The Demise of the Jury Trial

Jay Schweikert

Imagine you were on trial for your life, but your lawyer
insisted on telling the jury you were guilty.

That’s what happened to Robert McCoy after he was charged with a
triple homicide in Bossier City, La. When the Supreme Court hears
oral arguments in McCoy v. Louisiana on Wednesday, it
will decide whether McCoy deserves a new trial. But it will also
have a chance to vindicate the sanctity of the criminal jury trial
itself.

Criminal defense is deeply personal. The assistance of counsel
is invaluable, but it is defendants, not their lawyers, who get to
make fundamental decisions about their cases. The Supreme Court
summed this up in 1975 when
it held
that the Constitution “does not provide merely
that a defense shall be made for the accused; it grants to the
accused personally the right to make his defense.”

With that in mind, the events of McCoy’s case were
shocking. Despite the circumstantial evidence against him, McCoy
maintained innocence and demanded a jury trial, in which the state
would have to prove guilt beyond a reasonable doubt. But
McCoy’s lawyer thought a better strategy would be to admit
guilt to the jury and hope for leniency. McCoy adamantly opposed
this idea, but his attorney pursued it anyway.

There’s no easy solution
to the problem of coercive plea bargaining, but the least we can do
is not discourage trials even more than we already have.

The plan didn’t work, and McCoy was sentenced to
death.

Louisiana’s main argument for upholding McCoy’s
conviction is that his lawyer’s admission strategy was a
reasonable attempt to save his client’s life. It’s true
that in some capital cases, it may be tactically advantageous to
admit guilt to a jury, with the hope of avoiding the death penalty
at sentencing — just as it may sometimes be prudent to take a
guilty plea, instead of risking a harsher sentence at trial.

But the issue isn’t whether admitting guilt can be
reasonable, it’s whether the defendant gets to make that
decision for himself.

Respect for autonomy is especially important when a defendant
must decide how to weigh the risk of a capital sentence. His
decision may turn on beliefs about death and redemption,
relationships with friends and family, concern for his own
integrity, and inner knowledge of culpability. Some capital
defendants will choose to admit guilt, while others may risk
execution to defend their reputation and preserve any chance of
exoneration. Either way, a lawyer has no business overriding a
client’s informed decision on such momentous questions.

The denigration of McCoy’s autonomy is all the more dire
because the jury trial itself — that cornerstone of American
criminal justice — is fast vanishing to the point of
practical extinction. Our Constitution and legal heritage are
premised on citizen participation in the criminal justice system.
But today,
more than 95 percent of criminal convictions are obtained through
plea bargains
, in which prosecutors can bring insurmountable
pressure against defendants. Even innocent defendants are forced to plead
guilty, simply because the threat of a much harsher sentence at
trial is too great.

Coercive plea bargaining is exacerbated by the practical
inability of appointed defense counsel to subject prosecutions to
meaningful testing. Public defenders are saddled with
impossible caseloads
, with individual attorneys often required
to manage hundreds of different felonies per year, and even more
misdemeanors. The role of defense counsel, intended to serve as the
defendant’s trial advocate before a jury, has largely been reduced
to that of plea negotiator.

There’s no easy solution to the problem of coercive plea
bargaining, but the least we can do is not discourage trials even
more than we already have. Jury trials entail risk and uncertainty,
but the defendant should at least be ensured that he will have a
zealous advocate, committed to defending his innocence and putting
the state to its burden.

By permitting defense counsel to concede guilt over a
defendant’s express objection, we further diminish a right that has
already been greatly eroded by a prosecutor-driven conviction
machine.

Robert McCoy, the defense bar, and the criminal justice system
as a whole will all be best served by a clear decision reversing
McCoy’s conviction and granting him a new trial.

Jay
Schweikert
is a policy analyst with the Cato Institute’s
Project on Criminal Justice.

Trump’s Move against Salvadorans Won’t Make Them Leave — or Help U.S. Workers

David Bier

Trump administration officials announced this
past week that the government would terminate provisional residency
permits for about 200,000 Salvadorans next year. The decision is
part of President Trump’s “America first” agenda,
restricting the rights of immigrants in order to protect U.S.
workers. But, as previous immigration experiments demonstrate, the
policy will not aid American workers. And it certainly won’t
make Salvadorans pack their bags. Trump’s order is likely to
have the opposite effects.

President George W. Bush granted Salvadorans
temporary protected status (TPS) after devastating earthquakes hit
El Salvador in 2001. He and President Barack Obama repeatedly
extended the status. Beyond its humanitarian impact, TPS provides
significant economic benefits. It doesn’t give applicants access to any federal welfare
— so there are few costs — but it does grant the legal
right to work. And Salvadorans with TPS work at very high rates:
Eighty-eight percent
participate in the labor force, compared with 63 percent of all
Americans.

Legal employment has helped Salvadorans achieve a relatively
high standard of living. The median household income for
Salvadorans with TPS is $50,000, higher than the
roughly $36,000 for unauthorized immigrants. Their higher wages,
combined with the lack of public benefits, has been a big win for
U.S. taxpayers.

Canceling TPS will make it illegal for these Salvadorans to
work, but it’s unlikely to force them home. In 1990, President
George H.W. Bush granted TPS to some 185,000 Salvadorans during
the country’s civil war, and when President Bill Clinton canceled
their status in 1996, few returned.
Deportations rose only slightly, and many
Salvadorans just worked illegally until 2001.

The decision to cancel
protections for 200,000 immigrants will backfire.

At this point, 28 years since the original TPS designation and
17 years since the subsequent one, the incentives to stay will be
too large for any mass migration back to El Salvador. Trump can try
to drive them out with immigration raids and increased
deportations, as other presidents have tried, but the highest
percentage of unauthorized immigrants deported in a given year is
2.1 percent
three times
the amount this administration deported in 2017.

Losing the legal right to work doesn’t prevent immigrants from
finding jobs. They can use fake or borrowed documents from U.S.
citizen family members, or employers can pay them off the books.
Illegal employment, however, pays less than legal employment
— employers compensate for taking
the risk of hiring someone who may be here illegally.

Researchers discovered this effect in the 1980s, when employers
began facing penalties for hiring unauthorized immigrants. In 1986,
Congress paired such sanctions on employers with a program to
legalize 3 million unauthorized immigrants. After 1986, illegal
immigrants received lower wages
than legal immigrants for the first time.

Rather than discouraging unauthorized immigrants from finding
jobs, however, lower wages incentivized them to take on additional
jobs to make up the difference. After the sanctions were
implemented, unauthorized immigrants worked more, and their labor
force participation rate rose . Meanwhile,
the employment rate among the immigrants legalized by the 1986 bill
dropped , especially
for women.

A similar experiment has played out in Arizona since 2008, when
the state mandated E-Verify, which checks employees’ identification
against federal databases. While it has been ineffective – workers can
still borrow documents — it has lowered wages for
unauthorized men. But this has incentivized more spouses
to work, causing more illegal competition for jobs.

In the short term, many employers will choose to play it safe
and fire the Salvadorans losing TPS, even if they know that other
employers will hire them later under borrowed identities. This
turnover will needlessly harm the immigrants and
impose
at least $1 billion in costs for companies to find, hire
and train new staffers — costs that U.S. consumers will end
up paying.

And the lower wages for unauthorized workers are not likely to
force them out. Central American immigrants’ salaries are between
250 and 300 percent higher in the United
States than in their home countries for the same work; a modest 10
or 20 percent decline in pay is simply insufficient to persuade
many people to leave.

Moreover, the lower wages could result in Salvadorans sending
less money back to El Salvador. Because so many people there rely
on money sent from abroad — which accounts for 17 percent of the
country’s gross domestic product — even more Salvadorans
could end up heading north illegally. The TPS cancellation might
not only fail to discourage illegal immigration, it could encourage
more.

Even if the complete removal of all TPS beneficiaries were
achievable, U.S. workers wouldn’t benefit. The most relevant
evidence comes from the 1964 cancellation of the bracero guest
worker program, which had allowed seasonal workers to enter the
United States legally for more than a decade.

Proponents claimed that eliminating the guest workers would
increase wages on farms that had many such workers — those
farms lost about a third of their seasonal workforce — but
wages on these farms did not risecompared
with those on farms without many guest workers. In fact, in the
years after the program’s end, they rose more slowly than on farms that had never hired
guest workers.

Farmers grew crops that required fewer workers, produced fewer
crops or adopted technology to harvest them. They did not raise
wages. To the extent that the TPS cancellation results in more
Salvadorans leaving the United States, no evidence suggests that
Americans will benefit.

Trump’s decision to cancel Salvadorans’ TPS won’t decrease
illegal immigration or protect Americans from foreign-worker
competition — it will increase illegal immigration and labor
force competition. U.S. businesses will needlessly endure major
compliance costs. The government will lose tax revenue. And it will
bring fear and pointless suffering for Salvadoran residents of this
country, many of whom have built their lives here over decades.
They don’t deserve to be thrown into turmoil for a policy that is
doomed to fail.

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

Donald Trump Flaunts the Dangers of Presidential Power

Gene Healy

They called the last guy
“No Drama Obama,”
but after the tumultuous,
exhausting, occasionally terrifying first year of this
administration, no one is likely to make that mistake with Donald
Trump. On the plus side, for executive power nerds, the Trump
presidency has been quite the intellectual feast. Almost every day,
our 45th president has turned law school hypotheticals into live
issues, sending us back to the books on questions like:

  • Can a sitting president
    be prosecuted?
  • Does he have the constitutional power to pardon
    himself?
  • Does
    the 25th Amendment
    allow removal for megalomania and low
    impulse control?
  • And if the president decides to unleash thermonuclear
    “fire and fury” on North Korea, is there anything
    Congress—or anyone else—can do
    to stop him?

At this juncture, the prospect that Trump’s erratic
behavior might irreparably weaken the presidency seems like an odd
thing to worry about, yet some people do. “If Congress and
the courts diminish the power of the office to constrain
him,” Eric Posner and Emily Bazelon wonder in
the New York Times
, “could they leave the office
too weak for future presidents to be able to govern
effectively?”

It’s early days yet, but I’ll hazard a guess: no.
Nearly every modern president has left the office
stronger—and more dangerous—than he found it. So far,
Trump appears unlikely to depart from that pattern.

Barack Obama left office as the first two-termer in American
history to have been at war every single day of his presidency. In
his last year alone, U.S. forces dropped over 26,000 bombs on seven
different countries. Trump
blew past that tally
nine months into his tenure. Indeed, this
putatively “isolationist” president has deepened
entanglements on every battlefield Obama left him, ramping up

airstrikes
,
kill-or-capture missions
, and
civilian casualties
.

The legal justification for all this is the 2001 Authorization
for the Use of Force Congress passed three days after 9/11, and
which Trump’s two predecessors transformed into an enabling
act for globe-spanning war. Far from resisting mission creep, the
Trump administration has employed that authority for everything
from boots on the ground in Tongo Tongo to a “Make
Afghanistan Great Again” troop surge.

Outside of the ever-expanding purview of the AUMF, the Trump
administration believes it has enormous inherent powers over war
and peace. And as a practical matter, they may be right:
“don’t expect the law or lawyers to provide avenues to
constrain the President from using force in North Korea,”

warns Jack Goldsmith,
who served in the Justice
Department’s Office of Legal Counsel during the Bush
administration.

Nearly every modern
president has left the office stronger-and more dangerous-than he
found it. So far, Trump appears unlikely to depart from that
pattern.

Last summer, shortly after Trump’s off-the-cuff threat to
nuke North Korea, the New Yorker’s Evan Osnos flew
to Pyongyang for a series of interviews with top regime officials.
He recounted
an unsettling exchange
over dinner and drinks with Ri Yong Pil,
a Foreign Ministry apparatchik. Ri asked: “In your system,
what is the power of the President to launch a war [or] does the
Congress have the power to decide?” The president “can
do a lot without Congress,” Osnos answered, including launch
nuclear weapons; “what about in your country?”
Ri’s answer “was similar”: “Our Supreme
Leader has absolute power to launch a war.”

On the home front, thankfully, Trump’s unilateral powers
are less than supreme. The candidate who proclaimed “I alone
can fix it” has learned that the presidency doesn’t run
like a business or a reality show—you can’t just say
“you’re fired” to Congress or the courts.

Trump might get his way more often if not for his pathological
tendency to get in his own way. A competent and savvy would-be
strongman wouldn’t announce major policy changes over Twitter
or dare “so called judges” to strike them down.

Still, as then-law professor, now Supreme Court Justice, Elena
Kagan noted in a 2001 article
“Presidential Administration,”
modern presidents
have accrued significant power over regulatory policy,
“making the regulatory activity of the executive branch
agencies more and more an extension of the President’s own
policy and political agenda.” The Trump administration used
that authority aggressively in its first year, tapping the brakes
on “significant” new regulations (costing $100 million
or more), undoing 15 Obama-era rules via the Congressional Review
Act, and restricting the practice of making law via
“guidance” letters
. If the results fall far short
of Steve Bannon’s promised “deconstruction of the
administrative state,” they’re still welcome changes
for conservatives and libertarians.

But what goes down can come back up, and rise to new heights. As
Kagan noted, the president’s administrative authority works
just as well to push “a distinctly activist and
pro-regulatory agenda.” Even when one approves of what the
president does with the stroke of a pen, the fact that so much
power has been concentrated in the presidency undermines the rule
of law. One of Hamilton’s main arguments in the
Federalist for “energy in the executive” was
that it would be “essential to the steady administration of
the laws.” In the modern era, it has had the opposite effect:
the “law” can change radically from administration to
administration, depending on the policy preferences of the
president. You may “win” or “lose” every
four to eight years, depending on whether the president shares your
preferences, but at some point it’s worth asking: is this any
way to govern a country?

Handwringing about an unpopular president weakening the
executive branch is one of the hoariest—and
dumbest—clichés in presidential punditry. Whether
it’s Bill
Clinton
, George
W. Bush
, or
Barack Obama
, every time a president’s approval ratings
tank, we get a flurry of think pieces about the “Incredible
Shrinking Presidency.” Trump, massively unpopular to begin
with, has had
more than his share
.


“Officials start to ignore the Incredible Shrinking
President,”
MSNBC’s Steve Benen announced in
August: “It’s like we’re watching a president
become a lame duck just six months after his inauguration.”
“The ‘most powerful man in the world’ is suddenly
looking mighty powerless,” echoed
Mike Allen in Axios
. In
the Huffington Post
last month, Kevin Price proclaimed that
“Donald Trump’s influence is shrinking at a breakneck
pace,” as supposedly evidenced by the fact that he’s
abandoned “conventional methods to get things passed and is
now using policies, regulations, an d executive orders to get his
agenda accomplished.” But the prizewinner is probably
Time magazine’s April 6 feature on
“The Incredible Shrinking Power of the President’s
Threats”
—posted just hours before Trump ordered a
drive-by missile attack on the Assad regime in Syria.

That’s the thing about the “Incredible Shrinking
Presidency”: it never seems to get any smaller or less
menacing. But if there’s ever going to be a “teachable
moment” on the dangers of concentrating too much power in the
executive branch, it ought to be now.

Gene Healy is a
vice president of the Cato Institute and the author of The Cult of the
Presidency
.

Deep State Dissonance

Julian Sanchez

You couldn’t ask for a clearer illustration of the Trump
adminstration’s incoherent stance on intelligence surveillance.
Late Wednesday night, the White House released a statement urging the House to reauthorize the FISA
Amendments Act
, the controversial law authorizing warrantless
electronic surveillance of foreigners’ communications, and opposing
an amendment cosponsored by Reps. Justin Amash (R-Mich.) and Zoe
Lofgren (D-Calif.) that would require FBI agents to obtain a
warrant before searching for Americans’ messages in the vast
database created under the authority.

Just hours later, apparently reacting to a segment on Fox News, however, Donald Trump appeared to
condemn the very legislation his administration had just
endorsed:

About 90 minutes later—presumably following frantic appeals from staffers and Hill
allies
—Trump reversed his seeming reversal:

It’s worth pausing for a moment to note that nearly
everything in both of these tweets is wrong. Thursday’s vote
in the House was on reauthorization of the FISA Amendments Act of
2008—section 702 of which provides for the targeting of
foreigners—not the underlying FISA statute passed in 1978.
Wiretap orders for former Trump campaign officials Paul Manafort
and Carter Page were obtained under that original FISA authority,
not section 702, and those orders don’t appear to have
covered the time they were actually working for the campaign. It
remains unclear what role, if any, 702 has played in the
investigation into Russian election interference currently being
spearheaded by special counsel Robert Mueller. Since surveillance
under 702 does not require case-by-case approval by the secret
Foreign Intelligence Surveillance Court, wiretaps conducted
pursuant to that authority would not have needed any
“help” from the infamous Steele dossier. Finally, while
CNN has reported that the dossier was cited in
at least some FISA applications, there is no evidence that it was
the primary basis for the warrants that ultimately issued: Most
experts seem to agree such a dossier would likely have been used
as, at most, one of multiple corroborating sources for any facts
alleged in the applications.

The follow-up tweet is also off base, however. A provision
targeting the procedures for “unmasking” the identities
of Americans swept up in 702 surveillance was part of an
earlier version of the reauthorization bill, but it was dropped
from the language voted on by the House on Thursday. And while
section 702 does indeed require that the targets of warrantless
surveillance be foreigners located abroad, it can be used to target
any foreigner—not just “bad guys”—as long
as it’s for a valid intelligence purpose, and it is not
limited to their foreign communications. Indeed, the central
controversy over the bill centers on the FBI’s ability to
conduct “backdoor searches” in the vast 702 database
seeking communications between those foreign targets and Americans.
Opponents of the Amash/Lofgren amendment during the ensuing House
debate even argued that 702 surveillance would be
“crippled” if FBI agents could not routinely conduct
such searches—casting them not as peripheral, but essential
to the intelligence value of the authority.

There’s a glaring
contradiction in the administration’s attitude toward its own spy
agencies.

Leave those policy details aside for the moment, however. These
conflicting messages only shine a spotlight on the longstanding
contradiction between the adminstration’s words and actions
when it comes to intelligence surveillance.

For the past year, Donald Trump has routinely attacked his own
intelligence community as a den of vipers eager to abuse their
powers to meddle in politics, at one point even comparing the intelligence agencies to Nazis.
He has (without apparent basis) accused them of illegally
wiretapping his offices at Trump Tower, of carrying out a
“politically motivated hoax” investigation at the
behest of Democrats, and (more plausibly) of illicitly leaking
intercept transcripts to the press. His allies in the
media—and even some in Congress—have zealously echoed
this narrative of a treacherous “Deep State” committed to undermining the
Trump administration by any means necessary. It is a narrative of
corruption and political abuse of intelligence powers so extensive
that it makes the concerns voiced by traditional civil libertarian
groups sound downright polyannaish.

A few Republicans—such as Sen. Rand Paul (R-Ken.) and Rep.
Thomas Massie (R-Ken.)—have both echoed this narrative and
drawn the obvious conclusion from it: That such abuses imply an
urgent need to impose additional safeguards. Yet when it came to an
actual vote Thursday morning, Republican leadership—and
ultimately even Trump himself—came down in opposition to the
most elementary check imaginable on NSA and FBI’s sweeping
wiretap authorities: A requirement that a judicial warrant be
obtained before repurposing a foreign intelligence
database to scrutinize the private communications of Americans.
Instead, most fell back on a more familiar Republican argument:
Broad wiretap powers, unhampered by too much judicial oversight,
are necessary to keep us safe, and Americans must trust the
patriotic employees of the intelligence agencies to use those
powers responsibly.

One does not, of course, have to believe all (or any) of Donald
Trump’s fevered claims about persecution by the Deep State to
think the FBI should need a warrant to read your e-mail. History provides
abundant genuine examples of American spies abusing their
powers
, whether or not one thinks Trump belongs on the list of
victims. But the converse position is simply untenable. Republicans
who voted to extend this warrantless spying authority for six years
have demonstrated that, whatever they say on cable television, they
either do not truly believe the portrait Trump has painted of the
intelligence community or—worse—only think it’s a
problem when Democrats are in charge.

Julian
Sanchez
is a senior fellow at Cato and focuses primarily on
issues at the busy intersection of technology, privacy, civil
liberties, and new media

Ask Huawei about The “Coming” U.S.-China Trade War

Daniel J. Ikenson

Speculation is rampant that President Trump will soon announce
sanctions against China for its heavy-handed intellectual property
and technology transfer policies, cavalierly thrusting us into a
deleterious trade war. Huawei Technologies has news for these
speculators: For over a decade, Washington and Beijing have been
waging a tit-for-tat technology trade war, which is escalating and
claiming victims as you read.

The latest hostilities occurred Monday when AT&T, poised to
deliver its long-gestating plan to sell smart phones produced by
Chinese technology giant Huawei, instead abruptly announced that it
was aborting that plan. If history is any guide, AT&T likely
was compelled to change course by U.S. policymakers with leverage
to affect the telecom’s fortunes.

China’s technology ambitions, which at times have been
promoted and advertised with brazen disregard for intellectual
property and the norms of international trade and investment, are
increasingly in the crosshairs of U.S. policymakers. Since at least
2006, Beijing has been promoting discriminatory indigenous
innovation policies, which accord preferential treatment to
companies that develop or register their intellectual property in
China. In 2009, the American Chamber of Commerce in China issued a
report that exposed “a web of industrial policies,” as
well as Chinese government plans to build national champions by
“borrowing” Western technology.

More recently, Beijing approved a $160 billion investment to
help close the technology gap between the domestic semiconductor
industry and the world’s cutting-edge firms. The government
also implemented two new laws—the National Security Law and
the Cybersecurity Law—which aim to tighten state control over
information by requiring data and technology used in certain
sectors of the economy to be “secure and controllable.”
U.S. companies are concerned that the Cybersecurity Law’s
vague objectives and ambiguous language grant too much discretion
to Chinese authorities, who could require firms to share source
code and other proprietary information to gain market entry. Forced
technology transfer has been a long-standing complaint of U.S.
companies.

Meanwhile, China’s “Made in China 2025”
initiative, which is Beijing’s roadmap for achieving
technological preeminence, has put U.S. policymakers on the
defensive, causing all Chinese acquisitions of U.S. (or other
foreign) technology companies to be viewed with suspicion. Just
last week, China’s ANT Financial’s bid to acquire U.S.
MoneyGram was rebuked by the Committee on Foreign Investment in the
United States (CFIUS), which has become an increasingly
insurmountable obstacle to technology acquisitions over the past
year.

What does this have to do with Huawei? Well, rather than attempt
to resolve these issues by bringing complaints to the World Trade
Organization, the United States chose to impose de facto bans on
Chinese technology firms and to make it more difficult for Chinese
companies to acquire U.S. technology. Over the years,
Huawei—one of the world’s most successful information
and communications technology companies—has been held
accountable for the Chinese government’s transgressions (both
real and imagined). Huawei has been crucified for the sins of its
government, standing accused of being affiliated with the
People’s Liberation Army and a conduit for
cyber-malfeasance.

In 2008, Huawei’s bid to acquire U.S. software company
3Com was scuttled by opposition from U.S. policymakers and CFIUS on
the grounds that the transaction, if consummated, would present a
threat to U.S. national security. In 2011, the U.S. House Permanent
Select Committee on Intelligence initiated an investigation into
whether Huawei and ZTE (another Chinese ICT company) presented
security threats to U.S. telecommunications networks. The
investigation culminated in a report recommending that U.S.
firms—especially telecoms with hopes of participating in
federally funded infrastructure projects—avoid contaminating
their supply chains with equipment and components produced by these
Chinese companies.? But the report contained no evidence to support
the claims—only innuendo.

Six months after publication of the House Intelligence Committee
report, U.S. lawmakers inserted language into the Continuing Budget
Resolution making it illegal for U.S. government agencies to
purchase or use Chinese ICT products.? Later that year, as
conditions for its approval of a Japanese telecommunications
company’s acquisition of Sprint Nextel, CFIUS required the
purchaser, Softbank, to purge Chinese ICT components from its
supply chain and to obtain preapproval from the U.S. government for
any new vendors it wished to bring into its supply chain.? Similar
notification and approval conditions have been required in
subsequent acquisitions.

Although the public record is devoid of any evidence to support
the assertions that Huawei is a bad actor, the company has
essentially been shut out of the U.S. market by way of U.S.
policymakers reminding the big telecoms that they have much to lose
if they do business with Huawei.

Considering that Huawei products are ubiquitous throughout the
world and that the company partners with British Telecom in
building and servicing telecommunications networks in the United
Kingdom, might it be possible that protectionism is masquerading as
a national security imperative in this case? Might AT&T’s
decision to drop Huawei have something to do with its desire to win
approval for its pending merger with Time-Warner?

For those wondering how the Trump administration might
“retaliate” against China for any infractions it finds
during the course of its Section 301 investigation, bear in mind
that “pretaliation” is already underway. The U.S.
government has chosen to address China’s pursuit of its
technological ambitions by depriving Chinese tech companies of both
U.S. technology and U.S. consumers. Along with providing a false
sense of cybersecurity, that approach is sure to reduce the scope
for innovation, collaboration, and economic growth, and it will
threaten the global trading system.

All of that might be averted if the Trump administration uses
the evidence it obtains from its Section 301 investigation to file
a formal challenge of China’s practices at the WTO and
Beijing, likewise, launches a WTO challenge of U.S. restrictions of
Chinese ICT companies. The outcomes might then be parlayed into an
enduring solution devoid of debilitating unilateral sanctions.

Daniel J.
Ikenson
is director of the Cato Institute’s Herbert A. Stiefel
Center for Trade Policy Studies and author of the 2017 policy
analysis: Cybersecurity or Protectionism: Defusing the Most
Volatile Issue in the U.S.-China Relationship
.

The Senate Neglects a Life-Saving Cure for Opioid Abuse

Jeffrey A. Singer

In a recent Senate confirmation hearing for the role of
secretary of Health and Human Services, nominee Alex Azar mentioned
“fighting the scourge of the opioid epidemic” as one of
four priorities that would guide him as head of the department.

Unfortunately, Azar declined to further elaborate and the
senators on the committee didn’t press him. They should have
asked if he thinks the Food and Drug Administration should
reschedule naloxone as an over-the-counter drug. President
Trump’s Commission on Combating Drug Addiction and the Opioid
Crisis recommends increased access to this drug, yet has never
mentioned such an obvious and meaningful proposal.

Naloxone, in use since 1971, blocks opioid receptors and
reverses an opioid overdose. First responders across the nation are
equipped with naloxone. According to the Centers for Disease
Control and Prevention, at least 26,500 overdoses were reversed by
individuals without medical training using naloxone between 1996
and 2014.

If the goal is to reduce
deaths from opioid overdoses, the FDA commissioner should order an
expedited review to reschedule naloxone as a non-prescription
drug.

Naloxone is not a controlled substance and has no effect on
patients who are not receiving opioids. It has been recognized as
easy to administer by laymen receiving minimal training, which is
the rationale behind such products as auto-injectable Evzio and
Narcan brand nasal spray.

Every state has passed laws making naloxone more available.
However, because naloxone is still categorized by the FDA as a
prescription drug, every state has at least one health care
professional interposed between the drug and the person who needs
it. Some states still require a patient to receive a
physician’s prescription.

Because prescription drugs can be provided to patients only by a
health care professional licensed by the state, some states have
eased naloxone distribution by legally authorizing licensed
pharmacists to give out naloxone without a doctor’s
prescription. Other states have employed “standing
orders,” in which an authorized physician, such as a
state’s director of public health services, authorizes
pharmacists to distribute the naloxone to patients in need of the
drug. In some states, third parties, such as close friends or
relatives of patients chronically taking opioids, are allowed to
obtain naloxone this way.

While these work-arounds have certainly helped improve access to
the antidote, barriers still exist. For example, many people who
are at risk of overdose are reluctant to seek naloxone from a
pharmacist or other prescribing professional because of the stigma
attached to their opioid use. And not all states allow
third-parties to obtain naloxone on behalf of an at-risk associate
or contact. Thus, there still aren’t enough people who get
access to the lifesaving antidote. Ideally, a person should be able
to grab the antidote off the shelf and head straight to the
checkout counter.

Recognizing this, in 2016 regulators in Australia, a country
that also has an opioid overdose crisis, rescheduled naloxone to
over-the-counter, making the drug, in the words of one reporter,
“as easy to purchase as high strength cold and flu
tablets.” Italy took the same step more than 20 years
ago.

Interestingly, the FDA sees the value of moving naloxone to OTC
status. In an August 2016 blog post, the FDA’s deputy
director stated the agency would assist manufacturers in submitting
applications for OTC status. For OTC approval, manufacturers must
first get approval of labeling and packaging information that can
be understood by the general public.

The FDA has even created a draft label for over-the-counter use
to facilitate drug manufacturers in petitioning for OTC
rescheduling. Yet even this is superfluous, as the auto-injectable
naloxone and naloxone nasal spray were specifically designed for
use by the general public, and have been used by them successfully
in the field for quite some time.

The FDA is being too passive. It is widely believed that the FDA
cannot switch a drug from prescription to non-prescription status
without a petition from a sponsoring manufacturer. And sometimes
drug makers stand to lose financially when their product becomes
OTC. Actually, FDA regalations allow the commissioner to order a
rescheduling review, and allow petitions for OTC rescheduling from
“any interested person” — not just drug
manufacturers.

If the goal is to reduce deaths from opioid overdoses, the FDA
commissioner should order an expedited review to reschedule
naloxone as a non-prescription drug. The secretary of Health and
Human Services should lean on the commissioner if the agency
remains passive. And if all else fails, Congress gets the last
word.

Dr. Jeffrey A.
Singer
practices general surgery in Phoenix and is a senior
fellow at the Cato Institute.

Why Is There So Much Government Hostility to Private Charity?

Michael D. Tanner

Last week brought some of the most brutally cold weather in
years to the eastern U.S. In Elgin, Ill., Greg Schiller recognized
the threat such cold posed to the area’s many homeless people and
decided to allow some of them to spend nights in his heated
basement.

This selfless act seemed a good thing, praiseworthy even. But
the petty autocrats that run Elgin’s city government thought
otherwise. After inspecting Schiller’s property, including
measuring the basement’s window size, Elgin officials closed his
impromptu shelter. According to city officials, “Mr. Schiller’s
house does not comply with codes and regulations that guard against
potential dangers such as … inadequate light and ventilation,
and insufficient exits in the event of a fire.”

Disaster averted. Now the homeless can go back to the safety of
sleeping in the cold under bridges.

Across the country,
municipalities have made helping those in need more difficult at
every turn.

Schiller’s experience with local authorities is, unfortunately,
far from unique. Last November, officials in Atlanta ticketed
people who were handing out free food to the poor and homeless for
“unlicensed operation of a food service establishment.” Baltimore
also requires organizations to obtain a food-service license before
feeding the homeless. Wilmington, N.C., simply prohibits the
sharing of food on city streets and sidewalks. Las Vegas bans “the
providing of food or meals to the indigent for free or for a
nominal fee” in city parks. Orlando prohibits sharing food with
more than 25 people in city parks sans a permit, which can only be
granted to any one group twice a year. New York City requires all
charitable assistance to the poor to pass through one of eight
municipally approved organizations. Other municipalities have used
zoning ordinances to hamstring homeless shelters.

The evidence suggests that private charity is simply more
effective than traditional welfare at both providing for people’s
immediate material needs and dealing with the barriers to their
moving up the economic ladder.

Why, then, is there so much government hostility to the
practice?

One might simply conclude that “bureaucrats will be
bureaucrats.” The enforcers of rules and regulations soon come to
believe that, in the absence of those rules, society would collapse
—that the rules were disregarded, even for a good cause, we
might soon come to question the need for them altogether.

But there is also a troubling skepticism toward the very idea of
charity among some progressives. Bernie Sanders once flatly
declared that, “I don’t believe in charities.” He said he objected
to “the fundamental concept on which charities are based,” that is,
individual as opposed to collective or state action.

Similarly, Chrystia Freeland, an editor-at-large at Thomson
Reuters, has complained that charity violates the fundamental
democratic principle that “we raise money collectively and then, as
a society, collectively choose how we will spend it. “Eduardo
Porter, a writer for the New York Times, cautions that
philanthropy is “pretty much unaccountable to society” because it
is “unfettered by democratic controls and dictated by the
preferences of donors.” In arguing against tax incentives for
charitable giving, Rob Reich of Stanford University calls charity
“the odd encouragement of a plutocratic voice in a democratic
society.” By offering philanthropists “nothing but gratitude,” he
complains, we allow a huge amount of power to go unchecked.
“Philanthropy, if you define it as the deployment of private wealth
for some public influence, is an exercise of power.”

In a sense, the opposition to charity can be seen as a
characteristic of the modern statist impulse. Both on the
progressive left and the nationalist right, there is a growing
antipathy to the idea of individualism. The ideal of individual
liberty and responsibility that has been at the heart of liberal
thinking since the Enlightenment is being jettisoned in favor of a
collectivist notion of state primacy. Charity, then, might be seen
as the canary in the coal mine.

Of course, few would argue that charity can replace all
government efforts to help the poor. But the charitable impulse is
still an unequivocal good vital to individual liberty, and every
time the government tries to check it, society as a whole loses
out.

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

Trump Is Wrong. Green-Card Immigrants Aren’t a Terrorist Threat

Alex Nowrasteh

The Trump administration is launching a legal assault on two
categories of immigrants in the United States. On Monday, it
canceled a long standing program for Salvadorans, called Temporary
Protected Status (TPS), that will strip legal work status from
about 200,000 people in the next 18 months. But ongoing, and far
more dangerous, is the administration’s attempt to cut the number
of legal family-sponsored immigrants on green cards.

The Trump administration is arguing that two recent terrorist attacks in
New York City should prompt Congress to strip people of green
cards. The first attack on Halloween by Sayfullo Saipov, an
immigrant from Uzbekistan, killed eight people. The second was
Akayed Ullah from Bangladesh. He killed nobody
but did manage to mutilate himself. Both entered the U.S. on green
cards because they were related to American citizens or other legal
immigrants on green cards.

Yet family-sponsored immigrants are far from the threat the
Trump administration imagines they are, and cutting off this source
of immigration is a foolish way to respond to occasional terror
attacks.

Attorney General Jeff Sessions argued that visas like Ullah’s
are responsible for the terror attack, “a result of
failed immigration policies.” But neither Sessions nor any other
member of the administration has told us how dangerous
family-sponsored immigrants actually are. White House spokesman
Hogan Gidley said, “We believe that data drives policy, and this
data will help drive votes” to cut family-sponsored green cards.
What do the data actually say?

From 1975 through 2017, 16 people have been murdered in attacks on U.S.
soil by terrorists who entered on a green card. My estimate is that
such terrorists, including those in the family-sponsored category
that this administration wants to cut, are responsible for 0.4
percent of all deaths in terrorist attacks on U.S. soil since
1975.

As tragic as recent
terror attacks have been, the danger posed by foreign-born
terrorists entering using green cards does not justify the pain and
anguish that will come from separating American citizens from
members of their family born overseas.

The odds of dying in a terrorist attack committed by an
immigrant who entered on a green card during that time are about
one in 723 million per year. This number even exaggerates the
danger to American citizens and legal immigrants. If you do not
include the deaths of the six out of eight people murdered by
Saipov on Halloween who were Argentinian tourists, the danger to
American citizens decreases even further, to about one in 1.2
billion a year.

That miniscule probability merits a comparison to far-more
routine dangers. About 800,000 people were murdered in nonterror
homicides during the 43-year period I studied. That means your
annual chance of dying in a normal homicide is about one in 14,000
a year — about 50,000 to 80,000 times more likely than being
killed in a terror attack committed by a green card recipient.

More than three times as many people are murdered each day in
the United States than the total number who have been murdered by
foreign-born terrorists during the last 43 years. Every death in a
terrorist attack is a tragedy, and life cut short should be
punished under the law, but let’s not exaggerate the danger.

Still, the public fears terrorism and might fall for the
administration’s scare tactics. According to a June 2017 Gallup poll, 42 percent of Americans are very
worried or somewhat worried that they or a member of their family
will become a victim of terrorism. The same poll showed that about
zero percent of Americans actually knew a victim of terror.

However deep fear of terrorism runs, Americans don’t support any
major changes to public policy because of that threat. A December
2017 Pew poll found that 80 percent of Republicans
and 61 percent of Democrats believe that the federal government is
doing a good or somewhat good job of keeping the country safe from
terrorism.

The government needs to have a good reason to permanently
separate American citizens from their foreign-born family members.
As tragic as recent terror attacks have been, the danger posed by
foreign-born terrorists entering using green cards does not justify
the pain and anguish that will come from separating American
citizens from members of their family born overseas. In all of
these cases, the Trump administration is going after the wrong
people.

Alex Nowrasteh is an immigration policy analyst at the Cato Institute

How the Republicans Can Get Debt under Control

Ryan Bourne

Until I came to work in the US, I had little understanding of
the federal government’s long-term fiscal challenge.

The UK’s long-term debt outlook was only too familiar, and
pretty frightening — mainly because it concerned an ageing
population interacting with pay-as-you-go state pension and
healthcare systems. But there was, at least in the near-term, a
consensus of sorts for fiscal restraint and reducing the
debt-to-GDP ratio.

Not so in America. Sustained budget deficits under George W
Bush, followed by the financial crisis and subsequent Obama
stimulus, had seen debt held by the public explode from 32.6 per
cent of GDP in 2002 to 77 per cent in 2016 — a level only
previously touched following World War II.

While that debt spike fell quickly due to military spending cuts
and high growth, projections now show that debt-to-GDP levels will
rise rapidly in the coming decades. The Congressional Budget Office
(CBO) projects the deficit will widen to 5.2 per cent of GDP even
by 2027, ballooning public debt further to 91.2 per cent of
GDP.

In the two decades following that, debt is expected to climb
even further to 150 per cent of GDP on unchanged policies, driven
both by surging Social Security and Medicare spending and debt
interest payments. This ignores any deficit-widening effects of the
recent tax cuts.

The trick is to find the
sweet spot between rules being strict and transparent enough to
have real consequences, and being flexible enough to ride out
recessions and unforeseen circumstances.

Most people realise status quo policies are unsustainable. But
so far, Congress has been reluctant to act. Hooked on borrowing,
it’s far easier to sustain programs knowing the costs are
spread across future generations. Entitlements, the key driver of
debt, seem untouchable, in part because the American public
consider these to be “earned rights”. Meanwhile, the
ideological divide between Democrats and Republicans on the size
and scope of the state has paralysed previous attempts to strike a
grand bargain to ease the debt path.

Yet delaying action only worsens the long-term outlook. Getting
the debt-to-GDP ratio back to a historic norm of 40 per cent by
2047 will require permanent spending cuts equivalent to 3.1 per
cent of GDP (15 per cent of federal spending, excluding debt
interest). Putting off such restraint until 2028 would require
annual cuts of 4.6 per cent of GDP thenceforth to achieve the same
goal.

It is welcome, then, that House speaker Paul Ryan tasked a
Congressional Republican working group late last year with
proposing budget reform to constrain federal debt. The so-called
“debt ceiling” has clearly been a failure, with
significant economic costs, and many Republicans yearn for an
alternative.

As we know, politicians can be prone to “deficit
bias”, which is why over the last three decades as many as 96
countries have made use of long-lasting constraints on spending,
tax revenues, deficits or debt called “fiscal
rules”.

Clearly, some have been more successful than others. Given the
utter failure of the Maastricht rules in the eurozone, and the
UK’s ever-changing fiscal targets, fiscal rules are neither
necessary nor sufficient for containing debt. Yet well-designed
strictures can help improve the functioning of fiscal policy,
binding politicians to good outcomes.

The trick is to find the sweet spot between rules being strict
and transparent enough to have real consequences, and being
flexible enough to ride out recessions and unforeseen
circumstances.

I have reviewed the extensive literature on fiscal rules for a
forthcoming paper, including those in US states and the federal
government, Switzerland, Chile and the UK. Here are the 10 key
lessons I learned from my research, which the GOP should keep in
mind:

1 Political will is needed to achieve fiscal discipline
and sustain rules, particularly without constitutional
backing.

Governments around the world, including the UK of late, and the
US in the 1980s, tend to abandon or circumvent rules when they get
tough

2 Rules must have provisions to deal with recessions or
worse-than-expected growth.

Inflexible rules, such as strict deficit targets or hard annual
balanced budget rules tend not to endure when shocks hit. With
fiscal rules, “tougher” is not always better, and
certainly not more durable.

3 Fiscal rules should primarily cap spending, since that
is the variable that politicians directly control.

Tax revenues are, to a large extent, determined by the health of
the economy, the prospects for which can be uncertain. Deficits,
likewise, are merely a byproduct of spending and tax revenues.

4 A falling debt-to-GDP can be obtained
through balancing spending and revenues over the economic
cycle.

This can be roughly achieved by setting caps for spending to
trends in tax revenues or to an estimate of revenues if the economy
were at full potential. Both allow automatic stabilisers to operate
and borrowing to adjust to the state of the economy, but ensure
falling debt-to-GDP in the medium-term.

5 Spending caps should include all spending to minimise
creative accounting.

There is lots of evidence that otherwise politicians redefine
spending, e.g. by calling consumption spending
“investment”.

6 Long-term entitlement spending requires a secondary
rule.

Structural balanced budget rules do not restrict politicians
today from making entitlements more generous for future
generations. Restrictions preventing new entitlement promises are
therefore desirable to ensure long-term sustainability.

7 Formulaic rules, which use trends to estimate
revenues, are simpler, more transparent and less prone to
over-optimism
.

The alternative, predicting potential revenues, requires
estimating a host of unknowns, including the potential of the
economy, and how revenues respond to moving towards potential.

8 The rule should correct for missed
targets.

Deviations in spending outcomes from caps should not be ignored.
As with the Swiss “debt brake”, deviations should be
used to adjust future spending caps to ensure the overall budget
really does balance over the cycle.

9 There should be a clear but limited escape clause for
genuine emergency situations and wards.

This should require a high-threshold vote, with a
well-acknowledged pathway back to achieving balance.

10 The best way to obtain credibility for a fiscal rule
is to get to the stage where it binds.

Pushing targets for achieving balance further into the future is
especially dangerous given the risk of a changed political
consensus and new economic downturns. You need to make the rule the
norm quickly.

The Republicans have a chance to implement a spending-cap fiscal
rule in the coming years. They should heed these lessons and seek
to get the debt-to-GDP ratio back on a downward path in
anticipation of the fiscal headwinds to come. But this will require
political will, and a sophisticated approach that is durable to
changing economic trends.

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

Insulting Pakistan Solves Nothing

Sahar Khan

President Donald Trump began 2018 by tweeting about Pakistan and withholding $255 million in aid until Pakistan
took decisive action against the Haqqani Network.
Pakistan reacted swiftly and angrily. On Friday, Pakistan’s Foreign Minister
Khawaja Muhammad Asif stated that the United States is turning
Pakistan into a “whipping boy” and no longer sees the U.S. as an
ally.

Insulting Pakistan is unproductive, especially given that the U.S.
troops in landlocked Afghanistan depend on Pakistan for supplies. More importantly, Pakistan will
not simply change its policy of using jihadi groups just because Trump is
tweeting at them to do so or because the U.S. has decided to
withhold assistance. With the latest U.S. troop
surge to Afghanistan now complete, harsh words and short-sighted plans
are counterproductive to U.S. interests in the region.

This is not the first time Trump has called Pakistan out for
harboring militant groups. In August 2017, as the president
outlined his new strategy for Afghanistan, he
reprimanded Pakistan for continuously harboring terrorists. The
U.S. National Security Strategy, released in
December, stated, “We will insist that Pakistan take decisive
action against militant and terrorist groups operating from its
soil.”

While belligerent tweets
and cutting off aid may be popular with Trump’s base, they are
detrimental to diplomacy, which is essential if the administration
hopes to find a solution to America’s longest war.

So what was the point of Trump’s latest tweet, and will
depriving Pakistan of aid actually change its behavior?

Perhaps the tweet was simply impulsive: just another day with
another tweet in the life of the president. But singling out
Pakistan for harboring terrorists has two broad implications.

First, the Trump administration is in the process of expanding
U.S.-run counterterrorism operations within Pakistan – and without
Pakistan’s consent. Trump’s rhetoric mirrors that of President
George W. Bush, who famously stated “you are either with us or against us” after the Sept.
11, 2001 attacks. Trump’s message to Pakistan seems to be, “stop
harboring terrorists or we’ll come in and get them ourselves.”

Not only would this show careless disregard for Pakistan’s
sovereignty, but more significantly, it would simultaneously
jeopardize the United States’ involvement in Afghanistan and
U.S.-Pakistan relations overall. Whether the United States want to
admit it or not, stability in Afghanistan is tied to Pakistan, and hence, the United States
needsPakistan, especially if it ever hopes to
withdraw its troops.

Second, singling out Pakistan for harboring terrorist groups
while remaining silent on Saudi Arabia’s sponsorship of terrorism ignores
the role Saudi Arabia has had in Pakistan’s ability to sponsor
terrorist groups. Without criticizing Saudi Arabia, any U.S. action
to deter Pakistan from militant sponsorship will be useless.

Trump is not the first U.S. official to reprimand Pakistan or to suspend aid. The Obama
administration was constantly frustrated with Pakistan, and in 2016, withheld
$300 millionin military assistance and
reimbursements till Pakistan took strong actions against the
Haqqani Network and Lashkar-e-Taiba, actions that Pakistan has
deflected over time. The current aid cut is to foreign military financing, a grant that allows
countries to purchase U.S. defense equipment, services, and
training. That, however, has not been the most lucrative assistance program, so
cutting it may have little effect on Pakistan’s counterterrorism
policies.

Like past administrations, Trump continues to view Pakistan
through the lens of Afghanistan, and to some extent, is using
Pakistan as a scapegoat for its failures in Afghanistan. On the
other hand, Pakistan has not always been a reliable partner:
Pakistan’s continued support of the Haqqani Network and Afghani Taliban continues
to be constant source of tension in the U.S.-Pakistan
relationship.

The core problem of the U.S.-Pakistan relationship, therefore,
is that each views the other as unreliable and a source of instability, an issue that that
president’s tweets and policies blatantly dismiss. With respect to
Afghanistan, U.S.-Pakistan tensions are rooted in their differing views on what a stable Afghanistan
would look like, and what role each of them will have in the
post-conflict (and potentially post-U.S. withdrawal)
environment.

The first step in building trust and encouraging transparency
between the two countries is to focus on practical actions and
logistics rather than attempting to persuade the other of the “correctness” of their point of
view
. In the past, quiet diplomacy, involving discretion and
behind-the-scenes interactions between officials has been the most
successful approach to finding common ground on counterterrorism
issues. Trump’s disdain for diplomacy and preference for a
military-centric approach, however, makes quiet diplomacy
improbable.

While belligerent tweets and cutting off aid may be popular with Trump’s
base, they are detrimental to diplomacy, which is essential if the
administration hopes to find a solution to America’s longest
war.

Sahar Khan is
a visiting research fellow in the Cato Institute’s Defense and
Foreign Policy Department.