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Disciplinary and Performance Problems Plague Border Patrol

Alex Nowrasteh

A new report by federal watchdogs at the U.S. Government
Accountability Office found that more U.S. Border Patrol agents are
leaving than can be hired. This should concern President Donald
Trump, who in January signed an executive order to hire 5,000 more
agents. The hires will likely come in the form of a bill introduced
in Congress by Rep. Michael McCaul, R-Texas, last month, the Border
Security for America Act.

However, Border Patrol agents have significant disciplinary,
performance and even corruption problems that should be resolved
before hiring more agents.

Border Patrol is the second-largest federal law enforcement
agency in the country, with nearly 20,000 agents. They have
extraordinary powers to enter property close to the Mexican border
without a warrant and run checkpoints within 100 miles of any land
or sea border, yet without the oversight that is common in even
small-city police departments.

President Trump said that
hiring 5,000 additional Border Patrol agents will help “restore the
rule of law in the United States” – but such a laudable goal is
impossible if law enforcement officers are themselves riven by
corruption, misconduct, poor performance and a lack of
discipline.

James Tomsheck, the former head of an internal affairs
department that oversaw Border Patrol, recently said that it is
“conservative to estimate that 5 percent of the [Border
Patrol] force” is corrupt. This corruption and misconduct
ranges from the brutal to the commonplace. Border Patrol agent
Esteban Manzanares assaulted, kidnapped and raped three illegal
immigrants he apprehended while on the job and later committed
suicide when the police surrounded his apartment. The youngest of
his victims was still bound in his home at the time. Oscar Ortiz
was convicted of conspiring to bring at least 100 illegal
immigrants into the United States and, oddly enough, being an
illegal immigrant himself with a false claim to U.S.
citizenship.

These problems exist because Border Patrol isn’t monitored
properly. After 9/11, Congress created a new agency called Customs
and Border Protection (CBP) inside of the new Department of
Homeland Security, which eventually came to house Border Patrol.
Congress forgot to transfer Border Patrol’s old internal
affairs department and didn’t create a new one. Only in
August 2014 did Tomsheck’s internal affairs department
finally get the authority to investigate criminal misconduct.

Confusing and contradictory data make it difficult to gauge the
extent of corruption and misconduct problems at CBP. According to
one source, 158 CBP employees (which includes Border Patrol agents)
were convicted or charged with corruption from 2005 to 2016.
Another source claims there were 358 such convictions, but it
doesn’t distinguish between CBP employees and non-CBP persons
who conspired with them.

Fortunately, the Office of Personnel Management does report data
showing how many agents are terminated for disciplinary and
performance reasons. To be clear, not all of those terminations
represent corruption, but they do indicate performance issues – at
minimum. A new Cato Institute study analyzed OPM data from 2006
through 2016 and found that Border Patrol agents had the highest
termination rate of any large federal law enforcement agency.
Border Patrol agents were 49 percent more likely than other CBP
officers to be terminated for such reasons. They were 54 percent
more likely to be terminated than guards at the Bureau of Prisons,
six times as likely as FBI agents, 7.1 times as likely as Drug
Enforcement Administration agents and 12.9 times as likely as
Secret Service agents.

A good first step to fixing these personnel problems is
implementing the Homeland Security Advisory Council’s
recommendations to speed investigations and streamlining internal
affairs. One particularly important recommendation is bringing the
number of internal affairs officers up to 729, which would give
Border Patrol as least as much internal affairs oversight as the
New York City Police Department. Arizona Republican Rep. Martha
McSally’s amendment to McCaul’s border bill that
guarantees 550 full-time internal affairs investigators for CBP is
a good start.

Congress should go further and not authorize any additional
net-hires at Border Patrol until adequate oversight brings the
termination rate down to that of other large federal law
enforcement agencies.

The GAO should audit internal affairs at Border Patrol and use
its forensic audits and investigative services to conduct
undercover investigations to insure compliance. Communities should
also be able to form civilian review boards to oversee all
complaints made against agents, because law enforcement functions
better with local trust and cooperation.

President Trump said that hiring 5,000 additional Border Patrol
agents will help “restore the rule of law in the United
States” – but such a laudable goal is impossible if law
enforcement officers are themselves riven by corruption,
misconduct, poor performance and a lack of discipline. Restoring
the rule of law starts by holding law enforcement officers
accountable to the law before expanding their numbers.

Alex
Nowrasteh
is an immigration policy analyst at the Cato
Institute’s Center for Global Liberty and Prosperity.

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‘Fiscal Phil’ Has One Chance to Live Up to His Namesake

Ryan Bourne

For five years, the Conservatives made deficit reduction the key
plank of their economic platform.

Yet, strangely, chancellor Philip Hammond now finds himself
under pressure from much of his own party to substantially loosen
the fiscal purse strings.

Conventional wisdom says the country is weary of austerity. More
money is needed for public services. Committed Brexiteers seem to
want the chancellor to bank on some future Brexit dividend to
justify yet higher spending and tax cuts. And there are still those
who believe that anything labeled “government investment” must by
necessity be economically beneficial and worthy of higher public
borrowing.

But the economic case for higher UK government spending right
now is weak.

Keynesian economists would suggest that so-called stimulus
spending through borrowing is needed when there is lots of spare
capacity in the economy and the Bank of England has exhausted
lowering interest rates.

But with unemployment at 4.3 per cent and the Bank having
recently raised rates, the country is not in any need of some
“demand-side boost” through more public spending, even if one
believes it could at other times be beneficial.

The key issue for the UK’s growth prospects is now the outlook
for productivity — or the supply-side.

The economic case for
higher UK government spending right now is weak.

Claiming more borrowing will be “good for the economy” is really
an argument that the borrowing will boost the country’s growth
potential.

Tax cuts and commitments to eliminate tariffs after we leave the
EU could play a role here. By sharpening incentives to save,
produce and invest, or by opening up industry to the
productivity-enhancing effects of competition, cutting taxes can
raise the potential size of the economy.

However, if the path of government spending (the true burden of
government) is not adjusted downwards too, tax cuts today are in
large part tax rises in future, and blunt much of this
growth-inducing impact.

Theoretically, some spending on infrastructure investment could
enhance productivity too, if the government invested well in
high-impact schemes. But that’s a big “if”.

Actual government experience of projection selection on
infrastructure suggests it unlikely. The UK 2010 Comprehensive
Spending Review, for example, deferred, cancelled or placed under
review strategic road schemes with average benefit-cost ratios of
6.8, 3.2 and 4.2 respectively, yet persisted with HS2 with an
estimated benefit-cost ratio of 1.2.

If anything, a government concerned about long-term economic
growth might be thinking about constraining spending further. With
the tax burden already set to hit the highest level as a proportion
of GDP since Harold Wilson was Prime Minister, cutting spending
would leave more resources in the private economy, and create space
for future cuts to marginal tax rates that will be good for
growth.

The case for more spending restraint can be justified from a
public finance perspective too.

The UK is still running a modest deficit of around 2-3 per cent
of GDP a decade after the crisis. The government’s independent
fiscal watchdog — the Office for Budget Responsibility
— considers this deficit almost entirely structural.

As a result, the UK’s national debt is rising and is headed
towards 90 per cent of GDP, leaving the UK government finances in a
vulnerable position given the unknown risk of a potential recession
and the known headwinds of an ageing population.

The government really should be seeking to get the debt-to-GDP
sustainably on a downward path in the coming years, rather than
continually pushing off fiscal balance. Again, the implication is
tighter control of spending, not loosening it.

All this is not to suggest the chancellor should be unambitious
this week. There is plenty of scope for him to use the upcoming
Budget for pro-growth tax reform.

As the main economic ministry, the Treasury should be pressing
colleagues to overhaul Britain’s growth-suffocating land-use
planning laws. Even for a given amount of funds, Hammond could
reorient spending to achieve a bigger economic return.

But calls for the chancellor to open the spending taps again are
deeply irresponsible.

Those who supported Brexit should be honest enough to recognise
that it comes with significant uncertainties in the near term.

To make it a success requires long-term economic liberalisation
with the newly repatriated powers over trade, regulation, and
public money. But that liberalisation requires actually doing the
hard work of regulatory reform, gaining public acceptance for freer
trade, and limiting the size of the state to enable low taxes.

All this could enhance growth in future and provide more
resources for public services. But to simply tell the chancellor to
be more optimistic about Brexit and use that as justification for
more public spending is to put the cart before the horse. The case
for fiscal restraint is as strong today as ever.

Ryan Bourne occupies the R. Evan Scharf Chair in the Public Understanding of Economics at the Cato Institute in Washington DC.

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Can Telemedicine Boost Medi-Cal Access?

Shirley Svorny

For years, Medi-Cal patients’ access to doctors has been limited, especially
for those who need specialty care or live in rural areas.

California’s low physician reimbursement rates are partly to
blame. The 2017-18 state budget includes a 2.5 percent increase in
reimbursements — the first increase since 2001 and totally dependent on new tobacco tax
revenues
.

There are other options worth considering. Interstate
telemedicine would allow an expansion of Medi-Cal services at
current reimbursement rates.

If California doctors
won’t take Medi-Cal patients, why not let out-of-state physicians
provide services?

If California doctors won’t take Medi-Cal patients, why not let
out-of-state physicians provide services? Rents and salaries are
lower in some states, which is why call centers are in the
Midwest.

California could allow physicians licensed in other states to
enroll as Medi-Cal providers to offer telemedicine services without
obtaining a California license, which is expensive and time
consuming.

Why would state legislators block out-of-state physicians?
According to the physicians’ lobby, the goal of licensing
regulations is not to protect them from competition but to ensure high-quality care.

But state medical boards don’t protect patients from low-quality
care and are notoriously bad at disciplining doctors.
Instead, quality assurance comes from efforts by health care
providers to protect their reputations and to avoid liability.

The U.S. Department of Veterans Affairs, whose problems
providing care have made national headlines, will soon allow its
physicians to practice telemedicine in any state. Why shouldn’t
California do the same for Medi-Cal patients?

The Legislature should end the requirement that out-of-state
physicians secure a California license to provide telemedicine care
to Medi-Cal patients. Not only would such as change expand options
for Medi-Cal recipients, it would let the state experiment with
interstate telemedicine, which has the potential to make health
care more accessible and less costly for all Californians.

Shirley
Svorny
is a professor of economics at California State
University, Northridge, and an adjunct scholar at the Cato
Institute.

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Trump’s Declaration of North Korea as a State Sponsor of Terror Is Just Another in a Long Line of Policy Flip-Flops

A. Trevor Thrall and Erik Goepner

President Trump’s objective of getting North Korea to abandon
its nuclear arsenal is clear. His strategy for achieving that goal,
however, is not.

Even less clear are Trump’s communications to the world, and
North Korea, about American intentions. He has flip-flopped and
changed his tune on North Korea multiple times in just his first 10
months in office, making it impossible for anyone to know what he
will do next. Effective foreign policy, on the contrary, requires
the president to signal credible and consistent assurances to
allies and threats to adversaries.

Trump’s recent trip to Asia and his
designation of North Korea as a state sponsor of terrorism
,
unfortunately, reveal either an inability or disinclination to
conduct foreign policy in this manner. The consequences of
Trump’s inconsistency are potentially dire.

Prior to the 2016 election, then-candidate Trump characterized
his North Korea strategy as “What I would do very simply is say,

China, this is your baby
. … You solve the problem.” Months
later the president appeared to abruptly end that strategy,
tweeting, “I greatly appreciate the efforts of President Xi
& China to help with North Korea, it has not worked out.

At least I know China tried!
” During his recent trip to
Asia, however, the president changed back to an earlier refrain:
China can fix this problem quickly and
easily.”

On the diplomatic front, in June of this year Trump noted,
“The era of strategic patience with the North Korean regime
has failed, many years it has failed. Frankly, that
patience is over
.” A month later he offered an answer to
what might come next: “North Korea best not make any more
threats to the United States,” or else “[t]hey will be
met with
fire and fury
like the world has never seen.”

Then, during his recent Asia trip, he again changed course.
Instead of elaborating on his implied military threat and trying to
amplify its coercive power, Trump called for “progress, not
provocation … stability, not chaos, and … peace, not war.” Those words sounded a
lot like a call to the hard and slow work of diplomacy. Bolstering
that notion, during the trip Secretary of State Rex Tillerson
indicated that Trump had invited the North Korean regime to direct
negotiations; an extension, perhaps, of the “direct contact” that Trump appeared to
have ruled out previously but that the secretary said had in fact
been ongoing.

But again on Monday, Trump reversed course yet again, declaring
North Korea a state sponsor of terrorism and imposing further
sanctions on the regime.

So what is the Trump administration’s strategy towards
North Korea? Does China play a critical role or not? Have
diplomatic means and patience been abandoned? Is the U.S.
prioritizing direct talks with the North Korean regime or will only
threats and force resolve the situation? In the past year, the
president has suggested the answer is “yes” to each of
those strategic options. At times, he has said both yes and no to
the same option at the same time.

If Americans cannot determine what the president’s
strategy is, then how can the North Korean regime? Media reports
indicate that the North Koreans are indeed confused by Trump and
have contacted former American officials trying to
ascertain what exactly Trump is doing.

Trump’s defenders argue that his vacillations are
strategic, designed to pressure North Korea into negotiations by
threatening “devastating
attacks. But Trump’s threats have been anything but clear and
credible.

Not only does North Korea have trouble understanding Trump, his
threats are in fact empty. Analysts agree the United States has no
real military option at this point. According to a Pentagon assessment and other analyses, any
attempt to eliminate North Korea’s nuclear arsenal by force would
require a ground invasion, likely resulting in hundreds of
thousands of deaths in the first few days of conflict and creating
a significant risk that North Korea would use nuclear weapons
against Seoul and Tokyo.

Nor is there any reason to believe that re-designating North
Korea a sponsor of terrorism or imposing additional sanctions will
have much impact. Indeed, the very fact that North Korea was able
to develop nuclear weapons while laboring under heavy sanctions
over decades makes clear
how unlikely
it is that additional penalties will encourage Kim
Jong Un to change course.

In light of the facts, Trump’s rhetorical inconsistency makes
conflict more likely, not less. If the North Koreans can’t figure
out what Trump’s strategy is, but they start to believe his threats
about using military force, then the risk of a North Korean
pre-emptive strike rises significantly. The risk of U.S.
miscalculation also rises. If North Korea begins preparations to
defend itself against what it believes is an imminent American
attack, the United States might misread the signs and think North
Korea was about to attack, thus setting off a conflict that neither
side desired.

Instead of flip-flopping between approaches, the president needs
to focus on sending North Korea consistent and clear messages. If
he doesn’t, Kim Jong Un could miscalculate, and that’s a nuclear
mistake we cannot afford.

Erik
Goepner
, a retired colonel from the U.S. Air Force, is a
visiting research fellow at the Cato Institute. A. Trevor Thrall is
a senior fellow at the Cato Institute’s Defense and Foreign Policy
Department and associate professor at George Mason University’s
Schar School of Policy and Government.

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Trump’s Foreign Policy, One Year In

Sahar Khan

President Trump was elected on the promise to make America great again.
As best as one can decipher from a campaign that consistently
contradicted itself and was headed by a candidate with no real
foreign policy experience, this meant prioritizing U.S. interests
and security and improving America’s standing in the
world.

Russia and China’s growing assertiveness, fears over
terrorism and cyber security, and costly military quagmires
Afghanistan and Iraq certainly indicated a need to reassess
American foreign policy. Yet, after a year in office, it remains
unclear how the president’s approach to foreign policy will
accomplish this reassessment. The bigger question: what are the
core principles of Trump’s foreign policy? And how have these
principles affected U.S. interests and status in the world?

The Trump Doctrine seems to consist of three characteristics:
protectionist trade policies (dubbed “economic
nationalism
”), cracking down on immigration in the name
of security (e.g., the current travel ban), and
basing foreign policy decisions on personal relationships rather
than strategic interests.

A year of the Trump
Doctrine has not fundamentally changed U.S. interests or U.S.
foreign policy, but has eroded the moral high ground the United
States’ used to enjoy – and use to its advantage.

The first two characteristics of Trump’s foreign policy
approach are deeply ideological. For example, Trump’s
withdrawal from the
Trans-Pacific
Partnership
trade agreement was based on the notion that the
agreement was taking jobs away from
Americans. In reality, the TPP would have expanded economic
freedom
and was projected to increase growth and
American jobs. While NAFTA may not suffer the same fate as the TPP,
Trump’s insistence on renegotiating parts of it is creating
tension between the
United States and its two neighbors, Mexico and Canada.

Similarly, the president’s focus on countering terrorism
via immigration, which he suggests is the most prominent threat to
the American homeland, ignores empirical evidence saying otherwise.
Not only is 99.7 percent of migration
legal
, but the greater threat facing the U.S. homeland is
coming from domestic right-wing
groups
. It is not coming from refugees nor is it
coming from Muslim migrants inspired by jihadism.
Furthermore, none of the countries listed in the travel
ban
have been responsible for terrorist attacks within the
United States.

The most disturbing characteristic, however, remains the
president’s penchant for choosing inexperienced
national security officials as top foreign policy advisors. For
instance, the president chose Rex Tillerson, the ex-CEO of
ExxonMobil, to lead the State Department. Tillerson, however, had
no foreign policy experience, which was blatantly obvious during
his confirmation hearing,
but was offered the position because of his business expertise. As
a result, the State Department is in disarray and roughly
half of the positions, including an ambassadorship to South Korea,
remain empty. Similarly,
Trump named Jared Kushner a senior advisor to the
White House simply because he is the president’s son-in-law.
In his capacity, Kushner is tasked with addressing some of the most
intractable international disputes and routinely meets with other
world leaders; he was just recently in Saudi Arabia – his
third trip this year.

The president’s nepotism, contempt for the political
process and democratic institutions, and attempts to discredit the
media by making claims of “fake news” and
“alternative facts” are all hallmarks of authoritarianism.
Trump continues to surround himself with yes-men (and women, like
UN Ambassador Nikki Haley),
resulting in a self-proclaimed
foreign policy of “principled realism,” which is in
fact inconsistent,
incoherent, and bears
little resemblance to realism.

Still, Trump has yet to implement major changes to U.S. foreign
policy. For example, traditional alliances are still holding up,
and in some instances, are growing stronger, as is the case with
both U.S.-Israeli and
U.S.-Saudi Arabia
relations. Even though the president is trying to hold foreign
states more accountable for
their own security, the United States continues to maintain its
military bases
and security commitments all over the world. In
fact, Trump has decided to increase U.S. troops
in Afghanistan, which has been followed by a NATO troop increase.
And the contested liberal
world order — though faltering
still remains intact.

What has changed is the United States’ reputation and
image, both of which
have steadily declined under Trump.
One consequence seems to be the erosion of the United States’
credibility as a reliable partner. For example, Trump’s
decertification of
the Obama-era Iran Deal, which effectively halted Iran’s
nuclear weapons program, not only highlights his carelessness and
ignorance regarding the complexity of the region, but also leaves
European allies wondering if the United States can be trusted as a
partner.

In sum, a year of the Trump Doctrine has not fundamentally
changed U.S. interests or U.S. foreign policy, but has eroded the moral high
ground
the United States’ used to enjoy — and use
to its advantage. The Trump Doctrine, however, is based on the
president’s unpredictability, and hence, it is hard to
predict what U.S. foreign policy will look like in the remaining
years of this administration.

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

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Is Trump Restoring Separation of Powers?

Josh Blackman

Our Constitution carefully separates the legislative, executive,
and judicial powers into three separate branches of government:
Congress enacts laws, which the president enforces and the courts
review. However, when all of these powers are accumulated “in the
same hands,” James Madison warned in Federalist No. 47,
the government “may justly be pronounced the very definition of
tyranny.” The rise of the administrative state over the last
century has pushed us closer and closer to the brink. Today,
Congress enacts vague laws, the executive branch aggrandizes
unbounded discretion, and the courts defer to those dictates. For
decades, presidents of both parties have celebrated this ongoing
distortion of our constitutional order because it promotes their
agenda. The Trump administration, however, is poised to disrupt
this status quo.

In a series of significant speeches at the Federalist Society’s
national convention, the president’s lawyers have begun to
articulate a framework for restoring the separation of powers:
First, Congress should cease delegating its legislative power to
the executive branch; second, the executive branch will stop using
informal “guidance documents” that deprive people of the due
process of law without fair notice; and third, courts should stop
rubber-stamping diktats that lack the force of law.

Executive power is often described as a one-way ratchet: Each
president, Democrat or Republican, augments the authority his
predecessor aggrandized. These three planks of the Trumpian
Constitution — delegation, due process, and deference —
are remarkable, because they do the exact opposite by ratcheting
down the president’s authority. If Congress passes more
precise statues, the president has less discretion. If
federal agencies comply with the cumbersome regulatory process, the
president has less latitude. If judges become more engaged
and scrutinize federal regulations, the president receives
less deference. Each of these actions would weaken the
White House but strengthen the rule of law. To the extent that
President Trump follows through with this platform, he can
accomplish what few (myself included) thought possible: The
inexorable creep of the administrative leviathan can be slowed
down, if not forced into retreat.

Congress Should Cease Delegating Legislative Power to
the Executive Branch

The Federalist Society for Law & Public Policy Studies is the
leading organization for conservative and libertarian lawyers
interested in the current state of the legal order. I joined when I
was in law school, and I frequently speak at their events.

Every November, the Federalist Society holds its annual meeting
in Washington, D.C. But this year, the gathering had a highly
unusual dynamic. It is common for scholars to criticize Congress
for delegating its power to the executive branch, a violation of
what is known as the non-delegation doctrine. It is unprecedented
for the executive branch to share that concern. In a keynote
speech, Don McGahn, who serves as White House counsel, lamented the
fact that Congress gives the White House too much power.
“Often Congress punts the difficulty of lawmaking to the executive
branch,” he said, “then the judiciary concedes away the judicial
power of the Constitution by deferring to agency’s interpretation
of what Congress’s vague statutes.”

Several of his officials
are working to contain the administrative state.

One would think that a lawyer for the president would relish
this abdication by Congress and the courts. But no. Instead, McGahn
praised a recent concurring opinion by Justice Thomas, in which
Thomas “called for the non-delegation doctrine to be meaningfully
enforced” to prevent the “unconstitutional transfer of legislative
authority to the administrative state.” Again, reflect on the fact
that if Justice Thomas’s position gained four more votes, much of
Congress’s legislation — which carelessly lobs power to the
White House with only the vaguest guidelines — would no
longer pass constitutional muster.

Though, to be frank, there is no need to rely on the Supreme
Court to enforce the non-delegation doctrine. The president has the
power to veto half-baked legislation. (Recall what Speaker Nancy
Pelosi said of Obamacare: “We have to pass the bill so you can find
out what is in it.”) If Trump returned a bill to Congress, stating
in his message that it failed to include sufficient guidelines,
there would be a paradigm shift in Washington, D.C. Both
Republicans and Democrats would have to go back to the drawing
board and relearn how to legislate with more precision. This
process would strengthen the rule of law. Or Congress could simply
override the veto and reaffirm that it has shirked its
constitutional responsibility and could not care less about what
this president, or any president for that matter, actually
does.

The Executive Will Stop Depriving People of Due Process
of Law without Fair Notice

The problems of the administrative state extend far beyond
Congress’s delegations. During his address, McGahn deplored the
very bureaucracy his boss presides over. “The ever-growing
unaccountable administrative state,” he warned, “is a direct threat
to individual liberty.” To be sure, the president cannot remove the
heads of so-called “independent” agencies, such as the Federal
Trade Commission or the Securities and Exchange Commission. Over
the rest of the executive branch, in theory at least, the president
should have complete control. But such is not the case. Over a half
century ago, Justice Robert H. Jackson observed that the
administrative state had grown into a “veritable fourth branch of
the Government, which has deranged our three-branch legal
theories.” Citing Jackson’s wisdom, McGahn explained that the
administration will take steps to rein in this unruly power. “The
Trump vision of regulatory reform,” he said, “can be summed up in
three simple principles: due process, fair notice, and individual
liberty.”

Generally, when an administrative agency wants to affect a
person’s liberty or property, it must go through a fairly
complicated and cumbersome process that seeks public input.
(Whether or not that input makes any difference is a different
story.) However, in recent decades, administrations of both parties
have sought to bypass this process through the use of so-called
“sub-regulatory actions.” By issuing memoranda, guidance documents,
FAQs, and even blog posts, agencies have avoided the need to
formalize their rules. Yet they still expect Americans to comply
with these transitory documents or face ruinous fines or even
litigation. In particular, during the Obama administration, the
Department of Education used “Dear Colleague” letters to deprive
students of due process on college campuses. McGahn called these
missives “Orwellian.” And he’s right. In September, Betsy DeVos,
the secretary of education, rightfully rescinded these guidance
documents, announcing that “the era of rule by letter is over.”

More recently, in another speech at the Federalist Society
meeting, Attorney General Jeff Sessions announced that his agency
will cease issuing guidance documents that effect a change in the
law. Under the leadership of Associate Attorney General Rachel
Brand, who also spoke at the convention, the Justice Department
will review existing guidance documents and propose modifying or
even rescinding some. “This Department of Justice,” Brand said,
“will not use guidance documents to circumvent the rulemaking
process, and we will proactively work to rescind existing guidance
documents that go too far.”

This is a remarkable and refreshing position, as it
retroactively and prospectively constrains the ability of the
Justice Department to expand its own authority. Depending on how
rigorous the review of past guidance documents is, we could
actually see a contraction of the administrative state. In
Federalist No. 51, James Madison wrote of the “great
difficulty” in framing a government: “you must first enable the
government to control the governed; and in the next place oblige it
to control itself.” Here, the DOJ is tying itself to the mast to
prevent further erosions of the rule of law.

No doubt, this process will be met with resistance from within,
as bureaucrats tend to protect their ossified levers of power. An
energetic executive, however, can clear out what McGahn referred to
as “regulatory sediment.” As it stands now, this policy applies
only to the Department of Justice. It could be expanded to reach
the entire executive branch, under the auspices of the little-known
but powerful Office of Information and Regulatory Affairs. Neomi
Rao, who heads OIRA, suggested during the Federalist Society
convention that such a review could be implemented for independent
agencies as well. (Christopher DeMuth wrote about this proposal in
the Wall Street Journal.) Though the Supreme
Court has held that the president lacks the power to remove the
heads of these commissions, there is an open question about the
extent to which the president can control their regulatory
agenda.

Courts Should Stop Rubber-Stamping Regulations That Lack
the Force of Law

There is one final but imperative aspect of the Trumpian
Constitution: the judiciary. During the 2016 campaign,
then-candidate Trump released a list of possible nominees to fill
Justice Scalia’s seat. At the time, I wrote on NRO, “I have expressed my serious doubts about
Mr. Trump’s vision of constitutional law, but so long as he sticks
with this list, I remain cautiously optimistic.” Stick with the
list he did, and then some. In addition to his nomination of Neil
Gorsuch to the Supreme Court, the Trump administration has set a
modern-day record for the number of district- and circuit-court
judges confirmed in the first year. More important, the White House
is not taking any chances with these picks. McGahn noted that “they
all have paper trails, they are sitting judges, there’s nothing
unknown about them. What you see is what you get.” And there has
been a pervading philosophical consistency to these nominees.
McGahn stated it bluntly: “We are committed to nominating and
appointing judges that are committed originalists and textualists.”
In a not-too-subtle jab at Chief Justice Roberts, McGahn noted,
that his office is seeking judges who “possess the fortitude to
enforce the rule of law without fear of public pressure,” for
“judicial courage is as important as judicial independence.” Trump
is looking for “strong and smart judges.” (In 2015, Randy Barnett
and I offered similar guidance to improve the judicial
selection process).

These criteria will, by necessity, exclude the sort of judges
who would rubber-stamp vague delegations of authority enforced by
guidance documents that lack the force of law. “The greatest threat
to the rule of law in our modern society,” the White House counsel
argued, “is the ever-expanding regulatory state and the most
effective bulwark against that threat is a strong judiciary.” To
McGahn, “the Court should view agencies’ claims of sweeping
authority with skepticism, not nonchalance in the first step to
preserving individual liberty in the face of the burgeoning federal
Leviathan.”

Recruiting judges who share these beliefs will no doubt promote
a more active judiciary, quite the opposite of the longstanding
— and vapid — mantra of judicial “restraint.” Indeed,
three decades ago, the Reagan administration championed the
so-called Chevron doctrine, whereby judges will uphold the
executive branch’s reading of an ambiguous law so long as that
reading is “reasonable” (that is, not arbitrary). The Trump
administration has now called for ending the Chevron
doctrine and eliminating this judicial abdication. By making such
strong nominations, the president has taken proactive steps not
only to limit its own power, but also to institutionalize
restraints on future presidents who may see things very
differently.

Look no further than Justice Gorsuch. In his address to
2,000-plus members of the Federalist Society packed into Union
Station, the junior justice celebrated that “originalism has
regained its place and textualism has triumphed.” The 50-year-old
declared, “neither is going anywhere on my watch.” Providing a
roadmap for the years and decades ahead, Gorsuch recalled that the
courts have “managed to reenter the field of regulating interstate
commerce,” an area long thought to be beyond the judicial
competence. “Why can’t they reenter the field of delegation?”
Gorsuch asked. “Our founders did not approve of lawmaking by
bureaucrats by fiat,” he noted. There is a danger, Gorsuch warned,
when courts “combined delegation and deference.” He’s right.
Deference only works when Congress — and not the executive
branch — is in charge of the lawmaking process.

I still harbor deep concerns about the rule of law in America
today. As reflected solely by President Trump’s Twitter feed, I
worry about his inappropriate attacks on the judiciary, calls for
the prosecution of his political opponents, taunts of foreign
dictators, delegitimization of the press, and failure to address
sexual and other improprieties in his own party, to say nothing of
our stark policy differences. With respect to the separation of
powers, however, if the Trump administration actually follows
through on its promises concerning delegation, due process, and
deference, there will be a sea change in how the administrative
state functions. Indeed, each of these actions will, ironically
enough, weaken the executive and restore the separation of powers
in the long run. That alone would be a remarkable disruption of the
status quo.

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

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Endless War Is No Honor to America’s Veterans

Doug Bandow

Veterans Day has passed. The annual ritual never changes.
Politicians who didn’t serve in the armed services start
unnecessary wars, killing military personnel whose sacrifices are
then lauded. Officials say these heroes died defending our freedom.
That is almost always a lie.

Sometimes Washington must go to war. Not often, however. Despite
the endless claims that we live in a dangerous world, America is
amazingly safe. No other power could defeat, let alone conquer, the
United States. Only Russia has a comparable nuclear arsenal, but it
would be destroyed if Moscow targeted America. China and Russia
trail U.S. conventional military strength and are more or less
strategically isolated. In contrast, Washington is allied with
every other major industrialized state.

Despite their bluster, the so-called rogue states, most notably
North Korea and Iran, are not planning to attack the United States.
Instead, they are desperate to ward off American attack. Since
Washington routinely employs regime change against governments on
America’s “naughty” list, Kim Jong-un looks rational, not suicidal,
in seeking to create a deterrent to preserve his rule.

Washington’s most pressing security challenge is terrorism. But
while targeting civilians is a moral outrage, terrorism does not
pose an existential threat to America. Indeed, European and Latin
American nations have confronted and survived more virulent
attacks. Israel, Sri Lanka and Turkey also have suffered prolific
terrorist bombings. So, too, Iraq, after Washington invaded that
country and triggered sectarian war.

Moreover, interventions, invasions and occupations are no answer
to terrorism. On the contrary, terrorism is a poor man’s weapons
against stronger powers. It is politics by other means when the
other side has a preponderance of traditional military power. To
understand terrorism is not to justify it. But it long has been a
political tool: two Russian czars, an Austro-Hungarian archduke
(heir apparent), two former Indian prime ministers and countless
other foreign officials have been assassinated by terrorists.
Before Iraq, the most prolific suicide bombers on earth did their
killing in Sri Lanka. Countries like Russia are not targeted
because they are so liberal; Turkey, Jordan and Kuwait are not
attacked for being infidels.

U.S. servicemen and women
perform extraordinary tasks in difficult circumstances. But their
commitment and courage are being misused by politicians who have
seemingly forgotten that America is a republic, not an
empire.

Washington should kill or incapacitate those already determined
to kill Americans, but also stop making so many enemies. In Yemen,
for instance, the United States is helping the repressive,
licentious Saudi royals slaughter people who have never done
anything against America. Washington is involved in a civil war in
which Riyadh intervened to reinstall a pliant regime. The Yemenis
know who is providing the bombs to Saudi Arabia, offering targeting
assistance to the Saudi air force and refueling Saudi planes. It
should surprise no one if someday a Yemeni commits terrorism
against the United States and its people.

Yet the United States is constantly at war, and in far more
nations than most Americans realize. Combat in Afghanistan is
entering its seventeenth year. U.S. personnel are back in Iraq.
They are fighting in Syria, the Philippines and across Africa,
including Niger, where four American servicemen recently died.
Drone campaigns and special operations forces have been
particularly active in Pakistan, Somalia and Yemen. As noted
earlier, the United States is also underwriting Saudi Arabia’s
aggressive war against Yemen. Worse, Washington is prepared to
battle China, Russia and North Korea to defend prosperous and
populous allies, which could defend themselves.

Perhaps most striking is how few of America’s “big wars” are
justifiable. Most were conflicts of choice undermining rather than
sustaining American liberties. The revolution created the nation.
But while Washington was justified in defending itself from Great
Britain in the War of 1812, the most serious casus belli, an attack
on an American warship, took place years before. In 1812, war fever
mostly reflected the desire to annex Britain’s Canadian
possessions.

The Mexican-American War was an imperialistic bonanza, in which
Washington used a dubious territorial claim as an excuse to seize
half of its neighbor. Some U.S. officials desired to take the whole
nation. The Spanish-American War was equally misguided: Spain
brutalized its colony of Cuba, but no worse than Americans treated
their native population. Moreover, Washington seized the
Philippines as well, even though it had nothing to do with the
initial dispute. The United States suppressed an indigenous
independence movement with enormous brutality; some two hundred
thousand Filipinos died in the process.

World War I was a foolish, unnecessary war. Washington joined
with the so-called Entente, which included the anti-Semitic
despotism of the Russian Empire, and defended Serbia, whose
murderous rulers triggered the conflict by engaging in an act of
state terrorism. Aiding them did nothing to “make the world safe
for democracy.” Rather, President Woodrow Wilson imagined himself
anointed from on high to remake the globe.

Alas, World War II was the inevitable result of Wilson’s folly,
the unfinished business from the so-called Great War. World War II
is usually considered the “good war,” with clear and evil enemies.
But it likely would not have occurred had the United States not
previously unbalanced the European balance of power and promoted an
unsustainable “settlement,” which broke down almost
immediately.

In the Korean War, Washington had little choice but to
intervene, having helped set up the conflict; the Cold War context
made the heretofore irrelevant peninsula important to U.S.
security. But not Vietnam. Washington took over from the French
colonial empire and fought an extended war in an area of no great
geopolitical significance to America. The conflict’s end
demonstrated that the battle was unnecessary. The dominoes
ultimately fell, but stopped with Laos and Cambodia. A decade
later, Vietnam was seeking to improve relations with America as a
counterweight to China, with which it fought a short war.

Ronald Reagan used the military sparingly. His intervention in
Lebanon’s civil war was folly, which he recognized after the
attacks on the U.S. embassy and Marine Corps barracks. Grenada
provided attractive visuals of American medical students arriving
home, but mattered little for U.S. security.

Most of Washington’s “little wars” after the Cold War did not
make America safer. Ousting Panama’s Manuel Noriega, forcing out
the Haitian military junta, intervening in the Bosnian civil war,
dismantling Serbia and tracking down warlords in Somalia were
essentially international social work. At least the first Gulf War
was limited in scope and effect, though Washington’s previous
support for Saddam Hussein’s dictatorship, most notably his war of
aggression against Iran, likely confused him about America’s
intentions.

George W. Bush’s invasion of Iraq [3] was catastrophically foolhardy,
spreading sectarian war, victimizing religious minorities,
expanding Iran’s influence and setting loose vicious Islamist
forces, which morphed into the Islamic State. Presidents Bush,
Obama [4] and Trump [5] each took a mission [6] that started as destroying
the terrorist group that attacked Americans at home and turned it
into an interminable nation-building mission that has become a
black hole for U.S. lives and resources. President Obama initiated
his own war in Libya, which he refused to call by that name. The
resulting violent overflow inflamed conflict in neighboring
countries such as Chad and Niger.

Why this enthusiasm, even addiction to war? The dominance of
U.S. foreign policy by elites ever ready to sacrifice their
countrymen’s lives is one factor. Indeed, the bipartisan commitment
to intervene survived President Trump, who had criticized Hillary
Clinton’s proclivity for war, said the United States should not
have invaded Iraq, blasted subsidies for wealthy allies, called
Afghanistan “a total and complete disaster” and more. In practice,
little has changed. More troops have gone to Afghanistan, Iraq and
Syria on this president’s watch. The blank check for Saudi Arabia
has gotten bigger. He is threatening war against North Korea.

Congress’s de facto abandonment of its power to declare war is
another factor. America’s founders consciously sought to ensure
that no one man could let slip the dogs of war. But legislators
prefer not to take on the responsibility. Let presidents do the
dirty work, and members of Congress can applaud or carp, depending
on the result. There is little popular accountability for
presidents, at least until body bags start coming home. Even then,
attempts to hold executive officials accountable for their bad
decisions are drowned out by demands to “support the troops,” which
really means insulating warmongering politicians from
responsibility.

U.S. military power makes intervention easy. No country,
especially the small, Third World states that usually end up in
Washington’s crosshairs, can resist America’s armed forces. For a
president able to unilaterally deploy the military, the world is a
target-rich environment. As then Secretary of State Madeleine
Albright said to Joint Chiefs of Staff chairman Colin Powell:
“What’s the use of this great military you keep talking about if we
never use it?”

Policymakers are increasingly unlikely to have served in the
military or have family members or friends who do so. The problem
is not the volunteer military, but an armed forces that is
relatively small compared to the population. Inevitably, fewer
people will serve in the military. Even with conscription, few
children of elites would be forced into the service, and an even
smaller proportion would serve in combat arms. Politicians
disconnected from the realities of war are more likely to view the
military as the answer to just about every geopolitical
problem.

Extraordinary hubris, born of America’s unique founding and
present dominance, encourages Washington policymakers to engage in
international social engineering. With sufficient military power,
they believe, they can overcome differences in history, religion,
geography, ethnicity, culture, politics and more, and remold the
world to their liking. Every failure merely causes them to
overreach more next time.

Also important is the recent affection of supposedly
limited-government conservatives for international social
engineering. Once skeptical of participation in foreign wars, the
conservative movement shifted because of the Cold War. After the
collapse of the Soviet Union, some on the right reverted to their
historic commitment to a foreign policy fit for a republic. But the
majority seemed to glory in the prospect of an American-style
empire, in which the very federal politicians they reviled at home
would spread capitalism, liberty and democracy abroad.

Costs to others are simply ignored, and maybe not even noticed.
A few hundred thousand dead Iraqis? Well, one must break eggs to
make an omelet. Sen. Lindsey Graham has been surprisingly blunt in
advocating war against North Korea since, he explained, it would
not occur “over here.” So what if South Korea would be turned into
a battleground? Offloading the costs on others makes it easier for
Washington to conduct wars.

Most important may be the fact that the United States is so
secure. Republican presidential candidates last year acted as if
America was a small, beleaguered, Third World country threatened by
such global behemoths as Iran and North Korea. However, Washington
is a colossus. It can waste lives and money with wild abandon with
few ill effects at home, other than on the service members who are
killed or injured. The ill impact is mostly on others: hapless
Libyans, Iraqis, Syrians and Yemenis, for instance, who suffer
through devastation, chaos and hardship created by Washington’s
blundering.

America always has been unique, even exceptional. But the
nation’s founders didn’t view that as a reason to join the old
imperial powers in sacrificing their people’s welfare in pursuit of
international glory. Today Washington seems most exceptional to the
degree to which it relies on military power to advance often
peripheral interests-and the lack of accountability for those who
misuse that power so badly and promiscuously.

U.S. servicemen and women perform extraordinary tasks in
difficult circumstances. But their commitment and courage are being
misused by politicians who have seemingly forgotten that America is
a republic, not an empire. And their responsibility is to defend
America, not the rest of the world.

Veterans Day should be considered commemoration of tragedy, not
celebration of victory. President Trump should spend the coming
year ending old wars, not starting new ones.

Doug Bandow is a Senior Fellow at the Cato Institute. A former special assistant to President Ronald Reagan, he is the author of several books, including Foreign Follies: America’s New Global Empire.

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Don’t Start Rejoicing over Mugabe’s Fall Just Yet

Marian L. Tupy

Robert Mugabe, the cartoonish dictator of Zimbabwe, wasn’t
corrupted by 37 years in power. Contrary to the myth his admirers
created in the 1980s, he never was a selfless revolutionary devoted
to the welfare of his people.

From his political emergence in the 1960s to his ousting in a coup this week, Mugabe
remained what he always was: a hard-core Marxist willing to do
anything to gain and hold onto absolute power.

His time in office was marked by violence and economic
illiteracy — a fatal combination that broke the
once-prosperous country. As befits the fate of a tyrant, Mugabe
finally found himself at the mercy of his erstwhile henchmen. And
as he exits the political arena, he leaves Zimbabwe in the hands of
a man who is, arguably, even more brutal than Mugabe himself.

Zimbabwe is a long way
from gaining political freedom or returning to economic
growth.

Mugabe, a carpenter’s son born in 1924 in Southern
Rhodesia’s Kutama Mission, was inculcated with a deep hatred
of the British Empire by an Irish Jesuit who ran a mission. Bookish
and intelligent, Mugabe won a scholarship to study at a South
African university, where he got his first taste of Marxism.

In 1960, he joined Joshua Nkomo’s Zimbabwe African
People’s Union, a black liberation movement committed to
ending colonial rule in Rhodesia.

After falling out with Nkomo, Mugabe helped to establish the
Zimbabwe African National Union. The two movements — ZAPU,
supported by the Soviets, and ZANU, backed by the Red Chinese
— were soon at loggerheads and, following an outbreak of
violence, both Nkomo and Mugabe were imprisoned by the Rhodesian
authorities.

Upon his release in 1974, Mugabe left the country for safe haven
in Mozambique from where ZANU launched a guerrilla war against his
former captors. Unsuited for combat, Mugabe outsourced the actual
fighting to one of his deputies, Josiah Tongogara. The mounting
costs of war, international pressure and economic sanctions forced
the Rhodesian government to the negotiating table and set the
country on a path to the fateful 1980 election.

Preparing for the election, Mugabe appeared to have disposed of
Tongogara, a possible rival, in what the US Embassy in Lusaka
described as a “non-accidental” car crash.
Mugabe’s guerrillas also intimidated defenseless villagers
into casting their votes for ZANU. Much to everyone’s
surprise, Mugabe won 57 out of the 100 seats in Parliament.

In the early 1980s, Mugabe’s North Korea-trained troops
descended on Nkomo’s stronghold in the Matabeleland, killing
20,000 people and forcing Nkomo into exile. The man entrusted with
the grisly task of genocide, Emmerson Mnangagwa, would become
Mugabe’s right-hand man — for a time.

During the 1980s, government corruption metastasized while
Mugabe’s socialist policies slowly suffocated the
country’s economy. Burgeoning debt and deficits necessitated
an IMF bailout and a promise of economic reforms in the 1990s.

As socialism collapsed in Europe, the aging revolutionary
reinvented himself as the enemy of all things Western and
determined to wipe out the last vestiges of the British colonial
legacy in Zimbabwe. These were the white farmers, who constituted
the backbone of Zimbabwe’s economy.

Using the pretext of the farmers’ meddling in politics,
Mugabe started expropriating commercial farmland in 2000, which
occasioned a spectacular economic meltdown.

In 2008, the country’s output fell to the 1979 level and GDP per
capita to levels last seen in the 1950s. Zimbabwe saw the
second-highest hyperinflation in recorded history, an annualized
rate of 90 sextillion percent. Unemployment rocketed to 90 percent
and government departments — with the expectation of the
military and police — effectively ceased to function. Yet
Mugabe, propped up by South Africa’s President Thabo Mbeki,
survived and limped along with Zimbabwe for another decade.

Now, aged 94, the increasingly fragile and senile Mugabe made a
grave error by dismissing his vice president to clear the way for his second wife, the
52-year-old Grace, to ascend to the presidency
. Mnangagwa
responded by apparently staging a coup and placing Mugabe under
house arrest.

Latest reports suggest that Mugabe will be permitted to go into
exile unmolested, leaving a broken country at the mercy of a
murderous maniac. If so, Zimbabwe is a long way from gaining
political freedom or returning to economic growth. The
international community will doubtless try to keep up pressure on
ZANU and its new leadership, but, in the end, it’s up to
Zimbabweans to avoid another Mugabe.

Marian L. Tupy
is a senior policy analyst at Cato Institute’s Center for Global
Liberty and Prosperity.

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Let’s Talk about Respect: Chicago Police Officers Continue to Fail the Communities They Are Sworn to Serve

Jonathan Blanks

When police departments face criticism for
high-profile officer-involved shootings or more general calls for
reform, some talking heads tend to fall back on crime statistics,
particularly violent crime statistics in majority black
neighborhoods, saying that crime is the underlying problem of those
areas, not the police who work there. The “what about
black-on-black crime?” canard deflects criticism of police
and their often-abusive practices in communities of color. The
argumentative sleight of hand shifts responsibility from the police
back onto the community that lodges the complaint of police abuse,
as if the existence of high crime neighborhoods negates complaints
of police abuse. Police accountability is not an ancillary issue
that should take a back seat to crime fighting. Accountable police
officers are paramount to public safety and security.

The increase in violence on the streets of Chicago
particularly has become the go-to shibboleth of the “tough on
crime” set. U.S. Attorney General Jeff Sessions has decried
Chicago “lawlessness” and
underscored that the “most critical factor to our success
is the strength, training, and morale of the Chicago Police
Department
.” The Manhattan Institute’s Heather Mac
Donald explicitly blamed Chicago’s murder spike on what she
called the “Ferguson effect”
: chilled by the public
outcry following Ferguson officer Darren Wilson’s killing of
teen Michael Brown, line officers retreated from proactive policing
and, consequently, a spike of violent crime followed. This causal
relationship was not backed by data—though “de-policing” has shown to have
correlative effects in other cities like Baltimore
—but
Chicago continues to be a buzzwordfor
those who believe police are not getting the respect they deserve
and that lack of respect is enabling violent crime.

Police accountability is
not an ancillary issue that should take a back seat to crime
fighting.

OK. Let’s talk about respect and the Chicago
Police Department (CPD).

For almost 20 years, Chicago Police Commander Jon
Burge
tortured men—primarily black men—to elicit
confessions to murders and other crimes. Many men spent decades in
prisons after these torture sessions, often for crimes they
didn’t commit. When he was finally fired, the statute of
limitations had expired for his most barbaric acts. He was
eventually convicted of lying in a civil case about the torture he
inflicted and sentenced to four-and-a-half years in prison. Burge
still receives a $4,000 per month
pension
, despite the City setting up a multi-million dollar
reparations fund to compensate his many victims.

More recently, Officer Dante Servin was charged for
fatally shooting Rekia Boyd, 22, from his car in 2012. Servin
claimed he was trying to shoot a man who had reached into his
waistband and pointed a gun at him, but shot into a crowd of
unarmed young black people ordered to disperse, killing Boyd and
injuring another man. The gun Servin claimed he saw was a cell
phone. Servin was charged with involuntary
manslaughter
, but the judge dismissed the case in
2016
, saying that Servin was mischarged because the facts supported first
degree murder
. Servin quit before he could be terminated for
killing Boyd so, like Burge, he too kept his pension. The City paid
Boyd’s family $4.5 million for her wrongful death.

But CPD’s problems go well beyond one or two bad
cops.

In 2015, The Guardian published a massive, multi-part investigative reportabout a
secret interrogation site in Chicago known as Homan Square. The
Guardian
had to sue to get much of the official information
about Homan Square, which held more than 7,000 individuals
functionally incommunicado from friends, family, and legal counsel.
An estimated 82 percent of the individuals held
at the black box site were African American
, and fewer than 100 had documented visits
from legal counsel
. People detained there reported being
shackled for hours and held for days at a time without outside
contact. At least 14 reported being subjected to “punches, knee strikes, elbow
strikes, slaps, wrist twists, baton blows and Tasers

that were not performed in the course of a lawful arrest and
at least two individuals died while
held at Homan Square
. One man alleged he was sexually abused in an
effort to coerce his cooperation in a drug case.

The most famous misconduct case to come out of Chicago
in recent years was the fatal shooting of Laquan McDonald by CPD
officer Jason Van Dyke in 2014. The shooting itself was troubling
on a number of levels—Van Dyke emptied his magazine into the
black teen’s body well after he suffered a head shot that
left him motionless on the ground—but the aftermath and the
video evidence point to even larger, systemic problems within the
CPD.

The delay in releasing the dash cam video of the
incident—forced by an investigative journalist’s
Freedom of Information Act request and subsequent
lawsuit—raised questions of politics, specifically that the
release was delayed, in part, to protect the reelection prospects of
Mayor Rahm Emanuel
. When the footage was released, none of the
dash cams had operating microphones to capture audio of the
incident. An internal CPD review showed that 80 percent of CPD dashcams had
dysfunctional audio due “to operator error or in some cases
intentional destruction” by officers
, strongly suggesting
widespread tampering with potential criminal evidence. The manager
of a Burger King near the scene reportedly told a grand jury that
police destroyed 86 minutes of surveillance
footage
he turned over to them that corresponded with the time
of the killing. Ten officers were recommended to be fired and
four officers and a sergeant were
brought up on administrative charges
for covering-up the
shooting by filing false reports about the incident. Van Dyke was
indicted for the killing and only three other CPD officers were
indicted on misconduct and obstruction charges for the
cover-up
. (The Chicago Tribunecompiled an ongoing
timeline of the case here.)

The stories above are just a few of the many cases of misconduct known
within and outside of Chicago.The CPD continues to operate in an
environment that protects officers from accountability for many
years, even in the most egregious cases of misconduct. Those who
point to Chicago to decry the lawlessness in the communities there
would do well to examine the police who patrol those streets and
why they continue to fail the people they are sworn to serve.

Jonathan
Blanks
is a Research Associate in Cato’s Project on Criminal
Justice and a Writer in Residence at Harvard University’s Fair
Punishment Project.

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House Tax Plan: Good for Affordable Housing

Vanessa Brown Calder

The U.S. House of Representatives and Senate’s tax reform
plans dropped this month, and affordable-housing advocates
described the former as the “worst-case scenario” and “devastating for affordable housing.” But
unless you’ve been following federal affordable housing
policy closely, it may be hard to understand why.

Affordable-housing advocates are mainly concerned about the
House’s proposal to eliminate private activity bonds. These
bonds are frequently paired with low-income housing tax credits to provide
equity for qualifying housing projects.

Without the bonds, developers will not be able to utilize one
version of the low-income housing tax credit. As a result,
advocates have decided the affordable housing sky is falling.

But there is reason to be more upbeat. For one thing, the LIHTC
program isn’t what supporters make it out to be. The
program is arguably one of the least-efficient housing subsidy
programs overseen by the federal government.

Affordable-housing
advocates are concerned about the House’s proposal to eliminate
private activity bonds.

Research suggests a majority of LIHTC benefits go to developers
and intermediaries, rather than low-income tenants. In one study,
Economist Gregory Burge found evidencethat only one-third of the value of
LIHTC benefits low-income tenants. That leaves two-thirds of the
benefit for developers, lawyers, accountants and financiers
involved in the process.

There are other issues, too. For example, LIHTC housing seems to
displace private-market housing that would be been built without
taxpayers’ help. A 2010 study indicates “nearly 100 percent
of LIHTC development is offset by a reduction in the number of
newly built unsubsidized rental units.” That is a problem
because it means taxpayers are paying for something that would
exist even in the absence of a subsidy.

The LIHTC program also has abysmal oversight, described in two
different reports as “minimal” by the Government
Accountability Office, a federal watchdog agency. In a Senate
hearing earlier this year, the GAO auditor said the “IRS
and no one else in the federal government really has an idea of
what’s going on.” The IRS has audited only 13 percent of the local
groups administering the program.

This lack of oversight leads to corruption and fraud. For
example, NPR detailed a string of LIHTC corruption cases
in Florida earlier this year that included a major LIHTC developer
stealing $34 million from 14 different projects before getting
caught.

It would be nice if this were an anomaly. Yet the Assistant U.S.
Attorney investigating the cases told NPR he “know[s] that this
fraud doesn’t just reside in South Florida. There’s too much money
involved, and based upon other information that we’ve looked at,
this fraud exists in other jurisdictions.”

But there is an even more important reason to approve of a
reduction in the scope of the LIHTC program: LIHTC serves as a
distraction from the crux of the housing affordability problem.

In most states, zoning and land-use planning drive up housing
costs. For example, I find that increasing land-use regulation is
associated with increasing home prices in 44 states in my recent
report “Zoning,
Land-Use Planning, and Housing Affordability.

But don’t take my word for it. Economists Edward Glaeser
and Joseph Gyuorko have estimated the cost of housing is 30 percent to 50 percent higher in certain
major cities as a result of the regulatory tax associated with
zoning regulation. And restrictive zoning and land-use regulation
is associated with fewer multifamily housing developments in U.S.
cities.

Because inefficient programs like the LIHTC exist, policymakers,
lobbyists and housing advocates can go on pretending that spending
more money on housing subsidies will resolve housing affordability
problems for once and for all.

Local policymakers won’t be able to continue living under
such an illusion if Congress eliminates private activity bonds and
reduces the LIHTC as a consequence. With fewer inefficient
subsidies to point at, citizens and policymakers will have to get
serious about reforming costly regulation. Eliminating private
activity bonds is the first step, and we may have the House tax
plan to thank for it.

Vanessa Brown
Calder
is a policy analyst at the Cato Institute.