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There are probably a wide range of reasons to object to Senator Jeff Sessions as President-elect Trump’s choice for Attorney-General. I’ll leave it to others to explain the concerns with Sessions in that role, but there is an issue with his understanding of trade agreements that I think is worth highlighting. Sessions has been repeating an objection to the Trans Pacific Partnership (TPP) that completely misunderstands the text of that agreement, and it is worth correcting the record.

The issue relates to the governance of the TPP. Sessions believes there will be a TPP Commission that acts as a supra-national governing entity and can override domestic laws. Here’s something he said last year: 

Among the TPP’s endless pages are rules for labor, environment, immigration and every aspect of global commerce – and a new international regulatory structure to promulgate, implement, and enforce these rules.  This new structure is known as the Trans-Pacific Partnership Commission – a Pacific Union – which meets, appoints unelected bureaucrats, adopts rules, and changes the agreement after adoption.

The text of the TPP confirms our fears, plainly asserting: ‘The Parties hereby establish a Trans-Pacific Partnership Commission which shall meet at the level of Ministers or senior officials, as mutually determined by the Parties,’ and that ‘the Commission shall’:

  • ‘consider any matter relating to the implementation or operation of this Agreement’;
  • ‘consider any proposal to amend or modify this Agreement’;
  • ‘supervise the work of all committees and working groups established under this Agreement’;
  • ‘merge or dissolve any subsidiary bodies established under this Agreement in order to improve the functioning of this Agreement’;
  • ‘seek the advice of non-governmental persons or groups on any matter falling within the Commission’s functions’; and
  • ‘take such other action as the Parties may agree’.

Further, the text explains that ‘the Commission shall take into account’:

  • ‘the work of all committees, working groups and any other subsidiary bodies established under this Agreement’;
  • ‘relevant developments in international fora’; and
  • ‘input from non-governmental persons or groups of the Parties’.

This global governance authority is open-ended: ‘The Commission and any subsidiary body established under this Agreement may establish rules of procedures for the conduct of its work.’  It covers everything from the movement of foreign nationals: ‘No Party shall adopt or maintain…measures that impose limitations on the total number of natural persons that may be employed in a particular service sector… in the form of numerical quotas or the requirement of an economic needs test’; to climate regulation: ‘The Parties acknowledge that transition to a low emissions economy requires collective action.’

These 5,554 pages are like the Lilliputians binding down Gulliver.  They will enmesh our great country, and economy, in a global commission where bureaucrats from Brunei have the same vote as the United States.

At bottom, this is not a mere trade agreement.  It bears the hallmarks of a nascent European Union. … 

In August of this year, he said something similar:  

The TPP permanently alters the landscape. The 5,554-page accord, disguised as a simple trade agreement, commits the American people to an international commission with the power to act around Congress. It allows 12 nations, some with less than 1 percent of the GDP of the United States, an equal vote in the TPP Commission. Actions by this commission separate the American people from the policy decisions that affect their lives. The TPP Commission is a direct threat to representative democracy and accountability. 

The reality is very different. To be clear, there is in fact something called a TPP Commission, established in Chapter 27 of the agreement, which is titled Administrative and Institutional Provisions. Article 27.1 says: “The Parties hereby establish a Trans-Pacific Partnership Commission (Commission), composed of government representatives of each Party at the level of Ministers or senior officials. Each Party shall be responsible for the composition of its delegation.” And it does have the tasks he mentions, as set out in Article 27.2.

But if you just read down one more provision, to Article 27.3, you can see why this Commission is no threat to anyone’s sovereignty or democracy:

Article 27.3: Decision-Making

1. The Commission and all subsidiary bodies established under this Agreement shall take all decisions by consensus, except as otherwise provided in this Agreement, or as otherwise decided by the Parties.2  Except as otherwise provided in this Agreement, the Commission or any subsidiary body shall be deemed to have taken a decision by consensus if no Party present at any meeting when a decision is taken objects to the proposed decision.

——————–

FN. 2 For greater certainty, any such decision on alternative decision-making by the Parties shall itself be taken by consensus.

2. For the purposes of Article 27.2.2(f) (Functions of the Commission), a decision of the Commission shall be taken by agreement of all Parties. A decision shall be deemed to be reached if a Party which does not indicate agreement when the Commission considers the issue does not object in writing to the interpretation considered by the Commission within five days of that consideration. 

Basically, this provision says that all decisions of the Commission have to be by consensus of all the governments who are parties to the TPP, one of which is the United States. In other words, no decision can be made unless the U.S. government agrees to it. And while the provision mentions that the parties can decide to take decisions in a manner other than consensus, note that footnote 2 says that the decision to do so must itself be taken by consensus, so the U.S. would have a veto here as well. (There is also a clause that says “except as otherwise provided in this Agreement,” but that applies to a very limited number of situations, such as the special decision-making procedures for accession of new countries to the agreement.) 

Furthermore, when it comes to the only provision that envisions the Commission actually modifying the TPP, Article 27.2.2(c), the provision requires both consensus among parties and the “completion of any necessary legal procedures by each Party.” In the United States, this would mean implementation of the relevant TPP modification pursuant to the TPP Implementation Act passed by the U.S. Congress or new congressional legislation. This provision thus underscores the Commission’s—and the TPP’s more broadly—deference to the sovereignty of each TPP party, including the United States.

What this all means is that there will be no “Pacific Union,” no “nascent European Union,” and no “unelected bureaucrats” adopting rules and changing the agreement after it has been concluded. 

And just to be clear, this Commission is not some nefarious innovation created by the Obama administration as part of the TPP negotiations. Rather, similar bodies have been part of U.S. free trade agreements for a long time. (Examples from Bush-era trade agreements are here and here.) Practically speaking, based on how the same thing works in other trade agreements, what the Commission means is this: if the TPP comes into force, the governments would meet occassionally and talk about how the agreement is working. They will offer diplomatic statements, express concerns, and have long discussions. Every now and then they will actually have to make a decision. But again, unless all the governments—including the U.S.—agree, no decision will be made. 

There may be other reasons Sessions opposes free trade or trade agreements, but we should not let the real debate get thrown off course by misconceptions about how these agreements operate.

Sixty-five percent (65%) of Americans believe police regularly “stop motorists and pedestrians of certain racial or ethnic backgrounds because the officer believes that these groups are more likely than others to commit certain types of crimes.” However, 63% of Americans oppose police using racial profiling for traffic and pedestrian stops, according to a new Cato Institute/YouGov national survey of 2,000 Americans.

Find the full public opinion report here.

An overwhelming majority of African Americans (81%) believe the police regularly racially profile, as do a majority of Hispanics (70%) and Caucasians (62%). Democrats (80%) are considerably more likely than Republicans (53%) and independents (61%) to believe the police engage in racial profiling. Only respondents identified as ideologically conservative, according to our ideological typology, reach a majority (54%) who believe racial profiling does not commonly occur. In contrast, majorities of Liberals (87%), Communitarians (67%), and Libertarians (63%) think police routinely racially profile.

Most Americans Solidly Oppose Racial Profiling, but Slim Majority of Republicans Favor

Two-thirds (63%) of Americans oppose police officers “stopping motorists or pedestrians of certain racial or ethnic groups because the officer believes that these groups are more likely than others to commit certain types of crimes.” This percentage includes 34% who “strongly oppose” and 29% who “somewhat oppose” this practice. The remaining third (37%) support racial profiling, including 10% who “strongly support” and 26% who “somewhat support” it. 

Partisans see profiling differently. A slim majority (51%) of Republicans support racial profiling while nearly as many (49%) oppose. However, Black Republicans differ from their fellow partisans: 65% oppose racial profiling and 35% support it.[1] Hispanic Republicans also oppose by a margin of 57% to 43%. A strong majority (73%) of Democrats and independents (64%) oppose it while roughly 3 in 10 support its use.

Conservatives Support Racial Profiling While Libertarians Strongly Oppose

A majority (60%) of Conservative respondents (identified according to our ideological typology) support racial profiling. In stark contrast, Libertarian respondents solidly oppose (71%) racial profiling, as do a majority of Communitarians (68%), Moderates (61%), and Liberals (87%).

 

African Americans are the most opposed to racial profiling (77%), although majorities of both Latinos (62%) and whites (62%) also oppose. Black Americans are also nearly twice as likely to “strongly oppose” (56%) profiling as Latinos and whites (31%). Latinos and Caucasians are not significantly different in their support for racial profiling.

Opposition to racial profiling is near universal across other demographic groups with strong majorities of men (61%), women (65%), evangelicals (60%), urban residents (65%), suburban residents (62%), high school grads (61%), college grads (64%), households earning less than $30,000 (66%), and households earning above $60,000 (64%) all solidly opposed to racial profiling. Millennials (70%) are more opposed than seniors (54%), but still majorities of both oppose. Overall, conservative Republicans stand out as uniquely supportive of police using racial profiling when deciding whom to stop.

Are Americans being honest about their feelings when it comes to racial profiling? Social scientists have developed a unique test called the “list experiment” to measure attitudes on sensitive topics. We included a list experiment on our survey and split survey respondents into two groups. The first group was asked “If you were a police officer, how many of these five factors do you think would be relevant when deciding who to stop and search for criminal activity? You don’t need to identify which ones, just HOW MANY:”

  • Is acting strangely (fearful, agitated)
  • Is making quick and secretive movements
  • Is present in a high crime area
  • Is male
  • Is young

We offered the second group (the treatment group) the same list plus one addition item:

  • Is black

When we compare the average number of items selected in the first group (Mean: 3.87 number of items) to the average number of items selected in the second group: (Mean: 4.29 number of items), the difference is .42. This indicates that 42% of Americans think that race should be a factor when police decide whom to stop and search and 58% think it should not be a factor . This is remarkably similar to the 37% who supported racial profiling and 63% who opposed when asked directly. The list experiment method found that 53% of Republicans felt that race should be a factor when police decide who to stop, as did 40% of independents, and 34% of Democrats. These numbers are very similar when partisans were asked about racial profiling directly.

In sum, these results indicate that when Americans say they oppose racial profiling, they seem to mean it.

For public opinion analysis sign up here to receive Cato’s upcoming digest of Public Opinion Insights and public opinion studies.

The Cato Institute/YouGov national survey of 2000 adults was conducted June 6-22, 2016 using a sample drawn from YouGov’s online panel, which is designed to be representative of the US population. YouGov uses a method called sample matching, and restrictions are put in place to ensure that only the people selected and contacted by YouGov are allowed to participate. The margin of sampling error for all respondents is +/-3.19 percentage points. The full report can be found here,  toplines results can be found here, full methodological details can be found here.

[1] Data about support for racial profiling by race and partisanship come from the combined June 2016 and November 2015 national surveys (N=4000), which offer greater precision and smaller margins of error for subgroups. (Unweighted: Black Republicans=45.)

Seven years ago tonight John Stossel’s show debuted on Fox Business. This week he announced that the show will end next week.    Some years ago – I’m not sure whether he was still on ABC’s “20/20” then or had moved to Fox – I introduced John at a Cato event as “the most visible, most valuable libertarian in America.” That’s still an accurate assessment.   I first noticed John’s interest in freedom at the end of 1989 when he did a “20/20” piece on “The Positives of Deregulation,” reporting on the new and improved products and services that deregulation had delivered during the 1980s. I remember especially the afterword, when John sat at the anchor desk with Barbara Walters and Hugh Downs, and Downs said, “That was very interesting. It had never occurred to me that there was anything good about deregulation.” I thought to myself, “Really? I understand why some people favor regulation. You just thought deregulation was delivered by space aliens or Mr. Potter of Potterville?”   Then in 1994 John got to do his first hour-long special on ABC, “Are We Scaring Ourselves to Death?” I had the good fortune to attend a taping of a late-night followup where people with varying views watched the show and then discussed it with John. As the segments were shown, I could hear the gasps in the audience around me. Environmentalists and others had never seen a major network program question their claims. But on ABC and later on Fox, he went on doing hour-long investigations of such topics as “Freeloaders,” “Greed,” “Stupid in America,” “Whose Body Is It Anyway?” and “Is America Number 1?” (featuring Cato senior fellow Tom G. Palmer).   I was proud to appear on his shows many times, including this 2015 special on spontaneous order.    John Stossel isn’t retiring. Reportedly, he’ll continue appearing on Fox shows and will also work with Reason.tv and other libertarian organizations on video projects. Meanwhile, much of his work is made available to teachers and students by Stossel in the Classroom, and lots of his specials and regular shows can be found online.   From “The Positives on Deregulation” in 1989 through last night’s “Death by Socialism” and no doubt next Friday’s final show, John Stossel has been bringing a needed dose of reality – and a lot of libertarian scholars and activists – to network television.

Of all those whose predictions were dashed by this year’s presidential outcome (“Trump is headed toward a major loss” his Oct. 19 headline blared), few have been more exercised than the Washington Post’s E.J. Dionne (“white identity politics and male self-assertion triumphed” he railed the day after). Yesterday, in a piece titled “America will soon be ruled by a minority,” he joined the chorus now condemning the “undemocratic” Electoral College—in the name of the Founders, no less, the very men who created it. Ever the good progressive, he fails to appreciate the role states were meant to play in ordering our public affairs.

This round, of course, it’s the disparity between the Electoral College vote and the popular vote that animates Dionne: “For the next two and probably four years,” he writes, “a majority of Americans will be governed by politicians largely elected by a minority of us.”

The inherent illogic of our practices, and the fact that they have nothing to do with the founders’ intentions, is underscored by this contradiction: We are supposed to ignore the national popular vote but deeply respect Trump’s narrow 77,000 popular-vote advantage in the three states that will tip the electoral college his way. (original emphasis)

Having thus implied that the Founders intended us to be ruled by popular majorities, Dionne writes next, curiously, that the Constitution itself “makes no mention of popular votes because the framers never expected there to be any. They saw the electoral college as a deliberative body chosen by state legislatures.” Well, which is it? Did the Founders intend the president to be elected by national popular vote or by the Electoral College?

What the Constitution does say in relevant part is that “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.” (emphasis added) At the nation’s outset, to be sure, more state legislatures than not appointed electors; but early on that balance began shifting toward selection of electors by popular vote. Moreover, if Dionne’s touchstone is the “founders’ intentions,” what better evidence than in Hamilton’s Federalist 68, “The Mode of Electing the President”: “A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated [tasks].” (emphasis added)

So that tips the balance toward popular election of electors, by state, not nationally. And therein lies the genius of the Framers. They were no friends of direct democracy. Indeed, they feared undiluted majoritarian rule almost as much as royal rule. They put liberty first, with democracy as one, but only one, means toward securing it.

At the end of the day, however, it is those countermajoritarian provisions that most exercise Dionne. Thus, he goes next after the Senate, which “compounds the minority government problem,” and then after Article V’s amendment procedures, which enable small states, he says, to block electoral college reform.

In so arguing, Dionne stands in the long tradition of his progressive forebears who sought to reduce the role of the states, thereby to enhance centralized national power. Thus in 1913, at the height of the Progressive Era, they pushed through both the Sixteenth Amendment’s income tax, which vastly expanded federal power, and the Seventeenth Amendment’s direct election of Senators, which reduced the power of state legislatures.

The direct election of the president by a national popular vote would have similar effects by vastly increasing the power of a few large states—Democratic Party bastions, Dionne frankly admits—at the expense of the rest of the country. It would be one more step toward the direct democracy progressives have always sought, which the Founders meant to check, through federalism, in the name of individual liberty.

Imagine that you’re a small business owner getting ready to go into your busy season, when several protestors come onto your property and begin disrupting your workers. Ordinarily, you would call the police and have the trespassers removed so that you could continue with your operations. But in California, that’s not an option for some property owners.

Cedar Point Nursery—a strawberry farm near the Oregon border—didn’t have to imagine that scenario. In fall 2015, union protesters entered Cedar Point’s property at five o’clock in the morning, moving through trim sheds—where hundreds of employees were preparing strawberry plants during the final stage of the six-week harvesting season—with bullhorns, distracting and intimidating its workers.

This is where you would think you could appeal to the authorities to have unwanted visitors removed, but in 1975, California’s Agricultural Relations Board (ALRB) promulgated a regulation that promotes trespassing! This law—known as the “Access Regulation”—grants a right of access by union organizers to the premises of an agricultural employer for up to three hours a day and 120 days a year. In other words, California has granted an easement for unions to enter onto private property, extinguishing the owner’s right to exclude others.

The Fourth Amendment, however, protects private businesses (and everyone else) from such an invasion of their property rights. Indeed, the Fourth Amendment was drafted as a bulwark against the rampant government oppressions—invasions of people’s houses and businesses without a warrant—that existed before the Founding. The right to exclude was a fundamental aspect of the protection of property at common law, and has continued to be recognized as such throughout our nation’s history. Yet the Access Regulation essentially deputizes trespassers who, through their disruptive presence, are allowed to seize private property.

Cedar Point brought a civil rights suit against the ALRB and United Farm Workers, but the district court ignored the importance of property rights in determining whether the Fourth Amendment was implicated and upheld the law. Cato has now filed an amicus brief in the U.S. Court of Appeals for the Ninth Circuit, supporting Cedar Point and other property owners and asking that the district court be reversed.

California’s Access Regulation granted outsiders a gratuitous easement and extinguished the important right to exclude others, thus creating a classic seizure of property that violates the Fourth Amendment. 

President-elect Donald Trump says that he will cut wasteful spending and “drain the swamp” in Washington. The first thing he should target is business subsidies in the federal budget. Such “corporate welfare” spending attracts corruption like garbage dumps attract rats.

A Cato study estimated that there is $100 billion of corporate welfare in the budget. That spending harms the economy, but the incoming administration should be aware that such spending also spawns damaging scandals. That pattern goes all the way back to the 19th century. Federal subsidies for the first transcontinental railroad led to the Credit Mobilier scandal of the 1870s, which involved dozens of members of Congress.

More recently, corporate welfare has spawned these scandals: 

  • HUD Subsidies under Reagan. President Ronald Reagan’s Department of Housing and Urban Development overflowed with corruption in the 1980s under Secretary Sam Pierce. Pierce routinely dished out grants, loans, and other subsidies to friends, business associates, and Republican Party contributors.
  • Commerce Subsidies under Clinton. President Bill Clinton’s Commerce Secretary, Ron Brown, used business subsidies as a fund-raising tool for the Democratic Party in the 1990s. Corporate executives who played the game were given access to export promotion trips and federal export loans. In his investigations, U.S. District Judge Royce Lamberth determined that Commerce officials concealed and destroyed documents relating to the trade mission scandal, and he compared officials to “con artists.”
  • Enron Subsidies under Clinton and Bush. Enron Corporation lobbied federal officials to expand export subsidy programs, and it received billions of dollars in aid for its risky foreign schemes. During the Clinton and Bush administrations, high-level officials went to great lengths to aid Enron on an Indian power plant deal. Federal aid induced Enron to make misguided foreign investments, and the resulting losses helped cause the company’s implosion.
  • Green Subsidies under Obama. The Washington Post found that “Obama’s green-technology program was infused with politics at every level.” The $535 million loan guarantee for the failed Solyndra is a prime example. The Department of Energy approved the loan after pressure from the White House. A main Solyndra investor was a billionaire Obama fundraiser. The New York Times found that Solyndra “spent nearly $1.8 million on Washington lobbyists, employing six firms with ties to members of Congress and officials of the Obama White House.”

American businesses have a right to lobby the federal government. But Congress throws fuel onto the corruption fire by funding business subsidy programs. The Trump administration should work to eliminate corporate welfare, including green subsidies, export subsidies, and housing subsidies. Corporate welfare undermines honest governance, and one message of the election is that Americans are sick and tired of the resulting scandals. 

Ben Carson was nominated secretary of the Housing and Urban Development Department (HUD) on Monday and his appointment will be debated endlessly over the coming months, with critics quickly honing in on his lack of housing policy and government experience. No matter, though; the naysayers need not stop him from doing an excellent job as HUD’s top administrator. The job can be done well if the following ideas remain front and center.

High-cost housing is a product of government regulation

Carson would be wise to remind everyone that cities do have control over sky-high housing prices: in fact, if cities relax zoning and land use regulations and simplify developer approval processes they can decrease the cost of housing across the board, no exceptions. Zoning regulations are the real culprit in places like Manhattan, where research demonstrates that regulations price the poor, the young, and the unestablished out of high opportunity areas. Local regulation also hampers innovation in the housing market, just look at the sad demise of low-cost micro-housing in Seattle.

HUD is not the nation’s urban planner

We can be quite certain that Carson will move away from the social-engineering-of-cities model advanced under HUD Secretary Julian Castro. Specifically, Carson should dig his heels in on the Affirmatively Furthering Fair Housing rule promulgated last year, a rule that allows HUD to oversee where people live locally based on their race. Fortunately, Carson has voiced opposition to the rule, and President-Elect Trump agrees, so it seems that Carson may have the support that he needs to remind the agency that not every local municipality’s land use and zoning regulations are under HUD’s jurisdiction.

Cities are unique, so housing solutions should be, too

Carson should keep in mind that what works in one city is not likely to work in all of the other ones. Past HUD Secretaries, like Shaun Donovan, made the mistake of thinking about HUD policy as urban policy, and operated under the belief that the lessons of his native – and hyper-urban – New York City could be applied everywhere. A better idea is to remember that the diverse United States includes small towns, rural America, and suburbs where a cookie-cutter approach won’t be successful. HUD policies should reflect a high degree of latitude for cities so that local governments can sort out their problems on their own.

Social justice doesn’t mean preferential treatment

Likewise, Carson should eliminate small area fair market rents, a social engineering tack used to push low-income individuals to locate in wealthy neighborhoods. Housing policy should remain neutral toward where people decide to live. From a political angle, Carson would do well to remember that small area fair market rents are exactly the type of policy that treat low income individuals preferentially as compared with lower-middle income individuals, and therefore, the kind of policy that Trump voters resent most.

HUD money is taxpayer money

Speaking of which, Carson must remember that HUD money is simply taxpayer money. This isn’t difficult to understand in the abstract, but the practical implications for HUD policy are more challenging to grasp. Carson should work to eliminate rules that require local communities to comply with federal checkboxes in order to obtain agency block grants. Citizens are entitled to sharing the benefits of their own tax money, independent of whether state administrators fill out the forms on time.

HUD does not know better than individuals and private businesses

Although apparently tempting for both democrat and republican administrations, Carson should eschew policies that prioritize homeownership over renting, and vice-versa. Each of Clinton, Bush, and Obama administrations have promoted their personal housing predilections, in spite of the fact that history indicates that government does not know better than individuals what sort of homes they should live in, and housing policy should be neutral rather than preferential in that regard. Consider the housing market fallout of the financial crisis – a result of government policies that promoted the irrational belief that everyone should be a homeowner – a cautionary tale.

Housing technocrat or not, with these ideas in mind, Carson will be well on his way to success.

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