Freedom to Exclude Versus Enforced “Tolerance”

Ilya Shapiro

The state of civil society in America is conflicted. On the one
hand, we have a plethora of affinity groups to suit anyone’s fancy.
Your social choices are no longer limited to the men’s club or
bowling league, and digital-media tools can make anyone a YouTube
or Twitter all-star. On the other hand, pressures to conform to
ever-shifting political correctness can threaten the educational
and employment prospects — and, increasingly, physical safety
— of those who hold minority views.

Religious liberty, as exercised through free association beyond
the bare freedom to worship, is under threat from government
mandates, weaponized antidiscrimination laws, and other
illiberalisms of the New Left. For example, US college campuses
have become a hotbed of anti-Semitism even as such incidents
decline worldwide (presumably because Jews are disfavored in the
latest intersectional hierarchy of privilege).

The Supreme Court, for its part, has taken a middle stance,
making the government relent in cases like Burwell v. Hobby
Lobby
(2014) and Zubik v. Burwell (2016) but not
allowing student groups to restrict membership to actual believers
in Christian Legal Society v. Martinez (2011). This fall,
the Court will hear Masterpiece Cakeshop v. Colorado Civil
Rights Commission
,one of the public-accommodations cases that
ask whether businesses can be punished for declining to service
same-sex weddings.

So what about those state laws? Here we see infringements of
individual freedom in the spillover from the gay-marriage debates,
with people being fined for not working same-sex weddings: the
Washington florist, the Oregon baker, the New Mexico photographer,
and many others, all of whom serve gay clients in non-marital
circumstances. Most recently, a Michigan farmer was banned from the
East Lansing farmer’s market for posting on Facebook that he would
decline to host gay weddings on his outside-city-limits farm.

To me, there’s a clear difference between arguing that the
government must treat everyone equally — the legal dispute
regarding state issuers of marriage licenses — and forcing
private individuals and businesses to endorse practices and
participate in ceremonies with which they disagree.

The most basic principle
of a free society is that government cannot force people to do
things that violate their consciences.

Notwithstanding New Mexico’s state Religious Freedom Restoration
Act, Elane Photography lost its case. Despite gay-rights activists’
comparing their struggle to the Civil Rights movement, New Mexico
isn’t the Jim Crow South, where state-enforced segregation left
black travelers nowhere to eat or stay. A YellowPages.com search
yields more than 100 photographers in the Albuquerque area, most of
whom would surely be happy to take anyone’s money.

That’s why it’s heartening that a Kentucky appeals court ruled
in favor of local print shop Hands On Designs, which had declined
to print t-shirts promoting the Lexington Pride Festival because
its owners disapproved of the shirts’ message. That ruling was
narrow, however, holding that the public-accommodations ordinance
didn’t protect political views. (Many do hold ideology to be a
protected class, as in Seattle and the District of Columbia.) The
court missed the opportunity to make clear — as Cato
urged in our amicus brief — that laws violate the First
Amendment when they force people to publish words with which they
disagree.

Indeed, many of these cases implicate freedom of speech even
before associational considerations. Take, for instance, a
freelance writer who refuses to write a press release for a
religious or political group with which he disagrees. Under several
state courts’ theories, such a refusal would be illegal. Yet a
writer must have the First Amendment right to choose which speech
he creates, notwithstanding state law to the contrary. Likewise,
with photographers and florists who create visual rather than
verbal expression. The Court has said repeatedly that the First
Amendment protects an “individual freedom of mind,” which the
government violates whenever it tells a person that she must or
must not speak.

Upholding individual freedom and choice here would inflict
little harm on those who feel offended and hurt. A photographer who
views same-sex weddings as immoral would be of little use to the
people getting married; there’s too much risk that the photographs
will, even inadvertently, reflect that disapproval. Those engaging
in such a ceremony — or, say, entering an interfaith
marriage, or remarrying after a divorce — would actually
benefit from knowing that a prospective vendor looks down on their
union, so they could hire someone more enthusiastic.

Many of our culture wars are a direct result of government’s
forcing one-size-fits-all policy solutions on a diverse citizenry.
All these issues will continue to arise if those in power demand
that people adopt certain beliefs or cease to engage in the public
sphere.

The outcry over cases involving the freedom of speech and
association shows a more insidious process whereby the government
foments social conflict as it expands its control into areas of
life that we used to consider public yet not governmental. Indeed,
it is government’s relationship to public life that’s changing
— in places that are beyond the intimacies of the home but
still far removed from the state, such as churches, charities,
social clubs, small businesses, and even “public” corporations that
are nevertheless part of the private sector. Through an
ever-growing list of mandates, rules, and “rights,” the government
is regulating away our Tocquevillian “little platoons.” That civil
society, so important to America’s character, is being smothered by
an ever-growing state that, in the name of equality, tries to
standardize life from cradle to grave.

The most basic principle of a free society is that government
cannot force people to do things that violate their consciences.
Some may argue that in public-accommodations cases, there is a
conflict between the “freedom to discriminate” and basic civic
equality, so the government has to step in as referee. But that’s a
false choice, as President Obama liked to say. Without putting
wedding vendors out of business, gay couples are still free to get
married and to choose among many vendors when they do.

The problem that these clashes expose isn’t that the rights of
privileged businesses trump those of marginalized customers. It’s
that all too often governments don’t recognize everyone’s right to
live his life as he wishes.

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

Trump’s Decision on Military-Style Weapons Will Harm Communities

Adam Bates

In 2004, then-Sheriff Joe Arpaio’s SWAT team in Maricopa County,
Ariz., raided a suburban home looking for illegal
firearms.

The raid was a comedy of ineptitude.

The officers drove their armored vehicle into a parked car on
the street. They changed into military-style uniforms on the lawn,
leading a neighbor to conclude that they might have been amateur
paintballers or even gang members. One of the many tear gas
canisters police fired into the home apparently sparked a fire and
set the home ablaze. A dog trying to flee the fire was scared back
into the home, where it died.

Administration should
learn from mistakes of Arpaio. Disastrous SWAT raids added proof
that supplies not only unnecessary, but dangerous.

Instead of a cache of illegal weapons, the raid recovered an
antique shotgun and a legally owned 9mm handgun, and officers made
only one arrest — for a failure to appear in court over
traffic violations.

It should go without saying that military weapons and tactics
should be reserved for the most pressing circumstances. Yet the
Trump administration is taking the country backward by again giving
police departments access to the most dangerous artillery that is
often unnecessary for local officers.

This week, Attorney General Jeff Sessions announced the
reversal of an Obama-era rule that limits the transfer of certain
military equipment to state and local police agencies.

The Pentagon’s 1033 program has provided military
surplus equipment to state and local law enforcement agencies for a
couple of decades. The Obama administration made a slight modification
to the program by banning the transfer of some military equipment
such as high-powered rifles, grenade launchers, bayonets, and some
armored vehicles and camouflage uniforms.

Militarized law enforcement came under intense scrutiny in 2014
after Missouri teen Michael Brown was killed by police officer
Darren Wilson. Police met protesters with tanks, tear gas and
military-grade weapons, escalating an already tense situation.
Observers could have easily been forgiven for mistaking the
officers for occupying soldiers.

One photo from the protest quickly went viral and came to
symbolize the oppressive, dangerous nature of overly militarized
law enforcement. It showed multiple officers in full military gear,
pointing riffles at a young, black male who was holding his hands
in the air. The officers seem to be saying, do what we say or we’ll
kill you.

That kind of military-tinged imagery is exactly what led some
police chiefs to renounce their participation in the weapons
program. Brandon del Pozo of Vermont’s Burlington
Police Department said the equipment was starting to twist the perspectives of his officers:

“We have the resources to handle all but the most
inconceivable public safety scenarios. Amassing a worst-case
scenario arsenal of military equipment results in officers seeing
everyday police work through a military lens. When I realized what
a small role the military played in equipping our police, I
concluded it was better to return the items.”

Del Pozo has his finger on a fundamental question: Can police
departments be flooded with military weaponry and technology
without blurring the distinction between law enforcement work and
military occupation?

The history of SWAT teams, like the one in Maricopa County,
provides an ominous answer.

SWAT teams originated as a response to demanding and dangerous
circumstances such as hostage situations, civil unrest and active
shooters. But as traditional law enforcement goals gave way to the
incentives of the war on drugs, the mission of militarized police
units began to creep. Rather than being reserved for emergency
situations, the vast majority of SWAT raids today result from
search warrants, usually for drugs.

Abuses of military tactics and equipment are inevitable. Police
officers, like all people, respond to incentives.

We can, of course, imagine unlikely scenarios in which the
police might need .50 caliber rifles, but there is a cost to
turning responses to outlandish possibilities into policy
prescriptions. Without adequate transparency, accountability and
training, that cost will continue to be paid in lives.

Adam Bates is a
policy analyst for the Project on Criminal Justice at the Cato
Institute.

Trump’s ‘Toughness’ Is an Insult to Law Enforcement

Michael D. Tanner

By now, we’ve all seen the pictures: police officers and
sheriff’s deputies wading into Houston’s floodwaters to rescue
people, exhausted from working 20-hour shifts, disregarding their
own safety to help others. Nothing could be more emblematic of the
tens of thousands of professional law-enforcement officers in this
country who do a dangerous and underappreciated job every day.

That makes it even more disappointing that President Trump has
chosen to reward and highlight law enforcement at its very
worst.

First came the pardon of former Arizona sheriff Joe Arpaio.
While some segments of the president’s base cheered the move, it’s
hard to find a law officer who has shown more contempt for the law
itself.

Arpaio was convicted of criminal contempt of court for blatantly
disregarding the orders of a federal judge. This was not a close
case. In fact, Arpaio openly bragged that he would refuse to comply
with the judge’s orders. The orders in question were designed to
stop Arpaio from violating the Fourth Amendment rights of Arizona’s
Latino residents with mass racially based roundups on the mere
suspicion that those targeted might be undocumented immigrants. In
fact, two different federal judges found against Arpaio’s office,
citing constitutional violations that were “broad in scope, involve
its highest ranking command staff, and flow into its management of
internal affairs investigations” and saying that he had “willfully
violated” court orders to correct those violations. That’s a far
cry from “just doing his job,” as the president claimed.

Ignoring court orders,
shackling women while they give birth, and roughing up suspects do
not exemplify good policing.

Moreover, this was hardly the only time that “Sheriff Joe” has
shown his disregard for Americans’ constitutional rights. During
his tenure as sheriff, at least 160 inmates died from brutality,
neglect, suicide, disease, bad health, or old age in Arpaio’s
jails. In many cases we have no way of knowing the cause of death,
because the sheriff’s office never bothered to investigate.

While Arpaio’s tough methods have won him applause from
law-and-order advocates, most of the attention has focused on
things like requiring inmates to wear pink underwear or limiting
meals to bologna sandwiches. Less publicized are tactics such as
forcing women to give birth while chained to their cots. Lawsuits
allege that the unsanitary conditions and brutality in Arpaio’s
jails resulted in dozens of miscarriages.

And before Arpaio’s supporters respond that those locked up in
Arpaio’s jails deserved what they got, we should note that most
county-jail inmates are not dangerous felons but people arrested
for minor drug offenses or infractions such as drunk driving or
failure to pay child support.

Altogether, settlements and lawsuits resulting from Arpaio’s
practices have cost Maricopa County taxpayers more than $200
million. Moreover, while Arpaio found time to champion the birther
movement, crime actually increased in the county during his tenure.
Just recently it came to light that his office apparently neglected
to pursue thousands of sex crimes.

This hardly makes Sheriff Joe a model law-enforcement
officer.

Trump followed up the Arpaio pardon with a tweet recommending a
new book by Milwaukee sheriff David Clarke. This would be the same
Sheriff Clarke who has had 15 inmates die in his jail since 2008.
One of those dead was a newborn. Guards repeatedly denied the
mother’s requests for help, and she received no medical attention
for some two hours after she was forced to give birth alone in her
cell. And according to a lawsuit, this wasn’t the only time Sheriff
Clarke replicated Arpaio’s methods: His jail allegedly forced at
least 40 pregnant women to wear “belly chains” and shackles while
they were in labor.

Another death in Clarke’s custody involved an inmate who died of
severe dehydration after reportedly being denied water for six
days. County officials have ruled the death a homicide, and it is
currently under investigation.

And Clarke’s lack of respect for the Constitution appears to
extend to the First Amendment. He has called for the suppression of
anti-Trump protests, saying, “There is no legitimate reason to
protest the will of the people.”

President Trump’s failure to understand what good policing is
all about should come as no surprise. The president himself has
suggested that police should rough up suspects when they take them
into custody. But this attitude, far from championing “law and
order,” is actually an insult to those brave and dedicated
officers, like those in Houston, who perform their jobs every day
with courage and character.

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

The Trump Administration’s Stealth Attack on Legal Immigration

David Bier

The Trump administration is quietly throwing up new obstacles
for legal immigrants: increasing the
load of paperwork for immigration applications by double, triple or
more
.

The new forms have complex and vague questions, which will
result in mistakes with devastating consequences and will cost
immigrants thousands of dollars in attorney’s fees to complete.

Since January, Citizenship and
Immigration Services
, the agency that processes applications
for immigrants, has increased the length of 15 immigration
applications
– including many of the most commonly required
forms — collectively doubling their length from 72 to 162
pages. Each new form also comes with instructions, which also
almost doubled in length from 114 to 215 pages. That amounts to a
combined total of an additional 191 pages of forms and instruction
in less than a year.

Unbelievably, the agency estimates in its instruction
booklets
, as required under the Paperwork Reduction Act, that
the forms will take, collectively, only 7 percent longer to
complete. It asserts that applicants will be able to finish each
individual page in about half the time needed for previous
forms.

In fact, on 10 of these forms, the agency claims that it will
take not even a minute longer to complete. The agency, for example,
increased the length of the I-485 form, which allows immigrants to adjust
status from temporary to permanent residency, from six to 18 pages.
The form’s instructions underwent a fivefold increase, from
eight to 42 pages. Still, the government asserts that immigrants will be able to finish
the new application in the exact same amount of time as the
old one – at three times faster per page.

But the main issue is not the time — it’s the cost.
U.S. citizens will need to fill out nine times as many
pages
to bring over their spouses. Because the new questions are
confusing and complex, many immigrants who would not have
previously needed a lawyer will now have to hire one. Some
attorneys have told me that the forms have already forced them to
raise their prices dramatically.

The need to hire a lawyer becomes obvious once you read the new
questions. The I-485 adjustment of status form asks, for example,
whether you have ever been “arrested, cited, charged or
detained for any reason by any law enforcement official.”
These terms are undefined. Does “cited” include parking
violations? Is a parking enforcement officer a “law
enforcement official”? Does “detained” include at
the airport, where everyone undergoes screening? What about being
pulled over or patted down by police on the street?

Another question asks immigrants to state whether you
could endanger” the “welfare” of
the United States. Are we asking immigrants to claim they have no
risk at all? Yet another asks whether you will “have
potentially serious adverse foreign policy consequences.”
This year, the administration suggested that allowing any
grandmothers from certain countries would have serious adverse
foreign policy consequences. What standards are applicants supposed
to apply?

This is “extreme” vetting — extremely vague
vetting. It’s a morass of complex questions that will
undoubtedly keep out no determined terrorists, but will ensnare
millions of immigrants in needless bureaucracy. And it’s
exceptionally important that immigrants answer these questions
correctly and precisely — one wrong answer can count as
“misrepresentation” and result in a denial, deportation
after an approval or the inability to naturalize.

That can be true — although legally, it’s not
supposed to be — even if it’s an admission against your
own interests. Jason Dzubow, a D.C.-based immigration attorney, has a client
who denied he was “associated with” any political
groups “in the United States or in any other location in the
world,” or had been arrested for a “crime,” and
the government denied him naturalization because he took part in a
protest at which he was arrested. How did it find out? He had told
the agency himself. The arrest was the reason the government
granted him asylum in the first place.

He interpreted “associated” to mean formal
association, not just attending a protest, and the arrest was for
political activities, not a “crime.” This occurred
before the new form rolled out. Now there are even vaguer
questions that will trip up well-meaning immigrants.

“Is the goal of this an employment program for immigration
lawyers?” Dzubow quipped to me.

No, but these changes do offer the government something else:
control. If anyone falls out of favor after an approval, the
government can always find an excuse to kick him or her out later.
This allows the executive branch to wrench power over legal
immigration from the legislative branch.

President Trump has already revealed his preferred vision of
legal immigration reform — a bill to make drastic cuts to the number of
legal immigrants. The new forms and bureaucratic hurdles may
provide a way to accomplish that goal without legislation: delay,
obfuscate and price out immigrants who would otherwise come to the
United States. Congress should reassert its control and protect the
system that it created.

David Bier is
an immigration policy analyst at the Cato Institute.

Protecting Privacy

Matthew Feeney

The Fourth Amendment is in a sorry state. The constitutional
provision intended to protect us and our property from unreasonable
searches and seizures has been weakened over decades-a fact that
ought to be of acute concern at a time when surveillance technology
is increasingly intrusive and secretive. A modernization of Fourth
Amendment doctrines is long overdue.

In his new book, The Fourth Amendment in an Age of Surveillance,
David Gray, a professor at the University of Maryland’s Francis
King Carey School of Law, attempts to outline what such a
modernization might look like. To establish why reform is
necessary, he offers a historical account. Gray traces the concepts
embodied in the amendment back to mid-18th-century concerns in both
England and the American colonies about overly broad permissions
for executive agents. In England, the focus of the controversy was
general warrants, which were vague in purpose and almost unlimited
in scope.

In the colonies, the controversy focused on writs of assistance,
a specialized kind of general warrant, ripe for abuse. In a
five-hour-long speech before the Massachusetts
Superior Court in 1761, the lawyer James Otis Jr. condemned writs
of assistance, declaring them “the worst instrument of arbitrary
power, the most destructive of English liberty.” John Adams, who
witnessed Otis’s oration, decades later described it as the moment
when “the Child Independence was born.” A distaste
for needless and indiscriminate intrusions into homes and other
property is thus baked into America’s revolutionary DNA. It was
eventually codified in the Fourth Amendment, with its prohibition
of “unreasonable searches and seizures” and guarantee that “no
Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched,
and the persons or things to be seized.”

How the Fourth Amendment
can keep up with high-tech surveillance.

The doctrines used in interpreting the amendment have evolved
over time. The rise of modern police forces prompted the judiciary
to develop the exclusionary rule (which ensures that evidence
collected via Fourth Amendment violations is inadmissible), the
Miranda warning (which, as anyone who has seen a TV cop
show in the last four decades can tell you, holds that once you’re
in police custody officers must tell you that you have the right to
remain silent and the right to an attorney), and the warrant
requirement (which holds that searches are per se unreasonable if
they’re conducted without prior approval from a judge or
magistrate).

The interpretation of the Fourth Amendment has also evolved in
response to technological development. Notably, the advent of
eavesdropping devices gave rise to the “reasonable expectation of
privacy” test, first formulated in Supreme Court Justice John
Harlan’s concurrence in Katz v. United States (1967)
and subsequently adopted by the Court. According to the test,
government agents have conducted what the law considers a “search”
if they have violated an individual’s subjective expectation of
privacy and if that expectation is one that society is prepared to
accept as reasonable.

“Unfortunately,” Gray writes, “the Katz test has proven
inadequate to the task of regulating the means, methods, and
technologies that have come to define our contemporary age of
surveillance.” Gray puts in his crosshairs three
post-Katzdoctrines that have had the effect of leaving
some of the most intrusive surveillance technologies outside the
purview of Fourth Amendment challenge.

First, thanks to the “public observation doctrine,” police do
not necessarily need a warrant to peek into your backyard with a
drone. (Some states have passed legislation mandating warrants for
drone surveillance, but these requirements go beyond what is
required by current Fourth Amendment interpretation.) Nor do police
need a warrant to track your public activities for days at a time.
As Gray points out, there wouldn’t even seem to be a Fourth
Amendment issue if the government were to install GPS trackers in
every car or computer and then use those trackers to keep
an eye on all citizens’ public movements. After all, as the
Katz Court held, “What a person knowingly exposes to the
public, even in his own home or office, is not a subject of Fourth
Amendment protection.”

The “third-party doctrine” likewise offers little reassurance.
According to this doctrine, you have no reasonable expectation of
privacy in information you voluntarily surrender to third parties,
such as Internet providers and banks.

In an era of Big Data and ubiquitous electronic communication,
the implications of the third-party doctrine are significant. For
example, police today can deploy devices called “stingrays” that
mimic cellular towers. Each cell phone is constantly playing a game
of Marco Polo with nearby cell towers, seeking a connection. A
stingray emits a boosted signal, forcing all nearby phones to
connect to it. This allows police to monitor the location of a
target’s cell phone. Using a stingray, law enforcement can also
uncover information about a target’s communications, such as the
number of texts sent, the recipients of texts, the phone numbers
dialed, and the duration of calls. But stingrays can also collect
all of this information about the communications of innocent
people. Thanks to the third-party doctrine, there is no clear
Fourth Amendment remedy to this invasion of privacy.

Finally, the rules about legal “standing” in Fourth Amendment
cases have, according to Gray, also weakened the remedies available
to citizens. Under the rules that emerged after Katz,
plaintiffs must demonstrate that they have suffered a violation of
their reasonable expectation of privacy. So, for example, citizens
outraged about the National Security Agency’s metadata collection
program lack the standing to file their own Fourth Amendment suits;
they have to be able to explain how the program violated their
reasonable expectations of privacy. Or, in another instance, when
Amnesty International challenged the FISA Amendments Act of 2008, a
law giving the federal government broad power to snoop on U.S.
citizens’ international communications, the Supreme Court ruled in
2013 that the organization lacked standing to challenge the law,
even though Amnesty works with many international partners. As
Justice Samuel Alito wrote for the Court, “respondents cannot
manufacture standing merely by inflicting harm on themselves based
on their fears of hypothetical future harm that is not certainly
impending.”

With its citations from old dictionaries and other contemporary
texts, Gray’s exhaustive word-by-word and clause-by-clause
dissection of the Fourth Amendment should appeal to originalists.
His take on standing may raise a few eyebrows, but he does a noble
job of defending his claim that an original public understanding of
the Fourth Amendment reveals that it protects a collective right to
prospective relief, not just relief for past individual harms. The
amendment does protect individuals, Gray believes, but its
individual protections are derived from the collective right.

Gray proposes several ways to improve Fourth Amendment
protections in light of the high-tech surveillance techniques that
are now available to authorities. Surveillance conducted by drones
and stingrays could, he argues, be curtailed via a remedy modeled
on the Wiretap Act. Under that 1968 legislation, passed in the wake
of the Katz ruling, officers seeking a wiretap order must
establish probable cause, exhaust other investigative methods, and
ensure that the wiretap is time-limited. The act also requires that
officers regularly report back to the court that issued the wiretap
warrant.

When it comes to Big Data, Gray proposes a range of constraints
governing the aggregation, collection, analysis, and storage of
data.

Perhaps Gray’s most interesting proposal flows from his
collective-right theory of the Fourth Amendment. He would allow
individuals and organizations to have standing to challenge
programs that threaten the people as a whole. This would allow,
say, the American Civil Liberties Union to challenge the legality
of New York City’s stop-and-frisk program. Such other programs and
technologies as persistent aerial surveillance, metadata
surveillance, and license-plate readers would be open to challenge
under Gray’s understanding of the Fourth Amendment.

Not everyone will be convinced by Gray’s analysis. Some critics
will undoubtedly dispute his collective-right theory of the Fourth
Amendment and quibble with his Wiretap Act-like remedies. However,
these disagreements will not detract from the fact that his book is
a welcome and informative contribution to the public debate about
surveillance-a debate that will lastingly shape how we live
together and how we understand privacy and liberty.

Matthew Feeney is a policy analyst at the Cato Institute.

Why Trump Should Start Paying for the Secret Service

Daniel J. Mitchell

The news that the Secret Service is way over budget because of
President Donald Trump’s frequent vacations is a rich source of
material for political satirists. It’s easy to zing Trump for being
a hypocrite, as he previously complained about the cost and
duration of President Barack Obama’s vacations. Trump is way ahead
of his predecessor’s pace.

But let’s look at this issue from the perspective of taxpayers.
Every time the president hops on Air Force One for a weekend
getaway at one of his resorts, that involves a major shift of
manpower by the Secret Service, along with major outlays for
travel, lodging, and other costs. Now there’s talk of making the
budget even bigger to accommodate all of Trump’s trips.

It’s time to consider
some sensible reforms that could limit the agency’s burden on
taxpayers.

With the prospect of even higher Secret Service costs, it’s time
to consider some sensible reforms that could limit the agency’s
burden on taxpayers.

First, Congress should put an annual limit on expenditures for
unofficial White House travel. Restricting the president’s ability
to take taxpayer-funded vacations could be politically
advantageous. According to a 2013 Center for Economic and Policy
Research report, the average American gets 10 paid vacation days a
year
. Congress would likely get credit for bringing the
president’s funded vacation time closer to that of the people he’s
supposed to serve.

Presidents are not average, of course, so they should get
taxpayer-financed protection for around four weeks of vacation. Any
more than that would still have a Secret Service detail, but the
president would have to pick up the incremental expenses, either
personally or (more likely) by having their political party or
campaign committee cover the cost.

There should also be similar restrictions for the presidential
family, especially with regard to overseas business trips. If
Trump’s children feel it is necessary to go overseas to sign a
deal, then the company at the very least should pay half the cost
for Secret Service protection. Congress could stipulate this when
it writes its annual allocation of funds for the White House and
the Department of Homeland Security, which runs the Secret
Service.

Another reasonable reform would be to permanently expand the
Secret Service’s travel budget, but protect taxpayers by limiting
the number of other administration staffers that go on junkets. He
should be forced to cut in half the number of political advisors,
speechwriters, and flunkies that have turned White House trips into
costly boondoggles. It’s not ideal to have congressional spending
bills micromanage White House operations, but that might become
necessary if presidents don’t exercise good judgment on personal
and business trips.

None of these suggestions should be interpreted as attacks on
Trump. They would be permanent reforms to address the systemic
problem of wasteful spending and administrative bloat in
Washington. This problem existed before the current president. And
in the absence of reform, it will be an issue with future
administrations.

Daniel J.
Mitchell
a senior fellow at the Cato Institute and chairman of
the Center for Freedom and Prosperity, is on the Editorial Board of
the Cayman Financial Review.

How to Defend Tolerance

Flemming Rose

In historical terms, tolerance is a relatively recent invention. Until the 16th and 17th centuries,
few people bothered to think about the value of tolerance. In fact,
it was perceived as a virtue to be intolerant of dissenters. When
it came to religious dissenters, it was considered a duty to
persecute them as a threat to the political order and the spiritual
health of society. Believers were obliged to eradicate heretics and
blasphemers; otherwise they, and their communities, risked becoming
targets of God’s wrath.

This understanding started to change in the aftermath of the
wars of religion in Europe. On a pragmatic level, there was an
urgent need for Protestants and Catholics to work out ways to live
together in peace. This resulted in a regime of religious
coexistence with limited tolerance. Religious minorities were
allowed to gather outside of town to hold their worship services,
or they established so-called Schuilkerk, secret houses of
worship in private homes that later paved the way for the
separation of public and protected private spaces.

Doubts about the certainty of our knowledge also led to greater
tolerance of other beliefs and opinions. Europeans travelled to
faraway places and saw that people there were guided by different
approaches to life. This was reinforced by a growing skepticism
about truth. To those epistemic arguments, John Stuart Mill added
that increased toleration and exposure to competing ideas would
help the tolerant-would lead, that is, to better societies and
better individuals. On the Millian view, people would experience
greater individual satisfaction when they could choose their
beliefs for themselves and take responsibility for the choices they
make.

The case for tolerance that grew out of this story once seemed
settled. But no more. Each day brings news of intolerance toward
speakers on university campuses in the Anglo-Saxon world. There are
many reasons for this, but one fundamental challenge is that
tolerance in many ways goes against human nature. We are not born
tolerant; it’s something we have to learn.

Peter Balint, a senior lecturer in international and political
studies at the University of New South Wales in Canberra,
Australia, examines the deeper arguments of critics of tolerance.
His new book defends toleration as an effective and respectable
tool to manage diversity in a liberal democracy.
Respecting Toleration: Traditional Liberalism and Contemporary
Diversity
focuses on three forces in our world that push
against tolerance: the multicultural challenge, the despotism
challenge, and the neutrality challenge.

The multiculturalists contend that the liberal approach to
diversity based on neutrality and tolerance has failed because it
doesn’t involve positive respect for or recognition of minorities.
Balint posits that if we care about people living their lives as
they see fit and doing the things they want to do within the
framework of the law, then state neutrality is the best possible
means toward that end. The respect-and-recognition approach,
moreover, risks placing in jeopardy vulnerable minorities within
minorities (a non-veiling Muslim woman, for example, in an enclave
of Muslims whose prominent spokesmen interpret the Quran as
requiring that women wear the hijab).

The defenders of despotism-many of whom are sophisticates and
disclaim that that is what they are defending-hold the view that
tolerance is an outdated concept that a diverse society based on
equality needs to move beyond. As the Swiss-born academic Tariq
Ramadan puts it: “Toleration is intellectual charity on the part of
the powerful … and we must get beyond it. When standing on
equal footing, one does not expect to be merely tolerated or
grudgingly accepted.”

Ramadan is referring to a classical definition of tolerance that
involves objection to something, the power to interfere, and
finally, the withholding of that power. Balint refutes this
definition by saying that toleration can involve power and
objection, but it’s not always the case. Liberal states quite often
exercise tolerance without having any objections; and even if they
do object, their practice of restraining themselves from
interference is better than the alternatives. Tolerance on behalf
of the state may involve respect, indifference, and forbearance.
Balint makes a distinction between a general, permissive practice
of tolerance and specific acts of forbearance.

Finally, those offering the neutrality challenge insist that
tolerance has been superseded by, or is incompatible with, liberal
neutrality, which implies that the state does not judge ways of
life in society. These liberal critics of tolerance posit that the
state should strive for neutrality, and if it does, tolerance is
rendered at best irrelevant. Balint replies that tolerance and
neutrality need to be understood as range concepts-that is, they
operate on a continuum, so that these are always matters of degree.
The things the state should be neutral about are going to be
narrower than the things the state should tolerate. Tolerance and
neutrality are therefore perfectly compatible with one another. The
latter does not exclude the former.

To make clear that tolerance isn’t superseded by neutrality,
Balint provides several examples. Take the Islamist party
Hizb-ut-Tahrir, which nonviolently campaigns for a caliphate; a
political party in the Netherlands that is against equal rights for
women; a Communist Party that wants to get rid of liberal democracy
and liquidate the right to private property; or a White Aryan
Church that propagates racism and discrimination against nonwhite
people. The state might tolerate these groups, but that doesn’t
mean that the state should be neutral toward them.

Balint rightly says that it is intolerance (not tolerance) that
needs justification in a modern liberal democracy. We demand proper
and weighty reasons for governments or people to negatively
interfere in the lives of others. We have a right to be in control
of our own lives. It is, as Balint stresses, “about a fundamental
freedom to live one’s life as one sees fit.” He thus makes the case
for a freedom-centered approach to toleration, defending liberal
toleration as the best way to accommodate diversity in today’s
liberal democracies. This goes for both the state and its
citizens.

A laudable effort is made here to defend tolerance as a tool to
promote social change and individual freedom-all in the name of
creating as much space as possible for a diversity of ways of life.
But the author would have served his case better with a more robust
and consistent defense of freedom, especially freedom of speech.
Diversity of culture, ethnicity and religion-which is to say,
diversity of ways of life-is closely connected to diversity of
opinions and speech. Hence a key challenge to free speech comes
from politicians and civil society groups who celebrate diversity
of cultures and ways of life, but turn around and denounce
diversity of speech and opinion.

Balint doesn’t accept the distinction between words and deeds
that throughout history has been crucially important for the
cultivation of freedom and tolerance. He rebuts the thesis that
intolerance should be understood as curtailing agency, because it
makes it difficult to identify as intolerant symbolic acts such as
desecrating a religious text or knocking down a religious symbol.
These kinds of symbolic manifestations do not prevent anybody from
doing what they want but, according to Balint, they are still
expressions of intolerance.

He prefers to define tolerance as “negative interference,” which
includes more than criminalization, bans, violence, threats, and
intimidation. In doing so, he broadens the scope of what may be
perceived as intolerant, and he blurs the line between speech and
action. This, in turn, opens the door to the legitimization of a
wide range of restrictions on speech like Bible- burning, racist
speech, or other utterances that may be deemed psychologically
harmful. In short, he invites limitations on the very freedom that
he says he want to promote.

Desecrating a religious text is of course outrageous, though I
am not sure if it is by definition an act of intolerance. Consider
the following example: Your family has been killed in a terrorist
attack. The perpetrators justify their crime with references to a
holy book. To express your contempt for the crime, you desecrate a
copy of that holy book. You burn it or tear it to pieces. Would
that be an expression of intolerance? Does it prevent believers
from exercising their faith? Does it cause physical harm to
anyone?

And how would Balint define the Russian feminist punk group
Pussy Riot’s performance inside the Cathedral of Christ the Savior
in Moscow in 2012? The Russian Orthodox clergy qualified it as a
sacrilege-that is, an act of intolerance-while the women said their
protest performance was directed at the Orthodox Church leaders’
support for Vladimir Putin during the election campaign. Three
members of Pussy Riot were convicted of “hooliganism motivated by
religious hatred,” but Amnesty International designated the women
as prisoners of conscience.

There is of course a thin line between expressive, intolerant
acts that are unlikely to, or are not intended to, coerce, as
against acts that are both expressive and coercive, like hanging a
noose outside a black student’s dorm.

Nevertheless, it seems to me that the author is too quick to
write off the definition of intolerance as curtailing agency-that
is, strictly defining it as preventing others from doing what they
have a legitimate right to do. Such a definition would strengthen
Balint’s own case for freedom with a hands-off approach based on a
culturally thin state.

In general, Balint hesitates to set forth boundaries. He wishes,
he says, to focus on the “application of toleration to contemporary
diversity” not the limits of toleration. Only briefly are the
limits addressed, and to sketch them out he identifies two types.
The first limit on toleration is in line with the harm principle
and refers to speech and actions that impede other people’s
freedom. The second points to considerations of security, welfare,
equality of opportunity, and efficiency.

The harm principle is familiar. Let’s consider the second
boundary in greater detail: the fact that tolerance needs to be
balanced against other considerations. Balint says that justice in
spite of freedom of conscience and association may need protection.
The limit in this case depends on what sort of threat to justice is
posed. Numbers and intensity matter. He provides the following
example: A lonely old neo-Nazi is ignored, but a larger resurgence
of anti-Semitism is tackled head-on. It involves forbearance of a
xenophobic and racist ideology up until it becomes threatening.

This way of reasoning is problematic for a couple of
reasons.

First, what does tackling head-on mean? Probably criminalization
and some kind of law enforcement. If that’s the case, then we need
to determine where to draw the line. Is it only anti-Semitic acts
that should be criminalized, or should anti-Semitic speech be
criminalized as well? And what kind of speech should a ban cover?
All speech, or just speech that incites violence? How tolerant
should we of the intolerant?

It seems that the aforementioned distinction between words and
deeds would have provided some guidance. A couple of years ago,
Germany’s domestic intelligence published a report revealing that
there were 500 more extreme Right groups in 2015 than there were in
2014, and there was a 42 percent increase in violent acts by
rightwing extremists over that same period. This in spite of the
fact that Germany as a militant democracy has the toughest laws in
Europe against racist and xenophobic speech.

A study by two Norwegian researchers on the link between
extremist rightwing violence and limitations on free speech in
Norway, Denmark, and Sweden suggested, similarly, that an
environment where extremist speech was filtered out may well have
increased the risk of extremist violence. Sweden has a tougher law
when it comes to extremist rightwing speech than the other two
have, yet more rightwing Swedes committed acts of violence than did
their counterparts in Norway or Denmark. This indicates that there
is no clear-cut link between evil words and evil deeds.

Second, the problem with criminalizing hate speech as an
expression of intolerance is that the law isn’t the most effective
way to fight the sentiments driving this kind of speech. Civil
society does that far better than the courts. (At least this is
true in liberal democracies; in fact hate speech legislation in
nondemocratic countries is usually used to target minorities.)

To sum up: Balint makes a persuasive case for tolerance as a
tool to manage diversity, both as a relationship between the state
and its citizens and among citizens themselves. He is right that a
freedom-centered approach creates the most space for individuals to
live their lives as they see fit. But the lack of a comprehensive
discussion of the boundaries of toleration and disregard of the
decisive role played by the distinction between words and deeds in
advancing freedom weaken his case.

Flemming Rose is a senior fellow at the Cato Institute.

The Problem with the ‘Otherwise, People Will Die’ Argument for Big Government

Michael D. Tanner

It has become the go-to policy argument for many liberals and
the media: People will die. Repeal Obamacare … and people will
die. Cut any social-welfare program by so much as $1 … and people
will die. Reform unsustainable entitlement programs like Social
Security and Medicare, and, you guessed it, people will die.

While in some cases this argument is debatable and in others
it’s ridiculous, it is always politically potent. Who wants to
argue about economic incentives when lives are at stake?

The reality, born out by
hundreds, if not thousands, of years of experience, is that
economic growth does more to save lives than any government program
ever could.

In the bigger picture, though, it gets things exactly wrong. The
reality, born out by hundreds, if not thousands, of years of
experience, is that economic growth does more to save lives than
any government program ever could. After all, nothing, except maybe
war, kills like poverty. Yet poverty globally is at an all-time
low. And, as a result, life expectancies have soared. A century
ago, the average person could expect to live to around 54 years
old. A boy born today can expect to live to be 76, and a girl can
expect to live about five years longer than that.

Consider what daily life is like in this country today compared
to just just 100 years ago. By every measure we are better off.
Even the poor today have access to goods and services that were
undreamed of by the rich not so long ago. As recently as the 1960s,
for instance, nearly a third of poor households had no telephone.
Today, telephone ownership is nearly universal. Roughly half of
poor households own a computer, more than 98 percent have a
television, and two-thirds have two or more TVs. In 1970, less than
half of all poor people had a car; today, two-thirds do.

It is not government that has brought all this progress about,
but the economic growth that comes from free-market capitalism. As
the economist Deidre McClosky points out, if all the profits
generated by American businesses were immediately handed over to
“the workers,” those workers would be roughly 20 percent better off
than they are today. On the other hand, the rise in real wages
since, say, 1800, has made workers roughly 9,900 percent better
off.

Not only do we know the benefits of economic growth, but we also
know what leads to it: the rule of law, a stable currency, free
trade, liberal labor policies, and limited government intervention.
Policies — such as high taxes, out-of-control spending, and
excessive regulation — that slow economic growth may do far
more harm than good. One might even say that those policies mean
people will die, reductive though such an argument would be.

Too often, advocates of big government look only at one side of
the equation: They see the theoretical benefits of whatever program
they are proposing while ignoring the costs it will impose on the
economy.

Some 250 years ago, the French economist and philosopher
Frederic Bastiat referred to the example of a farmer who plans to
hire a worker to dig a ditch on his property, but is unable to do
so because the money he’d have used to pay the ditch-digger went
instead to pay taxes. A government bureaucrat is able to use those
taxes to spend on various projects. Of course, everyone can see the
results of that spending, which undoubtedly makes the bureaucrat
popular. But what goes unseen is the loss suffered by the poor
ditch digger.

In fact, he might even die.

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

Trump Goes from Afghanistan War Skeptic to True Believer

Christopher A. Preble

In his address to the nation on Monday evening,
President Donald Trump explained that his “original
instinct,” when he came into office, “was to pull
out” of Afghanistan. But “decisions are much different
when you sit behind the desk in the Oval Office,” and so he,
like his two predecessors, has determined that U.S. forces will
remain there. “The American people are weary of war without
victory,” he explained. So victory is what the president
promised them.

Specifically, he pledged to apply force strategically in order
“to create the conditions for a political process to achieve
a lasting peace.”

On five separate occasions, President Trump referred to a
“new strategy” for Afghanistan, but the details are
sketchy. Don’t be distracted by the assertions that Trump
expects more of our Afghan partners, or that he will put pressure
on Pakistan—and we really mean it this time. The
relevant point is this: presented with an opportunity to end the
U.S. war in Afghanistan, Trump chose to keep it going. And going.
“A core pillar of our new strategy,” he explained, is
“a shift from a time-based approach to one based on
conditions.” Withdrawal, should it ever come, won’t be
based on “arbitrary timetables.” Although he said
“our commitment is not unlimited, and our support is not a
blank check,” make no mistake: the U.S. military presence is
open-ended.

Why did a man who regularly railed against Washington insiders
for their foolish wars ultimately sign onto a continuation of
America’s longest one?

Trump’s skepticism of the war in Afghanistan goes back
at least six years. For example, on October 7, 2011, he asked on Twitter “when will we stop
wasting our money on rebuilding Afghanistan?” Less than six
months later, he tweeted “It is time to get out of
Afghanistan…It is not in our national interest.” In August
2012, he called the war in Afghanistan “a complete
waste.” And declared it’s “time to come
home.” As late as December 2014, he blasted President Barack Obama for
“keeping our soldiers in Afghanistan for at least another
year.”

Based on these comments, and Trump’s professed skepticism of the foreign policy
establishment’s playbook, it wouldn’t have been a great
shock if he chose to walk away.

On the other hand, Donald Trump hates losing. And leaving
Afghanistan in its present state would look a lot like a loss.

What’s more, if he were to withdraw all U.S. troops from
Afghanistan, and something bad were to happen at a later date (e.g.
terrorism here, attacks against Americans there, Taliban resurgent)
he would forever be blamed.

He could, and probably would, attempt to shift blame to his
predecessors. But the fact would stand: Trump chose to withdraw
U.S. troops after his predecessors had chosen to leave them in
place, and the bad thing happened on his watch. That that bad thing
would not have happened if the troops had stayed will be assumed,
although such claims are untested and untestable. Just ask Barack
Obama. On Monday evening, as he had many times previously, Donald
Trump blamed the rise of ISIS on Obama’s decision to withdraw
from Iraq in 2011.

President Trump’s rhetoric echoes the conventional wisdom
in Washington. Few presidents are criticized for using military
force. More often, they are hit for not intervening often enough.
Or trying hard enough. Or long enough. Withdrawal without victory
is a particularly odious sin.

Therefore, when Donald Trump was presented with an opportunity
to redirect U.S. attention and resources, he ignored both the
reasonable and well-considered suggestions to withdraw, as
well as the foolish and quixotic proposals. Instead, he
chose to kick the can down the road. Although he didn’t tell
the American people how many additional troops will be sent to
Afghanistan, increasing the size of the force already there will
not be sufficient to turn the tide there, a point that he admitted
during his speech. American military power is insufficient to bring
an enduring political settlement to a country the size of
Afghanistan.

But while leaving U.S. troops in Afghanistan hasn’t made
it easier to win (whatever that means), Trump has made it harder
for his successor to leave at a later date.

Imagine a scenario in the late summer of 2021, in which the next
occupant of the White House is confronted with a choice on whether
to stay or withdraw. He or she will agonize over it—as Trump
did, and as Obama did, too.

In all likelihood, that successor will also conclude
that leaving isn’t worth the political hit. President 46 will leave
the force in place, or modestly increase it, but without expecting
to ever actually win, or ever quit. The object, as with Trump, will
be to avoid the appearance of defeat.

Lather, rinse, repeat. It’s a recipe for continual conflict.

When any president is given the option of either backing away
from the use of American military power, or doubling down on past
efforts, the easiest course—politically—is to continue
the war.

President Trump has chosen the easiest course. The man who
prides himself on ignoring polls and focus groups, and making
decisions on the basis of what is best for the country, has behaved
no differently than his predecessors.

For those keeping score at home, that’s another point for
The Blob (aka Deep State).

Christopher
Preble
is vice president for defense and foreign-policy studies
at the Cato Institute and the author of The Power Problem: How
American Military Dominance Makes Us Less Safe, Less Prosperous,
and Less Free
.

The Slim Chances That President Trump’s Afghanistan Policy Will Succeed: Let’s Look Honestly at Recent History

A. Trevor Thrall and Erik Goepner

Last night, Donald Trump took full ownership of the war in
Afghanistan, a war he has criticized for years. By Trump’s
own admission, and that of his secretary of defense, that war has
been going very poorly. Using his first nationally televised
prime-time address to articulate a new strategy for
“winning,” Trump has firmly yoked his legacy to making
serious progress in Afghanistan.

Unfortunately for Trump, and even worse for the United States,
this war will not end in victory.

The first problem with Trump’s strategy is his
full-throated embrace of a vague and expansive definition of
American goals, which now include “attacking our enemies,
obliterating ISIS, crushing Al Qaeda, preventing the Taliban from
taking over Afghanistan …” Why does Trump believe that
the United States can solve these problems now when solutions have
eluded both of his predecessors for the past 16 years?

In the end, Trump’s bold
claims about keeping America safe by going on the offensive in
Afghanistan ring hollow.

Disrupting Al Qaeda was a discrete and achievable goal, one
quickly realized in 2001. But defeating Al Qaeda “and every
terrorist group of global reach” was not. When nations
— even powerful ones like the United States — identify
impossible tasks as their goals, they are doomed to fail.

Beyond that, although Trump claimed his strategy represents a
clear break from the past, it is so far only a slightly more
muscular version of the policy he inherited from Obama. And, in
fact, it remains a much less forceful version of Obama’s
surge in 2009 and 2010, when the total number of American troops
reached 100,000. That surge provided only temporary and partial
relief to the Afghan government. There is no evidence, from the
Trump administration or elsewhere, to suggest that things will be
different this time. The facts on the ground are stubborn and
longstanding. Neither a few thousand more troops nor a few more
years will tame the Taliban or turn the tide of the conflict.

Nor should the public believe that there is anything new in
Trump’s focus on Pakistan. Though the President is right to
reconsider the aid the U.S. provides to Pakistan given its support
of the Taliban, Trump’s call to hold Pakistan accountable
amounts to a recycling of previous U.S. efforts. In 2001, the U.S.
put “extraordinary pressure” on Pakistan. In 2006, the
U.S. praised Pakistan for its “unfaltering” fight
against terrorism. A similar to and fro continued during the Obama
presidency. None of these efforts have amounted to much to date.
Carrying them too far, on the other hand, may amplify the conflict
in Pakistan, further destabilizing the region.

In the end, Trump’s bold claims about keeping America safe
by going on the offensive in Afghanistan ring hollow. The truth is
that for all the talk of terrorism safe havens and American
influence, neither propping up Afghanistan nor defeating the
Taliban are necessary to ensure American security.

Al Qaeda, the threat that justified the invasion in the first
place, is a pale shadow of its former self, nor is Afghanistan a
safe haven for ISIS. Sadly, the greatest danger to Americans comes
not from terrorists based overseas, but from people living in the
United States who decide to commit violent acts.

After more than 2,400 American casualties and hundreds of
billions of dollars spent in Afghanistan over the past 16 years,
there is still no end in sight to America’s longest war. But
rather than acknowledge the United States has done all it could
there, Trump’s strategy ensures that the United States will
keep paying a steep price for continued failure in Afghanistan.

Trump may also pay a political price for Afghanistan. He
admitted that his initial instinct was to pull out of Afghanistan,
but that was before he “studied Afghanistan in great detail
and from every conceivable angle.” Having successfully
attacked Obama for continuing failed policies in the war on terror,
there is little upside for Trump with his “America
First” base. If U.S. efforts in Afghanistan don’t
“work quickly” as the President promised, he will have
provided potential opponents — both Democratic and Republican
— with a powerful issue with which to attack him in 2020.

A. Trevor
Thrall
is senior fellow in defense and foreign policy at the
Cato Institute and associate professor in the Schar School of
Policy and Government at George Mason University. Erik Goepner
commanded military units in Afghanistan and Iraq and is a visiting
research fellow at the Cato Institute and doctoral candidate at
George Mason University.