Stock

Chris Edwards

Did the debt‐​ceiling deal passed in May reflect a new congressional focus on spending restraint? Or was it a fluke win by House conservatives that will unravel as Congress addresses spending this fall?

One test will be the upcoming farm bill, which will reauthorize both farm subsidies and food stamps. Without reforms, the bill will cost $1.5 trillion or more over the coming decade. Expensive farm bills usually pass because of a giant logroll—rural members favor farm welfare and urban members favor the food stamp program, also called the Supplemental Nutrition Assistance Program (SNAP).

But the government is running massive deficits. Downsizing is needed. Farm subsidies and food stamps should be cut. Republicans often say that welfare, such as food stamps, should be only temporary, and that people should strive to stand on their own two feet. The same should be true of farmers.

Read more in my new op‐​ed at The Hill.

Kevin Dowd and Nicholas Anthony

Advocates of central bank digital currencies (CBDCs) often claim that CBDCs will help increase financial inclusion, by which they typically mean that CBDCs will help to “bank the unbanked.” To give some typical examples:

Too many Americans don’t have access to easy payments systems and banking accounts, and I think this is something that a digital dollar, a central bank digital currency, could help with. – Janet Yellen (2021)

A well‐​designed CBDC is uniquely positioned to address barriers to inclusion, including by offering the unbanked alternative pathways to open transactional accounts and participate in the digital economy … – Henry Fingerhut et al. (2022)

CBDC could strengthen the usability, resilience, and efficiency of payment systems and increase financial inclusion. – Bo Li (2023)

However, such claims are weak.

CBDCs and Financial Inclusion in the United States

The Federal Deposit Insurance Corporation (FDIC) regularly conducts a survey of the American people to get a better understanding of how and why many people operate “outside” of the banking system. According to the latest survey, the proportion of American households that do not have access to a bank account (i.e., “unbanked Americans”) was 4.5 percent (Figure 1). While relatively small, that number accounted for roughly 5.9 million households.

Deeper within the survey, the FDIC asked these Americans why they do not have a bank account. “Don’t have enough money to meet minimum balance requirements” was the most cited main reason. “Don’t trust banks,” “Avoiding a bank gives more privacy,” and “Bank account fees are too high” were the second, third, and fourth most cited main reasons, respectively.

Introducing a CBDC would do little to address any of these concerns.

Whether it is because someone lacks the money to meet minimum balance requirements or to cover fees, a CBDC is not really a solution because the payment method itself does nothing to increase someone’s income. Sure, it’s possible that governments might subsidize accounts to eliminate those costs on the front end, but if such subsidies are to occur, they could be done using any consumer payment method. There is nothing inherently unique about a CBDC that is needed to make that happen.

Access to a CBDC (or a “digital dollar”) is not the same as having access to a bank account. Where a bank account opens the door for receiving loans, lines of credit, and other financial services, a CBDC does little more than offer access to digital payments. In fact, a CBDC is much more akin to a prepaid card than a bank account. Although there are advocates that have called for it, governments getting into the business of commercial banking is a much bigger issue than creating a CBDC alone.

Still, what about privacy and trust? For people who currently choose not to have a bank account because they don’t trust banks or prefer to maintain their financial privacy, a CBDC is far from a solution. People might not trust banks, but trust in the government has been at historic lows. Furthermore, unless a CBDC operates without the same anti‐​money laundering (AML) and know‐​your‐​customer (KYC) requirements that the government forces banks to comply with, many unbanked Americans would likely avoid a CBDC.

To make matters worse, CBDC proponents seem to overlook that the private sector has much more expertise and experience in customer‐​facing activities. In fact, it’s likely largely due to the private sector that the number of unbanked households has fallen from 8.2 percent to just 4.5 percent over the last ten years (Figure 1). The proliferation of mobile banking, basic bank accounts, and the like have made banking more accessible than ever before.

Still Much to Do

If policymakers want to promote financial inclusion, there are more direct options on the table.

Rather than expand the government with the creation of a CBDC and everything that entails, policymakers should focus on removing legislative barriers to competition. Opening the door to new entrants could make it so that the number of unbanked households continues to decrease and the quality of financial services available at the lower end of the spectrum continues to increase.

There is no shortage of options for policymakers looking for legislative barriers to remove in order to improve financial inclusion. To start, the Bank Secrecy Act is what legally requires banks to collect and report the personal information of customers to the government. Altogether it cost financial institutions an estimated $45.9 billion in 2022—those are costs that are passed on to consumers.

Elsewhere, the Durbin Amendment (Section 1075 of the 2010 Dodd‐​Frank Act) established price controls that made it more difficult for banks to offer low‐​cost accounts. Even from the perspective of merchants, one study found that the Durbin Amendment “had limited and unequal impact on reducing merchants’ costs… and it has produced unintended consequences for some merchants in terms of raising costs.”

These examples are only the tip of the iceberg, but the point is simple. Rather than launching another new government intervention that is unlikely to address the problems faced by the unbanked, removing legislative barriers to a more competitive financial sector has the power to open doors for those outside the financial system. It’s time to drop the illusion of CBDC inclusion and focus on reforms that can create substantive change today.

Vanessa Brown Calder

Late last year, Congress passed the Pregnant Workers Fairness Act (PWFA) as part of the sprawling 2023 Consolidated Appropriations Act. The PWFA requires that employers provide pregnant workers with “accommodations” or “changes to the work environment or the way things are done at work” but leaves the specifics of what that might entail open‐​ended.

This month, the Equal Employment Opportunity Commission (EEOC) proposed a rule that fills in many of the blanks produced by the initial legislation. However, the rule also broadens the scope of PWFA by expanding the eligible population, accommodation duration, and the types of accommodation required for pregnant workers beyond that described in the Act.

The rule states that workers with a modest, minor impediment or issue or an “uncomplicated pregnancy” are eligible for accommodation under the Act and indicates that a limitation does not need to rise to a certain severity threshold to qualify. Under the rule, pregnancy need not have caused the worker’s health issue; rather, the issue could simply be “related to” or “affected by” pregnancy. Moreover, the proposed rule restarts the 40‐​week accommodation clock following childbirth, elongating the accommodation period by two times.

One of the significant questions left open by the original legislation was what types of changes and adjustments at work would qualify as reasonable accommodations. The proposed rule clarifies this and provides examples of possible accommodations for pregnant workers, including everything from part‐​time or modified work schedules to allowing telework, frequent breaks, light duty work, or suspending essential job functions. The EEOC points out that their list of examples is not exhaustive, and workers may also seek other accommodations outside of those listed.

Moreover, the EEOC determines that certain accommodations “in virtually all cases, …do not impose an undue hardship” on the employer. Thus, the accommodations are nearly always ones the PWFA compels the employer to provide. This “default reasonable” list of accommodations includes allowing an employee whose work requires standing to sit and vice versa.

Although certain employers will easily absorb certain EEOC accommodations, the vast diversity of roles and industries in the U.S. economy ensures that various accommodations will be problematic. For instance, sitting, rather than standing, will be difficult to accommodate in roles or industries where walking and standing are essential to job duties, including many healthcare, food service, manufacturing, construction, and retail jobs. Moreover, suspending “essential” job functions will be challenging for nearly all employers, given that the employer considers those functions fundamental by definition.

Why does any of this matter? By expanding the eligible population, the accommodation period, and the types of accommodations required for pregnant workers beyond what legislators detailed in the Act, the proposed rule makes the regulation substantially more costly. Unfortunately, this could further discourage employers from hiring employees who are pregnant or could become pregnant (including women of childbearing age) when employers cannot easily absorb the cost of the new regulation.

Most employers—understandably—do not budget for workers who cannot perform the essential function(s) of their job for up to 1.5 years across the regulation’s pre‐ and post‐​partum accommodation periods. Employers who understand that they could be required to provide accommodations for lengthy periods may decide that employing pregnant workers (or workers who could become pregnant) poses a significant financial risk.

The EEOC maintains that the new regulation will protect pregnant workers. Unfortunately, by broadening the scope and raising the cost of the regulation, the EEOC’s proposed rule could create new disadvantages for women and pregnant workers that are difficult to overcome.

Mustafa Akyol

Tension is growing in Sweden and Denmark, and in much of the Muslim world, because of recent public burnings of the Qur’an in those two European nations. The burnings sparked furious protests in Iran, Iraq, Yemen, Lebanon, and other Middle East countries. Sweden and Denmark denounced the burnings as reprehensible but stressed that such actions are protected by free speech laws.

Four days ago, however, the Danish government announced plans for what can be called an anti‐​blasphemy law. Improper treatment of the Qur’an or Bible, Justice Minister Peter Hummelgaard said, would constitute a criminal offense punishable by a fine and a jail sentence of up to two years.

Many Muslims may welcome this as good news, thinking that the Danish government is finally showing proper respect to the Qur’an. But as a Muslim who also deeply respects the Qur’an, I think differently.

My first reason is about the very notion of blasphemy and the right way to counter it. I have no doubt that burning a scripture is a deeply offensive act that deserves moral condemnation. I also think it only reveals the crudeness of the blasphemer: if he had a real argument against that scripture—or any book—he could put it in words. Burning books, instead of criticizing them, is what barbarians do.

However, condemning blasphemy is one thing; banning it is another. And as I have argued elsewhere, the Qur’an itself does not call for banning; it tells Muslims to respond to mockery of their religion by simply showing patience (3:186) and staying away (4:140). (Post-Qur’anic “Islamic law” does impose the death penalty on blasphemers, but this can be seen as a medieval vestige that Muslims can disavow, as I and some other Muslim scholars have argued.)

Second, Muslims should think about what they really achieve when blasphemy against Islam is banned, whether in Denmark or elsewhere. Does this make people in those countries respect Islam? I don’t think so, for the people who hate Islam (“Islamophobes”) will believe what they believe, and such bans will probably make them only more agitated.

Many other people will roll their eyes over a religion that they see as too thin‐​skinned. Meanwhile, governments that ban anti‐​Islam expressions will do this grudgingly, just to reduce the threats against the safety of their citizens, as the Danish justice minister explicitly noted.

Some Muslims may still see a victory in that, but I don’t. I don’t see any value in “respect for Islam” that is imposed with threats. Instead, respect for Islam, or any religion, should be cultivated through ethical behavior. And the latter includes dignity, instead of fury, in the face of offense.

Third, these blasphemy incidents in Europe—from cartoons of Prophet Muhammad to Qur’an burnings — seem to have made many Muslims averse to the very notion of freedom of speech. This freedom, they seem to think, only works for those who want to insult their religion. So, it better be curbed.

Yet that is not the case at all because freedom of speech not only allows offenses against a religion. It also allows the defense and the proclamation of that religion, which Muslims have been freely practicing in Western liberal democracies by opening mosques, publishing books, and gaining converts.

For example, just after the Qur’an burning incidents in Sweden, the Kuwaiti government announced it would distribute 100,000 copies of the Qur’an in Swedish — freely, and thanks to free speech. This would be unthinkable in authoritarian regimes with little free speech, such as China or North Korea.

A new anti‐​blasphemy law in Denmark, coupled with a global shrinking of freedom of expression, is a real concern that Muslims cannot ignore. This contraction of free speech includes the ridiculous French bans on Muslim dress codes, which are getting worse and worse.

It also includes a new ruling by the Brazilian Supreme Court that criminalizes “homophobic slurs,” a vague definition that could target people with traditional beliefs about human sexuality, which includes most Muslims.

If freedom of speech shrinks further in Europe, Muslims will find their own religious expressions banned, as the Islamophobes who want to ban the Qur’an—saying that it includes “hate speech”—seriously advocate.

In other words, freedom of speech is a crucial right that everybody — from the most secular to the most religious — retains, the right to express themselves without fear. Therefore, I do not see more restrictions on speech as good news, even for ostensibly protecting the Qur’an.

David J. Bier

The employment‐​based green card backlog reached a new record of 1.8 million cases this year. The backlog consists of immigrants who are waiting to receive green cards, primarily the result of low green card caps for employer‐​sponsored immigrants and investors. Because no country may receive more than 7 percent of the green cards (the country caps) unless they would otherwise go unused, the 1.1 million cases from Indians in the backlog bear most of the burden of the broken system. New applicants from India will face a lifetime wait, and more than 400,000 will die before they receive a green card.

Figure 1 shows the employment‐​based green card backlog by processing stage. The process starts when an employer files a petition for a worker. If no green card is available under the caps, the petition is wait‐​listed until a spot opens. Finally, a worker may file to adjust status to permanent residence (the green card application) when a green card cap spot is available to them. There’s a similar staged process for investors and employment‐​based “special immigrants” who include Afghan interpreters as well as, strangely, abandoned immigrant children.

In March 2023, 80,324 employment‐​based petitions were pending (I‑140, I‑360, and I‑526), representing about 171,635 people with spouses and minor children of the workers included. Another 1.3 million were waitlisted, and 289,000 were pending adjustment of status applications. There were also some employment‐​based immigrants waiting for immigrant visa adjudications at consulates abroad, but the State Department provides no information about the number of these cases. There are also some petitions in the backlog filed on behalf of the same person, leading to some double counting. There is also a backlog of 123,234 permanent labor certification applications, which is the start of the employment‐​based green card queue.

Over half of the backlog is in the EB‑2 category for employees of U.S. businesses with advanced degrees. Another 19 percent are in the EB‑3 category for employees with at least bachelor’s degrees. The EB‑4 category for “special immigrants” (Afghan and Iraqi interpreters, others with various U.S. government affiliations, and abandoned children) is about 13 percent. Another 6 percent are for EB‑5 major investors. The remaining 3 percent are EB-3O “other workers” with jobs not requiring a college degree. About 1.1 million of the 1.8 million cases in the backlog are from India (63 percent). Another nearly 250,000 are from China (14 percent). The Northern Triangle countries of El Salvador, Honduras, and Guatemala come in at nearly 10 percent (mainly in the EB‑4 special immigrant category).

Table 1 shows the backlog by country and category and lists the number of green cards that each country‐​category combination is likely to receive starting in fiscal year 2023. For new applicants from India, the backlog for the EB‑2 and EB‑3 categories (which are combined because applicants can move between them) is effectively a life sentence: 134 years. About 424,000 employment‐​based applicants will die waiting, and over 90 percent of them will be Indians. Given that Indians are currently half of all new employer‐​sponsored applicants, roughly half of all newly sponsored immigrants will die before they receive a green card.

Chinese in those categories face an astounding 17‐​year wait. The wait times for Salvadorans, Hondurans, and Guatemalans in the EB‑4 category are similarly long waits. The Biden administration recently changed how it implements the country limits for the EB‑4 category such that the Northern Triangle countries and Mexico will likely see a significant increase in green cards at the expense of the number for “other” countries. However, even if these countries receive all the green cards going forward, they would still face multi‐​decade waits.

The employment‐​based backlog comes on top of the 8.3 million case backlog for the family‐​sponsored system. These astounding backlogs and massive waits underscore that legal immigration to the United States is nearly impossible. Even to get to the point of entering the backlog takes an enormous amount of good fortune, and the lucky few that make it through the labyrinth face the daunting prospect of never actually receiving green cards in decades or even their lifetimes.

Jordan Cohen and Jonathan Ellis Allen

President Joe Biden wants to sign a security agreement with Saudi Arabia despite its history of human rights abuses and, in recent actions, its reported shooting and killing of Ethiopian migrants.

Human Rights Watch (HRW) released a report this month that documented Saudi security forces firing explosive projectiles at Ethiopian migrants and shooting them at close range, killing hundreds or even thousands between June 2022 and April 2023. According to an August 26 New York Times article, the White House knew about the atrocities that HRW has declared “may amount to a crime against humanity” but did nothing to stop them. If anything, the Biden administration increased support for the Saudi leadership, despite their extensive human rights abuses.

Human Rights Watch says they have been tracking this issue at the Saudi‐​Yemen border since 2014, but that the killings noted in their report “appear to be a deliberate escalation in both the number and manner of targeted killings.”

Since Washington became aware of this massacre against refugees, it has allowed Saudi Arabia to contract with U.S. companies for $319.5 million. The deals include the design and construction of port facilities, over $65 million for anti‐​aircraft missiles, over $31 million for maintenance support services for its aviation industry, $28 million for an Airborne Warning and Control System, $27.5 million for flight training and logistics support, nearly $12 million for an intelligence analysis system, and $1.2 million for upgrades to anti‐​air missiles.

Unfortunately, it has become a bit of a pattern for Saudi Arabia to send U.S.-trained Saudi troops using American‐​made weapons to commit human rights abuses, including multiple instances this year alone. The Oxfam charity reported in January that the Saudi‐​led coalition fighting in Yemen used U.S. weapons to kill Yemeni civilians and other non‐​participants already suffering from the war.

To deflect from their crimes, the Saudi government has used “sportswashing,” including merging with the PGA earlier this year and purchasing soccer teams. Meanwhile, the White House is apparently more than happy to turn the other cheek, offering presidential fist bumps and allowing Saudi Arabia to agree to production agreements with U.S. companies rather than invoking legislation that would allow the State Department to pause and evaluate these human rights abuses before completing arms transfers.

This lack of concern over human rights is partly due to a lack of concern with the risks of U.S. weapons being used in scenarios that are not in U.S. interests. For example, U.S. weapons sales to the Saudis have led to greater American involvement in the war in Yemen because Saudi involvement in the conflict created a scenario in which the Houthis became a threat to U.S. troops stationed in Riyadh.

The Cato Institute’s Arms Sales Risk Index analyzes these risks for all U.S. arms recipients. This year’s report found that arms sales give Washington no leverage over its clients’ foreign policies. And Saudi Arabia, which regularly ranks in the top quarter of riskiest arms recipients and commits human rights atrocities nearly constantly, confirms the U.S. has no leverage.

While there is no way to get confirmation, it is likely that the Saudis used U.S. weapons—given the volume they purchase every year—to commit these heinous crimes against the Ethiopian migrants. These weapons are killing and mutilating those who have already fled human rights abuses and endured horrors at the hands of smugglers and traffickers—those seeking asylum for a better life.

Human Rights Watch has said, “Concerned governments should publicly call for Saudi Arabia to end any such policy and press for accountability. In the interim, concerned governments should impose sanctions on Saudi and Houthi officials credibly implicated in ongoing violations at the border.” Selling billions of dollars’ worth of advanced weaponry to and signing a security agreement with the Saudis does not show much concern.

There is no greater proof that the Biden administration is ignoring risk than having a war criminal committing crimes against humanity as not only a top client but also a potential ally.

Johan Norberg

During the pandemic, it seemed like the world was watching and worrying about Sweden, because my home country chose to stay open during the crisis. Many people warned that it was a reckless experiment that would end in disaster, and some people think Swedes came to regret this policy.

Today, I am publishing the Cato Policy Analysis paper, Sweden during the Pandemic: Pariah or Paragon? where I look at what Sweden did and summarize how it worked out. In the end, Sweden did better than other countries when it comes to school results and economic performance. That was to be expected as Sweden was one of few countries where schools and workplaces remained open. More surprisingly, Sweden also did better than most western countries on health outcomes.

Remarkably, Sweden had one of the lowest excess mortality rates during the three pandemic years 2020–22 – less than half of America’s. It seems like voluntary adaptation to the pandemic worked better than most people expected, and it suggests that it was not Sweden but the lockdown countries that engaged in an unprecedented experiment, depriving millions of their freedom without a discernible benefit to public health.

Read it here.

Michael Chapman

Among many interesting facts in a new Cato Institute report, Terrorism and Immigration, is that between 1975 and 2022 the annual chance of being killed on U.S. soil in an attack by a terrorist who crossed the border illegally was zero.

During the same timeframe, “the annual chance of an American being murdered in a terrorist attack by a refugee [was] about 1 in 3.3 billion,” said the report’s author, Alex Nowrasteh.

Foreign‐​born terrorists killed 3,046 people in the U.S. between 1975 and 2022, but the statistical chance of an illegal immigrant committing such a crime was zero. Most of the 219 foreign‐​born terrorists who killed those 3,046 people were in the U.S. on tourist and student visas, the report documents.

Most of the victims (97.8 percent) were killed on Sept. 11, 2001. The other victims (2.2 percent) lost their lives in a few attacks over 48 years (1975–2022).

In that period, the report documents that “the approximate annual chance that an American resident would be murdered in a terrorist attack carried out by a foreign‐​born terrorist was 1 in 4,338,984.”

Another interesting fact is that the overwhelming majority of foreign‐​born terrorist attacks in the U.S. were committed by radical Islamists. For instance, between 1975 and 2022, 219 foreign‐​born terrorists carried out operations on U.S. soil. Among those terrorists, “67 percent were Islamists,” according to the report.

Among the other foreign‐​born terrorists, “16 percent were foreign nationalists, 6 percent were right‐​wing extremists, 5 percent were non‐​Islamic religious terrorists, 4 percent were left‐​wing extremists, and the rest were separatists, adherents of other or unknown ideologies, or targeted worshippers of specific religions,” states the report.

Terrorism is terrifying, but it is fortunately infrequent. The chance of being murdered in a non‐​terrorist homicide was 316 times as great as being killed in a terrorist attack during the 48‐​year period studied in the policy analysis. Terrorism committed by foreign‐​born terrorists remains a threat to the life, liberty, and property of Americans but it is a relatively small threat that has diminished over time.

Nicholas Anthony

Bank of America is at the center of an ongoing January 6 investigation. Yet not because it (or its leadership) was directly involved in the riot. Rather, there has been an ongoing investigation into whether Bank of America supplied the Federal Bureau of Investigation (FBI) with financial records of people in the DC area for January 5–7, 2021.

Brian Knight, director of innovation and governance at the Mercatus Center, has created an ongoing series to break down the facts as new updates come forward. The first installment of the series can be found here, but I want to highlight just a few of the key pieces that Knight has identified over the last few months.

In the first installment, Knight explores whether handing over this information was legal. He explains that the Right to Financial Privacy Act is meant to protect citizens from the government, but it provides immunity for private institutions sharing financial information with the government under certain circumstances (see 12 U.S.C. Section 3403(c)). Depending on how much information was shared, this provision could mean the process was legal.

In another installment, Knight walks through why Bank of America may have been so proactive in its effort to share its records with the FBI. There are many factors to consider, but let’s focus on two. First, financial institutions have long been required under the law to act as de facto law enforcement investigators. Therefore, it’s possible that sharing this information was seen as being a proactive measure under those requirements. Second, financial institutions must be mindful of the risk of regulatory retaliation. Knight points to a study by Nicholas Parrillo, a professor at Yale Law School, to explain:

[B]ecause banks are basically incapable of perfectly following the multitudinous and complex rules that govern banking, they rely on having a positive relationship with their regulators to prevent those regulators from going too hard on them when the inevitable mistake occurs.

So between the immunity provision for sharing information, banks being deputized as de facto law enforcement investigators, and the threat of regulatory retaliation, it’s easy to see why Bank of America may have handed this information over.

Yet, in the most recent installment, Knight shares the news that Representative Thomas Massie (R‑KY) announced he has evidence that it was the FBI that told Bank of America what records to give them. If true, this detail changes what legal questions need to be asked. And, as Knight explains, the Right to Financial Privacy Act might not be much help here either.

The Right to Financial Privacy Act has around 20 different exceptions to its protections and a few of them could easily apply in this situation. For example, there’s an exception when government authorities “only” request the name, address, account number, and account type of a customer or a group of customers. There’s also an exception for government authorities authorized to conduct investigations related to terrorism (e.g., the FBI). Likewise, there is another exception if government authorities determine there is a risk that delaying access would lead to people getting hurt, property being damaged, or people fleeing prosecution.

The story is still unfolding and it’s still unclear what exactly happened, so be sure to follow Knight’s series. However, one thing does seem clear: the Right to Financial Privacy Act does not live up to its name. This example is, unfortunately, another case in a long history of the Right to Financial Privacy Act failing to protect people’s privacy. As Congress continues to investigate what happened, it should also look to reforming the Act.

Walter Olson

Section 3 of the Fourteenth Amendment prohibits anyone who has previously taken an oath of office (that is, most current and former public officials) from holding public office if they have “engaged in insurrection or rebellion” against the United States. That raises the question of whether any of the persons who took part in unlawful efforts to block the transition of presidential office in January 2021—and if so, which ones—might be barred from future office. It also raises the question of who decides on the disqualification: the state officials who list candidates’ names on the ballot? Other officials charged with gatekeeping, such as legislative bodies in charge of accepting member credentials? Or only the courts? And if so, can they weigh the evidence on their own, or do they need to wait until there has been some previous kind of ruling that the former official engaged in insurrection?

In a social media exchange last year, I was incautiously dismissive of attempts to disqualify candidates on this ground, saying most of them struck me as “performative long‐​shot complaints that stand little chance of success, and zero chance if based merely on bad talk.”

Like many others, accordingly, I was a bit shaken by the impressive article by two respected originalist legal scholars, William Baude and Michael Stokes Paulsen, making the case that Section 3 is very much a live thing and should be interpreted to disqualify candidates up to and including Donald Trump. (Arkansas Governor Asa Hutchinson brought up that question at Thursday’s Republican debate.) Among the points they make:

The original understanding of the definition of “insurrection or rebellion” was more sweeping than I had assumed, and crucially includes some broad classes of behavior that we would see as aiding, abetting, or even counseling miscreants, far from any front lines. It is by no means limited to, say, taking part in violent clashes.
Section 3 fell into decay following an appellate level decision called Griffin’s Case, written by Supreme Court Chief Justice Salmon Chase (though it was not a Supreme Court opinion). Chase interpreted the section as not “self‐​executing” in the absence of some prior proceeding or implementing legislation designating who exactly came under its restrictions. Baude and Paulsen make a strong case, however, that Griffin’s Case was in all likelihood wrongly decided and at odds with a sound understanding of the text of the Amendment, which had been ratified just one year before. It was part of a series of moves by which various governmental actors, the federal courts among them, gutted some of the most ambitious achievements of the Radical Republicans in Congress.
Contrary to what is sometimes asserted, successive amnesties declared by Congress in 1872 and 1898 affected only persons subject to disqualification at that time, and could not prospectively immunize persons whose later behavior brought them under the law.
Since January 2021, litigation seeking to disqualify candidates based on their conduct then has made clear that the law is not somehow a dead letter. New Mexico removed a county commissioner from office, one member of Congress was found covered by an appeals court but lost his seat in a primary resulting in the mooting of the case; another member of Congress won a ruling that she had not been factually shown to have engaged in covered conduct, which is distinct from any notion that the law wouldn’t have applied if she had.

Other legal scholars have weighed in, with Steven Calabresi applauding Baude and Paulsen’s work, and Michael McConnell urging extreme caution. McConnell notes that the article’s interpretation would place into the hands of secretaries of state and other officials a power over democratic choice—whether to exclude from the ballot the leader of the opposition party—that would be hard for the best of them to use impartially, and would be open to the most dangerous sorts of misuse.

This is not the time or place to assess the Baude‐​Paulsen argument as a whole, so I will content myself with making two quick points.

First, since it is likely that Donald Trump will face some vigorous efforts to disqualify him under the Amendment, it is greatly in the nation’s interest that the question be resolved in a rapid and nationally uniform way. That will almost certainly require a speedy trip up to the U.S. Supreme Court. Professor Ned Foley has outlined how this could happen. If and as local officials move to disqualify, the courts will inevitably backstop that determination. We need certainty long in advance of the scheduled general election.

Second, no one should assume that just because Baude and Paulsen have made a powerful intellectual case for their originalist reading, that the Supreme Court will declare itself convinced and disqualify Trump. Justice Antonin Scalia memorably described himself as a “faint‐​hearted originalist,” which captures something important about the thinking of almost every Justice—if overruling a wrongly decided old case threatens to disrupt settled expectations to the point of spreading chaos and grief through society, most of them will refrain. Stare decisis, and a general preference for continuity in law, still matters.