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Romina Boccia and Dominik Lett

Whoever thought that the May 2023 debt limit deal settled debates over topline government funding levels for fiscal year (FY) 2024 was clearly mistaken. Now four months into FY2024, Congress has reportedly struck a deal to determine how much the US federal government will spend on defense and non‐​defense appropriations, which account for roughly one‐​third of the federal budget that’s subject to annual debate.

In the big picture, House Speaker Mike Johnson (R‑LA) is finding himself between the same rock and a hard place that his predecessor did. House Republicans do not have the option of passing a funding deal without Democratic support in the Senate, necessitating negotiations that require a give‐​and‐​take approach that will leave much to be desired for both sides of the political aisle.

The January 2024 funding deal bakes in higher government spending levels, with modest restraints from capping the use of budget gimmicks and holding the line on new emergency spending. On the flip side, this deal continues business as usual, relying on budget gimmicks and emergency designations to pad topline spending, while falling short of cutting spending back to pre‐​pandemic levels or holding the line on limiting spending to no more than fiscal year 2023’s levels.

What this tells us is that neither Democrats nor Republicans are ready to face the US government’s rapidly deteriorating fiscal situation. This is a deal to avoid a government shutdown during an election year, but not much else.

The Spending is in the Details

The January 2024 spending deal includes $886.3 billion in defense and $772.7 billion in nondefense spending (base nondefense is $703.7) for a $1.659 trillion total. The nondefense topline includes $69 billion in extra spending originally agreed to in a May debt limit side deal between former House Speaker McCarthy (R‑CA) and the White House. It offsets some of this additional spending with cuts to the IRS ($20.2 billion) and by rescinding unspent COVID-19 and other emergency funds ($6.1 billion).

The deal also continues disaster‐​related emergency spending, sticking with the previous year’s level of $12.5 billion (rather than the $23 billion the Senate was asking for). The common CHIMPs (changes in mandatory programs) gimmick is included as well but capped at a lower amount than was the case in the May debt limit agreement ($15 billion, instead of $25 billion). Earmarks will also rear their ugly head yet again.

Does this Deal Establish a New Precedent for Fiscal Restraint?

The Johnson‐​Shumer budget deal fails to return discretionary spending to pre‐​pandemic levels, boosting spending by about $300 billion, before accounting for the roughly 20 percent inflation the US experienced since 2020. The deal also boosts topline spending above 2023 levels, before accounting for inflation. The deal falls short by these objective measures of fiscal restraint.

It reduces spending compared to the May debt limit deal when accounting for side deals and rejects new emergency spending designations, as requested by Senate Democrats (we wrote about these previously here). As such, it secures a small victory for fiscal restraint. That is, assuming it holds, without additional emergency supplemental spending and other final budget shenanigans once the ink is dry.

This deal still has a long way to go before being enacted. Still up for discussion are GOP border measures, Biden’s emergency supplemental request to support Ukraine, Israel, Taiwan, and more, as well as policy riders, and whether Congress will try to address the broader fiscal challenge by attaching a congressional commission bill to smooth final passage. Should they proceed with such a commission, it’s important that they give it real teeth so it stands a chance to succeed.

Romina Boccia and Dominik Lett

We’ve just released a new paper providing comprehensive estimates of “emergency spending” going back to 1992. The key takeaway: Congress is increasingly abusing emergency designations to evade spending limits. With Congress still considering $110 billion in emergency funding for Ukraine and Israel, it is high time we recognize the fiscal and national security consequences of unpaid‐​for emergency spending. We write in our new policy analysis:

Congress has designated $12 trillion in spending for emergencies over the past 30 years. Poorly designed emergency spending rules allow Congress to routinely designate non‐​emergency line items as emergencies, increasing wasteful and excessive spending. High deficits, an escalating federal debt, and the insolvency of major entitlement programs mean that Congress is facing several budgetary challenges that will only grow in importance. It’s time for Congress to rein in emergency spending and its abuse.

Major emergencies have a big impact on the budget. The two largest increases in federal debt over the last three decades were directly related to the extraordinary emergency fiscal responses to the Great Recession and COVID-19 pandemic. Following the most lavish emergency spending binge in US history during the pandemic, which helped drive inflation and interest rates to historic highs, Congress should reform emergency spending and avoid future emergency spending excesses.

Congress needs a budget enforcement mechanism for emergency spending. Clearly establishing what qualifies as an emergency and requiring a higher voting threshold for emergency designations would primarily target questionable “emergency” spending. Without a process to offset emergency spending, Congress will continue to use emergencies as a pretext to pass budget‐​breaking spending initiatives with no plan to rein in future spending.

Myopic abuse of emergency designations contributes to the long‐​term fiscal challenge. Over the past decade, Congress designated one in every ten dollars of federal budget authority as emergency spending. Congress should terminate never‐​ending emergency declarations and reform the emergency spending process to enhance accountability and transparency by: offsetting emergency spending, including justifications for how emergency designations meet all five statutory criteria; raising the voting threshold for emergency designations; enhancing transparency in executive emergency‐​spending reporting; and revising the budget baseline to better reflect the temporary nature of emergency designations.

Here’s what other budget experts have to say about our research:

“Congress must properly track and manage the entire federal budget—ALL spending and revenue, including emergency response—to serve the American people well. This paper’s comprehensive account of emergency spending and its recommended solutions will be a useful contribution to Congress getting its house in order.”

– Kurt Couchman, Senior Policy Fellow, Fiscal Policy, Americans for Prosperity

“This is outstanding work that fills a big gap. Comprehensive, transparent/​honest, easy to follow, and covers the (sadly limited) range of potential reforms.”

– David Ditch, Senior Policy Analyst, Budget Policy, Grover M. Hermann Center for the Federal Budget, Heritage Foundation

“This paper makes many important contributions to the discourse on emergencies, and its new estimates of unforeseen spending are the most thorough ever produced. Policymakers would be wise to consider Romina and Domink’s work as they consider how best to address the burgeoning national debt.”

– Jonathan Bydlak, Fmr. Director, Governance Program, Fiscal and Budget Policy, R Street Institute

Read the full paper here.

Thomas A. Berry

Yonas Fikre, an American citizen, was placed on the No‐​Fly List in 2010 while he was out of the country. Fikre alleges that this was an attempt to coerce him into becoming a government informant. Fikre attempted to appeal his placement on the list using DHS procedures, but these appeals were denied. Fikre was told only that he had been “identified as an individual who may be a threat to civil aviation or national security.” Fikre’s placement prevented him from returning to the United States until 2015, damaged his reputation, and destroyed his marriage.

When Fikre sued in federal court to enforce his rights, the government removed him from the list—initially without explanation—and then argued that the case was moot. The FBI has never conceded that its original decision to place Fikre on the No‐​Fly List was wrong, nor has it explained what changed such that Fikre no longer deserves placement on the list.

Generally, a defendant cannot make a case moot by voluntarily ceasing the challenged conduct, a principle known as the “voluntary cessation” doctrine. The burden is on the defendant to show it is “absolutely clear” that the challenged conduct will not reoccur. Nonetheless, the district court ruled that the case was moot because “the record did not indicate a lack of good faith on the government’s part.” But the U.S. Court of Appeals for the Ninth Circuit reversed that decision, holding that the government had not met its burden to show Fikre was highly unlikely to be placed back on the list.

The case is now at the Supreme Court, and Cato has filed an amicus brief supporting Fikre (with thanks to a team of attorneys from Gibson Dunn who took the lead on drafting: Russ Falconer, Daniel R. Adler, Patrick J. Fuster, and Matt Aidan Getz). In our brief, we explain that the government is not entitled to any special deference in the mootness analysis. When the Supreme Court has dealt with cases of alleged voluntary cessation, it has treated government and private defendants alike, holding them to the same high evidentiary bar.

As our brief further explains, the government has not met that high bar in this case. With the government unwilling to explain why Fikre was added to or taken off the list, it is impossible to judge how likely it is that he may be added again. And although the government has submitted a letter from an FBI special agent insisting that Fikre will not be added back to the list absent changed circumstances, that letter was not issued by a constitutional officer of the United States and thus cannot set binding government policy.

In addition, Cato scholar Patrick Eddington has filed an amicus brief, in his personal capacity, supporting Fikre. In his brief, Eddington explains that the government’s reliance on a “presumption of regularity” in this case is misplaced. The history of that doctrine, which extends back to English common law, makes clear that it is merely a presumption that boilerplate government procedure was followed. The doctrine cannot be extended into a broader presumption that the government did not engage in gamesmanship when it ceased the challenged conduct. As Eddington’s brief recounts, governments at every level of our federal system have frequently engaged in just such gamesmanship to try to stop cases from reaching the merits.

The voluntary cessation doctrine ensures that defendants cannot avoid a judgment on the merits by strategically mooting a case. The Supreme Court should make clear that this concern applies just as much when the government is a defendant as in any other context. The decision of the Ninth Circuit should be affirmed so that Fikre’s case can finally reach the merits.

Paul Matzko

I had the opportunity to work with two economists on a paper testing a proposition from my book on conservative broadcasting in the 1960s. I had argued that listening to right‐​wing radio hosts like Carl McIntire, Clarence Manion, and Billy James Hargis helped voters who had traditionally identified as Democrats to consider pulling the lever for the GOP instead.

I backed that book with a lot of research—I visited 20 archives in 13 states—but I’m not a numbers guy. I could tell you that Carl McIntire’s radio show aired on a remarkable 400+ stations by 1964 with an estimated listening audience of 20 million (or as many as listened to Rush Limbaugh a generation later), but I couldn’t *prove* the extent to which such programs influenced the voting behavior of listeners beyond the weight of archival anecdote.

Thankfully, there are quants like my co‐​authors Oliver Engist and Erik Markus who are numbers guys. It was their idea to test the idea after reading Tianyi Wang’s groundbreaking study of Father Charles Coughlin, which showed persistent anti‐​New Deal effects in areas that had a radio station airing Coughlin’s program in 1936.

But in the quarter of a century since Coughlin, right‐​wing radio had grown dramatically beyond any single broadcaster. So we compiled radio stations that aired any one of the “Big Three” Radio Right broadcasters (McIntire, Manion, & Hargis), and who broadcast on more than a hundred stations each by the early 1960s. We then checked to see if the presence of a station that had recently added one of these programs affected GOP vote share in subsequent election cycles. It did!

To parse the graph, the addition of a right‐​wing radio program to a station raised GOP vote share in the county where it was located (and neighboring counties) by 3 percent within two congressional elections relative to other counties that were not near one of these stations. Later on the effect partially wore off as 1) other counties caught up and 2) the Radio Right declined as a result of a massive government censorship campaign in the mid‐​to‐​late 1960s.

To put that in historian‐​speak, we now have quantitative evidence that right‐​wing radio accelerated several trends related to the rise of modern conservatism, from the transformation of the Solid South to the rise of Sunbelt politics and cowboy conservatism.

As I wrote in my book, the ability to supply conservative ideas had as important a role to play in the politics of the 1960s as did changes in the demand for those ideas. “Ideas do not just float through the ether like spores infecting human hosts in an ideological invasion of the body snatchers.”

For more data and analysis, you can check out the full, open access article.

Post adapted from the author’s Substack. Click through and subscribe for more insights from the intersection of history and policy.

David Inserra

A recent report by the Future of Free Speech highlights the sustained and concerning trend against freedom of expression across democracies. Studying the speech‐​related actions of twenty‐​two democracies across the world from 2015 to 2022, the report found that 78 percent of the major actions taken were to restrict expression. Worryingly, the number of annual speech restrictions put into place is growing almost every year, from nine in 2015 to forty‐​five in 2022. 

The study also looked at why and how these restrictions were put in place. Almost 20 percent of these restrictions were explicitly made based on national security or public safety, not including another nearly 6 percent due to COVID-19. Almost 18 percent of restrictions were to defeat hate speech, with another 10 percent to combat disinformation or defamation. 

It is worth repeating that these aren’t speech restrictions in authoritarian states. These are infringements on freedom of expression in open democracies that are supposed to protect the rights of their citizens. Unfortunately, as we’ve seen in polling even in the US, an increasing amount of people often on both sides of the aisle believe that certain forms of expression are too dangerous to be allowed. As we see in this study, security, hate speech, and misinformation are common reasons why governments have justified restricting speech. But these terms are not simply defined as supporters for intervention often think. 

This is clear beyond even this report as we look at the developments of 2023 and what could be coming in 2024. For instance, there is the Irish Incitement to Violence or Hatred and Hate Offenses bill. The legislation had passed the lower house of parliament earlier in 2023, but the government doubled down in its support for such legislation after a major immigration protest and riot. The government cited the need to stop hatred and ensure public safety after an Algerian immigrant stabbed several children and bystanders in downtown Dublin in November, promoting significant anger and rioting on the back of other immigration protests in 2022 and 2023. 

The bill makes it illegal to communicate or behave in such a way that “is likely to incite hatred” against others due to their protected characteristics. Now it goes without saying that hatred is not good for our societies, but, as is always the challenge with hate speech laws, the government does a poor job of effectively defining what is “hate.” Indeed, this bill does not specify what is considered hatred. Even mere possession of materials that are likely to incite “hatred” could leave you in an Irish jail. The bill also makes it illegal to condone, deny, or trivialize genocides, war crimes, or other crimes against humanity.

Even if one were to applaud the bill’s intentions to decrease the incidents of hateful speech, this bill will curtail lawful expression that is naturally a part of debates over important issues of the day. For example, strongly worded opposition to immigration could be considered incitement to hatred under this proposal.

One wonders if comparing Donald Trump to Hitler might be considered trivialization of Nazi war crimes? Or if a Catholic priest preaching millennia‐​old church doctrine that there are only two genders might be considered incitement to hatred? Or if support for Palestinian resistance or Israeli military action might be classified as condoning or trivializing war crimes or crimes against humanity?

Worryingly, the bill also makes it a crime to not provide police with your passwords or encryption keys if they come to seize your “reckless” memes. Individuals will be forced to speak and forced to incriminate themselves under penalty of imprisonment. Such undermining of encryption leaves nothing safe from government seizure and will be highly abusable by the government for any reason it considers a matter of public safety or security. 

The law could also be weaponized against many people and not just by law enforcement. Any visitor, including a university speaker, business traveler, or even an average tourist, could be arrested for things they have said on social media that are interpreted to fall under this broad and vague hate speech law. Activist groups could abuse the law to encourage Irish law enforcement to bring cases against their political opponents or those with unpopular beliefs. 

This is just the latest example of a concerning trend away from free expression in recent European laws and around the world. Other high‐​profile restrictions on expression from 2023 include the EU’s censorship‐​inducing Digital Services Act, which has been criticized by many human rights and free expression groups because of the harmful effect it will have on online speech. We also saw Denmark’s recent adoption of a sacrilege law, making it illegal to desecrate a religious text. 

On the other side of the globe, the Australian government sought to advance a bill that would give government agencies increased power over the moderation of misinformation by social media companies that is “likely to contribute to” a wide array of “serious harms.” Under this standard, political opposition to COVID-19 lockdown policies, based on contested or emerging scientific evidence, could be labeled misinformation that contributes in some way to the serious harm of Australian public order or health.

Notably, Australia’s own human rights commission said the bill guaranteed that the government’s position could never be considered misinformation, and thus only dissenting views could be targeted. Even more explicitly, documents recently released under freedom of information laws revealed that the Australian Communication Minister pushing the bill told the Prime Minister that the legislation would allow her to direct investigations into whatever the government considered misinformation. While widespread pushback to the bill’s broad and vague censorship meant the bill is being revised, this revelation should frighten all Australians with the possibility of blatant political suppression of speech.

These blows to free expression are history repeating itself. After the development of new technologies that expand access to expression, those in power have historically panicked. The printing press, which raised literacy and dramatically increased the availability of ideas, played a huge role in the massive changes brought by the Renaissance and Reformation. Pope Innocent VIII issued a papal bull in 1487 calling for “regulation” to stop “the misuse of the printing press for the distribution of pernicious writings.” Similarly, the Ottoman Empire shunned the printing press for nearly three centuries.

The telegram, despite reducing communication time from days or weeks to seconds, was condemned in the New York Times as “superficial, sudden, unsifted, too fast for the truth… How will its uses add to the happiness of mankind?” The same leading journalists at the Times believed the telephone was harming the hearing of its users (or at least their manners), and that radios were a “loud and unnecessary noise.” And there has been no shortage of political figures condemning popular movies, music, and video games for changing values or as the cause of modern violence.

We must not accept this prevailing and pessimistic narrative and cave to calls for government intervention in this important value of a free society. Yes, such change is disruptive and some speech will make all of us uncomfortable. But giving greater information and expression to more people is a powerful force for human progress.

So, while we currently find ourselves in a free speech recession, we can and must remind our societies that a better future is built on the rich diversity that is only possible with freedom of expression.

Alex Nowrasteh

Border Patrol agent Freddy Ortiz died in an on‐​duty vehicle accident on November 14, 2023, while on patrol in Douglas, Arizona. John Modlin, chief patrol agent of the US Border Patrol’s Tucson Sector, wrote, “US Border Patrol Agent Freddy Ortiz’s on‐​duty death is a tragedy and a stark reminder of the dangerous nature of our mission.” It’s certainly true that Border Patrol agents die in the line of duty, but how dangerous the mission is can be partly gleaned from how often agents die in the line of duty. 

Raul H. Gonzalez, Jr. was the last Border Patrol agent to die in the line of duty in 2022, on December 7, in a vehicle accident. This blog post is an update of earlier posts that examined the number and causes of Border Patrol deaths and compared them to police officer deaths in the line of duty.

The government and the Officer Down Memorial Page record all Border Patrol agent and Customs officer deaths in the line of duty. I analyzed the deaths from January 1, 2003, through December 31, 2023, and excluded Customs officers. That left fifty‐​eight Border Patrol agents who died while on the job (Table 1). The deadliest year was 2021 when fifteen agents died, or one Border Patrol death for every 1,302 agents in that year. Of those fifteen deaths, thirteen died of COVID-19 and two from car or vehicle accidents.

Counting Border Patrol agents who died from COVID-19 as a death in the line of duty seems fraught with uncertainty. The Customs and Border Protection (CBP) website states how Border Patrol agents die in the line of duty in the case of homicide, accidents, drowning, or other such causes that occur while on the job. Those are unambiguous deaths in the line of duty. 

Almost 1.2 million Americans died of COVID-19 by December 2023, but only some of those cases counted as work fatalities. In cases of a Border Patrol agent dying of COVID-19, the CBP says “[t]he circumstances of [the] passing were reviewed by an executive panel and the CBP Commissioner who determined that this death occurred in the line of duty.” My job is not to look under the hood of those cases to guess whether this was a legitimate call or not, so I included them as deaths in the line of duty. 

The National Center for Health Statistics published a report on COVID-19 death rates by occupation and industry for 2020. It is not a report of COVID-19 fatalities on the job but of deaths clustered by occupation and industry. The COVID-19 death rate for protective services, which includes Border Patrol and other law enforcement officers, was the highest of any occupation group included at 60.3 per 100,000. In 2020, the COVID-19 death rate for Border Patrol officers was 15.3 per 100,000. 

From 2003 through 2023, the annual chance of a Border Patrol agent dying in the line of duty was about one in 6,553 per year. Another way of presenting the data is that the Border Patrol deaths in the line of duty rate was 15.3 per 100,000 Border Patrol agents during the entire 21‐​year period. Furthermore, the number of deaths per apprehension is also low. One Border Patrol agent has died in the line of duty for every 297,848 illegal immigrant apprehensions or encounters during the twenty‐​one‐​year period. 

I determined the cause of death for each Border Patrol agent from the online blurbs on CBP’s website and from the Officer Down Memorial Page. The leading cause of death for Border Patrol agents was car or vehicle accident at 40 percent (Figure 1). The second‐​highest leading cause of death was COVID-19, at 28 percent. Other health accidents such as heatstroke or heart attack account for 14 percent of deaths. Murder or assault accounts for 10 percent. The last Border Patrol agent to be murdered in the line of duty was Isaac Morales, who was murdered in May 2017. A jury found the accused killer not guilty.

The danger of being a Border Patrol agent must be judged in comparison to similar occupations. About one in 6,553 Border Patrol agents died in the line of duty per year from 2003 through 2023 for an annual rate of about 15.3 per 100,000. That compares favorably to all police and law enforcement officers nationwide. 

From 2003 through the end of 2022, 4,406 law enforcement officers died in the line of duty which translated to a one in 3,705 per year chance of dying or about 32.5 deaths per 100,000 (all data are not yet available for 2023). During the same period, law enforcement officers were about 113 percent more likely to die in the line of duty than Border Patrol agents were. The data on all police deaths includes Border Patrol deaths.

Police officers were also much more likely to be murdered than Border Patrol agents. Of the 4,406 law enforcement deaths nationwide, 1,874 (43 percent) were murdered or died in violent altercations (Figure 2). An additional 20 percent died in accidents and another 20 percent died of COVID-19.

Border Patrol agents volunteered for a job that routinely places them in danger, either from other people, the environment, or accidents. However, that heightened danger does not translate into a higher chance of dying in the line of duty compared to other law enforcement officers. Every unnecessary death is a tragedy, but it’s important to keep them in perspective when forming public policy.

David J. Bier

President Biden has requested that Congress give him $13.6 billion to increase deportations of people crossing the border illegally, but congressional Republicans are reluctant to comply because they believe Biden has intentionally opened the borders and can’t be trusted. However, data from the Trump era clearly show that, if he were in office, Trump would not be deporting any more border crossers than Biden has.

As I previously demonstrated, President Biden removed a higher percentage of border crossers in his first two years than Trump did during his last two years (51 percent versus 47 percent), despite Trump having to deal with many fewer total crossings (Table 1). Congress right now is in a bipartisan state of denial about these three central facts:

The reason people are being released is because of operational capacity to detain and deport them, not policy.
Biden has deported vastly greater numbers and a higher share of crossers, but it has not deterred people from crossing.
The logistics are such that once arrivals exceed the deportation machine’s capacity, people will find out and even more will come.

The data presented in Table 1 come from March 2023, and the situation may have changed now that the Centers for Disease Control and Prevention ended the national health emergency in May 2023, and the Department of Homeland Security (DHS) can no longer use the Title 42 health code authority to expel people to Mexico.

Therefore, it is worth revisiting what we could have realistically expected from a Trump‐​era deportation machine in this moment.

Table 2 shows the pre‐​Title 42 removal rate (share of border encounters in fiscal years 2019 and early 2020 that were removed by March 31, 2020) for each major demographic group. These rates are then applied to the most recent border encounters for November 2023. As it shows, based on how they performed in 2019 and 2020, before Title 42, we would expect a Trump administration to have removed 29.2 percent of the people who crossed the border illegally in November 2023. In other words, even under Trump, over 70 percent of crossers would not be removed.

We would expect that of the 191,113 Border Patrol arrests, a Trump administration would have removed 55,784. This is almost exactly the number of crossers who were not granted humanitarian release by Border Patrol in November 2023: 57,122. The DHS does not publish exact monthly removals, but it says that it deported “over 400,000” people over the last seven months. That equals about 57,000 removals per month, exactly what we’d expect from a Trump administration.

Of course, this assumes that a Trump administration could maintain a consistent removal rate despite the higher rate of arrivals, and this is unlikely. The removal rate significantly dipped from about 50 percent in 2018 to 32 percent in 2019 when border encounters almost doubled from half a million to nearly a million. Now, arrests are on track to double the 2019 level. It stands to reason that, faced with this increase in arrivals, the rate of removals would’ve fallen again. The fact that it did not fall is a testament to the extraordinary lengths to which the Biden administration has gone to sustain high removal rates, even after the expiration of Title 42.

President Biden has negotiated a shocking and unprecedented deal with Mexico to permanently deport some Cubans, Haitians, Nicaraguans, and Venezuelans there. This is very different from Trump’s Remain in Mexico policy that returned some crossers there temporarily until their cases were decided. Biden has also obtained permission from the governments in Venezuela and Cuba to accept more deportations, and he has imposed a presumptive ban on asylum.

But this strategy hasn’t worked in the past and won’t work now because, as we saw during Title 42, even the total suspension of asylum law and a much higher rate of removal did not deter crossers because there was still a reasonable possibility of success, and the US economy was doing so well. Biden needs to refocus on reforming legal immigration to fix the problems at the border.

Walter Olson

Before the U.S. Court of Appeals for the D.C. Circuit this week, Donald Trump is arguing sweeping claims of immunity from prosecution for acts he committed as president. The case raises questions of whether and when high officials may be held accountable for crimes they commit, to what extent an exception should be made for the office of the presidency, and where the line should be drawn between acts an officeholder may take in execution of his prescribed duties and those he may take in a private capacity. Here’s a brief overview.

Trump, as we know, is charged with having violated four federal statutes in his efforts to stay in office notwithstanding his 2020 defeat at the polls. He moved to throw out the case on the grounds of purported immunity, Judge Tanya Chutkan of the district court rejected his claims, and Trump is now appealing that ruling.

Surprisingly or not, the Supreme Court has never previously ruled on the claim of a president to be immune from prosecution for criminal conduct in office. It did rule in the 1982 whistleblower‐​firing case Nixon v. Fitzgerald that former presidents are immune from civil lawsuits over the carrying out of their official duties. Trump’s lawyers now urge the courts to extend that precedent from the civil context to that of criminal prosecution.

The Fitzgerald court worried that exposure to tort‐​style liability might chill presidents’ willingness to act decisively in the exercise of their official duties, as well as burden them with a profusion of complaints after their return to private life. It also considered that alternative remedies were typically available to individuals aggrieved by White House action. Whistleblower Ernest Fitzgerald, for example, could and did pursue claims against lower‐​level federal functionaries over his firing.

Presidential immunity has long occasioned an ideological divide at the high court, with the conservative wing generally friendlier toward it than the liberals. Fitzgerald itself generated a 5–4 split, with Justices Byron White, Harry Blackmun, William Brennan, and Thurgood Marshall warning that the majority’s logic could leave the President above the law.

*

In addition, Trump is advancing a second, long‐​shot pair of immunity theories based on his acquittal on impeachment charges by the U.S. Senate in February 2021, after he had left office. (57 of 100 senators voted to convict, short of the two‐​thirds needed.) He now argues that the acquittal must bar further prosecution.

Part of his argument nods toward the idea of double jeopardy, an analogy so weak I doubt it will convince a single judge. (There’s a lot of precedent on what counts as double jeopardy and what doesn’t, and it’s very unlikely that this is it; it’s kind of like arguing that if you persuaded your government colleagues not to fire you over misconduct on the job, you also can’t be prosecuted for it.) It’s especially jarring in this case, in which nearly all the 43 senators who took Trump’s side cited reasons for their vote other than factual innocence, notably doubts as to whether senators could properly impeach an official who was already out of office. Sen. Majority Leader Mitch McConnell (R‑KY), for one, specifically said he expected the criminal justice system to sort out Trump’s misconduct.

Trump’s lawyers also cite a more colorable but still far‐​fetched theory based on the Constitution’s Impeachment Judgment Clause, which provides that the effects of Senate conviction do not extend beyond removal from office and disqualification, “but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” They claim that by negative implication this language must also mean that an official not so convicted may not be subject to later criminal process. This is highly implausible for many reasons, one of which is that the federal government has long prosecuted errant officeholders who weren’t impeached first even when they had held impeachable offices (see, e.g., pp. 7–9).

*

Given the composition of the U.S. Supreme Court, it would not be surprising if the Fitzgerald analogy attains traction with some justices there, even conceivably a majority. And yet a win on this front might not in the end be of much practical use to Trump. That’s because, as he himself concedes (see p. 26), it is uncontroversial that a former President can remain criminally accountable for unofficial conduct; that is, conduct going beyond the exercise of the prescribed duties of the presidency. 

Courts, I suspect, are likely to view with favor the proposition that most or all of the lawbreaking alleged in the indictment was taken in Trump’s capacity as a candidate for a second term, as when he asked Georgia Secretary of State Brad Raffensperger to “find” him 11,780 votes, or when he helped organize teams of pretend electors to file papers holding themselves out as genuine.

Last month, in the context of a civil suit over Jan. 6, a cross‐​ideological panel of the D.C. Circuit ruled on what is effectively this same point. It found that Trump’s speech to the White House crowd on that day was made as an “office‐seeker, not office‐holder” and, not being “in furtherance of a presidential function,” did not enjoy immunity under Fitzgerald itself. Assuming this ruling stands, it signals that even a favorable ruling from the Supreme Court on extending Fitzgerald would still not extricate the former president from his legal jeopardy.

Even the most extravagant boosters of the imperial presidency seldom dare to argue for the absolute‐​monarchy premise that supposes the holder of the office is legally untouchable, even for crimes he may commit in a private capacity – say, as a participant in a road‐​rage incident, a jealous spouse, or, as here, someone restless and ambitious to remain in an office he has lost in a free election. And that implies that the courts are unlikely to interpret immunity doctrines in such a way as to excuse Trump from accountability.

James A. Dorn

Joel Mokyr’s widely acclaimed book A Culture of Growth (2018) has important parallels to the work of Peter Bauer (1915–2002), a pioneer in development economics. Both economists recognize the importance of culture and a competitive market for ideas in fostering economic development.

Mokyr was primarily interested in explaining the factors that led to the Enlightenment and the Industrial Revolution, while Bauer was concerned with the transformation of a subsistence economy into an exchange economy. His careful observation of less developed countries (LDCs) in Southeast Asia and British West Africa in the 1940s and 1950s convinced him that many of the leading ideas regarding the determinants of economic growth were wrong. He presented strong evidence that poverty was not self-perpetuating, that external trade was beneficial both in enlarging consumption opportunities and spreading new ideas, and that culture matters on the road to prosperity. He recognized the failure of state-led development and the promise of freedom, individual choice, and limited government.

The Economist praised Mokyr’s book, saying, “It is refreshing that an economist is taking seriously the idea that ideas and culture make a difference to economic growth.” This article examines some of the key ideas of Mokyr’s book and shows that Bauer shared similar views with regard to the importance of ideas and culture in fostering economic growth.

Mokyr on the Origins of the Modern Economy

The key role of useful knowledge in promoting growth lies at the heart of Mokyr’s quest to discover the origins of the modern economy. As he writes, the notion that “useful knowledge” could “transform the economy” was “the driving force in bringing about the Great Enrichment” (p. 267). Economic growth requires a competitive market for ideas. The institution that helped foster a vibrant market for ideas in the United Kingdom and Europe in the 17th and 18th centuries was the so-called Republic of Letters (see Mokyr, chap. 12).. Scholars could exchange ideas via an active network of informed individuals, who could also move from one jurisdiction to another to avoid suppression of free thought. The Scientific Revolution led the way for the Enlightenment and Industrial Revolution, which transformed the West into a modern economy.

A Model of Cultural Change

Mokyr defines culture broadly as “a set of beliefs, values, and preferences, capable of affecting behavior, that are socially . . . transmitted and that are shared by some subset of society” (p. 8). Those beliefs, values, and preferences can change over time as people acquire new knowledge. In that sense, Mokyr argues they are “a matter of choice” (p. 12).

The role of “cultural entrepreneurs,” such as Francis Bacon and Isaac Newton (see Mokyr, chaps. 7–8), spurred the Scientific Revolution with its emphasis on the scientific method, the laws of nature, and the promise of improvement. Enlightenment thinkers spread optimism about the possibilities for progress—provided government power was limited and human (natural) rights protected.

Mokyr develops “a model of cultural change that explains why the Enlightenment took place in Europe.” His model rests firmly on two factors: the emergence of a Republic of Letters and the fact that a fragmented Europe allowed the market for ideas to develop as jurisdictions competed for talent (pp. 339–41). A culture of growth replaced the stasis that had enveloped Europe as “changes in the market for ideas” widened the range of knowledge and allowed “cultural entrepreneurs” to flourish. Regions that allowed greater freedom in the exchange of ideas led to “choice-based cultural evolution” and prosperity (chap. 6).

In a nutshell, Mokyr holds that economic development requires a commitment to “pluralism and competition with a coordination mechanism that allows knowledge to be distributed and shared, and hence challenged, corrected, and supplemented” (p. 340).

The Market for Ideas

Many economists have pointed to the importance of institutions on incentives and behavior in studying the factors that influence growth. However, less attention has been paid to the importance of a free market for ideas. Mokyr argues that “the central messages of the Enlightenment that mattered to subsequent economic change were products of the competition in the market for ideas and were a direct continuation of the Republic of Letters” (p. 268).

In particular,                

The liberal ideas of religious tolerance, free entry into the market for ideas, and belief in the transnational character of the intellectual community were essential to Enlightenment thought. These were the cultural underpinnings of the institutions that not only supported a functioning market for ideas, that is, a market in which innovators had a fair chance to persuade their audiences. They also actively encouraged intellectual innovation and thus laid the foundation for the emergence of the modern economy (Mokyr, p. 178).

The lesson from Mokyr is that a government that protects persons and property and supports a free market for ideas best serves to promote human welfare. From a study of the European Enlightenment, he understood that “to advance the material conditions of humanity,” it is necessary to be open to new ideas and to constrain the power of government for the good of society. Those two ideas “and their triumph in the market for ideas,” argues Mokyr, “created a massive synergy that led to the economic sea changes we observe.” Notably, “from industrialization and the growth in physical and human capital to the discovery and mastery of natural forces and resources” that could not have been imagined in the mid-18th century (p. 341).

Bauer’s Approach to Economic Development

Like Mokyr, Peter Bauer placed importance on cultural factors and the market for ideas. In particular, he pointed to cultural changes that widened the range of choices open to people and improved their lives. His studies of the rubber industry in Southeast Asia (Bauer 1948) and small traders in British West Africa (Bauer 1954) convinced him that poor people could lift themselves out of poverty with hard work, entrepreneurial activities, and internal and external trade—provided they had the freedom to do so. He exposed wrong ideas offered by the elite in diagnosing economic development, and he used close observation and careful reasoning to confirm classical liberal theories to help explain the wealth of nations.

The Principle Objective and Criterion of Economic Development

For Bauer, “the principle objective and criterion of economic development” is “the extension of choice, that is, an increase in the range of effective alternatives open to people” (Bauer 1957: 113; Dorn 2002). Measures that increased freedom of choice and limited the power of government, thereby protecting persons and property appealed to Bauer, both from a moral and practical perspective. In this sense, he was in line with classical liberalism.

This view of development put Bauer at odds with post-second World War experts who favored state-led development and foreign aid and those who opposed free trade. The failure of central planning and the lack of development in countries that practiced protectionism proved Bauer to be correct. The World Bank recognized his importance by including him in its first edition of Pioneers in Development (1984).  

Tenets of Postwar Development Orthodoxy

In the 1950s, it was widely held that there was a “vicious circle of poverty.” Most development economists assumed that low incomes in LDCs, together with the lack of foresight, would constrain saving and investment, which were seen as essential for growth. Poor people were seen to be incapable of responding to market incentives, and external trade was considered to be ineffective or even harmful. Poverty was therefore regarded as self-perpetuating. The only way out of this “poverty trap,” according to postwar development orthodoxy, was by following the path of central planning or relying on foreign aid (Bauer 1984: 1).

Case Studies

Bauer questioned the tenets of postwar development orthodoxy based on his knowledge of classical economic principles and close observation of LDCs. His early studies of Southeast Asia and British West Africa in the 1940s and 1950s convinced him that economic development mostly depended on “the individual voluntary responses of millions of people to emerging or expanding opportunities created largely by external contacts and brought to their notice . . . primarily through the operation of the market.” He went on to say that, “These developments were made possible by firm but limited government, without large expenditures of public funds and without the receipt of large external subventions” (Bauer 1984: 5).

What Bauer observed first-hand was that “the ordinary people of the LDCs were not necessarily torpid, rigidly constrained by custom and habit, economically timid, inherently myopic or generally deficient in enterprise.” For example, illiterate peasants in Southeast Asia and West Africa “planted millions of acres to produce new cash crops,” some of which (e.g., rubber, cocoa, and kola trees) took five years before yielding marketable products. Those direct investments, argued Bauer, were “made possible by voluntary changes in the conduct, attitudes and motivations of numerous individuals” (Bauer 1984: 5).

Determinants of Economic Development

Although Bauer was skeptical about the possibility of constructing a general theory of development (as was Mokyr), he did think it was feasible to recognize patterns in the process of economic development and make predictions about the consequences of alternative policies intended to improve economic performance (Bauer 1976: 24).        

After studying a number of LDCs, Bauer concluded:

Economic performance depends on personal, cultural, and political factors, on people’s aptitudes, motivations, and social and political institutions. Where these are favorable, capital will be generated locally or attracted from abroad, and if land is scarce, food will be obtained by intensive farming or by exporting other goods (Bauer 2000: 29).

Bauer also argued that a large and growing population is not a detriment to economic progress, nor is a high population density—provided the institutional setting is favorable to freedom and responsibility. In his view, “Economic achievement and progress depend on people’s conduct, not on their numbers.” He criticized the use of national income per capita as a measure of personal welfare since “it ignores satisfaction people derive from having children or from living longer…. Ironically, the birth of a child is registered as a reduction in national income per head, while the birth of a calf shows up as an improvement” (Bauer 2000: 30–31).

Bauer pointed to the positive effects of external contacts. He argued that international trade with more developed economies exposes LDCs to the possibility of advancement. It undermines “attitudes and customs” that “inhibit material advance.” External contacts also “promote new ideas, attitudes and modes of conduct, as well as new crops, wants and improved methods generally, besides encouraging production for sale” (Bauer 1976: 38).

In sum, if people are left alone to exchange goods and ideas in international markets, they will benefit by “voluntary adjustment to new opportunities.” However, protectionist policies will restrict those opportunities and perpetuate poverty (Bauer 1976: 85).

Conclusion

Bauer and Mokyr, like Deirdre McCloskey, both sought to understand the process of development from a wider perspective than simple growth models. They both viewed culture and the market for ideas as important noneconomic variables that account for the wealth of nations.    

Bauer (1976: 84) was convinced that “economic development requires modernization of the mind.” He recognized the importance of free people and free trade in widening the range of choices open to people. He predicted that central planning and foreign aid would fail to bring about material advancement and that market-led development was the best path toward a harmonious society. In particular, he held that state-led development destroys an “experimental turn of mind” (Bauer 1976: 84, 86).  

Bauer’s life work was vindicated as development experts found that many of his criticisms of orthodox development theory proved to be correct. His inclusion in the World Bank’s Pioneers in Development is testimony to his many contributions to development economics. As Amartya Sen noted, in his introduction to Bauer’s final book, From Subsistence to Exchange,

Bauer has been a consistent and cogent defender of the role of the market economy in bringing about economic development. No one has done more in clarifying the reach of Adam Smith’s thesis regarding the creative contributions of exchange. . . . The role of culture in economic development and change is a recurring theme in Bauer’s writings (Sen 2000: x).

Mokyr was very influenced by McCloskey on the importance of culture, which is a factor that is still overlooked by many economists. But while Bauer was a development economist and not an economic historian like Mokyr and McCloskey, he was an outstanding example in his field that made related points decades ago. As Sen (p. ix) reminds us, although Bauer’s ideas are gaining adherents, “the new enthusiasts . . . often do not give him enough credit” (see Vasquez 2007 for why Bauer’s work was neglected for so long). A reference to Bauer in Mokyr’s book would have added to its distinction.  

Jennifer Huddleston and David Inserra

The beginning of a new year is often a time for reflection and prediction. Technology continues to evolve in ways that improve the lives of consumers and has quickly become so commonplace that we either forget what life was like before or look back on it with nostalgia.

With this approach in mind, let’s look at some of the key takeaways in tech policy in 2023 and some likely new or continuing tech policy conversations in 2024.

Three Reflections on Tech Policy in 2023

The courts have remained strong on the First Amendment in the context of online speech.

Numerous policies to limit speech online have been introduced, particularly at the state level. Many of these policies initially appear to be well‐​intentioned on issues such as protecting children online, but often would have dire consequences for freedom of speech more generally. Additionally, 2023 saw the targeting of specific platforms for speech in attempts at both a state and federal level to ban popular social media platform TikTok for all users.

Despite the concerning trends towards laws that would likely violate the First Amendment, the courts have held to constitutional principles, issuing preliminary injunctions and emphasizing the importance of speech in the online context in various rulings. This included injunctions against California’s Age‐​Appropriate Design Code and Montana’s TikTok Ban. Additionally, the courts are also holding the government itself to account for its censorship by proxy against private tech companies.

In 2023, we wrote a great deal about this and selected articles are below:

https://​www​.cato​.org/​b​l​o​g​/​s​u​p​r​e​m​e​-​c​o​u​r​t​-​t​r​e​a​d​s​-​c​a​r​e​f​u​l​l​y​-​g​o​n​zalez
https://​www​.cato​.org/​b​l​o​g​/​j​u​d​g​e​-​b​l​o​c​k​s​-​j​a​w​b​oning
https://​www​.cato​.org/​c​o​m​m​e​n​t​a​r​y​/​c​a​n​-​m​o​n​t​a​n​a​-​s​t​o​p​-​c​l​o​c​k​-​t​i​k​t​ok-ban
https://​www​.cato​.org/​c​o​m​m​e​n​t​a​r​y​/​w​h​a​t​-​r​e​c​e​n​t​-​s​u​p​r​e​m​e​-​c​o​u​r​t​-​r​u​l​i​n​g​s​-​m​e​a​n​-​f​u​t​u​r​e​-​o​n​l​i​n​e​-​s​peech
https://​www​.cato​.org/​c​o​m​m​e​n​t​a​r​y​/​a​n​o​t​h​e​r​-​c​o​u​r​t​-​c​a​l​l​s​-​o​u​t​-​g​o​v​e​r​n​m​e​n​t​-​p​r​e​s​s​u​r​e​-​b​i​g​-​t​e​c​h​-​i​t​s​-​n​o​t​-​e​nough
https://​www​.cato​.org/​c​o​m​m​e​n​t​a​r​y​/​c​o​u​r​t​s​-​r​e​v​e​r​s​a​l​-​m​o​n​t​a​n​a​s​-​t​i​k​t​o​k​-​b​a​n​-​s​h​o​u​l​d​-​b​e​-​w​a​rning

2. Artificial Intelligence is becoming increasingly the focus of tech policy.

Last year was marked by a growing interest from both the general public and policymakers regarding artificial intelligence. While AI has been a part of our lives for far longer than the average consumer may realize, the launch of products like ChatGPT and AI add‐​ons to popular services like Microsoft’s Bing and Google search made AI seem more present than ever before.

This new opportunity also saw many policymakers call for regulation around the world, and there were many pessimistic outlooks on the new technology. As we discussed in our writings throughout 2023, however, the tradeoffs of a heavy‐​handed regulatory approach could have negative consequences for the plethora of beneficial applications, and the light‐​touch regulatory approach the US has traditionally taken should be adaptable to this new, disruptive technology.

The year 2023 was just the start of such debates. AI is likely to feature heavily in the conversations around tech policy in 2024, both on its own as well as in conversations around ongoing topics such as competition, privacy, and speech.

Selected articles:

https://​www​.cato​.org/​b​l​o​g​/​c​o​n​s​e​q​u​e​n​c​e​s​-​r​e​g​u​l​a​t​i​o​n​-​h​o​w​-​g​d​p​r​-​p​r​e​v​e​n​t​i​ng-ai
https://​www​.cato​.org/​c​o​m​m​e​n​t​a​r​y​/​r​o​b​o​t​s​-​a​r​e​n​t​-​c​o​m​i​n​g​-​m​o​v​i​e​-​s​t​a​rs-yet
https://​www​.cato​.org/​b​l​o​g​/​w​h​a​t​-​m​i​g​h​t​-​g​o​o​d​-​a​i​-​p​o​l​i​c​y​-​l​o​o​k​-​f​o​u​r​-​p​r​i​n​c​i​p​l​e​s​-​l​i​g​h​t​-​t​o​u​c​h​-​a​p​p​r​o​a​c​h​-​a​r​t​i​f​i​c​i​a​l​-​i​n​t​e​l​l​i​gence
https://​www​.cato​.org/​t​e​s​t​i​m​o​n​y​/​n​e​e​d​-​t​r​a​n​s​p​a​r​e​n​c​y​-​a​r​t​i​f​i​c​i​a​l​-​i​n​t​e​l​l​igence
https://​www​.cato​.org/​t​e​s​t​i​m​o​n​y​/​a​i​-​e​l​e​c​t​i​o​n​s​-​d​e​m​ocracy
https://​www​.cato​.org/​m​u​l​t​i​m​e​d​i​a​/​c​a​t​o​-​d​a​i​l​y​-​p​o​d​c​a​s​t​/​b​i​d​e​n​s​-​b​i​g​-​e​a​r​l​y​-​m​o​v​e​-​r​e​g​u​l​a​t​e​-​a​r​t​i​f​i​c​i​a​l​-​i​n​t​e​l​l​i​gence

3. Courts are also rejecting attempts to shift the focus of antitrust away from the consumer welfare standard and recognize the continued competitive and dynamic nature of the tech market.

The year 2023 saw many actions filed against some of America’s leading technology companies alleging violations of competition laws. Many of these cases were based on presumptive theories of harm or other policy goals from agencies rather than the more objective basis of the consumer welfare standard. However, courts and judges repeatedly rejected these theories. Instead, innovation—such as AI and new social media platforms—have yielded competition in ways that we couldn’t predict even a year or two ago.

Selected articles on antitrust in 2023 include:

https://​www​.cato​.org/​b​l​o​g​/​g​a​m​e​-​o​v​e​r​-​o​r​-​g​a​m​e​-​r​e​g​u​l​a​t​o​r​y​-​s​c​r​u​t​i​n​y​-​m​i​c​r​o​s​o​f​t​s​-​a​c​t​i​v​i​s​i​o​n​-​a​c​q​u​i​s​i​t​i​o​n​-​f​u​t​u​r​e​-​g​aming
https://​www​.cato​.org/​b​l​o​g​/​a​r​e​-​l​a​t​e​s​t​-​f​t​c​-​c​a​s​e​s​-​a​g​a​i​n​s​t​-​t​e​c​h​-​g​o​o​d​-​c​o​n​s​u​mers-O
https://​www​.cato​.org/​b​l​o​g​/​w​h​a​t​-​t​h​r​e​a​d​s​-​t​e​l​l​s​-​u​s​-​a​b​o​u​t​-​s​o​c​i​a​l​-​m​e​d​i​a​-​c​o​m​p​e​tition
https://​www​.cato​.org/​b​l​o​g​/​c​h​a​n​g​i​n​g​-​r​u​l​e​s​-​f​a​c​e​-​i​n​c​r​e​a​s​i​n​g​-​l​o​s​s​e​s​-​i​n​i​t​i​a​l​-​t​h​o​u​g​h​t​s​-​n​e​w​-​p​r​o​p​o​s​e​d​-​m​e​r​g​e​r​-​g​u​i​d​e​lines
https://​www​.cato​.org/​c​o​m​m​e​n​t​a​r​y​/​m​i​c​r​o​s​o​f​t​-​v​i​c​t​o​r​y​-​c​o​u​r​t​s​-​g​o​-​e​p​i​c​-​k​i​l​l​s​t​r​e​a​k​-​a​g​a​i​n​s​t​-​f​t​c​-​a​n​t​i​t​r​u​s​t​-​a​genda

Three things to watch (or continue to watch) in 2024

The impact of European and UK tech policy on Americans and American companies.

Increasingly, some of America’s leading technology companies find themselves the target of foreign regulations that appear to be designed to directly apply to these US companies in the absence of those countries having their own leading technology companies. With the Digital Services Act, for example, a growing body of rules and regulations could chill free expression well beyond Europe’s borders, and provide cover for more authoritarian regimes looking to clamp down on free expression. It may feel a bit like alphabet soup sometimes, but this growing “Brussels effect” is likely to increasingly impact not only American companies, but American consumers, as well as global innovation and free speech.

This year will likely see further discussions of tech policy abroad that could impact not only American companies but all internet users’ experience. The AI Act will certainly lead to further discussion of various approaches to AI regulation. The post‐​Brexit UK is also increasingly acting on technology policy issues from the privacy and speech concerns in the Online Safety Bill to a “big is bad” presumption around competition policy proposals, including the DMCC.

For more information on where we’re starting this year, here are some of our relevant articles from 2023:

https://www.cato.org/blog/three-reasons-americans-should-be-concerned-about-united-kingdoms-online-safety-bill‑0
https://www.cato.org/blog/brussels-effect-potential-impact-speech-regulation-around-world-americans-online‑0
https://​www​.cato​.org/​b​r​i​e​f​i​n​g​-​p​a​p​e​r​/​w​h​a​t​-​u​n​i​t​e​d​-​s​t​a​t​e​s​-​c​a​n​-​l​e​a​r​n​-​u​k​s​-​s​t​r​u​g​g​l​e​-​d​e​r​e​g​u​l​a​t​e​-​p​o​s​t​-​b​rexit
https://​www​.cato​.org/​b​l​o​g​/​f​r​e​e​d​o​m​-​e​x​p​r​e​s​s​i​o​n​-​d​a​n​g​e​r​o​u​s​-​n​o​-​s​t​u​d​y​-​f​i​n​d​s​-​m​o​r​e​-​e​x​p​r​e​s​s​i​o​n​-​h​e​l​p​s​-​u​s​-​h​a​n​d​l​e​-​c​o​n​flict
https://​www​.cato​.org/​b​l​o​g​/​m​e​t​a​-​s​e​t​-​i​t​s​-​o​w​n​-​o​v​e​r​s​i​g​h​t​-​b​o​a​r​d​-​t​h​r​e​e​-​y​e​a​r​s​-​l​a​t​e​r​-​h​o​w​-​e​f​f​e​c​t​i​v​e​-​h​a​s​-​i​t​-been

2. The risk of a state patchwork in tech policy.

States have been considered the laboratories of democracy and federalism often provides more options for policy; however, in tech policy, a growing state patchwork risks splintering the internet and particularly raising potential barriers for smaller innovators and entrepreneurs who may not be able to afford to comply. A concerning state patchwork is already emerging in the data privacy space with many laws in effect or soon going into effect, but states are also acting on issues such as content moderation, artificial intelligence, and online safety that could have impacts on speech and privacy well beyond their borders.

Here’s some of what we saw in state tech policy in 2023:

https://​www​.cato​.org/​b​l​o​g​/​d​a​t​a​-​p​r​i​v​a​c​y​-​d​a​y​-​2​0​2​3​-​w​h​e​r​e​-​d​a​t​a​-​p​r​i​v​a​c​y​-​p​o​l​i​c​y​-​s​t​a​n​d​s​-​s​t​a​r​t​-2023
https://www.cato.org/blog/patchwork-strikes-back-state-data-privacy-laws-after-2022–2023-legislative-session‑0
https://www.cato.org/blog/state-kids-online-safety-legislation-end-2023–2024-state-legislature-session‑0
https://www.cato.org/blog/what-else-was-trending-state-technology-innovation-proposals-2022–2023

3. What happens at the Supreme Court and what it means for the future of tech policy.

The Supreme Court has a higher‐​than‐​average number of cases in 2024 relating to technology policy and particularly the issue of online speech. The most notable are the cases brought by NetChoice and CCIA against the Florida and Texas content moderation laws. The court will also consider cases involving “censorship by proxy,” or the pressure government actors have asserted on private companies, as well as a case further exploring the nature of public officials’ social media profiles as spaces for constituent interactions and the issue of blocking constituents. These cases are likely to raise attention about Section 230 again but are all better understood as issues of the First Amendment. These decisions are likely to have significant consequences for users, platforms, and our understanding of free speech online.

But other cases may also produce a significant impact on the future of technology policy. Particularly those considering agency deference. While the US has so far avoided calls for a specific technology regulator in its bureaucracy, agencies such as the Federal Trade Commission (FTC) have often sought to regulate emerging technologies.

In many cases these actions have extended from an agency’s own interpretation of its authority and not from a direct delegation allowing them to have authority over a technology or issue from Congress. As such, questions of administrative law before the court this term are likely to impact many of the agency actions targeting tech companies or seeking to regulate technology more generally.

Some of our writings on these upcoming cases can be found here and we also recommend the filings by Cato’s Center for Constitutional Studies:

https://​www​.cato​.org/​c​o​m​m​e​n​t​a​r​y​/​w​h​a​t​-​r​e​c​e​n​t​-​s​u​p​r​e​m​e​-​c​o​u​r​t​-​r​u​l​i​n​g​s​-​m​e​a​n​-​f​u​t​u​r​e​-​o​n​l​i​n​e​-​s​peech
https://​www​.cato​.org/​c​o​m​m​e​n​t​a​r​y​/​a​n​o​t​h​e​r​-​c​o​u​r​t​-​c​a​l​l​s​-​o​u​t​-​g​o​v​e​r​n​m​e​n​t​-​p​r​e​s​s​u​r​e​-​b​i​g​-​t​e​c​h​-​i​t​s​-​n​o​t​-​e​nough