both the United States and China have war-gamed this battle for decades, and armed conflict in the Taiwan Strait is consistently listed as a top concern in the annual DoD report to Congress on China’s military.

Pentagon planners worry that a confrontation in the Taiwan Strait could draw the United States and China into direct armed conflict. However unlikely, this is a scenario that the next president of the United States cannot afford to ignore.

It is possible that the status quo in the Taiwan Strait will persist. Tsai Ing-wen could accept the 1992 Consensus during her May 20 inauguration, satisfying Beijing’s request. Asking for a detailed Taiwan policy is a bridge too far, but given the stakes involved, America’s presidential candidates should start thinking — and talking — about how they will approach dealing with China and Taiwan. The public deserves, at the very least, to be aware of the storm clouds gathering over the Taiwan Strait.

A. Trevor Thrall is a senior fellow at the Cato Institute and an associate professor at George Mason University. Eric Gomez is a research associate for defense and foreign policy studies at the Cato Institute.

The Clashes of Values that Leviathan Foments

Ilya Shapiro

Kathleen Brady’s book The Distinctiveness of American Religion in Law: Rethinking Religion Clause Jurisprudence is a fascinating exposition of the changing role that religion plays in a rapidly secularizing society. What’s so special about religion? Why should courts treat it differently from non-religious belief systems? Why do we still mostly speak of religious free exercise and not so much freedom of conscience or other formulations of broader ideological protections? Why, for example, does an institution like the Hosanna-Tabor Evangelical Lutheran Church and School get exempted from employment-discrimination laws but not the Cato Institute (which is just as opposed to government incursions on how it wants to operate)?

The answers are complicated, although impingements on religious liberty increasingly have the same cause as impingements on secular liberty: an overweening state whose regulatory tentacles reach more and more into that part of the public sphere that is non-governmental. The government, especially a federal government liable to be insensitive to state and local contexts, foments clashes of values where none existed previously. At the same time, the culture has shifted in an illiberal way such that certain views and behaviors—which don’t otherwise threaten public order or the state—have to be stamped out with the force of law, rather than tolerated or even celebrated.

Religious diversity, like political diversity, just doesn’t count any more. Look at the recent conflagrations over state Religious Freedom Restoration Acts (RFRAs). Few today remember that the federal RFRA was passed by a unanimous vote of the House of Representatives in 1993; in the Senate the vote was 97 to 3, with the majority led by such Rightwing religious zealots as then-Representative Chuck Schumer (D-NY) and Senator Ted Kennedy (D-MA). The bill was backed by the ACLU and the President who signed it into law was a Democrat, Bill Clinton.

Indeed, the reason we’re even “rethinking religion clause jurisprudence,” to quote Brady’s subtitle, is because people’s attitudes toward both religion and government have shifted. The growing enforcement of centralized ideological conformity, as I’ll describe below, is a real innovation in the use of governmental power. The issue isn’t that Congress is taxing, spending, and borrowing more than it ever has—that’s a different problem—but that it’s forcing more mandates into what used to be private decisionmaking. It’s shifting the boundary between the private and public spheres, and the shift tramples individual agency and narrows the choices that people are allowed to make in pursuit of their particular version of the good life.

The most basic principle of a free society is that the government can’t willy-nilly force people to do things that violate their consciences.

Whole swaths of life, from education and health care to commercial enterprises and eleemosynary concerns, are now overseen by those who operate the levers of power. As the scope of government regulation increases, decisions that were once left to families and managers are now used as collateral in the political deal-making process.

With inflexible top-down commands that ignore the unpredictable consequences of any given regulation, government officials display what Friedrich Hayek described as the fatal conceit of pretending that they have the knowledge necessary to make important life decisions for everyone. No choice is too low: the government “nudges” citizens to make “better” choices about whom to hire, what to teach their children, how many calories to drink, and how to plan for retirement. All these efforts are meant to shape minds that will ultimately eschew reactionary political views and retrograde cultural preferences and adopt the “appropriate” moral code.

This shrinking of civil society causes citizens to fracture into groups that fight one other through governmental channels for scraps of entitlements or exemptions. RFRA, the key to the decision in Burwell v. Hobby Lobby (2014), is itself a perfect example of this begging for rights from the government. Because the government could do just about anything, religious individuals and institutions had to secure an exemption in order to do what they should have been free to do anyway. Thus the government—Congress in the case of RFRA, the President in the context of various waivers and accommodations—becomes the source of our liberty rather than its protector and guarantor.

To make matters worse, the late Justice Antonin Scalia, a devout Catholic who professed allegiance to constitutional text in his decisions, laid the foundation for this particular problem. “We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate,” he wrote in Employment Division v. Smith, the 1990 case that led to RFRA. Scalia was right there, but for decades the judiciary has neglected to draw a proper constitutional distinction between what the government can and cannot legitimately regulate. It’s that distinction that’s at the heart of the ongoing contraceptives-mandate litigation, not legal tiffs over “least restrictive means” to achieve a “compelling state interest.”

The Catholic bishops’ complaint about Obamacare was right as far as it went. They said the law’s contraception mandate

continues to involve needless government intrusion in the internal governance of religious institutions and to threaten government coercion of religious people and groups to violate their most deeply held convictions.

But pleading for special exemptions did not get them very far because they had supported the main goal of the legislation. It was the effort to socialize American health care that was the problem, not one small part of the bill’s regulatory apparatus. Having supported the larger goal, the bishops ought not be surprised that religious freedom was crushed along with many other liberties.

Obamacare’s contraception mandate is not the only recent example of the subversion of individual rights. A similar phenomenon has been seen in the spillover from the gay marriage debates, with people being fined for not working at same-sex commitment ceremonies, like the Oregon bakery, the Washington florist, and, most famously, the New Mexico photographer. There is a clear difference between arguing that the government has to treat everyone equally—the actual legal dispute regarding state marriage licenses—and forcing individuals and businesses to endorse and support practices with which they disagree. After all, despite gay-rights activists’ comparing their struggle to the Civil Rights movement, New Mexico is not the Jim Crow South, where state-enforced segregation meant that black travelers had nowhere to eat or stay. There are more than 100 wedding photographers in the Albuquerque area, many of whom proudly advertise their gay-friendliness.

As long as those in power demand that people adopt politically correct beliefs or else exit the public sphere, these issues will continue to arise. Marriage itself is an area where government regulation has created needless social tensions. If there weren’t state licensure, individuals would be able to assign whatever contract and property right to whomever they liked, have whatever civic or religious organization consecrate their union, and let the common law take care of the rest.

Education is another good example. The curricular battles over evolution and creationism, or the amount of time devoted to arts versus sciences, or debates over methods of discipline or extra-curricular offerings could all be defused if the government gave parents more choice over how to educate their kids.

Many of our culture wars are a direct result of government trying to force one-size-fits-all public policy solutions onto a diverse nation.

While the debate over the contraception mandate has centered on a statutory safety valve that prevents capricious infringement of religious freedom, the larger matter of government’s rending of the social fabric remains. Justice Ginsburg, in her Hobby Lobby dissent, expressed serious doubts about the idea of exemptions from governmental regulation:

Would the exemption the Court holds RFRA demands for employers with religiously grounded objections to the use of certain contraceptives extend to employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations (Christian Scientists, among others)?

But the solution to this problem of special treatment is not for government to deny exemptions to all so that all are equally coerced. Instead, a solution must be found that aligns with the American principle that the state exists to secure and preserve liberty. To wit, government must recognize the right of all individuals to act according to their consciences, which includes, among many other things, the right to run their businesses (and to contract with others, or not) as they see fit. It also includes employers’ being able to decide whether and how much to pay for employees’ health care—and to make these decisions for any reason or no reason at all.

In other words, instead of restricting or repealing RFRA, lawmakers should expand it to cover all of our freedoms. It could be called the Omnibus Freedom Restoration Act, or OFRA—not because religious freedom isn’t special (the religion clauses exist for a reason) but because in this context, it’s just one aspect of the broader “bundle of liberties” under attack.

Of course, the Constitution itself is meant to play this role. Yet attempts by government to enforce a collectivist morality continue, and not just because of the political forces and incentives that drive both elected and appointed officials. The judiciary is also to blame, for being too deferential for too long to governmental prerogatives.

It is beyond the scope of this essay to recapitulate the “long war for control of the Supreme Court,” to use the subtitle of Damon Root’s excellent 2014 book, Overruled—which Kurt Lash reviewed for Law and Liberty here and here, with later exchanges about it with Root—but suffice it to say that the courts are supposed to be a bulwark against the political branches and the administrative state alike. This role includes enforcing constitutional limits on the growth of the federal government’s sphere of influence, as well as steadfastly protecting individual rights against federal or state violation. Playing this role properly requires a judiciary that’s engaged and active, as distinct from either restrained or “activist.”

Hobby Lobby was one case where the Supreme Court stood up for individual rights, especially religious rights—but only under an unusual statutory exemption, and only just barely. The Left’s reaction to the decision shows that there are many people who are perfectly comfortable begging an all-powerful government to respect their positive rights rather than vindicating their inherent possession of rights that the government can’t legitimately invade in the first place. They’ve lost sight of Jefferson’s admonition that a government big enough to give you everything you want is big enough to take away everything you have. Or, as Madison wrote in Federalist 51, “you must first enable the government to control the governed; and in the next place oblige it to control itself.” That’s exactly what the Constitution’s enumerated powers were designed to do; they’re simply no longer being enforced.

If the Supreme Court were serious about constitutional structure, the Hobby Lobby case—and the  religious-nonprofit cases consolidated under the name Zubik v. Burwell, which it’s considering this spring—would never have existed because nearly the entire Affordable Care Act is a constitutional nonstarter. The same holds for much else that government does to direct our lives, pit groups of citizens against each other, and weaken community ties.

As it is, the courts have not enforced constitutional limits for decades, and so we’re left seeking exemptions, whether under the Free Exercise Clause, RFRA, or elsewhere. As Georgetown law professor Randy Barnett has said, all these special carve-outs—for individuals, for classes, even for states—are just an attempt to impose external constraints on government that are supposed to compensate for the evisceration of the Constitution’s internal limits. Passing the omnibus freedom-restoration act I mentioned would really be the equivalent of adding the phrase “and we mean it” to the end of every constitutional provision.

The most basic principle of a free society is that the government can’t willy-nilly force people to do things that violate their consciences. Americans understand this point intuitively. Some may argue that in Hobby Lobby there was a conflict between religious freedom and reproductive freedom, so the government had to step in as referee—and women’s health is more important than minority religious preferences. But that’s a false choice, as President Obama would say. Without the federal Health and Human Services rule, women are still free to obtain contraceptives, abortions, and anything else that isn’t illegal. They just can’t force their employer to pay the bill.

If you conceive of rights properly, there’s no clash of personal rights in any circumstance other than when the government declines to consistently recognize and protect everyone’s rights equally. The problem that the Hobby Lobby ruling exposed isn’t that the rights of employers are privileged over those of its employees. It’s that no branch of our federal government recognizes everyone’s right to live their lives as they wish in all spheres. Instead, all people are compelled to conform to the morality that those in charge of government have decided is right.

We largely agree—at least within reasonable margins—that certain things are “public goods” whose provision falls under the government’s purview, such as national defense, basic infrastructure, and clean air and water. But social programs, economic regulation, and so much else that government now dominates at the expense of individual liberty and responsibility are subjects of bitter disagreements precisely because these things are individual freedoms, and we feel acutely, as Americans, when our liberties have been attacked.

The trouble is that when government is the body that grants us freedoms instead of the one that protects them, it becomes much less clear exactly what those freedoms are. As time goes on, every liberty we thought we had is up for discussion—and regulation. Those who supported the owners of the Oklahoma-based Hobby Lobby stores before the Supreme Court were rightly concerned that people are being forced to do what their deepest beliefs prohibit. But that’s all part of the new, collectivized territory.

Kathleen Brady’s rethink of “the distinctiveness of religion in American law” is a masterful text that should be read by every law student and student of public affairs. I just wish it hadn’t been necessary for her to write it.

Ilya Shapiro is a senior fellow in constitutional studies at the Cato Institute, editor-in-chief of the Cato Supreme Court Review, and coauthor of Religious Liberties for Corporations?: Hobby Lobby, the Affordable Care Act, and the Constitution (2014).

Stop Trump Now or Lose Liberty Later

Nat Hentoff and Nick Hentoff

One hundred seventeen foreign policy and legal experts have signed an open letter refusing to support Donald Trump. The letter criticizes Trump’s promise to kill the families of terrorists and to torture terrorism suspects if he is elected president.

The letter also warns that Trump’s “expansive view of how presidential power should be wielded against his detractors poses a distinct threat to civil liberty in the United States.”

Trump has promised to change libel laws to punish publication of “purposely negative stories,” and has defended the dictator Vladimir Putin against charges of complicity in the murder of 34 Russian journalists.

Among those who signed the letter were Michael Chertoff and Michael Mukasey. Chertoff is the former director of the Department of Homeland Security and served as a judge on the U.S. Court of Appeals for the Third Circuit. Mukasey is a former U.S. attorney general who served for 18 years as a U.S. district court judge.

A week earlier, Gen. Michael Hayden, the former director of both the CIA and the National Security Agency, told HBO’s Bill Maher: “I would be incredibly concerned if a President Trump governed in a way that was consistent with the language that candidate Trump expressed during the campaign.” Hayden also suggested that military officers might refuse to follow unlawful orders given by a President Trump.

While Mukasey, Chertoff and Hayden may legitimately be criticized as hypocrites — having been serial violators of Americans’ civil liberties themselves — this certainly qualifies them as experts on the subject.

It could hardly have come as a surprise to Trump or his handlers that he would be asked the following question at last Thursday’s Fox News debate: “(W)hat would you do, as commander-in-chief, if the U.S. military refused to carry out those orders (to kill the families of terrorists and to torture terrorism suspects in violation of the Geneva Convention)?”

“They won’t refuse.” Trump shot back. “They’re not going to refuse me. Believe me.”

“But they’re illegal,” an incredulous Bret Baier said to Trump, referring to the unlawful orders.

Trump dug his hole deeper and, in doing so, his answer became a political Rorschach test:

“I’m a leader. I’m a leader. I’ve always been a leader. I’ve never had any problem leading people. If I say do it, they’re going to do it. That’s what leadership is all about.”

Baier had asked Donald Trump about his willingness to follow the rule of law, which is the bedrock of any constitutional democracy. But Trump’s answer reflected a stunning disconnect from this basic concept, focusing instead on his certitude that the illegal orders would be carried out. The legality of the underlying orders simply didn’t enter into the equation. It wasn’t a factor.

Trump’s primitive understanding of political leadership is rooted in the concept of Das Fuhrerprinzip; a German phrase that roughly translates as “The Leader Principle.” It is an autocratic legal philosophy that found its zenith in the totalitarian bureaucracy of the Nazi Third Reich.

Werner Best, the Gestapo’s legal adviser, explained Das Fuhrerprinzip in the 1940 edition of his book Die Deutsche Polizei (The German Police). According to Best, any form of pre-existing law “which governs the actions of the authorities is not regarded as law” since “(t)he will of the leaders, in whatever form … administers law” and therefore alters all valid law.

“As long as the police carries out the will of the leadership,” Best wrote, “it is acting legally.”

The day after the Fox News debate, Trump’s campaign quickly backtracked from his insistence that the military will follow his illegal orders. The campaign issued a written statement that possessed a logical coherence uncharacteristic of Trump’s typical verbalized thought process.

“I will not order a military officer to disobey the law,” the statement read. “It is clear that as president I will be bound by laws just like all Americans and I will meet those responsibilities.”

But just a day later Trump was at it again, making statements that he would follow the law, but would also seek to broaden, expand and open up those laws to allow him to do those things that are now illegal.

We are not the only ones to have compared Trump’s success to the rise of the Nazi Party in Germany. Danielle Allen, a professor at Harvard, has made a similar comparison in a thoughtful Washington Post column.

But many intelligent people still discount such comparisons. They argue that Donald Trump’s campaign promises are nothing more than pragmatic bluster that will be abandoned if he is elected president. Others argue that the U.S. is not Weimar Germany and that the checks and balances unique to our Constitution would prevent what happened in Germany from happening here.

Former U.S. Senator Jim Webb has said: “If you’re voting for Donald Trump, you may get something very good or very bad.” Which begs a question all Trump supporters should ask themselves: Why gamble with something as precious as the Bill of Rights?

Even highly educated people can have bad political instincts. “There is no reason for despair,” professor Albert Einstein told the press, when asked to comment on the Nazis’ 1930 electoral victories that gave them only 18 percent of the popular vote.

Less than three years later — after the Nazis obtained a solid plurality of over 30 percent of the vote — Einstein was running for his life.

Nat Hentoff is a nationally renowned authority on the First Amendment and the Bill of Rights. He is a member of the Reporters Committee for Freedom of the Press, and the Cato Institute, where he is a senior fellow. Nick Hentoff is a criminal defense and civil liberties attorney in New York City.

Trump v. Clinton — What a Choice!

Michael D. Tanner

The Trump steamroller may have hit a bit of a speed bump over the past week, but The Donald still looks like the clear Republican front-runner. At the same time, there is a growing #NeverTrump movement, with Republican, conservative, and libertarian officeholders, media personalities, and voters vowing that they will not vote for Trump if he is the nominee. In fact, polls suggest that roughly half of those Republicans who do not currently back Trump would not support him if he won the nomination. Such numbers tend to shrink as the general election draws nearer and the partisan choices become starker, but there is no doubt that many more Republicans than usual are prepared to bolt the party, rather than support a vulgar charlatan who flirts with bigots and casually urges Americans to commit war crimes.

But if Republicans don’t want to support Trump, what are their options?

A very few might grit their teeth and vote for Hillary Clinton. But one suspects that a dishonest left-winger, who doesn’t think the Obama administration is liberal enough, would not be a palatable choice for most. Could they really vote for her knowing that she would, for example, most likely appoint the next Supreme Court justice? Many more might just stay home, but that would not only lead to a Clinton victory, it would almost certainly guarantee Democratic control of the Senate, and possibly even threaten the House.

Whoever winds up winning the presidential election, the Republic will be the loser.

Some have talked about a more conventional scenario in which a conservative mounts a third-party challenge, but the barriers to such a run are enormous. Potential candidates would have to meet petition-signature requirements, with filing deadlines as early as mid-August. In California, the candidate would have to get signatures equivalent to 1 percent of the total number of registered voters, which could be roughly 178,000. Oklahoma would require signatures equivalent to 3 percent of the total votes cast in the last general election. Any third-party effort would be extremely costly and require an organizational infrastructure that few minor parties have.

The potential third-party candidate most often discussed, former New York mayor Michael Bloomberg, announced this week that he will not run, sparing us from yet another big-government champion of the nanny state. But it is unlikely that anyone without Bloomberg’s billions would be able to mount a credible independent run.

That would leave existing alternative parties and their candidates. The Libertarian party was on the ballot in 48 states and D.C. in 2012; it is already on the ballot in 31 states, and could conceivably end up getting on the ballot in every state. The LP has never had much electoral success. Its high-water mark was 1980, when its candidates, Ed Clark and David Koch, received a bit more than 1 percent of the vote. In 2012, just under 1.3 million Americans voted for the Libertarian nominee, former New Mexico governor Gary Johnson, compared to almost 61 million voting for Mitt Romney.

Johnson is the front-runner for the Libertarian nomination again this year (there are a handful of less-well-known contenders), and may provide an attractive choice for those seeking an alternative to Trump and Clinton. As a Republican two-term governor of New Mexico, Johnson built a reputation as a fiscal hawk, vetoing more spending bills than any other governor. In the face of a Democratic-controlled legislature, he still cut taxes 14 times, without a single tax increase. When he left office, New Mexico was one of just four states with a budget surplus. He could be well positioned to contrast his position on cutting government with the big-spending agendas of both Trump and Clinton. On the other hand, Johnson’s more open views on social issues and his anti-interventionist foreign policy may be tough to swallow for Republicans who have already rejected Rand Paul.

Social conservatives might turn to the Constitution party, which is already on the ballot in 16 states this year, and could qualify in more. The Constitution party, founded by Howard Phillips 25 years ago, has never received more than 0.19 percent of the vote, and the candidates competing for its nomination, Scott Copeland and J. R. Myers, are lacking both money and name recognition. Even so, its hardline positions on issues such as immigration, abortion, and gay marriage might attract Ted Cruz supporters, if Cruz does not take the nomination away from Trump.

The reality is, of course, that neither the Libertarian party’s nor the Constitution party’s candidates — or for that matter any other third-party candidates — have any real chance of winning even a single state. But if enough unhappy Republicans (and possibly a few unhappy Sanders Democrats) vote for one of them, it could throw a significant monkey wrench into this year’s election. A Libertarian party, for instance, that takes 3 or 4 percent of the vote is very different from one that takes 1 percent. It certainly could move states from Trump to Clinton, or vice versa. Recall that many believe that Ralph Nader’s Green-party bid is what shifted Florida to George W. Bush in 2000. At the very least, it could further fracture the Republican party.

Yet, even without a viable alternative, the prospect of Trumpism may be just too much for believers in liberty and limited government to swallow. In which case, an already unprecedented political year could become even more interesting.

Or maybe Jonah Goldberg has it right: Sweet Meteor O’Death — SMOD2016.

Michael Tanner is a senior fellow at the Cato Institute and the author of Going for Broke: Deficits, Debt, and the Entitlement Crisis.