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First Doubts” dealt with predictions that a 25% rise in the dollar could make a 20% tax on imports disappear with only temporary effects on trade but a $1.2 trillion increase in tax revenues (which would supposedly be paid by foreigners, and without complaint).  

Second Doubts will focus on a key claim that border adjustability is needed because “exports from the United States implicitly bear the cost of the U.S. income tax while imports into the United States do not bear any U.S. income tax cost.”   And we’ll question whether border adjustability is justified because corporate “cash flow” taxes under the House GOP plan are more like value-added taxes than corporate income taxes in other countries.

A Better Way” (a House Republican discussion document of June 24, 2016) says, “In the absence of border adjustments, exports from the United States implicitly bear the cost of the U.S. income tax while imports into the United States do not bear any U.S. income tax cost. This amounts to a self-imposed unilateral penalty on U.S. exports and a self-imposed unilateral subsidy for U.S. imports [emphasis added].”  

That statement makes the case for “border adjustment” – which means the costs of imports (unlike equivalent domestic costs) would cease to be tax-deductible for business and rewards from selling exports would cease to be taxable.  

Since all countries have corporate income taxes, what could it possibly mean to say only our own corporate income tax is an “implicit” tax on exports?  Who pays this “implicit” tax?

What could it mean to say that failure to impose U.S. income tax on foreign factories is a “subsidy to imports?”  

To claim U.S. exports “implicitly bear the cost of the corporate income tax” suggests the incidence of the corporate tax falls on consumers (foreign and domestic) in the form of higher U.S. prices.  Were it not for corporate taxes, the argument implies, cheaper U.S. exports could easily undercut the competition.  This is terrible economics. It makes no more sense that saying workers can avoid income and payroll tax by demanding a higher wage.

 The notion that businessmen simply charge extra to cover the cost of income taxes is rejected by all academic studies of who bears the corporate tax.  The Congressional Budget Office, for example, estimates that owners of capital bear 75% of the corporate tax and labor bears 25% through reduced productivity and real wages.  The Tax Policy Center estimates capital bears 80% of the corporate tax, labor 20% and consumers zero.  

The other Better Way complaint – that “imports into the United States do not bear a U.S. income tax cost” – is true yet strange.  It is likewise true that Australian imports of U.S. goods do not bear an Australian income tax. 

Corporations exporting from other countries have their own national income taxes to pay. It is bizarre to describe failure to tax profits of foreign firms as a “subsidy” to imports. Countries don’t tolerate foreign taxation of their businesses income unless occupied by a foreign army. 

Any alleged pro-import or anti-export bias of U.S. taxes clearly has nothing to do with corporate taxes, except that our high tax rate hurts business. But what about those Value-Added-Taxes (VAT) the border-adjusters seem to covet?

Just as all countries tax income of their corporations, all countries also impose “border adjusted” sales taxes on their consumers.  U.S. federal excise taxes and state sales taxes are border-adjusted just as foreign VATs are, and they bring in about 4% of GDP.  

VATs in Europe are typically near 10% of GDP.  But high taxes are nothing to envy.  Some our biggest trading partners collect only 5-7% of GDP from VATs – including Japan, Australia, Korea, Canada and Mexico.

Sales and excise taxes amounted to 3.7% of GDP in the U.S. from 2010-2014, according to the OECD, while Mexico’s VAT amounted to 4.6% of GDP.  Neither country imposes such sales taxes on exports, and both impose them on imports.  Yet Trump advisers complained, mysteriously, that Mexico’s VAT gave it some sort of unfair trade advantage over the U.S.

The House GOP plan tries to argue that two hoped-for changes in the corporate income tax – immediate expensing for investment and denial of interest deduction – magically transform their border-adjustable corporate tax (BACT) into a consumer sales tax, like the VAT.

 Tax Policy Center economist Bill Gale says the BACT “is essentially a value-added tax (VAT), but with a deduction for wages.”  No, it isn’t. 

A VAT taxes each firm’s revenue from sales minus the cost of goods bought from other companies.  Like a corporate income tax, by contrast, the GOP’s “cash flow” tax falls on revenue minus virtually all the usual business expenses except interest.  Call it what you like, this is essentially an income tax with a quicker write-off for capital investments (not land), and no deduction for interest expense (just as there is no deduction for dividends).  It’s no VAT.

Disallowing a deduction for imports would raise more tax revenue for the same reason disallowing a deduction for wages would raise more revenue. But for firms with high import costs, the Better Way tax bill could be higher than it is now, despite the deceptive 20% rate.

According to Carolyn Freund of the Peterson Institute, “The cash-flow tax proposed in the House is discriminatory. The tax on domestically produced goods would be less than the tax on imports, and it would vary across sectors. Unlike the sales tax, the cash-flow tax with border adjustment would favor domestically produced goods. In particular, it would have the odd feature that home goods would be taxed on total value added, less the wage bill; in contrast, foreign goods will be taxed on total value added.”  A football produced in the U.S. with imported leather would face a tax, while a football produced with U.S. leather would not.

Whatever the logic behind the proposed Border-Adjustable Corporate Tax (BACT), the politics of getting it enacted look doubtful.  What BACT economists dismiss as an ignorant belief that import taxes will injure import-dependent companies nevertheless motivates those companies to lobby hard against it.  And they include the largest private employers in the country, such as Wal-Mart and Target.

Regardless whether World Trade Organization official could be cajoled into approving this scheme (quite unlikely), what would our best trading partners say and do? Could anyone suppose Canada would sit back and smile if U.S. oil refiners had to pay 20% extra for Canadian crude?  Is Canada expected to feel happier about that deal if our greenback then rose 25% against the Canadian dollar?

This Border Adjustable Corporate Tax is not just a technical challenge for professional Treasury Department tax obfuscators, it would also pose huge diplomatic problems for the Commerce and State Departments.

Suppose the textbook model worked perfectly and the import tax and export subsidy left imports and exports just the same, sooner or later. Then why do it?  Because it’s a huge tax increase disguised as a tax cut.

Martin Feldstein has repeatedly advocated a lower dollar every couple of years, such as here and here and here.  Yet he now counts it a blessing that the dollar would rise by 25% with border adjustability. Why? He argues that because trade supposedly remains unaffected, the tax on U.S.  importers exceeds the subsidy to exporters, generating a huge tax windfall which is supposedly painless.   “Because U.S. imports are about 15% of GDP and exports only about 12%,” writes Feldstein, “the border tax adjustment gains revenue equal to 20% of the 3% trade imbalance or 0.6% of GDP, currently about $120 billion a year.” 

In the Feldstein view, future trade deficits are assumed stuck at 3% of GDP for a decade –regardless of tax incentives for investment or saving– and Congress is advised to use the BACT to manipulate the currency and thereby raise $1.2 trillion over a decade, ostensibly at other countries’ expense.

If the BACT shrinks the trade deficit as its supporters claim, then the Feldstein and Tax Policy Center estimates of a $1.2 trillion 10-year revenue windfall are wrong.  Proponents can’t have it both ways: The 20% tax or tariff on imports and matching subsidies for exports either reduces future trade deficits or it raises $1.2 trillion – it can’t do both.   

“The burden of the $120 billion annual revenue gain is not borne by U.S. consumers or companies,” says Feldstein.  That’s a hard sell for U.S. consumers and companies, and they’re unlikely to buy it.  

The corporate tax rate is much too high, producing nothing but corporate relocation, excess tax-deductible debt and accounting tricks to move expenses here and profits offshore. There is no need to devise bad tax increases to “pay for” a lower tax rate. Other countries collect much more revenue with much lower rates.  Try it. It works.

Keep it simple: Prioritize lower marginal tax rates on new investment.

Utopian tax reforms that become too pushy and divisive always fail.  

Monday saw President Trump force through another executive order - “Reducing Regulation and Controlling Regulatory Costs. The headline was the introduction of a new “one-in, two-out” rule for new regulations:

for every one new regulation issued, at least two prior regulations be identified for elimination, and that the cost of planned regulations be prudently managed and controlled through a budgeting process.

Anything that can be done to focus regulators’ minds on the costs imposed on private businesses and groups of new regulation is probably, on net, positive. But the UK has had a policy like this since 2005, first adopting a “‘one-in, one-out” rule, then a “one-in, two-out” rule and now a “one-in, three-out” variant. The results are widely acknowledged to be mixed. Here are 4 lessons from the UK the Trump administration should bear in mind.

1. Focus on costs, not counting regulations

What really matters is not the number of regulations but the costs imposed on private businesses and civil society organizations. A “numbers” approach could be gamed: a department could introduce a new regulation, and remove a defunct one, while imposing new business costs. Thankfully, both the UK government and Trump’s executive order now recognize this. Section 2, part c) of the order says:

any new incremental costs associated with new regulations shall, to the extent permitted by law, be offset by the elimination of existing costs associated with at least two prior regulations

In the UK though, “one-in, one-out” eventually meant that for every new regulation introduced with a net cost to business, regulations up to an equivalent net cost would be eliminated. It would be better named a “pound-for-pound” rule. When upgraded to “one-in, two-out” every new regulation with net costs to business had to be compensated for by regulatory removal or revision at double the monetary cost of the new regulation. And so on. Whether badly drafted or otherwise, Trump’s version reads more like the “one-in, one-out” rule on cost, albeit having to find the cost compensation across two regulations. If implemented in this way, it could become messy to implement for many agencies. Judging regulation by pure cost rather than numbers, as the UK has done, would be a stronger constraint.

2.  Judge by net costs rather than gross costs

Any new measure, whether regulatory or deregulatory, will generate some costs to private businesses and civil society. If Trump is serious about deregulation, it therefore makes much more sense to assess “net” costs, rather than “gross” costs as a target for the new rule. This was recognized in Britain which now carries out the net cost methodology. Otherwise perverse incentives are created: departments or agencies will be cautious about ever proposing deregulatory measures where benefits to business exceed new costs, because they would still have to find gross cost savings elsewhere. As Stuart Benjamin outlines, steps taken to make pipeline construction easier, for example, otherwise might end up delayed as the agency scrambles around finding existing regulations with gross costs to remove to compensate for the very small costs of a deregulating measure. This might seem an obvious point, but at the moment the order is ambiguous – simply stating that the Director of the OMB will provide guidance “for standardizing the measurement and estimation of regulatory costs.”

3.  Include as much as possible within the rule

The Centre for Policy Studies found that in 2011 42 per cent of all new regulations introduced fell outside of the scope of the “one-in, one-out” policy in the UK and this rose as high as 50 per cent in the first six months of 2012. Even when the “one-in, two-out” policy was introduced, it excluded regulations relating to tax collection, imposed by the European Union (unless the UK government went beyond EU requirements), for civil emergencies, that had no impact on businesses, with only indirect effects on businesses, to meet international obligations, relating to civil emergencies, relating to financial systemic risk, relating to fines, fees and charges, if the regulation had a temporary lifespan and if it was periodic adjustment of existing regulation, such as the National Minimum Wage.

These exclusions are significant. If one examines purely the regulations under the rule’s scope, then since 2005 the variants are said to have reduced net business costs by $10.8 billion. In truth, however, this pales into insignificance compared with the rise in net costs in areas outside of the scope. In conjunction with its “one-in, three-out” policy for 2015-2020, the UK government has an aim of reducing net regulatory costs on business by $12.6 billion. Since 2015 it believes it has got $1.1 billion of the way there. But the UK’s National Audit Office estimates that $10.4 billion of other new costs have been imposed on business outside of the framework in that period.

Trump’s executive order excludes regulations relating to national security and also includes provision for the Director of the OMB to make other exemptions. It has been reported that it will not cover independent agencies such as the Securities and Exchange Commission and the Commodity Futures Trading Commission. The lesson from the UK is clear: if you exclude too much from the framework, you will not make overall regulatory cost savings.

4. Don’t ignore the stock

Trump’s executive order is all about the flow of new regulations. But if one is serious about deregulation then you have to re-examine much of the stock of existing regulations, even absent new regulations being brought forward. In the UK the “one-in, one-out” rule was therefore complemented with a “Red Tape Challenge” to identify and remove regulations from the existing stock.

The UK National Audit Office identified that many departments in the UK are simply unaware of the costs imposed as a result of their existing regulations. They therefore have no idea how ambitious their targets for reducing regulatory costs really are. It’s therefore essential that a major deregulatory push in the US includes continued auditing of the stock of regulations as well as reaction to the flow.

In a classic account of why prohibitions and other economic restrictions harmful to consumers arise and persist, economist Bruce Yandle noted that such restrictions are often promoted by a coalition between two groups. The first group are morally motivated do-gooders (“Baptists”) who think that the restrictions will promote the public interest. The second group are profit-motivated business people (“bootleggers”) who may adopt the language of the first group but whose aim is to profit by legally quashing potential competition. In Yandle’s example, the prohibition of liquor in the United States during the 1920s was loudly promoted by Baptists and others who considered liquor consumption sinful, and quietly backed by bootleggers whose profits from rum-running depended on the absence of legal liquor.

In today’s organized effort to restrict or prohibit the use of cash we can see the same kind of coalition. The metaphorical Baptists include leading economic advisors like Kenneth Rogoff (recently labeled by one Indian writer “the high priest of demonetisation”) and Larry Summers. They argue that banning cash would fight crime and helpfully give additional power to monetary policy-makers (by enabling negative nominal interest rates). I have criticized these arguments for currency prohibitionism before. Other presumably disinterested advocates advance the implausible claim that reducing the payment options of the world’s poor by banning cash will benefit the poor by promoting “financial inclusion.” I scrutinize this claim below.

The metaphorical bootleggers are the participating governments that expect to gain tax revenues by driving transactions into “digital” forms that are trackable by tax authorities, plus the participating payment processors — banks, credit card networks, mobile payment providers — that expect to gain transaction fees.

In the historical case of liquor prohibition the bootleggers operated behind the scenes, but in the present-day efforts at cash prohibition both parts of the coalition are openly working together under the umbrella of the Better Than Cash Alliance (hereafter BTCA). German journalist Norbert Häring has recently claimed on his blog that the BTCA was a prime mover behind India’s shock demonetization program. (See my previous commentary on that program here and here.) The evidence he provides for his claim is not wholly convincing. Even so the BTCA is a curious public-private undertaking worthy of critical examination by anyone who values freedom of choice in payment media or is skeptical of development programs that seek to impose the rule of experts on the world’s poor.

On its Twitter page, the BTCA describes itself as a “UN-based Alliance promoting the shift from cash to digital payments to reduce poverty and drive inclusive growth.” Promoting a shift sounds innocuous, but the Alliance’s literature is permeated by the idea that the goal of promoting the growth of digital payments justifies the means of forcibly restricting the use of cash. Created in 2012, the BTCA is currently funded by a mixed group of seven “resource partner” institutions. Some partners have reported giving $1.5 million per year. Two are tax-funded:

  • United Nations Capital Development Fund
  • US Agency for International Development.

Two are charitable offshoots of major IT and payment players:

  • The Bill and Melinda Gates Foundation (fortune from Microsoft)
  • Omidyar Network (fortune from eBay and PayPal).

Three are giant commercial payment processors:

  • Citi (Citibank and its affiliates)
  • Visa
  • Mastercard

Mastercard was not an original founder but joined in 2013. The Ford Foundation was a founding member of the Alliance, but is not currently listed among its partners on the Alliance’s webpage.

The BCTA’s list of “members” includes 24 nation-states in the developing world, and 21 “International Organizations” including:

  • Clinton Development Initiative
  • European Bank for Reconstruction and Development
  • Inter-American Development Bank
  • International Fund for Agricultural Development
  • United Nations Development Programme
  • United Nations Population Fund
  • United Nations Secretariat
  • Universal Postal Union

The financial advantages of digitizing payments to tax-collecting governments are sometimes mentioned in BTCA reports or public relations materials, but I cannot find an instance where the interests of fee-collecting payment processors are mentioned.

The eagerness of the US government to suppress cash use in the developing world is puzzling on financial grounds, given that US currency notes are a very popular form of cash there. An estimated 55% of Federal Reserve Notes (by value) circulate abroad, mostly in the form of $100 bills. At the current level of FRN in circulation, this means an $827 billion interest-free loan to the US Treasury. Perhaps the Treasury is unaware of the efforts to quash the overseas use of cash by USAID, which operates as an independent agency within the foreign policy arena, although this seems unlikely. Or perhaps Häring’s hypothesis is right that USAID on this issue is captive to the interests of American payment firms or of the US surveillance establishment:

The business interests of the US-companies that dominate the global IT business and payment systems are an important reason for the zeal of the US-government in its push to reduce cash use worldwide, but it is not the only one and might not be the most important one. Another motive is surveillance power that goes with increased use of digital payment.

There is probably little point in urging Visa, Mastercard, and Citi to forego profits by severing their ties with efforts to limit the payment options of the world’s poor (although an organized boycott might get their attention). Likewise there is probably little point in telling governments to forego potential revenue by not forcing citizens to make their incomes more readily detectable.

There is some hope that well-meaning non-profits and government agencies are open to the argument that the restriction of payment options is not plausibly a means appropriate to the ends they seek. That is, suppressing cash will not plausibly make the poor wealthier or better off. The BTCA seems nowhere to consider this possibility. Transition to digital payments is there treated as a good thing without consideration of the costs or compulsion involved.

The BTCA’s report on “Accelerators to an Inclusive Digital Payments Ecosystem” stipulates that the goal is not just to improve digital payments, but to “promote cashless economies,” i.e. to eradicate the use of cash. After many non-coercive recommendations, it adds (#10): “Many countries are putting in place measures to encourage or require government entities, private businesses, and individuals to shift away from cash, sometimes in the form of policies that disincentivize cash usage.” A sidebar on the same page informs the reader of the success of the “Cash-less Nigeria” policy initiative in raising the volume of digital payments. A quick visit to the Central Bank of Nigeria’s website reveals that the policy consists of three restrictions on Nigerian citizens: it taxes cash withdrawals above a certain daily limit, outlaws unlicensed cash collection services, and prohibits banks from cashing large third-party checks.

The Omidyar Network’s website talks up the BTCA in these terms:  “The organization focuses on shifting away from cash payments in order to improve the livelihoods of those in low-income areas who lack access to more efficient digital payments.” But improving livelihoods normally means adding attractive options, not pushing people away from what they currently consider the most advantageous practices. Welfare improves when “shifting away from cash payments” is a side effect of the public voluntarily adopting new payment options that they now prefer, but not when the shift is compulsory, the result of restricting cash so that people will do what the policy-maker prefers.

Basic economics tells us that voluntary trade is mutually beneficial. Government policies that compel or ban actions cannot be presumed beneficial. On the contrary, government presumably harms individuals when it reduces their range of options, including their range of payment options. A special argument (such as a “network externality” argument, discussed below) is needed to rationalize how blocking an individual’s desired trades can promote the individual citizen’s interest as the individual sees it. Thus measures to require private businesses and individuals to shift from using cash to using a currently less preferred payment option are presumably harmful, contrary to the stated BTCA goal of promoting “the transition from cash to digital payments in a way that improves lives.” It is hard to find any BTCA argument seriously attempting to rebut the presumption.

In a well-produced video, a variety of BTCA spokespersons try to articulate a rationale for the Alliance’s anti-cash agenda. Luis Ubiñas, then President of the Ford Foundation offers: “We know that electronic transfers work. When those payments go to banks, people save. It might only be fifty cents. It might only be a dollar. But they save. The people take those savings and build businesses.” But these are purely internal and not external effects. If making payments via banks really does better serve the ends of would-be savers and business-builders, informing them of this fact should persuade such people to open and use bank accounts. It provides no rationale for denying anyone the option of using cash. The same is true of UN Capital Development Fund’s Christine Roth’s claims that electronic payments “decrease the costs of the transactions” and are “a safer way for recipients to access money.”

There are two closer approaches in the video to an argument that government intervention can enhance welfare. The first is Ubiñas’s statement that “These kinds of transformations don’t happen easily. For these kind of [electronic] transfers to happen the backbone has to exist.” If “the backbone” here means a clearing and settlement system for deposit transfers, it already does exist in any country with checking accounts. But suppose enlargement of the infrastructure is warranted. It isn’t sufficient to point out that a fixed investment needs to be made in advance of doing a new business. Businesses do that every day. What would need to be explained is why private enterprise cannot sufficiently provide “the backbone.”

The second approach is the declaration by William Sheedy, Group President for the Americas of Visa Inc., that in the developing world “electronic payments are not migrating fast enough, because you are not seeing the right blend of government, NGO, and private industry partnership.” USAID administrator Rajiv Shah made a similar assertion in 2012 remarks at the Ford Foundation: “It took the credit card industry fifty years to gain traction in the United States. But this slow rate of adoption teaches us that collective action is necessary to drive transformational change.” These statements unfortunately provide no reason for considering faster migration better given the costs of acceleration (on what basis does Shah know that the experienced rate of adoption was too slow?), nor for judging in which direction the “right blend” of private and collective action lies. Transformation change is not ipso facto worth the cost.

In an op-ed in the HuffPost, BTCA’s managing director Ruth Goodwin-Groen defended the push to restrict the use of cash as a tax-enhancer:

In 2015, a global agreement for financing the Sustainable Development Goals recognized domestic resource mobilization as essential to inclusive growth. This makes regular tax revenue more vital than ever to the future of many low-income countries. … There is growing evidence that enabling people and businesses to pay taxes digitally can increase government revenue and produce a wide range of other benefits for society.

Increasing the size of real resource transfers from the private citizens to the government, needless to say, does not presumptively provide a net benefit to society.

I can imagine a stronger argument for accelerating the digitalization of payments. It would propose that the practice of paying in cash rather than by bank transfer is a kind of prisoner’s dilemma or coordination failure due to a network externality: each individual sticks with cash so long as his trading partners do, and vice-versa. Cash is then the inferior of two alternative equilibria, to which the economy has been “locked in” by historical accident. Intervention can establish the digital-payments equilibrium that everyone agrees is better but has been blocked by the need for everyone to switch together. Such tragedies are rare in practice, however, and the argument seems hard to make in the case of digitizing payments. In every country where banks offer checking accounts, non-cash payments have established a foothold. At the margin of transactions between unbanked and banked individuals, payments can migrate from cash to digital transfer, and will migrate once digital payments become more beneficial or less costly than at present, without it requiring any individuals farther from the margin to switch. Making digital payments less costly is an entrepreneurial challenge, not a collective action problem. The case for compelling everyone to give up cash is an empty box.

To conclude, I remain puzzled as to what argument or evidence convinces presumably well-meaning players like the Gates Foundation and the Omidyar Network to embrace the implausible proposition that suppression of cash will improve the lot of the cash-using poor. Herding people into a system they find unattractive presumably makes them worse off and not better off as they see things. If anyone can point me toward a serious attempt to rebut the presumption that suppressing cash will reduce their welfare, I would be much obliged.

[Cross-posted from Alt-M.org]

President Trump issued an executive order on Friday that includes a ban on the entry of virtually all nationals from several countries. The same day, the New York Times published my argument that the portion of the ban that bars immigrants or legal permanent residents violates the law, which bans discrimination against immigrants based on national origin.

Andrew McCarthy of National Review Online was kind enough to take the time to publish a response (“Trump’s Exclusion of Aliens from Specific Countries Is Legal”). Because Mr. McCarthy’s article demonstrates significant confusion over my argument, the facts, and the laws at issue, it surprised me to see National Review editor Rich Lowry also cite it favorably. Despite the weakness of its analysis, the piece provides me an opportunity to clarify and reinforce some aspects of my argument that brevity required me to excise from the Times.

1. The Constitution gives the power to make immigration laws to Congress. Mr. McCarthy writes:

Under the Constitution, as Thomas Jefferson wrote shortly after its adoption, “the transaction of business with foreign nations is Executive altogether.” … In the international arena, then, if there is arguable conflict between a presidential policy and a congressional statute, the president’s policy will take precedence in the absence of some clear constitutional commitment of the subject matter to legislative resolution.

In other words, the president can ignore congressional limits in this area. He cites case law in which courts describe the president’s foreign affairs powers with respect to relations with foreign governments as expansive, but cites no case that concludes the president can ignore Congress to exclude immigrants. It is reminiscent of President Nixon’s famous argument that “when the president does it, that means it is not illegal.” It is Congress, not the president, that makes immigration law. “[O]ver no conceivable subject is the legislative power of Congress more complete than it is over… the admission of aliens,” ruled the Supreme Court in Oceanic Steam Navigation Co. v. Stranahan.

Mr. McCarthy had no problem defending this view when the actions at issue were President Obama’s, which were also justified based on “security,” but now adopts it to defend President Trump’s. As my Cato colleagues wrote at the time, “it is not for the president alone to make foundational changes to immigration law—in conflict with the laws passed by Congress and in ways that go beyond constitutionally authorized executive power.”

2. President Trump cannot use the supposed “purpose” of a statute to override its plain meaning. Mr. McCarthy quotes the relevant portion of the Immigration Act of 1965 (8 U.S.C. 1152(a)) that amended the Immigration and Nationality Act of 1952, which clearly prohibits discrimination in the issuance of an immigrant visa based on national origin. But Mr. McCarthy states:

…the purpose of the anti-discrimination provision (signed by President Lyndon Johnson in 1965) was to end the racially and ethnically discriminatory “national origins” immigration practice that was skewed in favor of Western Europe. Trump’s executive order, to the contrary, is in no way an effort to affect the racial or ethnic composition of the nation or its incoming immigrants.

Mr. McCarthy gives no citation for this claim—which contradicts everything the president and his advisors have been saying about the intent being to ban Muslims—but regardless of Mr. Trump’s intention, the result of his actions does affect the ethnic composition of the country, which was indeed one of the actions that Congress in 1965 thought it was banning.

But Mr. McCarthy is again claiming that the president can ignore the plain meaning of the laws of Congress, this time based on its supposed “purpose.” But as my colleagues at the Cato Institute put it, “Unenacted legislative intentions are not law under the Constitution.” It is the text on the page that makes law. Mr. McCarthy condemned this type of legal reasoning as a “post-law” argument when President Obama reasoned this same way in the Obamacare case, King v. Burwell, yet he eagerly adopts it now to defend President Trump.

3. President Trump cannot just pick and choose which statutes to enforce. Mr. McCarthy cites the relevant portion of the Immigration and Nationality Act of 1952 (8 U.S.C. 1182(f)) that grants authority to the president to suspend “any class of aliens” he deems “detrimental to the interests of the United States.” He states that this provision allows President Trump to simply ignore the ban on discriminating based on national origin. But a basic rule of statutory construction holds that in the case of a conflict, the statute enacted most recently wins. In this case, that would be the 1965 amendments banning discrimination in the 1952 Act.

Moreover, as the Supreme Court said in Beals v. Hale, “statutes which apparently conflict with each other are to be reconciled, as far as may be, on any fair hypothesis, and validity given to each.” My view treats the 1952 Act as a general authority subject to a specific limitation by the amendments of 1965—the statutes are reconciled, and both still have validity—but adopting Mr. McCarthy’s view would void the restriction from 1965 act’s amendments. If President Trump can legally ban a nationality by vaguely deeming them a “detriment,” then the authority in the 1965 act would have no power at all to prevent discrimination.

4. President Trump cannot remake the immigration system by executive order. The Immigration Act of 1965 was more than just a single provision prohibiting discrimination. As Justice Scalia has written, statutory construction “is a holistic endeavor. A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme.” Turning to the rest of the Immigration Act of 1965 makes clear that Congress intended and did create an entire system—or statutory scheme—of unbiased immigration. The rest of 8 U.S.C. 1152 is intended to give each country an equal shot at the number of visas issued each year. This entire system cannot be undone by the actions of this president.

5. Congress never authorized discrimination based on national origin. Mr. McCarthy also notes that the president’s order draws its list of seven countries from a list drawn up by Congress and the president in 2015. That law required that temporary visitors who are nationals of these countries be interviewed and receive a visa before travelling to the United States.

This is certainly discriminatory, but this provision did not create a new rule that, as Mr. McCarthy infers, “expressly authorized discrimination on the basis of national origin when concerns over international terrorism are involved.” This law dealt with temporary visitor visas, so it had no impact whatsoever on the bar on discrimination in the issuance of permanent immigrant visas for people from these countries. Just to reiterate, the bar on national origin discrimination only applies to immigrants–people who are coming to the United States for permanent residency.

His confusion over this issue reappears when he discusses President Carter’s visa restrictions on temporary visas for Iranian nationals, and in any case, President Carter’s order is simply not comparable to President Trump’s. Mr. McCarthy claims that President Carter imposed the restrictions based on “terrorism.” This is just not true. “Militants occupying the embassy had been using a visa machine there to issue and validate visas,” reported the New York Times in 1980. “Henceforth no Iranians would be allowed to enter this country unless they had their visas revalidated by the State Department in consular offices.” This is nothing even remotely similar to what President Trump is doing: creating a presumptive ban on all immigrants based on their nationality even when there was no doubt about the legitimacy of their visas.

6. President Trump cannot ignore court precedent based on national security. Mr. McCarthy waves off the D.C. Court of Appeals opinion in U.S. Department of State v. Legal Assistance for Vietnamese Asylum Seekers that enforced the ban on national origin discrimination by claiming that it “was unrelated to national security, and thus problematic.” But the 1952 act only requires that the entries be “detrimental.” There is no requirement that they be a “threat.” Either this power is unfettered by the 1965 amendments or it is not. Mr. McCarthy wants to have it both ways.

Moreover, the government used this exact defense in the Vietnamese case. “This case involves the power to exclude aliens from the Nation, a power that is integrally related to the conduct of foreign relations,” it wrote. The discriminatory policy was adopted, it said, “for important reasons of foreign policy.” Yet the D.C. Court of Appeals rejected the argument. “The appellees’ proffered statutory interpretation,” it found, “leaving it fully possessed of all its constitutional power to make nationality-based distinctions, would render 8 U.S.C. § 1152(a) a virtual nullity.”

Of course, this makes hash of Mr. McCarthy’s assertion that the president has no limits on his ability to restrict or regulate immigration.

This was a news headline in the Wall Street Journal yesterday: “States’ Revenue Shortfalls Exacerbate Budget Crunch.” The article said that, “Faced with weak revenue, sluggish growth and possible federal funding cuts, many governors and state lawmakers face a tough budget season.”

That made me laugh. “States as victims” is a common storyline in the mainstream media anytime that state budgets are not growing gangbusters. States need to balance their general fund budgets each year, and so it is true that state policymakers must be more responsible that the spend-and-borrow politicians in Washington. But news stories on the states rarely provide the important context of how much budgets have grown over time.

The chart below—based on NASBO data—shows general fund revenues since fiscal 2010, with projected revenues for fiscal 2017. To achieve annual balance, the “tough” task of state policymakers is simply to keep spending rising no faster than these revenues.

Does the chart look like a “crunch” to you with “weak” revenue? And if 33 percent revenue growth over seven years and 3.6 percent projected growth in 2017 creates a “shortfall,” what do you think the problem is?

In a committee vote the tightness of which surprised no one, this morning President Trump’s nominee for education secretary, Betsy DeVos, was approved on a purely partisan basis by the Senate Health, Education, Labor and Pensions committee. DeVos’s nomination now moves to the full Senate.

While the rhetoric surrounding DeVos has been heavily targeted at her competence, the main issue seems to be that Democrats generally oppose private school choice programs while Republicans generally do not. Even questions about the Individuals with Disabilities Education Act (IDEA) at DeVos’s confirmation hearing—would she support attaching IDEA rules to public funding that disabled students could take to a chosen school?—were primarily about choice.

Choice is fundamentally different from public schooling. With choice, families have real power—the power to leave a school not serving them and take their education dollars elsewhere. This is why Florida’s McKay scholarship program for children with disabilities—which DeVos tried to defend before being cut off in questioning at her nomination hearing—has very high satisfaction levels among parents using it. Public schools, in contrast, get taxpayer money no matter what, and require seemingly endless political, bureaucratic, and legal combat to hopefully—just hopefully—get improvements made.

Of course, choice needs freedom from stultifying rules and regulations to be meaningful. Specialization, competition, innovation—none can meaningfully exist without educators having the freedom to engage in new and different ways of delivering education.

The powerful inclination to wrap programs in incapacitating layers of red tape…er, “accountability”…is a major reason that the federal government should not try to deliver school choice, or govern education at all. (The Constitution is the other big one.) It is simply too dangerous to have one government—the federal government—supply choice nationwide. But there is good reason to fear that the Trump administration will try to do it nonetheless, based on Trump’s promise to make a  $20 billion choice “investment.”

Empowering parents with choice is the right way to deliver education. But the clear and present danger of freedom-smothering rules and regulations, as we’ve seen brightly illustrated by the debate over DeVos, accompanies any government funds. Which is why choice must not be delivered by Washington.

Following a day of feverish rumors to the contrary, the White House has flatly denied that it plans to reverse an Obama administration directive extending nondiscrimination protections to lesbian, gay, bisexual and transgender federal workers. “ ‘President Trump continues to be respectful and supportive of L.G.B.T.Q. rights, just as he was throughout the election,’ the White House said in a statement. “The president is proud to have been the first ever G.O.P. nominee to mention the L.G.B.T.Q. community in his nomination acceptance speech, pledging then to protect the community from violence and oppression.”

The White House did not rule out revisiting other decisions by its predecessor administration on gay rights, such as an order requiring federal contractors to adopt nondiscrimination policies, which pointedly did not provide conscience exemptions for private religious agencies. A year and a half ago in this space I myself took issue with what the Obama administration was up to on this front.

The effect of a contractor ban without religious objector provisions, I argued, would be to kick various religious agencies out of social service work in public settings in adoptions and foster care, as well as some prison, drug rehab, and various other settings. Ousting conservative religious groups from participation in social service adoption is likely to cut down on the number of successful placements made of children in public care, which would hurt the taxpayer, hurt adoptive parents, and, not least, hurt kids. The more genuinely pluralist approach, I argued, would be to acknowledge conscience exemptions while fully opening these systems to participation by contractors that gladly serve gays, persons of no given sect, religious unbelievers, and so forth. 

Further reaction is probably best postponed until things get past the rumor stage.

At noon on January 20th, Barack Obama stepped aside, leaving Donald Trump as the leader of the free world. In his inaugural address, Trump pledged to implement an ‘America First’ doctrine. But while the implications for trade and immigration are relatively clear, his speech brought us little closer to understanding what this will mean for foreign policy.

Indeed, thanks to the incoherence of the president-elect’s foreign policy remarks during his campaign, the range of potential outcomes is wide. But Trump’s past comments suggest four potential paths that his ‘America First’ Doctrine could take.

The first option is true isolationism. Though it remained unclear throughout the campaign the extent to which Trump truly understood the historical baggage that came with the term ‘America First,’ many commentators assumed that he would indeed pursue a classic isolationist policy. And Trump seems to mean it literally in some cases: only a week into office, he has already sought to erect trade and immigration barriers. He may also seek to withdraw from the world in military terms, abandoning alliances, and refusing to engage in even the diplomatic resolution of international problems which don’t directly concern the United States.

Yet elements of Trump’s own statements call this assumption into question. From his insistence on increased military spending to his promise in the inaugural address to eradicate radical Islamic terrorism ‘completely from the face of the Earth,’ Trump has repeatedly implied that he is likely to pursue a relatively hawkish foreign policy.

A second option for the Trump Doctrine could be described as ‘pragmatic power.’ In his rare scripted speeches devoted to foreign policy, Trump’s speechwriters did a good job of working his off-the-cuff remarks into a relatively coherent and pragmatic approach to the world.

While unscripted Trump calls NATO ‘obsolete’ and a rip-off, for example, his speeches highlighted the need for wealthy allied states in Europe to pay more towards their own defense. Rex Tillerson, Trump’s nominee for Secretary of State, seems to share this worldview, noting in his confirmation hearings that his background as an engineer leads him to seek logical solutions to international crises.

Yet this level of coherent pragmatism appears unlikely given Trump’s own reactive personality. Intensive efforts by aides to reshape Trump’s inflammatory statements into a broader, saner critique of flawed U.S. democracy promotion and regime change efforts are often swiftly undone by the President himself. Within one day of his inauguration, for example, Trump reiterated his remarks on ‘taking the oil’ while visiting the headquarters of the Central Intelligence Agency.

A third option for Trump’s America First Doctrine is thus a far less pragmatic ‘global crusade.’ Drawing on the views of key advisors like Michael Flynn and Steve Bannon, Trump could instead embrace a ‘clash of civilizations’ approach to the world. This would subordinate all other foreign policy crises to a campaign against radical Islam, a philosophy that he and various advisors believe includes elements as diverse as Iran, al Qaeda, ISIS and the Muslim Brotherhood.

Indeed, in his augural address, Trump promised to “unite the civilized world against radical Islamic terrorism.” To that end, Trump’s conciliatory approach to Russia – in which he often cites terrorism as a key joint concern – suggests a willingness to work together on counterterrorism.

However, it remains uncertain whether Trump – not known for his cerebral qualities —will explicitly pick any such coherent strategy. Instead, the ‘America First’ doctrine that appears most likely to emerge is a reactive form of Jacksonianism, or a modified version of Reagan’s ‘Peace Through Strength.’

Such a strategy would take a more hands-off approach to global affairs, and enact substantive trade and immigration restrictions. But at the same time, it would follow through on Trump’s promises to rebuild and expand the U.S. military, increase military spending, destroy ISIS, expand the military’s rules of engagement, and take a reactive, hardline stance on Iran, China, nonproliferation and a host of other issues any time he feels that America’s honor is threatened.

The differences between these four potential Trump Doctrines cannot be overstated, yet all four remain politically viable paths, a testament to the campaign’s scattershot foreign policy pronouncements. And the internal politics of the incoming administration – where advisors appear to have a dizzying selection of different views – also matter. Trump’s inaugural address – apparently written by Steve Bannon – may only reflect one faction within the administration.

Trump’s inaugural address provided a name for his foreign policy doctrine, yet its content remains largely a mystery. Few presidents have ever come to office with so little background in governance and so ill-defined a foreign policy worldview. A rocky first week, filled with crises, has only exacerbated the confusion. Only as President Trump begins to settle into his new role will we finally start to learn which ‘America First’ doctrine we can expect for the next four years.

People have been asking me about the final few people President Trump seems to be considering for Supreme Court nomination. I know them and especially their work to varying degrees and am confident that they’re each worthy of elevation. Here’s a summary of their judicial profile.

Neil Gorsuch is probably the most like Scalia. He has a well thought out conception of constitutional interpretation and the way that structure protects liberty. He’s most known for his opinions supporting religious liberty and pushing back on the administrative state. In a Trumpian world, his biggest weakness is that he went to Harvard Law. He was confirmed unanimously to the Tenth Circuit and should not face significant opposition.    Thomas Hardiman is a judge’s judge. He decides the issues before him generally in a way that should be pleasing to conservative legal elites and does not go beyond the four corners of the case. He brings no ideological agenda to his tasks and so may be less like Scalia in that respect—and also he’s probably more deferential to law enforcement that Scalia was. He also was confirmed unanimously and should face no significant opposition except that some activists will glom on to his strong defense of the right to keep and bear arms.    William Pryor is a courageous and forthright judge. He would generate the most controversy because of his extra-judicial writings and speeches, most notably in stern opposition to Roe v. Wade. He has been attacked from both the left and the right (unjustly in my view) and his previous confirmation was itself not without controversy. He is best known for his writings on religious liberty and the proper judicial role.     It would be impolitic of me to name my preference, but let’s just say that the American people would be served well by any of them (or the others who’ve been mentioned).

On Friday, the Heritage Foundation hosted a panel of experts to discuss prospects for infrastructure policy during the Trump administration. You can watch the event on C-SPAN.

I discussed why infrastructure activities should be devolved to the states and private sector, and why the Trump plan to subsidize equity investments in infrastructure is not a good approach.

There were numerous points of agreement on the panel, which included Michael Sargent of Heritage, Robert Puentes of the Eno Center, and Marc Scribner of CEI. We all favored greater private investment in traditionally public infrastructure, and we all agreed that the Trump administration should put a high priority on air traffic control reform this year.

I make the case for privatizing air traffic control in a new op-ed in The Hill.

Last Friday, President Trump issued a misguided executive order affecting migration from seven majority-Muslim countries. In December 2015 Trump called for a “total and complete shutdown of Muslims entering the United States,” until (as his fans never tire of pointing out) elected officials “can figure out what is going on.” News from last week confirms that Trump’s rhetoric related to Muslims was not just campaign bombast; it was a serious policy proposal. Another immigration proposal touted during the campaign was also codified into policy by executive order last week, with Trump directing the Department of Homeland Security (DHS) to expand an interior immigration enforcement program that will grow the federal government’s role in state and local law policing while harming police departments’ relationships with the communities they are tasked to serve. 

Under §287(g) of the Immigration and Nationality Act, local and state police departments can enter into agreements with Immigration and Customs Enforcement (ICE) to enforce federal immigration laws. Thirty-four law enforcement agencies in 16 states are now taking part in the 287(g) program. Up until 2013 this program included “task force” agreements, which allowed participating officers to arrest suspected immigration law violators in the field, and “jail enforcement” agreements. Under “jail enforcement” agreements officers at state and local correctional facilities can seek to identify aliens via interviews and checking their biographic details against DHS databases.

Currently, only jail enforcement agreements are in place. The Obama administration abandoned the “task force” agreements at the end of 2012 amid worries about their negative effect on police-community relationships and accusations of racial profiling.

Trump said that he would “expand and revitalize” 287(g) during a speech last August. An executive order signed last week makes it clear that the Trump administration is serious about such a revitalization and expansion, including a reinstatement of “task force” agreements.

Section 8(b) of the executive order in question reads (emphasis mine): 

Sec. 8. Federal-State Agreements. It is the policy of the executive branch to empower State and local law enforcement agencies across the country to perform the functions of an immigration officer in the interior of the United States to the maximum extent permitted by law. 

[…] 

(b) To the extent permitted by law and with the consent of State or local officials, as appropriate, the Secretary shall take appropriate action, through agreements under section 287(g) of the INA, or otherwise, to authorize State and local law enforcement officials, as the Secretary determines are qualified and appropriate, to perform the functions of immigration officers in relation to the investigation, apprehension, or detention of aliens in the United States under the direction and the supervision of the Secretary. Such authorization shall be in addition to, rather than in place of, Federal performance of these duties. 

Under jail enforcement agreements 287(g) was reserved for custodial situations (excluding the field). The executive order allows DHS to authorize state and local police departments to “perform the functions of immigration officers” not only for the detention of aliens but also their apprehension. This is a sad return to agreements that pose threats to federalism and social cohesion.

As was noted in a November 2012 American Immigration Council (AIC) study, “287(g) agreements have resulted in widespread racial profiling.” A Department of Justice (DOJ) investigation found that Maricopa County (Arizona) Sheriff’s Office, which took part in the 287(g) program, had “poisoned the relationship between law enforcement and Latinos, hindering general law enforcement efforts within the Latino community.”

The same AIC study cites a DOJ investigation into Alamance County (N.C.) Sheriff’s Office and an ACLU study of Gwinnet County, Georgia, both of which highlight racial profiling.

The International Association of Chiefs of Police has stated, “local police agencies depend on the cooperation of immigrants, legal and illegal, in solving all sorts of crimes and in the maintenance of public order. Without assurances that they will not be subject to an immigration investigation and possible deportation, many immigrants with critical information would not come forward, even when heinous crimes are committed against them or their families.”

A 2009 Police Foundation paper also mentioned the negative effect 287(g) had on police-community relations: “[Police executives] were concerned that public safety would suffer because of destroyed trust and cooperation with immigrant communities. Participation in the 287(g) program, or at least the media coverage and fear generated by it, would undermine years of community-policing efforts, which in turn would compromise public safety,” adding that “the costs of the 287(g) program outweigh the benefits.”

The problems associated with using local police to enforce federal law was expressed bluntly by New Orleans mayor Mitch Landrieu, who shortly after the executive order was signed issued a statement saying in part, “the NOPD will not be coerced into joining Trump’s deportation army via the 287(g) program. Doing so would require the NOPD to pull officers focused on fighting crime off the street.”

It has been a little more than a week since Donald Trump took the Oath of Office. In that short time, he has demonstrated that he intends to convert his campaign rhetoric into policy. When it comes to 287(g) this will result in worsened police-community relations, a growth in federal government power, and local and state police officers siphoning resources towards immigration enforcement, all of which should be avoided. 

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