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What to Ask Neil Gorsuch at His Confirmation Hearing

Ilya Shapiro

Things are looking good for Supreme Court nominee Neil Gorsuch as he prepares for his confirmation hearings, which begin March 20. Judge Gorsuch has continued to be his charming and disarming self, leaving Democrats with little to latch onto in opposition and only increasing his already-solid chances for securing a seat on the high court. Indeed, a recent survey showed that 91% of Democratic congressional expect Gorsuch to be confirmed—and only 41% expect there to be an attempted filibuster.

Only by holding nominees’ feet to the substantive constitutional fire can we make confirmation hearings great again.

Still, senators shouldn’t look past the upcoming hearings. After all, this is a unique opportunity to get to know the nominee’s mind and to educate the American people about constitutionalism and the legal process. It’s literally the only time that someone on the verge of ascending to the pinnacle of one of our three branches of government—for life!—goes toe-to-toe with politicians who are accountable to the people.

To be sure, such hearings have become kabuki theater. Senators from the president’s party toss softballs that let the nominee display his or her erudition, while opposing senators ask “gotcha” questions that anybody skilled enough to be nominated can evade with ease. Indeed, the nominee in the supposed hot seat has been trained for weeks to talk a lot while revealing very little, literally running out the clock allotted for each senator’s questions while executing what’s been called the (Ruth Bader) Ginsburg “pincer movement”: refusing to analyze hypothetical cases because those issues might come before the Court and then declining to discuss broader doctrinal issues because judges should only deal in specifics.

As one observer put it: “When the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce, and the Senate becomes incapable of either properly evaluating nominees or appropriately educating the public.” Untenured law professor Elena Kagan was not wrong in writing that back in 1995, even if the would-be justice recanted her emperor-has-no-clothes logic when she herself became a nominee.

But it doesn’t have to be that way. By focusing on constitutional clauses, not cases—recall Senator Arlen Specter’s bizarre question to then-Judge John Roberts regarding whether Roe v. Wade was a “super-duper precedent”—and asking about reasoning rather than results, senators can restore the “teachable moment” that these hearings are supposed to be.

Here are some ideas of what that might look like as Neil Gorsuch takes center stage:

  1. You’ve stated in the past that you interpret the Constitution according to its original public meaning. What factors do you look to in ascertaining that? In situations where the original public meaning is unclear, what interpretive methods will you rely on? Relatedly, at what point should original meaning give way to stare decisis and the force of precedent?
  2. The first sections of Articles I, II, and III, respectively, are known as the “vesting” clauses, laying out the distinct roles of each branch of government. What do you think each clause means, and why is this important to protecting people’s individual rights?
  3. The administrative state often consists of agencies’ combining of legislative, executive, and judicial powers. To what extent is that unavoidable given the scope of modern government—and what about independent agencies that in theory aren’t part of any branch?—and how should judges should check the bureaucracy?
  4. Do you think judges should more strictly review laws and regulations that bear criminal penalties? In what circumstances does the Constitution allow criminal punishments where there is no intention or knowledge of wrongdoing?
  5. Under Article I, Section 8, Congress has the power to “lay and collect Taxes, Duties, Imposts, and Excises, to pay the Debts and provide for the common defense and general Welfare of the United States.” Is this General Welfare Clause a grant of power or a limitation?
  6. Congress justifies much of the legislation it enacts today (if at all) by invoking the power to regulate interstate commerce. Some would say that the scope of this Commerce Clause has grown to the point where it constitutes a federal police power. What is the original meaning of this clause and what are some judicially enforceable limits on it?
  7. Does the Second Amendment protect an individual right to carry arms or just the right to keep them at home? How would you go about analyzing whether a particular restriction on this right is constitutional?
  8. The Ninth Amendment specifies that the Bill of Rights doesn’t provide an exhaustive list of rights that “We the People” have. What are some of these unenumerated rights and how are judges to determine whether a particular asserted right is constitutionally protected?
  9. How should judges enforce rights protected by the Fourteenth Amendment? Did this amendment truly “incorporate” the Bill of Rights or does it protect both more and less than the rights enumerated there? What rights does the Privileges or Immunities Clause protect and what role should it play in areas now dominated by the Due Process and Equal Protection Clauses?
  10. In light of your remarks that only a “bad judge” likes every result he reaches, please describe a case where you ruled against your policy preferences. Conversely, in cases where you rule in accord with your personal views, how do you know that your motivations are pure?

Imagine how fruitful an exercise this would be if only a few Judiciary Committee members go into such lines of questioning. And if Gorsuch, or any future judicial nominee, refuses to answer other than by offering platitudes or recitations of the relevant case law, senators should be free to make adverse inferences.

Only by holding nominees’ feet to the substantive constitutional fire can we make confirmation hearings great again.

Ilya Shapiro is a senior contributor to The Federalist. He is a senior fellow in Constitutional Studies at the Cato Institute and Editor-in-Chief of the Cato Supreme Court Review.

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Jeff Sessions Is Rip Van Winkle on Drug Policy

Ted Galen Carpenter

Lost in the brouhaha about whether Attorney General Jeff Sessions lied to Congress about his contacts with Russian officials is an appropriate consideration of the pernicious influence he could have on policy toward illegal drugs. At a time when America seems poised to adopt a more enlightened policy on that issue, Sessions could set back progress at least a generation.

Especially when it comes to policy regarding marijuana, Sessions emulates Rip Van Winkle. He apparently went to sleep shortly after Richard Nixon declared a “war” on illegal drugs in 1971 and just recently awakened from his slumber. There is little evidence that Sessions understands what havoc the war on drugs has wrought both domestically and internationally since Nixon issued his declaration.

Intensified enforcement of marijuana prohibition would be a tragedy.

Instead, the attorney general regurgitates simplistic clichés right out of the 1970s and 1980s about marijuana use. “I don’t think America is going to be a better place when people of all ages, and particularly young people, are smoking pot,” Sessions told reporters on February 26, claiming that “we’re seeing real violence” around the trade. During a Senate hearing in 2016, he vehemently condemned pot use and wanted the federal government to send a message to the American people that “good people don’t smoke marijuana.” That statement ignored abundant evidence that millions of people from all walks of life use the drug either medically or recreationally. Chastising the Obama administration for a supposedly lax stance on the issue, Sessions asserted that “we need grown-ups in Washington to say marijuana is not the kind of thing that ought to be legalized.”

Amazingly, he has escalated such inflammatory and bizarre rhetoric. Speaking at a gathering in Richmond, Virginia on March 15, Sessions equated marijuana use to heroin addiction. Either one, he contended, was a “life-wrecking dependency,” adding that marijuana was “only slightly less awful.” He reserved special contempt for those who argue (with growing evidence) that marijuana has been useful in weaning opiate addicts off of those harder drugs.

Such comments confirm that critics may be right when they label him a “drug war dinosaur.” He seems either oblivious or scornful about the trend in public opinion regarding marijuana. Multiple polls indicate a growing majority in favor of legalizing the drug not only for medical purposes, but also for recreational use. And that grassroots sentiment has resulted in major legislative changes at the state and local levels. Over the past two decades, 28 states have legalized medical marijuana, and in the past few years, eight states (including most recently, large states such as California and Massachusetts) have legalized recreational marijuana.  Most recently, a February survey from Quinnipiac University confirmed that 71 percent of American voters, including a majority of Republicans, want the federal government to respect state marijuana laws instead of overriding them with federal enforcement measures.

Despite being a conservative Republican who touts the importance of states’ rights, Sessions is making ominous statements about running roughshod over the wishes of states that have embraced marijuana legalization. Since taking office, he has on several occasions emphasized that marijuana remains illegal under federal law and that he fully intends to enforce that statute vigorously. Aside from the hypocrisy on his part, such a move would create a nasty showdown between federal and state authorities.

Unfortunately, Sessions’ retrograde views are apparently already having a poisonous influence on the Trump administration. During the campaign, Trump on several occasions promised to “leave it up to the states” regarding marijuana. That certainly implied a respect for the laws of states that had legalized even recreational marijuana. Now, however, there are signs the administration is retreating from that position. Press spokesman Sean Spicer recently stated that states that have legalized recreational marijuana will see not just enforcement, but “greater enforcement” of federal prohibition laws, and that the Justice Department (i.e., Sessions) would make the decisions about appropriate steps.

Continued, much less intensified, enforcement of marijuana prohibition would be a tragedy. The drug war has created more than enough societal disasters, both domestically and internationally, since Nixon launched that initiative. Millions of Americans have had their lives disrupted and acquired the stigma of a criminal record for doing nothing more than choosing to use a drug that politicians arbitrarily made illicit.

To state the obvious, having a criminal record does not help one’s prospects for getting a job and all the benefits that tend to flow from stable employment at a good wage. For those who have been sentenced to prison terms for possession or trafficking, the consequences are even worse. That action pulls breadwinners out of the home, causing families to be shattered, thereby producing an assortment of social pathologies.

Perhaps worst of all, drug prohibition has filled the coffers of violent criminal organizations. Making a drug illegal causes the retail price to soar, creating a lucrative profit margin for individuals and organizations willing to undertake the risks associated with violating prohibition laws. Not surprisingly, most people willing to do that are prone to violence and have no respect for laws in general. The result has been horrifying levels of carnage, both in American communities where the drugs are sold and in countries that are the source of the product. The latter turmoil has been especially pronounced in America’s southern neighbor, Mexico, where nearly 100,000 people have died in the fighting over the past decade.

Incurring such results is bad enough in a futile attempt to enforce laws against cocaine, heroin, and other hard drugs. It is reprehensible to do so with a popular, mild drug such as marijuana. Unfortunately, Jeff Sessions seems clueless about the negative consequences of drug prohibition. “You can’t sue somebody for drug debt; the only way to get your money is through strong-arm tactics, and violence tends to follow that,” Sessions recently informed reporters. That perverse situation, however, is the result of marijuana prohibition, not mere commerce in marijuana (or any other drug, for that matter). When marijuana is legal, collection of such debts most certainly can be enforced in a court of law, rather than through gunfire, and since legitimate businesses instead of criminal enterprises would dominate the trade, they would have every incentive to do so.

Jeff Sessions was a most unfortunate choice for U.S. attorney general. Rather than letting this modern-day Rip Van Winkle ignore the multitude of negative consequences that the drug war has caused over the past four and a half decades and launch a new, destructive crusade against marijuana, including in states that have legalized the drug, President Trump should keep his campaign promise to let the states decide policy. Above all, he needs to rein in Jeff Sessions before he does irreversible damage.

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

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Maybe Education Cuts Wouldn’t Be so Bad

Neal McCluskey

With the release of today’s “skinny budget” we are likely to hear the usual coverage: “Good-Sounding Program X is being cut by Y million dollars. ‘These cuts will be devastating,’ said someone who gets money through X.’”

Cuts to education programs, which instinctively sound awful because education is generally a good thing, are especially susceptible to this.

But focusing on the immediate recipients of the money, and maybe the good intentions behind the programs, is a terrible way to approach government spending. It ignores that resources are finite, and every government use competes with other uses that may be equally good or better, including what taxpayers may have spent the money on had they been able to keep it.

School choice works, but the danger of federalized choice is huge.

Unfortunately, it is impossible to show someone not spending money on a new car, or investing in a new business, because the dough has gone to an after-school program, or a college Work Study job. So news reports basically ignore opportunity costs.

That problem now off my chest, let’s look at a few of the education items in the Trump administration’s thin proposal:

$250 million for a new private school voucher program, $168 million more for charter schools

School choice works, but the danger of federalized choice is huge. It threatens to homogenize private schools through regulation, and a federal effort could eventually grow large enough to crowd out state programs, killing the competition and innovation that comes through state — “laboratories of democracy” — policymaking. Like almost all federal education meddling, it also would be unconstitutional: the Constitution gives Washington no power to govern or fund education, including school choice.

Eliminate the 21st Century Community Learning Centers

This $1.2 billion program, which supplies funds for before- and after-school programs as well as summer programming, cries out for elimination. Not only is it unconstitutional and in no way something states could not do on their own, but federal evaluations have found that it may have negative effects. As I have discussed before, a 2005 evaluation stated:

This study finds that elementary students who were randomly assigned to attend the 21st Century Community Learning Centers after-school program were more likely to feel safe after school, no more likely to have higher academic achievement, no less likely to be in self-care, more likely to engage in some negative behaviors, and experience mixed effects on developmental outcomes relative to students who were not randomly assigned to attend the centers.

Eliminate the Federal Supplemental Educational Opportunity Grant and reduce Work Study

Of course these programs — one provides grants to students, the other funding for student jobs — are unconstitutional, but they are also counterproductive. Like all federal student aid programs, they enable schools to boost prices or redirect other aid, and they incentivize students to think less intensely about whether they should go to college, what they study, and how quickly they finish.

They are not the main culprits — both are quite small relative to other student aid programs — but they are subsidies nonetheless, and starting with small programs is a good way to ease into the bigger cuts we need. It is also difficult to justify giving taxpayer money to students, even in exchange for some sort of work, when the average payoff of graduating from college is around $1 million. At the very least, shouldn’t beneficiaries of aid have to repay taxpayers? The feds offer loans, after all. (Of course, they should be eliminated, too.)

Trim TRIO Programs and GEAR UP

These programs are supposed to help low-income students prepare for, and access, college. Again, there is no constitutional authority for their existence, and states or civil society could handle the job. But the evidence on the programs’ effectiveness is also pretty poor. As I testified to the U.S. Commission on Civil Rights, recent official assessments have often used weak research methods, and better ones have found uninspiring effects.

The people who benefit directly from federal programs will no doubt be unhappy with threatened cuts affecting them, and they will likely be featured in news coverage. But for the country, many of these proposed cuts may well be good news.

Neal McCluskey is a contributor to the Washington Examiner’s Beltway Confidential blog. He is the director of the Cato Institute’s Center for Educational Freedom and maintains Cato’s Public Schooling Battle Map.

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As Brexit Process Begins, PM May Shouldn’t Expect a Helpful EU

Ryan Bourne

Brexit is coming. That should have been obvious for some time, but, in the aftermath of the June 23 vote last year, many “Remainers” were in outright denial it would actually happen.

Like the doubters in early episodes of Game of Thrones who could not believe that undead White Walkers actually existed, Remainers listened when commentators and politicians promised that Brexit was indeed coming, but refused to believe it. Now, despite all their attempted delays, court cases and special pleading, legislation to enable the triggering of Article 50 has passed the British Parliament. 

Prime Minister Theresa May is likely to start the formal process around March 27. This will begin a two-year formal exit negotiation with the EU, during which time she hopes to foster agreement for a smooth exit, coupled with a pathway for the longer-term relationship outlined in January.

Britain should be fully prepared for the negotiations to fail and for Britain to exit the EU without a trade agreement, leading to trade under WTO terms.

Economically, this would see the U.K. leave the European Economic Area (the so-called “single market”) and regain control of tariff policy. It would replace the single market with a U.K.-EU free-trade agreement and a separate deal to eliminate customs checks.

This is a decent set of aims, as far as they go. It is in both parties’ interests to maintain tariff-free trade to avoid disruption to supply chains and to avoid imposing costly taxes on consumers. What’s more, the cost of losing access to financial services’ expertise in London will be far greater for other EU states in the short-term than any benefits from mercantilist attempts to “attract business”.

A mutual recognition deal on services should, in theory, be easy at the point of exit. After all, the U.K. has been complying with EU regulation already. If this can all be done alongside a smoothing of genuine difficulties, then bravo.

There are three big barriers to May achieving her objectives. The first is that negotiations entail two parties. The EU has shown that rational economic interest does not always dictate its actions. It is an inherently political project, which is one good reason to leave it.

Many prominent EU leaders would prefer to engage in self-harm in order to “punish” Britain on the basis that this would deter other countries from exiting. For these federalist ideologues, the worst outcome from Brexit would be a British economic success story.

The second issue is time. The U.K. has been in the EU for 44 years, meaning it is signed up to many programs, agreements, commitments, and regulations. Though the experience of other countries shows that signing free-trade agreements should not take a half-decade, we should not underestimate how Brexit might be used as an excuse to assuage producer interests in different EU states.

The need for agreement between 27 members in such a tight time period, with the usual ebbs and flows of domestic politics in each, could be the biggest barrier of all.

Finally, there is a risk (and the U.K. tabloid press is pushing this hard already) that vast amounts of time and political capital will be expended debating when Britain’s budget contributions should cease and how much is owed. Divvying up liabilities and assets must be part of the settlement, but media attention is likely to dwarf its real importance and potentially reduce goodwill for other more technical matters.

For these reasons, Britain should be fully prepared for the negotiations to fail and for Britain to exit the EU without a trade agreement, leading to trade under WTO terms. If the government can use this as an opportunity to embrace freer trade, opening up the country to global competition through unilateral tariff and non-tariff elimination, then the country has nothing to fear in terms of long-term economic health.

Indeed, exit without a deal could be the catalyst the country needs to really embrace the free market reforms necessary to return to sustained robust growth. But failure for May to achieve her ambitions will be seen as a political failure. Just ask former Prime Minister David Cameron. Given the EU’s current position, it is a political failure that’s all too likely again.

Ryan Bourne occupies the R. Evan Scharf chair at the Cato Institute and was a founding member of Economists for Brexit.

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Geert Wilders Is No Hero of Free Speech

Flemming Rose

Copenhagen — Geert Wilders, the leader of the Dutch Party for Freedom and one of Europe’s most influential politicians, likes to express his admiration for the U.S. Constitution’s First Amendment. That’s no coincidence. The First Amendment provides the best legal protection of speech in the world, including the kind of speech that in December 2016 led to the conviction of Wilders in the Netherlands for having insulted Dutch Moroccans and having incited discrimination during a political rally a few years back.

I suppose that’s why Wilders is seen by some as a politician willing to stand up for freedom of expression and speak his mind about uncomfortable issues that others have refrained from doing. He insists on his right to unfettered criticism of Islam and Muslim communities as fundamental to free speech. In the wake of terrorist attacks in Europe and clashes of culture and values, these issues have risen to the top of the political agenda in most European countries.

Recently, one of Wilders’s supporters in the U.S., the right-wing activist David Horowitz, lauded the anti-Muslim Dutchman as “the Paul Revere of Europe … a hero of the most important battle of our times, the battle to defend free speech.” It’s true that this is a crucial battle. Its outcome will have long-term consequences for the protection of freedom in liberal democracies. Free speech is under attack from many quarters. Wilders himself has to live with round-the-clock security because of his stance on Islam and immigration.

Wilders insists that it’s impossible to separate words and deeds when it comes to Islam … This is the way a dictatorship operates.

I am fully on Wilders’s side when it comes to the speech crimes he has been accused of. I am against hate speech laws as a matter of principle but also for practical reasons. They are not the most effective way to fight bigotry. They tend to be enforced selectively and express a social norm, not a genuine will to fight bigotry. One man’s hate speech may be another man’s poetry. I also believe it’s important to defend Wilders’s right to speak out in light of the threats against his life.

Nevertheless, I disagree with people like Horowitz, who see Wilders as a defender of free speech. Let me explain why. Wilders has called for banning the Quran. He wants to close mosques and ban the building of new ones, and he has proposed a change to the Dutch Constitution that would outlaw faith-based schools for Muslims but not for Christians and citizens committed to other religions and life philosophies.

As a justification for his position on Islam, Wilders often quotes Abraham Lincoln’s words from a letter written in 1859: “Those who deny freedom to others deserve it not for themselves.” But one could turn Lincoln’s words against Wilders himself. By calling for a ban on the Quran and for the closing of mosques and faith-based schools for Muslims, he insists on denying freedom of speech and religion to Muslims.

Does that mean that Wilders, contrary to Lincoln’s claim in a very different context, deserves freedom of speech for himself? It does, I believe, though Wilders’s position on Islam makes his support for the First Amendment and calls for a European First Amendment ring hollow. A couple years ago, when I debated Wilders on the legitimate limits of free speech in a democracy, I told him that all his proposals to restrict freedom of speech and religion for Muslims would be denounced by the U.S. Supreme Court with reference to First Amendment protection. They wouldn’t stand a chance to become the law of the land. Wilders responded that if that’s the case, then we need to adopt a slightly different version of the First Amendment in Europe.

It became clear to me that Wilders’s support for the First Amendment was based on the fact that it would protect his own speech, but when he found out that the First Amendment would also provide a robust protection of the freedom of speech and religion for Muslims, he was reluctant to support it.

In doing so, he failed the acid test for the support of free speech in a democracy. It was first formulated by the legendary Supreme Court Justice Oliver Wendell Holmes, who issued a famous dissenting opinion in 1929: “If there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought — not free thought for those who agree with us but freedom for the thought that we hate.”

Freedom for the speech that we hate. That’s the acid test. This principle embodies the essence of tolerance. You do not ban, intimidate, threaten or use violence against speech that you deeply dislike or hate.

So, on Islam and Muslims, Wilders comes down on the wrong side of democracy when it comes to three of its key principles: freedom of speech and religion, equality before the law and tolerance.

Wilders tries to escape accusations for discrimination against Islam and Muslims by saying that Islam just isn’t like any other religion. It’s a totalitarian ideology like fascism and Communism, he insists. He has compared the Quran to Hitler’s Mein Kampf, and for a while, he justified his call for banning the Quran with a reference to the fact that Mein Kampf was banned in the Netherlands. In recent years, he has insisted on outlawing the Quran independent of the fate of Mein Kampf,which was recently published in Germany for the first time since the fall of the Nazis.

Some people would be inclined to support Wilders’s claim about Islam as a totalitarian ideology. However, it doesn’t improve his argument significantly. The works of Karl Marx, Vladimir Lenin, Mao Zedong, Benito Mussolini, Adolf Hitler and other ideologues of totalitarian or anti-democratic ideologies are accessible in the majority of democratic states. The classical texts of Communism weren’t banned during the Cold War. In many Western democracies, there were Communist newspapers and publishing houses. Communists had their own schools and controlled unions, and Communist parties were running for Parliament. If Communist parties became targets of bans, they were usually short-lived or not enforced.

Why treat Islam any different, even if you think it’s not a religion but a totalitarian political ideology?

Here is what Wilders replied when I said that it is fundamental to a democracy to make a distinction between words and deeds if one wants to safeguard free speech and provide space to a diversity of opinions: “We have to not only criminalize actions but the source legitimizing actions as well — that is the Quran. If we don’t do it, we provide those who want to kill our freedom with the means to do so.”

Wilders insists that it’s impossible to separate words and deeds when it comes to Islam — i.e. between what the Quran says and what Muslims quoting the Quran say, and violence committed by Muslims in the name Islam. That is very problematic. This is the way a dictatorship operates. It treats words as if they were actions and therefore they put people propagating unwelcome opinions in jail. Authoritarian regimes state explicitly that these kind of people represent a threat to the public order, social harmony or security.

Wilders’s argument for limiting the rights of Muslims shares other similarities with unfree societies. When he calls for banning the Quran and shutting down mosques and faith-based schools, he refers to opinion polls taken from among the Muslim population — he bases his call for restrictions on what Muslims think and believe, not what they actually do or plan to do. In other words, Wilders accuses Muslims of being guilty of thought crimes, and he believes that this is sufficient to justify restrictions of their civil rights.

I am not saying that widely spread opinions among Muslims — on apostasy and blasphemy, on equality between men and women, on homosexuality and freedom of speech and religion and other issues — aren’t problematic, to say the least. I am saying that in a democracy, you cannot restrict freedoms based on what people think. In a democracy, you criminalize quite a few deeds — like tax evasion, shop lifting, fast driving, fraud and murder — but you ban only words that directly incite violence or crimes.

Wilders’s quote of Abraham Lincoln — “Those who deny freedom to others deserve it not for themselves” — is incomplete. It continues: “and under a just God, cannot long retain it.” In the context of Wilders’s selective defense of free speech, those words are worth remembering.

Flemming Rose is a Danish author, journalist and adjunct fellow at the Cato Institute.

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Why Is Trump Abandoning the Foreign Policy That Brought Him Victory?

Doug Bandow

Candidate Donald Trump offered a sharp break from his predecessors. He was particularly critical of neoconservatives, who seemed to back war at every turn.

Indeed, he promised not to include in his administration “those who have perfect resumes but very little to brag about except responsibility for a long history of failed policies and continued losses at war.” And he’s generally kept that commitment, for instance rejecting as deputy secretary of state Elliot Abrams, who said Trump was unfit to be president.

Substantively candidate Trump appeared to offer not so much a philosophy as an inclination. Practical if not exactly realist, he cared more for consequences than his three immediate predecessors, who had treated wars as moral crusades in Somalia, the Balkans, Afghanistan, Iraq, Libya and Syria. In contrast, Trump promised: “unlike other candidates for the presidency, war and aggression will not be my first instinct.”

Yet so far the Trump administration is shaping up as a disappointment for those who hoped for a break from the liberal interventionist/neoconservative synthesis.

The American people, having voted against the promiscuous military intervention of Trump’s predecessors, may well end up with more of the same foreign policy.

The first problem is staffing. In Washington people are policy. The president can speak and tweet, but he needs others to turn ideas into reality and implement his directives. It doesn’t appear that he has any foreign policy realists around him, or anyone with a restrained view of America’s international responsibilities.

Rex Tillerson, James Mattis and H. R. McMaster are all serious and talented, and none are neocons. But all seem inclined toward traditional foreign policy approaches and committed to moderating their boss’s unconventional thoughts. Most of the names mentioned for deputy secretary of state have been reliably hawkish, or some combination of hawk and centrist—Abrams, John Bolton, the rewired Jon Huntsman.

Trump appears to be most concerned with issues that have direct domestic impacts, and especially with economic nostrums about which he is most obviously wrong. He’s long been a protectionist (his anti-immigration opinions are of more recent vintage). Yet his views have not changed even as circumstances have. The Chinese once artificially limited the value of the renminbi, but recently have taken the opposite approach. The United States is not alone in losing manufacturing jobs, which are disappearing around the world and won’t be coming back. Multilateral trade agreements are rarely perfect, but they are not zero sum games. They usually offer political as well as economic benefits. Trump does not seem prepared to acknowledge this, at least rhetorically. Indeed he has brought on board virulent opponents of free trade such as Peter Navarro.

The administration’s repudiation of the Trans-Pacific Partnership was particularly damaging. Trump’s decision embarrassed Japanese prime minister Shinzo Abe, who had offered important economic concessions to join. More important, Trump has abandoned the economic field to the People’s Republic of China, which is pushing two different accords. Australia, among other U.S. allies, has indicated that it now will deal with Beijing, which gets to set the Pacific trade agenda. In this instance, what’s good for China is bad for the United States.

In contrast, on more abstract foreign policy issues President Trump seems ready to treat minor concessions as major victories and move on. For years he criticized America’s Asian and European allies for taking advantage of U.S. defense generosity. In his March foreign policy speech, he complained that “our allies are not paying their fair share.” During the campaign he suggested refusing to honor NATO’s Article 5 commitment and leave countries failing to make sufficient financial contributions to their fate.

Yet Secretaries Mattis and Tillerson have insisted that Washington remains committed to the very same alliances incorporating dependence on America. Worse, in his speech to Congress the president took credit for the small uptick in military outlays by European NATO members which actually began in 2015: “based on our very strong and frank discussions, they are beginning” to “meet their financial obligations.” Although he declared with predictable exaggeration that “the money is pouring in,” no one believes that Germany, which will go from 1.19 to 1.22 percent of GDP this year, will nearly double its outlays to hit even the NATO standard of two percent.

Trump’s signature policy initiative, rapprochement with Russia, appears dead in the water. Unfortunately, the president’s strange personal enthusiasm for Vladimir Putin undercut his desire to accommodate a great power which has no fundamental, irresolvable conflicts with the America. Contrary to neocon history, Russia and America have often cooperated in the past. Moreover, President Trump’s attempt to improve relations faces strong ideological opposition from neoconservatives determined to have a new enemy and partisan resistance from liberal Democrats committed to undermining the new administration.

President Trump also appears to have no appointees who share his commitment on this issue. At least Trump’s first National Security Adviser, Mike Flynn, wanted better relations with Russia, amid other, more dubious beliefs, but now the president seems alone. In fact, Secretary Tillerson sounded like he was representing the Obama administration when he demanded Moscow’s withdrawal from Crimea, a policy nonstarter. Ambassador-designate Huntsman’s views are unclear, but he will be constrained by the State Department bureaucracy, which is at best unimaginative and at worst actively obstructionist.

The president appears to be heading in the opposite direction regarding China. How best to handle America’s one potential peer competitor is a matter of serious debate, but even before taking office President Trump launched what appeared to be confrontation on multiple fronts: Taiwan, trade, South China Sea, North Korea. Secretary Tillerson again took a highly adversarial position, suggesting in Senate testimony that the United States might blockade the PRC’s claimed Pacific possessions, a casus belli, and “compel,” whatever that means, compliance with sanctions against North Korea. Here the administration is playing with fire. Whether the administration will set priorities and take a more balanced approach as more seasoned Asia experts are appointed is yet to be seen.

Trump policy in the Middle East seems in confused flux. During the campaign he briefly pushed an “even-handed” approach to Israel and the Palestinians, before going all in backing the hardline Likud government’s practical repudiation of a two-state solution and expanded colonization of the West Bank. Since then, however, he, like other presidents before him, has backed away—though perhaps only temporarily—from the promise to move the U.S. embassy to Jerusalem. Moreover, President Trump has emphasized his desire to make a peace deal, which obviously would require concessions on both sides.

The president appears to be stepping into the Syrian and Iraq quagmires despite his election promises to the contrary. He sharply criticized previous policy in the Mideast: “Logic replaced with foolishness and arrogance, which led to one foreign policy disaster after another.” He explicitly denounced interventions in Iraq and Libya, promising to get out “of the nation-building business,” and emphasized the defeat of the Islamic State rather than overthrow of Bashar al-Assad.

Yet the administration just introduced a Marine Corps artillery battalion and other forces to assist in capturing the ISIS capital of Raqqa, Syria. Despite complaining about inadequate burden-sharing principle in the Middle East, President Trump risks encouraging the Gulf States and Turkey to reduce their efforts to defeat the Islamic State. As president he also proposed creating “safe zones” in Syria, which would require an extensive and potentially long-term U.S. military presence. There are reports that the administration is considering an extended military role in Iraq as well.

Finally, the president appears to have reversed himself on Afghanistan. Early in the campaign he said America should end its longest war, which has devolved into a forlorn attempt to create a centralized, liberal democratic state in Central Asia. More recently, however, he indicated he planned to keep U.S. forces there. In December he told Afghan president Ashraf Ghani that he “would certainly continue to support Afghanistan security.” There may be no conflict which less advances serious American interests than attempting to sustain an incompetent, corrupt and failing central government in Kabul.

Where the president stands on other issues is unclear. His support for Brexit has roiled relations with Europe, which also worries about his protectionist beliefs—highlighted by his attack on Germany’s alleged currency manipulation—and potentially softer approach to Russia. Despite being highly critical of the Iran nuclear accord, he has not yet challenged the pact. He appears to be restoring Washington’s uncritical embrace of Saudi Arabia, which will undermine his expressed desire for greater burden-sharing by allies and yield long-term problems in Yemen. The administrations seems to have dropped more bombs in Yemen in the past week than the Obama administration did in the past year. At the same time, Trump has barely noticed Africa and South America. China has been steadily expanding its economic influence in both regions. How does Trump propose to maintain American interests in those regions? So far, he has offered nothing but silence.

It remains early for the Trump administration, and there’s no there there in much of the State and Defense departments, as well as other agencies. The president still could move in a more pragmatic, realist direction. However, without allies in his administration that prospect seems small. What Hegel called the “cunning of history” appears to be at work once again. The American people, having voted against the promiscuous military intervention of Trump’s predecessors, may well end up with more of the same foreign policy.

Doug Bandow is a Senior Fellow at the Cato Institute and a former Special Assistant to President Ronald Reagan.

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THAAD and the Future of Strategic Stability in East Asia

Eric Gomez

The deployment of the Terminal High Altitude Area Defense (THAAD) system to South Korea, announced by U.S. Pacific Command on March 6th, improves the United States’ deterrent against North Korean attack. Yet it could also significantly damage strategic stability between the United States and China—a downside that has not been widely discussed.

U.S. officials and China watchers are quick to downplay Chinese concerns by emphasizing THAAD’s defensive nature and asserting that North Korea is the primary target of the system. The North Korean threat is a real danger that should be addressed, but addressing that danger in such a way could cause worse long-term problems for East Asia.

Are China’s concerns about U.S. missile defense exaggerated? Perhaps not.

The major potential cost of America’s decision to deploy more ballistic missile defense (BMD) systems to East Asia may be in how China reacts. The deployment of THAAD, coupled with America’s considerable ability to target China’s nuclear forces with conventional and nuclear weapons, presents Beijing with strong incentives to adjust their nuclear forces and doctrine. In so doing, China would improve the survivability of its nuclear deterrent, but undermine strategic stability.

During the Cold War, China’s nuclear forces were unique due to the small size of its arsenal, which stood in stark contrast to their massive American and Soviet counterparts. Mao Zedong considered nuclear weapons to be “paper tigers” that would be useless on the battlefield, and he had no interest in joining a nuclear arms race with the two superpowers. China’s modern nuclear force has improved its secure second strike capabilities, but it is still puny compared to the United States, and it still adheres to a no first use doctrine that was first declared in 1964.

China’s small, survivable nuclear force bodes well for strategic stability, because there is little incentive for such a force to use nuclear weapons first in a conflict. A small nuclear force is incapable of disarming a better-armed adversary like the United States, but such a force could ride out a first strike and feel confident in their ability to strike back. The high cost of an assured second strike prevents the United States from using nuclear weapons first, while China doesn’t use nuclear weapons first because it couldn’t disarm the United States.

THAAD and other forms of BMD upend this strategic balance by providing the United States a degree of protection against nuclear retaliation. The United States could feel more confident about conducting a first strike against Chinese nuclear forces if the few surviving forces can be defeated by BMD systems. Improvements to American remote sensingconventional precision strike, and nuclear capabilities increase the potency of a disarming first strike, while advances in BMD systems increase the likelihood that China’s surviving nuclear weapons  can be destroyed en-route to their targets.

If the survivability of China’s relatively small nuclear arsenal is threatened, it would make sense for Beijing to make adjustments in doctrine and weapons technology that bolster survivability and keep the assured in “assured retaliation.” Changes to China’s no first use doctrine would be a major policy shift and face domestic hurdles. However, recent Chinese military publications argue for improving early-warning capabilities and placing nuclear forces on a higher alert level so China’s forces can get off the ground before being hit by a U.S. first strike. Adjustments to weapons technology can also enhance survivability. Adding more nuclear warheads to individual missiles would give a bigger punch to missiles that survive a first strike, while hypersonic glide vehicles can conduct flight maneuvers that make it difficult for BMD systems to intercept the warhead.

All of these options would have negative effects on strategic stability because they encourage preemption. China faces a “use it or lose it” problem, while the United States could face a window of opportunity to destroy Chinese nuclear forces as early as possible in a conflict. The risks of a crisis or conventional conflict escalating to the nuclear level become more acute.

Of course, it is impossible to say with absolute certainty that this bleak scenario will unfold. While there are multiple ideas about how China could change its nuclear forces and doctrine in destabilizing ways, there have been no official policy announcements yet. Beijing may also conclude that its inability to rein in North Korea’s behavior is to blame for THAAD’s deployment and adjust their policy in ways that reduce the North Korean threat and the need for THAAD. It is also important to note that THAAD cannot shoot down Chinese intercontinental ballistic missiles that are aimed at the United States, but it can help other BMD systems track and engage such missiles.

While Beijing’s response is unknown at this time, there are strong incentives for China to adjust nuclear doctrine and weapons technology in ways that undermine strategic stability. THAAD does benefit the United States by complicating North Korea’s ability to conduct missile strikes against the ports that follow-on U.S. forces would use in a conflict. Yet while the THAAD deployment may reduce the chances of nuclear escalation on the Korean Peninsula, it may also increase the likelihood of nuclear escalation with China.

Eric Gomez is a policy analyst for defense and foreign policy studies at the Cato Institute.

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US Trade Laws and the Sovereignty Canard

Daniel J. Ikenson

John Bolton took to the pages of the Wall Street Journal yesterday to assert America’s interest in abandoning international institutions that threaten U.S. sovereignty. In identifying the World Trade Organization’s Dispute Settlement Body as such an institution, Bolton was reinforcing a central theme of the Trump administration’s recently-minted 2017 Trade Policy Agenda. That document is short on specifics, but makes one thing clear: Under threat of going rogue, the United States will leverage its indispensability to compel changes at the WTO that accommodate a more expansive, less surgical application of domestic trade laws.

“Defending our national sovereignty over trade policy” and “strictly enforcing U.S. trade laws” are, explicitly, the top two priorities on the agenda. Taken together, those priorities suggest the Trump administration will aggressively execute U.S. trade laws with little regard for whether that execution violates internationally-agreed rules established to prevent and discourage abuse of such laws. Agreeing that “all animals are equal,” then adding the famous caveat “but some are more equal than others” is what is meant by “defending our national sovereignty.”

The WTO dispute settlement system, though not perfect, offers a reasonable formula for balancing the simultaneous imperatives of preserving the rule of international trade law and national sovereignty.

Given the prominence of domestic steel industry representation in the Trump administration, these priorities aren’t surprising. High on the list of talking points of the Washington-swamp-savvy U.S. steel lobby is the assertion that the WTO’s DSB, by finding U.S. antidumping and countervailing duty practices in violation of WTO obligations on numerous occasions over the years, usurps U.S. sovereignty over its own laws. This is a complaint frequently made by Robert Lighthizer, Trump’s USTR-designate, who for decades has represented domestic steel interests in AD/CVD cases before U.S. agencies.

To the chagrin of Lighthizer’s clients, U.S. government actions in some of those cases were challenged by foreign governments at the WTO, where the DSB ultimately found Commerce Department or U.S. International Trade Commission execution of the U.S. trade laws to be inconsistent with U.S. obligations under various WTO agreements. In fact, on 38 occasions since 1995, the WTO has found aspects of U.S. trade remedy law administration to be “out of conformity” with U.S. WTO obligations.

The Alliance for American Manufacturing (AAM) claims the WTO is “threatening America’s ability to defend U.S. workers & manufacturers from unfair trade” and that it is “overstepping its mandate and disproportionately targeting U.S. trade remedy laws” (My emphasis). Just last month, AAM published a paper by two domestic steel industry trade lawyers, Terrence Stewart and Elizabeth Drake, titled “How the WTO Undermines U.S. Trade Remedy Enforcement.” They write:

For more than two decades, WTO decisions have put sustained pressure on U.S. trade remedy law. Despite the long-standing international recognition of the need for effective AD and CVD laws to remedy unfair trade, and despite the safeguards members attempted to build into the WTO dispute settlement system, the WTO has dealt numerous setbacks to U.S. trade remedy enforcement. The U.S. has been the subject of far more adverse trade remedy decisions than any other WTO member, and it has suffered losses in 90% of WTO decisions to date (My emphasis).

Under WTO rules (which were established by consensus reached under U.S. leadership), governments are permitted to have and to use antidumping and countervailing duty (anti-subsidy) laws, but those laws and their execution must comport with certain standards, including those governing procedural fairness, transparency, and comparison and calculation methodologies.

The WTO’s Antidumping Agreement (ADA) and the Agreement on Subsidies and Countervailing Measures (ASCM) articulate fairly broad parameters that grant to member governments plenty of latitude in how they design and administer their trade remedy laws, provided that they redress “unfair” trade in manners that are remedial, but not so excessive as to be protectionist. Without such parameters, without the rule of law, what would prevent governments from using trade remedies in a purely protectionist, capricious, arbitrary, political manner (by which I mean in a MORE protectionist, capricious, arbitrary political manner than they do now)?

AAM claims the WTO disproportionately targets U.S. trade remedy laws. Citing a 90% loss rate, Stewart and Drake imply that U.S. trade remedies have been singled out by the WTO. U.S. sovereignty to administer its own trade remedy laws has been surrendered to a body of bureaucrats in Geneva, is how John Bolton sees it.

The United States has indeed run afoul of the ADA more often than any other WTO member. But the explanation isn’t that the United States has been targeted. The WTO doesn’t target any member’s policies, laws, regulations, or actions. The “WTO” doesn’t file complaints at the WTO. WTO members do. And they do so when they are aggrieved and when they are as close as possible to 100% certain that they will prevail if the matter goes all the way through dispute settlement. As a result, complainants prevail almost all of the time — on 90% of adjudicated issues. When the United States has been a complainant (as it has in 114 of 522 WTO disputes over 22 years — more than any other WTO member) it has prevailed on 91% of adjudicated issues. When the United States is a respondent (as it has been in 129 cases — more than any other WTO member), it has lost on 89% of adjudicated issues.

There is no anti-American bias in the WTO DSB. There is no anti-trade remedies bias. If anything, there is a pro-complainant bias by virtue of the fact that complaints are brought on a self-selected basis. That WTO members have brought so many complaints against U.S. trade remedy actions speaks to the fact that the United States has been a very aggressive user of trade remedies and has resorted to methods that plainly violate the agreed rules. Posturing and claims of victimization notwithstanding, the U.S. government has not always toed the line with respect to its obligations under the ADA and ASCM. In fact, it has frequently encroached well beyond the bounds of acceptable trade remedies administration.

Under the WTO agreements, governments are authorized to impose antidumping duties when a domestic industry demonstrates that it is “materially injured” or threatened with material injury by reason of imports that have been sold in the domestic market at prices that are lower than those charged by the same producer in his home market. Governments are authorized to impose countervailing duties when material injury is found to be caused or threatened by imports that have been subsidized by foreign governments.

Under U.S. law, after a petition is filed by or on behalf of a domestic industry and a case is initiated, the U.S. Department of Commerce (DOC) estimates whether and to what extent dumping or subsidization has occurred, and the U.S. International Trade Commission (ITC) determines whether the domestic industry is injured or threatened with injury by reason of the dumped or subsidized imports. That is how it works in broad stroke. But the devil’s in the details — especially in the details of the convoluted process used to determine the existence and magnitude of dumping, which serves as the basis for duty assessments going forward under U.S. law.

Some Cato Institute colleagues and I have spent a lot of time over the years documenting and describing just how aggressively U.S. trade remedy laws are enforced, including some of the methodological tricks designed to inflate margins of dumping. (See, for example, Antidumping 101: The Devilish Details of “Unfair Trade” LawAbuse of Discretion: Time to Fix the Administration of the U.S. Antidumping LawZeroing In: Antidumping’s Flawed Methodology under FireNonmarket Nonsense: U.S. Antidumping Policy toward ChinaPoster Child for Reform: The Antidumping Case on Bedroom Furniture from China).

The AD/CVD laws are portrayed by the protectionism lobby as tools needed to help upstanding U.S. producers “level the playing field” with predatory foreign producers, who exploit unfair practices to establish dominance in the U.S. market. In reality, the laws have become commercial weapons used primarily by American companies and their workers to secure advantages over other American companies and their workers. The rhetoric says “U.S. vs. China,” but the reality is “U.S. vs. U.S.,” with the duties imposed wreaking havoc on downstream U.S. companies and reducing national economic welfare.  Rare is any evidence of the AD/CVD laws helping to restore jobs or domestic production. Abundant is the evidence that those laws cause contraction in downstream industries (for some evidence, see Economic Self-Flagellation: How U.S. Antidumping Policy Subverts the National Export Initiative).

Unfortunately, the collateral damage from aggressive use of trade remedies is even more extensive than that. When the United States imposes duties on foreign companies, U.S. exporters often pay a price. Increasingly, U.S. companies are the targets of foreign trade remedies, which are motivated by actions taken by the United States first (as described in Coming Home to Roost: Proliferating Antidumping Laws and the Growing Threat to U.S. Exports).

So numerous are the methodological distortions in antidumping administration and so extensive is the collateral damage caused by those distortions that if there is anything the WTO should do it isn’t to loosen the reins so that the U.S. government can “reclaim the sovereignty” to appease its steel industry with a virtual wall of protective tariffs at huge cost to the rest of the economy. Rather, the WTO should tighten the reins that have brought us to the present, where 376 U.S. trade remedy orders are in effect, restricting imports of inputs from 42 countries that are essential to the profitability of thousands of U.S. companies in dozens of industries for the exclusive benefit of a few connected industries. In fact, this is what the WTO should do about the ADA: Reforming the Antidumping Agreement: A Road Map for WTO Negotiations.

To this day, there remains broad, bipartitsan support for the trade remedy laws. The laws are ideally suited for the purposes of politicians because the benefits are seen (i.e., tariff protection requested by steel producers) and the costs go unseen (i.e., higher input costs for steel-using industries, the tariffs soon imposed on U.S. exporters, etc.), or are at least sufficiently, plausibly disconnected from the initial action.

But there is no economic rationale that reconciles the antidumping law with its administration (as this paper explains: The U.S. Antidumping Law: Rhetoric versus Reality). Instead, over the years, as politicians came to embrace the antidumping law as a useful political salve, justifying its purpose became less important, and the focus gradually shifted to giving the law broader scope and sharper teeth (as this paper describes: Protection Made to Order: Domestic Industry’s Capture and Reconfiguration of U.S. Antidumping Policy).

The sovereignty issue is a canard created and perpetuated to appeal to nationalistic, “Us vs. Them” sensibilities, which have been piqued in recent times. The fact is that the WTO doesn’t usurp U.S. sovereignty. The DSB never orders respondents to do anything. When DSB reports include a finding that a WTO member has breached an obligation, the language in the conclusion is only suggestive. The report would say something like “we find the U.S. practice of offsetting negative dumping margins to be in violation of Article 2.4.2 of the ADA and recommend that the United States bring its practice into conformity with the agreement…”

As a sovereign nation, the United States doesn’t need to heed this recommendation. If it doesn’t, the complainants can request permission to “withdraw concessions,” which means essentially permission to retaliate by subjecting U.S. interests to treatment less favorable than the treatment accorded all other WTO members. That retaliation would normally be targeted at U.S. interests that aren’t involved in the immediate dispute and otherwise have no stake in whether or how that dispute is resolved. For example, if the United States failed to bring it’s nonconforming practices on behalf of its steel industry into conformity, the complainant’s retaliation might include raising tariffs on imports of citrus products or textiles or motorcycles so that commercial interests in Florida, California, South Carolina, and Wisconsin have a stake in the dispute. The process of widening the fray encourages a domestic dialogue among U.S. policymakers who suddenly have interests in seeing the United States comply with the DSB ruling.

The process ensures that U.S. sovereignty is not usurped, but also that exercise of that sovereignty in manners that breach commitments made come at a price. As John Bolton admits in the WSJ: “In reality, ignoring DSU outcomes has always been an option for those prepared to face the consequences.” It turns out that the United States has been prepared to face the consequences more than any other WTO member. No other member is out of compliance (i.e., has not brought its offending actions, laws, policies or procedures into conformity with its WTO commitments) on more matters or has been so for a longer duration than the United States.

The prominence of the claim that U.S. sovereignty is threatened reflects the over-representation of steel interests in the Trump administration. It is intended to add credibility to the implied threat that the United States will ignore DSB rulings with which it disagrees unless and until there are changes made to the WTO texts that render compliant the United States’ non-compliant actions on trade remedies. But it is irresponsible to risk blowing up the system, especially on behalf of an industry that accounts for less than 0.3% of the U.S. economy.

The bottom line is that the WTO dispute settlement system, though not perfect, offers a reasonable formula for balancing the simultaneous imperatives of preserving the rule of international trade law and national sovereignty.

Daniel J. Ikenson is the director of Cato Institute’s Herbert A. Stiefel Center for Trade Policy Studies.

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A Libertarian Explains Why Trump’s New Travel Ban Is Still Legally Suspect

David Bier

President Trump issued a new executive order this week that revises, rescinds, and replaces his prior order banning immigration from several majority-Muslim countries. The new order, which is scheduled to taked effect on March 16, is supposed to bolster the White House’s case in court, resolving legal defects that prevented the ban from prevailing the first time around.

In some ways, it accomplishes its goal, but in other ways, the new order undermines several legal arguments that the administration has been making.

While defending the president against a lawsuit brought by the state of Washington, the administration’s attorneys justified his list of seven majority-Muslim countries by stating that they were “previously identified as posing a heightened risk of terrorism by Congress or the Executive Branch.” In fact, they said, “Congress itself identified Iraq and Syria as countries of concern.”

This argument was always weak because, although Congress did single out these countries for additional vetting, it still specifically provided for the ability of Iraqi and Syrian nationals to come to America so long as they had a visa. But now the president has excluded Iraq from the list, which means its justification that this list was something Congress put together is gone.

Indeed, in some ways, because it undermines so many of the government’s arguments, the order has become even more suspect than it was before, and the courts should tell the president to go back to the drawing board once again.

The whole point of the ban, as the administration put it, was to establish “adequate standards… to prevent infiltration by foreign terrorists.” In other words, because the vetting process is inadequate, and these nationalities are (in the eyes of the administration) inherently dangerous, people from the selected countries cannot be allowed in.

The new order exempts current visa holders from these countries. But this change totally undermines the argument that these nationals are dangerous even if they are screened. By fixing one problem, the administration creates another one for itself. If these nationals are dangerous, why would it concede to allow any of them in?

Here’s a more immediate concern for the administration. When the original order was challenged, the administration argued in court that any delay in implementation “immediately harms the public by thwarting enforcement of an Executive Order issued by the President, based on his national security judgment.” It is likely that they will argue the same when this one is challenged.

Yet the new order delays the effective date for more than a week. It does so to resolve a potential legal concern tied to banning people without notice. But the delay effectively eviscerates the argument from the president’s legal team that a judge’s decision to suspend enforcement of it would impose “irreparable harm.” A judge could respond, “If that’s true, did the president’s delay also harm the United States?”

The administration also claimed that this was not a ban intended to reduce admissions of immigrants from these majority Muslim countries. Instead, it was just a temporary 90-day pause on entries from these places to allow the government to review vetting procedures. But now the new order restarts this timeline.

Why would the clock on reviewing procedures stop ticking just because the old order wasn’t blocking entries? This provides evidence that these timelines were in fact arbitrary and that the goal wasn’t about giving the administration time to review, but rather about cutting legal immigration of people — mainly Muslim immigrants — that the administration simply does not like.

Despite all of the changes, the fundamental problems persist. The order still references 1952 law providing that the president can exclude “any class of alien” if he finds them “detrimental.” But this justification ignores a later-enacted 1965 law that bans discrimination against immigrant visa applicants based on nationality. While the 1965 law provides a list of exceptions, the 1952 law was specifically not included among them.

Congress did not want to allow the president this authority. In fact, it specifically debated the question of whether difficult-to-screen countries should be included under the 1965 non-discrimination rule and decided that they should be.

This means that the executive order re-boot is still legally suspect. Indeed, in some ways, because it undermines so many of the government’s arguments, the order has become even more suspect than it was before, and the courts should tell the president to go back to the drawing board once again.

David J. Bier is an immigration policy analyst at the libertarian Cato Institute’s Center for Global Liberty and Prosperity.

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Congressional Republicans’ Obamacare Replacement Won’t Cut It

Michael D. Tanner

If you want to see political malpractice in action, you don’t have to read Donald Trump’s latest tweet — just look at the mess Republicans have made of repealing and replacing Obamacare. Given seven years to come up with a replacement for one of the most poorly designed (and most scrutinized) laws in modern history, Republicans somehow managed to botch both the politics and policy.

Replacing Obamacare should have been a low bar. The health-care law did expand coverage, but by less than most accounts would lead one to believe. Of the roughly 20 million Americans who have gained coverage under Obamacare, nearly 11 million are on Medicaid, which provides little of actual value in terms of care. This small benefit came at the expense of virtually destroying the individual insurance market. Premiums for the benchmark silver plan have roughly doubled since the law was implemented, while out-of-pocket costs, including deductibles, co-payments, and co-insurance, have skyrocketed. Consumer choice has dwindled with insurance companies pulling out of the market — roughly a third of U.S. counties and five states have just one insurer offering Obamacare plans — and provider networks shrinking. Keeping your plan and your doctor has become a laugh line. The law’s taxes and regulations have slowed America’s economic recovery, and, according to some studies, reduced its job growth.

Most importantly, Obamacare is teetering on the edge of an adverse-selection death spiral. As premiums rise, healthier consumers are abandoning the market. Without a pool of healthy people to offset the costs of the sick people who rushed to sign up for Obamacare, a phenomenon exacerbated by the law’s requirement that insurers cover preexisting conditions, insurers are forced to raise premiums still more, beginning the cycle anew. Obamacare’s collapse seems more a question of “when” than of “if.”

Voters understand all of this. The latest NBC/WSJ poll showed that fully 95 percent of Americans want the law changed or eliminated, and more than half believe either that it needs a “major overhaul” or that it should be “totally eliminated.”

In other words, health-care reform may be complex, as President Trump belatedly realized, but Republicans could have hardly asked for an easier target. Unfortunately, given every opportunity to hit it, they have missed.

First, rather than having a proposal ready to go on Day One of the Trump administration, they dallied, allowing Democrats to stir up protests at town halls and seize control of the media narrative. Then, they put their plan together in secret, keeping much of the Republican rank-and-file in the dark. While a handful of insiders designed the replacement bill, there was little or no input from groups such as the House Freedom Caucus. Rand Paul’s traveling copy machine may have been a stunt, but it effectively illustrated GOP leadership’s extreme secrecy and paranoia. It’s little wonder the plan that resulted is already facing opposition from both moderates and conservatives.

House committees are expected to start marking up the proposal in committee as early as today, meaning members will have barely had a day to read it. The coming legislative process promises to be every bit as messy as the one that brought us Obamacare in the first place.

But as poorly as Republicans are handling the politics of health-care reform, they are doing an even worse job on policy. Rather than embracing free-market reforms — which might have been politically challenging but would have led to lower health-care costs, greater consumer choice, and, eventually, expanded access to care — the Republican plan is essentially an effort to split the health-care baby in two.

They had seven years to design an alternative to one of the worst laws in recent memory and this is what they came up with?

There are certainly some good ideas in the Republican plan, including the expansion of health savings and flexible spending accounts and the first glimmers of Medicaid reform. Other important reforms such as allowing the purchase of health insurance across state lines and expanded association health plans are expected to come in a subsequent bill. Moreover, the proposal would strike an important blow for individual liberty versus state control by eliminating the individual and employer mandates. But it would also retain some of Obamacare’s disastrously unworkable (if also popular) provisions, most notable among them the requirement that insurers cover people with preexisting conditions.

The preexisting-condition provision in particular represents what is essentially a policy oxymoron: an attempt to insure people who are, by definition, uninsurable. The Republican plan does attempt to limit the ability of people to game the system, by requiring insurers to charge 30 percent more to people who let their coverage lapse. But that is not going to be nearly enough to offset adverse selection. In fact, without the individual mandate, as offensive and ineffective as it is, adverse selection could grow even worse.

The only effective way to deal with preexisting conditions is to take uninsurable people out of the traditional insurance pool altogether, through either state-based high-risk pools or a revised Medicaid program. A scaled back version of risk pools remains in the bill, but Republicans seem to be backing away from it in favor of a bad idea that they wrongly believe will be easier to sell to angry constituents.

To make bad even worse, the GOP plan tosses insurance companies a gift, offering them a subsidy for covering sick and expensive patients. At first read, this provision looks a lot like Obamacare’s insurer bailout, which Republicans, led by Marco Rubio, took such pride in killing.

The meat of the Republican plan is its provision of refundable tax credits to subsidize insurance, and on this we should be clear: Such credits are little more than a disguised entitlement program. These subsidies will blow a hole in the federal budget and lead to higher health-care costs in the future. The federal government already subsidizes roughly 87 percent of U.S. health-care spending, either directly or indirectly. These subsidies hide the true cost of care from consumers, making them less price-sensitive and more likely to overconsume. Without consumer pressure, providers have little incentive to reduce costs or improve care. And, compounding this third-party payment problem, Republicans appear ready to drop or scale back plans to cap tax subsidies for employer-provided insurance plans.

The GOP plan also makes its tax credits age-adjusted, meaning a bigger tax break for older Americans. It is true that older Americans generally pay more for insurance because they are sicker and more costly, but the logic of linking subsidies to age rather than income seems sketchy at best. Subsidies will be capped so wealthy seniors can’t benefit, but this still seems like a payoff to a reliable Republican voting bloc.

Nor has anyone figured out yet how all the new spending in the bill will be paid for. The proposal does keep all the Obamacare taxes — from taxes on capital gains to taxes on tanning beds — in place for another year. But beyond that, it’s anyone’s guess how it will be funded. Worry about deficit spending is out of fashion in Trump’s Republican party, but this really is something that might be worth determining ahead of time.

None of this is to say that the Republican plan would not be an improvement over Obamacare. After all, it could hardly be worse. But those of us who believe in free markets and individual choice expected more.

The House Ways and Means, Energy, and Commerce Committees are expected to start marking up a final bill as early as today, so there is still time to make the Republican proposal better. But if the GOP leadership remains determined to jam through its proposal no matter what, it will have missed an opportunity to implement the kind of health-care reform that would make a real, positive difference.

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