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Neal McCluskey

The latest 8th grade National Assessment of Educational Progress (NAEP) civics and U.S. history scores are out, and they have been dropping since 2014. This will no doubt spur lamentations about the state of our kids and our democracy, and, all things equal, we should want to see scores on these tests going up rather than down. But maybe the situation isn’t as dire as it might seem.

As with all NAEP scores, there is a limit to what we can determine about the state of American education from them (especially in a hot take like this blog post). But it might be worth considering a simple proposition: we have seen drops in NAEP scores since 2013 and 2014 (depending on the years of test administration) because the No Child Left Behind Act heavily emphasized standardized testing and was replaced by the much less test‐​centric Every Student Succeeds Act in 2015. Maybe standardized testing has just become less of an emphasis since NCLB.

The following charts of various NAEP tests all show peaks around 2013–2014.

U.S. history

Civics (Peak in 2014, though the drop by 2018 was not statistically different)

Math (Most recent results from 2022)

Reading (Also most recent 2022)

Of course, changing federal policy is not the only factor in scores – state policies, local policies, changing culture, economic conditions, and much more are at play. And it is quite likely that both COVID-19 learning disruption, and the increasing political and social radioactivity of history and civics, are at work. But looking at several subjects, and just applying a little Occam’s razor, this seems like a pretty reasonable suspect.

Perhaps the big policy question is whether falling standardized test scores should lead to major education policy revisions. I think the answer is no.

For one thing, as I touched on briefly in writing about the boom in universal school choice, there is some evidence that standardized test scores are poor predictors of outcomes we’d like to see from education, such as higher lifetime earnings and better health. It might also be that students simply do not care about NAEP – it is taken only by a nationally representative sample of children and has no ramifications for either the kids or their schools. And when it comes to civics and U.S. history, keep in mind that the latest scores are for 8th graders, who might be too young to see a lot of relevance of the subjects to their lives. Most are four or five years from voting, and history can seem really, really distant and irrelevant when you are only 13 or 14 years old. And as Bryan Caplan has shown, even if test scores are high, we tend to retain little of what we’ve ever learned.

It is better if kids know our history and understand how our system of government works than if they don’t. But if higher test scores were largely a product of teaching to tests or, worse, testing strategies versus knowledge, then we weren’t really getting what we wanted. And if we retain little of what we learn, higher test scores might not ultimately translate into more knowledgeable or active citizens.

So while it’s reasonable to be concerned about dropping tests scores, it is also important to be calm, and not let panic drive policy, especially toward relatively quick, centralized “solutions” such as an expensive federal civics and history initiative, or something like that. If anything, research points to decentralization, repeatedly finding that private schools produce more knowledgeable and tolerant citizens than public, controlling for factors like family income. But we have that lesson regardless of the latest NAEP results, which, by the way, also do not include private school scores.

There is, indeed, a big limit to what NAEP scores tell us.

Norbert Michel

Last week, the Federal Reserve and the Government Accountability Office (GAO) both released reports on the large bank failures that occurred in March 2023. Both reports reveal serious shortcomings of the U.S. regulatory framework for banks.

The GAO report discusses the failures of both Silicon Valley Bank (SVB) and Signature Bank, institutions regulated at the federal level (primarily) by the Federal Reserve (Fed) and the Federal Deposit Insurance Corporation (FDIC), respectively. The Fed’s report deals exclusively with SVB and its parent holding company, Silicon Valley Bank Financial Group (SVBFG). Both reports make it clear that regulators were aware, for many years prior, of the problems that caused these banks to fail in 2023.

The very first page of the GAO report, for example, states that “In the 5 years prior to 2023, regulators identified concerns with Silicon Valley Bank and Signature Bank, but both banks were slow to mitigate the problems the regulators identified and regulators did not escalate supervisory actions in time to prevent the failures.” Regarding Signature, page 26 of the GAO report notes:

Although FDIC took some actions to escalate its supervisory actions in 2019 and 2020, its actions were inadequate given the bank’s longstanding liquidity and management deficiencies. Furthermore, FDIC lacked urgency despite Signature Bank’s repeated failures to remediate liquidity and management issues. [Emphasis added.]

The failure to act more forcefully with an individual bank that is a repeat offender is bad enough, but it’s even worse for the FDIC considering it too is a repeat offender when it comes to inaction. As page 27 of the GAO report explains, an earlier GAO report (from 2011) detailed shortcomings with the FDIC’s prompt corrective action framework, the regulatory regime Congress enacted in 1991 to “address deficiencies at depository institutions and minimize losses to the Deposit Insurance Fund.”

To be fair, in 2013, the FDIC did address some of the concerns raised in the 2011 GAO report. Still, as explained on page 17, a separate GAO report in 2015 demonstrates that this kind of slow‐​to‐​act pattern has been around for a while. Specifically, the 2015 report notes that “although regulators often identified risky practices early in previous banking crises, the regulatory process was not always effective or timely in correcting the underlying problems before the banks failed.”

To its credit, the Fed’s report acknowledges similar supervisory mistakes at the Fed – as well as SVB’s board and management’s mistakes – leading up to SVB’s failure.

As the report explains, the Fed supervised the parent holding company of SVB as a “regional banking organization” for more than twenty years, and there were several long‐​standing problems, including those with SVBFG’s governance and controls, liquidity, and capital. Regarding the commercial bank itself, the report notes that “SVB’s foundational problems were widespread and well‐​known, yet core issues were not resolved, and stronger oversight was not put in place.”

In case there’s any doubt, the second page of the executive summary states that “SVBFG was a highly vulnerable firm in ways that both SVBFG’s board of directors and senior management and Federal Reserve supervisors did not fully appreciate.” These statements are quite revealing.

At best, these statements are an acknowledgement that the U.S. bank regulatory framework provides a false sense of security, and even the people with the most knowledge in the financial industry cannot possibly guarantee that things won’t go wrong. At worst, they’re a major condemnation of the regulatory system, particularly the Basel regime and the so‐​called enhanced supervision courtesy of the 2010 Dodd‐​Frank Act.

The Dodd‐​Frank regulations, of course, have been the source of a heated debate since SVB’s failure. That debate, as I wrote in March, hinges on whether Dodd‐​Frank provided sufficient protections against bank failures like the demise of SVB, and whether the Economic Growth, Regulatory Relief, and Consumer Protection Act (the Economic Growth Act) rolled back those protections. While it’s true that SVBFG would have been subject to several different requirements had Congress not passed the Economic Growth Act, it is not at all clear that those requirements would have prevented SVB’s failure.

More importantly, absent the Dodd‐​Frank Act, regulators had enormous discretion to impose restrictions and requirements on SVB itself – the bank, not the holding company – if they decided the bank was acting in an unsafe or unsound manner. The Fed could have escalated its enforcement actions in any number of ways to reduce the riskiness of SVB, but it failed to do so for many years.

The Fed was the regulator for SVB for more than twenty years, and the Trump appointed Vice Chair of Supervision, Randy Quarles, left the Fed in October 2021 after a four‐​year term. If Quarles’ tenure at the Fed created such a seismic “shift in culture and expectations” at the Fed, then the Fed should provide hard evidence, not self‐​serving hearsay.

Regardless, these issues are a distraction from the Fed’s supervisory failures and the failure of the regulatory framework itself. (The report claims that the “root cause” of the Fed’s delays around supervisory actions is “difficult to ascertain,” so maybe the Fed’s inspector general will be able to figure it out.) The Fed’s evaluation of the enhanced supervision regime, as created by Dodd‐​Frank and amended by the Economic Growth Act, provides multiple examples of the broad problems with the U.S. regulatory framework.

For instance, U.S. banking laws are preoccupied with regulating the holding company that owns a bank rather than the bank itself. The rules and regulations are beyond complex, and multiple federal regulators – including those at the Board of Governors, the district Fed banks, and the FDIC – have enormous discretion to implement and enforce those regulations. The framework depends on arbitrary cutoffs and ill‐​defined concepts. For all the complexity of the capital and liquidity rules, they still depend on subjective assessments and projections.

This last problem is clearly demonstrated in the report’s discussion of SVB and the liquidity coverage ratio (LCR). It is true, for instance, that SVB would have been subject to a higher LCR requirement, with more frequent reporting, had Congress not passed the Economic Growth Act. It is difficult to argue, however, that this change would have saved SVB.

For starters, the Fed’s own estimates (Table 13, page 88) suggest that SVB would have been incredibly close to the higher metric at the beginning of 2022. Other estimates suggest that SVB would have met the LCR requirements by the end of 2022 as well, but the discrepancy only further demonstrates the problem. Once major component of the LCR is the expected net cash flow, and there is no dispute that SVB failed when it experienced unprecedented outflows.

The other major component of the LCR is known as high quality liquid assets (HQLAs), and the idea is that the bank has to have enough HQLA to cover its expected cash outflows. Several items qualify as HQLAs, with some being deemed higher quality than others. The highest quality (Level 1) includes Treasury securities, the second highest quality (Level 2A) includes securities issued by government‐​sponsored enterprises, such as Fannie Mae and Freddie Mac, and the lowest quality (Level 2B) includes high grade corporate bonds.

Setting aside the question of how accurately anyone could estimate the bank’s cash flows, SVB could have met a higher LCR by shifting out of Fannie/​Freddie securities and into Treasuries. However, SVB ran into trouble because it had to sell securities at a loss after interest rates rose, so having long‐​term Treasuries really wouldn’t have mattered. One could argue regulators would have forced the bank to operate differently, but we already know, for a fact, that regulators were slow to act on any of the concerns they flagged at SVB. Given how unusual SVB’s business model was relative to other banks and how fast it was growing, it’s even more difficult to make that case.

There is no doubt the United States could use a major overhaul of its banking laws and regulations, but it doesn’t need more complexity or even more regulation. The overhaul should be based on exactly what Michael Barr, the Fed’s current vice chair for supervision, has called for on multiple occasions: humility. In other words, the system should be retooled based on the fact that nobody is particularly good at assessing and identifying new and emerging risks. The current system provides a false sense of security, and it’s long past the time to move in a different direction.

Norbert Michel

Last week, the Federal Reserve and the Government Accountability Office (GAO) both released reports on the large bank failures that occurred in March 2023. Both reports reveal serious shortcomings of the U.S. regulatory framework for banks.

The GAO report discusses the failures of both Silicon Valley Bank (SVB) and Signature Bank, institutions regulated at the federal level (primarily) by the Federal Reserve (Fed) and the Federal Deposit Insurance Corporation (FDIC), respectively. The Fed’s report deals exclusively with SVB and its parent holding company, Silicon Valley Bank Financial Group (SVBFG). Both reports make it clear that regulators were aware, for many years prior, of the problems that caused these banks to fail in 2023.

The very first page of the GAO report, for example, states that “In the 5 years prior to 2023, regulators identified concerns with Silicon Valley Bank and Signature Bank, but both banks were slow to mitigate the problems the regulators identified and regulators did not escalate supervisory actions in time to prevent the failures.” Regarding Signature, page 26 of the GAO report notes:

Although FDIC took some actions to escalate its supervisory actions in 2019 and 2020, its actions were inadequate given the bank’s longstanding liquidity and management deficiencies. Furthermore, FDIC lacked urgency despite Signature Bank’s repeated failures to remediate liquidity and management issues. [Emphasis added.]

The failure to act more forcefully with an individual bank that is a repeat offender is bad enough, but it’s even worse for the FDIC considering it too is a repeat offender when it comes to inaction. As page 27 of the GAO report explains, an earlier GAO report (from 2011) detailed shortcomings with the FDIC’s prompt corrective action framework, the regulatory regime Congress enacted in 1991 to “address deficiencies at depository institutions and minimize losses to the Deposit Insurance Fund.”

To be fair, in 2013, the FDIC did address some of the concerns raised in the 2011 GAO report. Still, as explained on page 17, a separate GAO report in 2015 demonstrates that this kind of slow‐​to‐​act pattern has been around for a while. Specifically, the 2015 report notes that “although regulators often identified risky practices early in previous banking crises, the regulatory process was not always effective or timely in correcting the underlying problems before the banks failed.”

To its credit, the Fed’s report acknowledges similar supervisory mistakes at the Fed – as well as SVB’s board and management’s mistakes – leading up to SVB’s failure.

As the report explains, the Fed supervised the parent holding company of SVB as a “regional banking organization” for more than twenty years, and there were several long‐​standing problems, including those with SVBFG’s governance and controls, liquidity, and capital. Regarding the commercial bank itself, the report notes that “SVB’s foundational problems were widespread and well‐​known, yet core issues were not resolved, and stronger oversight was not put in place.”

In case there’s any doubt, the second page of the executive summary states that “SVBFG was a highly vulnerable firm in ways that both SVBFG’s board of directors and senior management and Federal Reserve supervisors did not fully appreciate.” These statements are quite revealing.

At best, these statements are an acknowledgement that the U.S. bank regulatory framework provides a false sense of security, and even the people with the most knowledge in the financial industry cannot possibly guarantee that things won’t go wrong. At worst, they’re a major condemnation of the regulatory system, particularly the Basel regime and the so‐​called enhanced supervision courtesy of the 2010 Dodd‐​Frank Act.

The Dodd‐​Frank regulations, of course, have been the source of a heated debate since SVB’s failure. That debate, as I wrote in March, hinges on whether Dodd‐​Frank provided sufficient protections against bank failures like the demise of SVB, and whether the Economic Growth, Regulatory Relief, and Consumer Protection Act (the Economic Growth Act) rolled back those protections. While it’s true that SVBFG would have been subject to several different requirements had Congress not passed the Economic Growth Act, it is not at all clear that those requirements would have prevented SVB’s failure.

More importantly, absent the Dodd‐​Frank Act, regulators had enormous discretion to impose restrictions and requirements on SVB itself – the bank, not the holding company – if they decided the bank was acting in an unsafe or unsound manner. The Fed could have escalated its enforcement actions in any number of ways to reduce the riskiness of SVB, but it failed to do so for many years.

The Fed was the regulator for SVB for more than twenty years, and the Trump appointed Vice Chair of Supervision, Randy Quarles, left the Fed in October 2021 after a four‐​year term. If Quarles’ tenure at the Fed created such a seismic “shift in culture and expectations” at the Fed, then the Fed should provide hard evidence, not self‐​serving hearsay.

Regardless, these issues are a distraction from the Fed’s supervisory failures and the failure of the regulatory framework itself. (The report claims that the “root cause” of the Fed’s delays around supervisory actions is “difficult to ascertain,” so maybe the Fed’s inspector general will be able to figure it out.) The Fed’s evaluation of the enhanced supervision regime, as created by Dodd‐​Frank and amended by the Economic Growth Act, provides multiple examples of the broad problems with the U.S. regulatory framework.

For instance, U.S. banking laws are preoccupied with regulating the holding company that owns a bank rather than the bank itself. The rules and regulations are beyond complex, and multiple federal regulators – including those at the Board of Governors, the district Fed banks, and the FDIC – have enormous discretion to implement and enforce those regulations. The framework depends on arbitrary cutoffs and ill‐​defined concepts. For all the complexity of the capital and liquidity rules, they still depend on subjective assessments and projections.

This last problem is clearly demonstrated in the report’s discussion of SVB and the liquidity coverage ratio (LCR). It is true, for instance, that SVB would have been subject to a higher LCR requirement, with more frequent reporting, had Congress not passed the Economic Growth Act. It is difficult to argue, however, that this change would have saved SVB.

For starters, the Fed’s own estimates (Table 13, page 88) suggest that SVB would have been incredibly close to the higher metric at the beginning of 2022. Other estimates suggest that SVB would have met the LCR requirements by the end of 2022 as well, but the discrepancy only further demonstrates the problem. Once major component of the LCR is the expected net cash flow, and there is no dispute that SVB failed when it experienced unprecedented outflows.

The other major component of the LCR is known as high quality liquid assets (HQLAs), and the idea is that the bank has to have enough HQLA to cover its expected cash outflows. Several items qualify as HQLAs, with some being deemed higher quality than others. The highest quality (Level 1) includes Treasury securities, the second highest quality (Level 2A) includes securities issued by government‐​sponsored enterprises, such as Fannie Mae and Freddie Mac, and the lowest quality (Level 2B) includes high grade corporate bonds.

Setting aside the question of how accurately anyone could estimate the bank’s cash flows, SVB could have met a higher LCR by shifting out of Fannie/​Freddie securities and into Treasuries. However, SVB ran into trouble because it had to sell securities at a loss after interest rates rose, so having long‐​term Treasuries really wouldn’t have mattered. One could argue regulators would have forced the bank to operate differently, but we already know, for a fact, that regulators were slow to act on any of the concerns they flagged at SVB. Given how unusual SVB’s business model was relative to other banks and how fast it was growing, it’s even more difficult to make that case.

There is no doubt the United States could use a major overhaul of its banking laws and regulations, but it doesn’t need more complexity or even more regulation. The overhaul should be based on exactly what Michael Barr, the Fed’s current vice chair for supervision, has called for on multiple occasions: humility. In other words, the system should be retooled based on the fact that nobody is particularly good at assessing and identifying new and emerging risks. The current system provides a false sense of security, and it’s long past the time to move in a different direction.

Patrick G. Eddington

This coming May 25 will mark three years since the murder of George Floyd by then‐​Minneapolis police officer Derek Chauvin. That event sparked some of the largest political street protests since the Vietnam War era. In both cases, the federal government’s reaction was to increase domestic surveillance targeting the protesters. This time, however, two federal entities that did not exist during the 1960s protests were key players in responding to the national outcry over Floyd’s murder: the Drug Enforcement Administration (DEA) and the Department of Homeland Security (DHS).

The public learned about the DEA’s role in the surveillance operation in June 2020 via the now‐​defunct Buzzfeed News:

The Drug Enforcement Administration has been granted sweeping new authority to “conduct covert surveillance” and collect intelligence on people participating in protests over the police killing of George Floyd, according to a two‐​page memorandum obtained by BuzzFeed News.

The authority in question, 21 U.S.C. § 878(a)(5), allows DEA agents to “perform such other law enforcement duties as the Attorney General may designate.” In this case “other law enforcement duties” clearly included surveillance and possibly other operations designed to monitor or even infiltrate groups protesting Floyd’s murder. That authority was supposed to have expired later in June 2020, but neither the AG’s office or the DEA have ever revealed whether the additional powers granted to DEA lapsed or were extended.

Almost a year after Buzzfeed News broke the DEA surveillance story, Gizmodo noted a DHS component, Customs and Border Protection (CBP) had employed Predator drone surveillance against protesters:

The incident inspired a debate about federal policing tactics and spurred some lawmakers to send letters to agencies demanding additional information about their practices. Amazingly, the CBP director at the time claimed the drones were not being used for spying but were instead merely “providing assistance to state and local [officials] so they could make sure that their cities and their towns were protected.”

The work by Buzzfeed and Gizmodo helped to highlight the roles of DEA and CBP in protest‐​related surveillance, but many questions about the scope, duration, and effects of that surveillance (and possibly other counterprotest actions) remain unanswered. This week, Cato took a step towards getting those answers by filing Freedom of Information Act (FOIA) lawsuits against DEA and CBP–both of which have stonewalled Cato’s FOIA requests for nearly three years. We expect a fight from both agencies to keep as many of those records as possible secret, and we’ll provide updates on these cases as they occur.

Paul Matzko

Dr. Muhil Ravichandran has a PharmD from Rutgers University and works in cancer research. She has lived legally in America for almost her entire life and is a model immigrant. Yet because of America’s broken immigration system, she’s going to be forced to leave her home and take her much‐​needed talents elsewhere.

Ravichandran legally moved to the USA with her family when she was two years old, but when she became an adult she was no longer covered by her family’s legal status. While in college she qualified for a student visa, but upon graduation she was forced to fall back on the vagaries of the green card system.

There are categories of green cards for those with advanced degrees that she could have applied under, yet the wait period for those with Indian citizenship is measured in multiple years, decades, or even—as David Bier once calculated—more than a century. Ravichandran didn’t have 151 years (!) to wait post‐​degree.

So she got an oncology job and her employer put her name in the H‑1B visa lottery, a highly competitive sponsored category. But last year there were ~484,000 applications for only 85,000 H‑1B slots, meaning that Ravichandran’s chance of success was roughly 18%. Unfortunately, she was one of the 82% who were rejected.

That means she will likely lose her job, have to move out of the U.S. and away from her immediate family, go to a country where she wasn’t raised, and apply again in the future. If she applies under another category, like EB‑3, she might make it back in 17 years give or take. But at that point, the odds will have increased that she’ll already have put down roots in another, more serious country that isn’t so determined to shoot itself in the foot. She’ll stop applying and the U.S. will be worse off as a result.

The sheer unnecessity of it all drives me crazy. Ravichandran is going to go through substantial personal trauma for what? In what conceivable universe is not allowing her to reside in the U.S. in our national best interest??

Imagine if we found out that a terrorist state, say North Korea, was kidnapping cancer scientists—it’s a less fantastical scenario than you might think—from America to burnish its medical science capabilities. We’d be outraged! It would be a clear blow to our national self‐​interest to allow another nation to pilfer our top researchers. We’d might go to war over such an act, charge those who aid and abet the kidnappings with treason, and so on.

Yet America’s policymakers are doing that *themselves*! We’re forcing top scientists, medical researchers, and entrepreneurs to leave by the hundreds of thousands every year. It’s insanity! We should be begging Ravichandran to stay, not making her pray not to have to leave.

And it’s not just a zero sum transfer. American research clusters are among the best in the world. Our researchers have better access to capital than elsewhere. We’re the global leader in biomedical research because we still, for now at least, attract top global talent and investment. The simple truth is that Ravichandran is less likely to be as productive working in an Indian lab as in an American one. That’s a deadweight loss for humanity.

We already dodged one such bullet with vaccine research. Katalin Kariko, the mother of mRNA vaccine technology, was nearly forced out of the U.S. twice: once because of hangups with a spousal visa for her husband, and a second time because of how easy it was for an angry boss to use employment visa restrictions to punish her for leaving his lab. Just think of the deadweight loss that humanity would have suffered if Katalin hadn’t developed mRNA technology to the point of commercial application, hadn’t had access to the American venture capital needed to start up BioNTech, and thus hadn’t played a vital role in the development of mRNA COVID-19 vaccines. In an only slightly alternate universe, Katalin Kariko is forced back to Hungary by dumb U.S. immigration policies, a change that leads to thousands or even millions more lives lost in the pandemic. Usually “deadweight loss” isn’t quite so literal…

And with Ravichandran, we’re talking about cancer research. Right now we are making incredible strides with cancer vaccines and treatments coming down the pipeline—melanoma! lung! breast! glioblastoma! prostate! colorectal!—but the biggest bottleneck (other than the FDA) is the lack of researchers. Excluding people like Ravichandran forces American companies to conduct fewer cancer studies at higher expense and on a longer timescale than otherwise would be the case. Which means that people will unnecessarily die from cancer because we were months, years, or decades slower to do the research that could have saved them.

What should we do? The most obvious reform is to systematically raise the H‑1B visa cap, as Cato has long advocated. That’s what other countries are currently doing to take advantage of American immigration idiocy in order to poach talent. Canada created a new, more flexible variation on the employment visa while also generally liberalizing its immigration laws, and it’s already been a boon to Toronto’s burgeoning “Maple Valley.” Our national failure is their great gain.

This content was crossposted from the author’s Substack.

Marc Joffe

College enrollment has been shrinking, putting pressure on institutions below the elite tier. Although most attention has focused on failures of for‐​profit colleges and smaller private liberal arts schools, public colleges are not immune from distress. Community college enrollment has been especially weak. A review of federal Integrated Postsecondary Education Data System (IPEDS) data from 2011 and 2021 shows that several community colleges have suffered catastrophic enrollment declines over the ten‐​year period. These institutions may be candidates for consolidation, which would save taxpayer money.

Nationally, total enrollment at two‐​year public colleges fell 36 percent from 7.0 million to 4.5 million over the ten years ending Fall 2021. But many community colleges have resisted the downtrend. Enrollment at Cape Fear Community College in Wilmington, NC rose 41% to 13,059 full and part‐​time students according to the IPEDS data. Other community colleges seeing double digit enrollment increases included St. Philip’s College and Palo Alto College in San Antonio, TX and the College of Western Idaho in Nampa, ID. All these institutions benefit from being in regions experiencing strong population growth.

At the other end of the spectrum, over a dozen community colleges experienced ten‐​year enrollment declines of 60 percent or more. These are listed in the accompanying table.

Some, but not all these institutions, are showing signs of fiscal distress. Cayuga Community College in Auburn, NY reported a net negative position of $12 million on its 2021 audited financial statements (a negative net position typically arises when liabilities exceed assets). Operating expenses of $31 million dwarfed operating revenues of $8 million, and the college only avoided an overall net loss by virtue of federal COVID-19 emergency funding which has now been discontinued.

The college serves a county in upstate New York that has been experiencing population decline since before the 2000 Census, with residents now numbering only 75,000 in 2022. As long as Cayuga County and its neighbors do not see the arrival of a new cohort of young adults, it is hard to see how the institution can become financially viable. As management stated in its latest financial report:

The College’s student population is directly influenced by the demographics of New York State and Central New York in particular. Student tuition and fees and State appropriations are both directly related to student enrollment. The College’s operational viability is substantially dependent upon a consistent level of student tuition and fees and State appropriations. While the College’s short‐​term financial position has improved as a result of the Higher Education Emergency Relief (HEERF) funding received, this funding cannot be relied on to ensure long‐​term sustainability.

Management went on to note that it is addressing the problem by adding programs such as a Culinary Institute. Another option worth considering would be merging with another institution and shedding duplicative costs. Onondaga Community College, 20‐​miles away, has lost 40% of its students in the ten years ending in 2021, and thus should have room for Cayuga students.

Although it has lost a larger proportion of its student body, Central Texas Community College has yet to experience the fiscal distress evident at Cayuga Community College. As of FY 2022, the college had a positive net position of $156 million and, while it experienced a large operating loss, the ratio of operating revenues to expenses was much healthier than that of its upstate New York counterpart.

The college is also emphasizing fiscal responsibility. As it states in its financial report:

In order to fulfill the college’s mission and commitment to our students’ success in a fiscally responsible manner, we have and will continue to make critical financial decisions for the preservation of resources needed to meet our students’ evolving needs. The administration is continuously reviewing programs and campuses for their viability. This evaluation has resulted in the decision not to bid the follow‐​on military Tri‐​Services (Vo‐​Tech) and Small Arms Maintenance Military Occupational Specialties (MOS) contracts, effectively ending our operations in Europe as well as closing several continental sites… [I]n 2023 we will continue to critically examine program offerings in concert with industry needs to ensure we are providing credentials that lead to successful careers for our students.

Unless shrinking colleges rein in their fixed and administrative costs, they cannot provide good value for money on a per student basis. For example, the two Ohio community colleges on the list, Belmont College and Hocking Technical College, reported costs per full‐​time equivalent student of over $18,000 compared to the statewide median of $13,000.

Given both demographic factors and an increasing tendency of employers to drop college degree requirements, America’s need for community college education appears to be well past its peak. While some institutions are still thriving in this tougher environment, others may no longer be cost‐​effective. Rather than further subsidizing community colleges through free tuition and other programs, state and local policymakers should instead be looking for opportunities to right‐​size and consolidate these schools. And voters should be very skeptical if their local community college district places a new bond measure on the local ballot. They may be funding educational infrastructure that will not be fully utilized.

Nicholas Anthony

Last week’s inaugural Bitcoin Policy Summit covered everything from Bitcoin’s energy use to the state of regulatory clarity. On a panel that could have been an entire conference on its own, I had the honor of speaking alongside Sam Abbassi, Thomas Hogan, Amena Ross, and David Spencer on how legislation is affecting Bitcoin. My focus was on the Infrastructure Act—an issue that spurred a wave of opposition and yet has largely been forgotten in the 18 months since its passage.

With that in mind, I wanted to take a moment to feature the problems with the Infrastructure Act that I discussed at the summit: namely, the problems with the broker definition and 6050I transaction reporting. Unfortunately, it’s no exaggeration to say that these two provisions amount to a de facto ban on cryptocurrency mining and what’s likely an unconstitutional level of financial surveillance.

The Broker Definition

The piece of the Infrastructure Act that caught the most attention in the fall of 2021 was the change to the “broker definition,” or 26 U.S. Code § 6045. In short, the change defined, for the first time, cryptocurrency miners and even software developers as brokers under the law. Beginning in 2024, the law will require said “brokers” to report the name and address of each person, or “customer,” they interact with.

As Senator Ted Cruz (R‑TX) rightly warned at the Bitcoin Policy Summit, “If the Treasury enforces that language vigorously, it has the potential to wreak utter havoc for Bitcoin and crypto writ large.” The problem is that this provision is essentially a prohibition on cryptocurrency mining in the United States because it requires miners to report information that they simply do not have access to. By creating a standard that is impossible to comply with, it effectively says miners and developers are not welcome in the United States.

6050I Transaction Reporting

The Infrastructure Act also included a change to 26 U.S. Code § 6050I that will require anyone engaged in a business transaction of $10,000 or more in cryptocurrency to report the transaction to the Internal Revenue Service (IRS). The report must include the name and address of the payer, as well as their taxpayer identification number, the amount paid, the date, and the nature of the transaction. Failure to file a report within 15 days, reporting incorrect information, or filing a report with missing information may result in a $25,000 fine or five years in prison.

This level of mandatory reporting is arguably a violation of the Fourth Amendment, considering it requires two individuals to report each other’s private information to the federal government. To make matters worse, the law is also likely a violation of the First Amendment, considering it will force politically active organizations (e.g., think tanks and charities) to create and report lists of their donors. In fact, it’s for both of these reasons that Coin Center currently has an ongoing lawsuit against the Treasury Department.

Adding Insult to Injury

My fellow panelist at the Bitcoin Policy Summit, David Spencer, described the reality of the situation well when he said, “If the rules don’t make sense[,] if I have to give you information that does not exist[, and] if the rules are impossible to abide by, that’s a problem.” And he went further to say it almost seems as if “nobody has thought about what it’s actually going to take to make this happen.” In fact, this sentiment was echoed earlier in the summit when Senator Cruz described the cryptocurrency provisions as something that “was put into the bill with very few people having any awareness of what they were doing [or] what the consequences would be.” Unfortunately, neither Spencer nor Senator Cruz was exaggerating. Considering the tax revenue projections of the law have since been revised down significantly and the law itself failed to account for other portions of the U.S. code, it seems that there was little thought behind the provisions.

Originally, the Joint Committee on Taxation (JCT) estimated that the provisions would yield over $27 billion in new tax revenue over the next ten years. It was this estimate that made the provisions so hard to remove, considering Congress desperately needed tax revenue to offset the spending in the Infrastructure Act.

The problem is that this estimate appears to have been pulled out of thin air. I originally had many objections that I brought to the JCT in 2021. For example, it made little sense to argue that the law would increase tax revenue while simultaneously setting a de facto ban on some of the legal activities it plans to tax. However, it wasn’t until 2022 (after the law was passed) that the federal government appeared to have addressed those objections. In stark contrast to the JCT’s $27 billion prediction, the White House estimated that only $2 billion would be received from cryptocurrency tax revenue over the same ten‐​year period (Figure 1). In other words, the Biden administration revised the estimated tax revenue down to just 10 percent of the JCT’s original projection.

To make matters worse, Abraham Sutherland has pointed out that the policymakers that drafted the cryptocurrency provisions failed to recognize that 26 U.S. Code § 6050I has a companion law in 31 U.S. Code § 5331—a similar reporting requirement under the Bank Secrecy Act. Without any update to the Bank Secrecy Act’s reporting, it’s unclear how the reporting requirements are actually going to function in practice because there will be two conflicting reporting requirements. Setting aside whether the omission was out of ignorance or an attempt to slip the provisions through without notice, the clash in the law should have been addressed by lawmakers before the law was enacted.

Looking Forward

The IRS’s decision to put the reporting requirements on hold until 2024 was a wise one. However, Congress, the cryptocurrency industry, and the broader public should not mistake this reprieve for a solution to the underlying problem. The reporting requirements are unjustified and likely even unconstitutional, but they are very much alive.

Luckily, fixing the issue is not a matter of starting from scratch, and there even seems to be bipartisan support in the Senate. Senator Cruz reintroduced his bill to fully repeal both of the cryptocurrency provisions in the Infrastructure Act. In the House, Representatives Patrick McHenry (R‑NC) and Ritchie Torres (D‑NY) reintroduced the Keep Innovation in America Act to redefine the broker definition to exclude miners and developers, repeal the 6050I reporting requirement, and require the Department of the Treasury to conduct a study of the effect of implementing the 6050I reporting requirement.

While there’s room for debate on both approaches, let’s just hope a decision can be made before the two‐​year anniversary of the law on November 15, 2023, or before the reporting requirements officially go into effect on January 1, 2024.

Further Reading:

The Infrastructure Investment and Jobs Act’s Attack on Crypto: Questioning the Rationale for the Cryptocurrency Provisions, November 15, 2021
New Legislation May Fix Cryptocurrency Provisions, November 19, 2021
Can Taxing Cryptocurrencies Really Add $28 Billion to the Budget?, December 22, 2021
Biden’s Budget Calls Infrastructure Act’s Crypto Taxes into Question, March 29, 2022
Cryptocurrency in the Shadow of the Infrastructure Act: An Update, June 13, 2022
Infrastructure Act’s Cryptocurrency Reporting on Hold, Says IRS, January 4, 2023

Thomas A. Berry

The Constitution requires, as a default rule, that “Officers of the United States” must be nominated by the president and confirmed by the Senate. The Constitution allows only one potential exception to this default rule: If an officer is merely an “inferior officer,” Congress may waive Senate consent. But even if an officer is inferior, Congress is limited to only three choices for who may appoint that officer: “the President alone,” “the Heads of Departments,” and “the Courts of Law.”

The Federal Vacancies Reform Act (FVRA) is one such statute that vests appointments in “the President alone.” Specifically, it grants the president authority to unilaterally appoint temporary, time‐​limited “acting officers” to fill vacancies in positions that normally require Senate consent.

When President Trump took office in January 2017, the acting commissioner of the Social Security Administration (SSA) resigned. A new acting commissioner, Nancy Berryhill, then purportedly took office. But President Trump did not select Berryhill to be acting commissioner. Rather, Berryhill was elevated pursuant to a Succession Order issued by outgoing President Obama the previous month, which named and ranked positions (not people) within SSA to fill potential future vacancies in the office of commissioner.

Plaintiff Brian Dahle later challenged an action that Berryhill took as acting commissioner, arguing that Berryhill was not validly serving under the terms of the FVRA when she took the action. Although a district court ruled in Dahle’s favor, a panel of the U.S. Court of Appeals for the Eighth Circuit reversed. The panel rejected Dahle’s statutory arguments, holding that Berryhill was validly appointed by former President Obama as acting commissioner under the terms of the Succession Order. The panel held that even though Obama was not the president when Berryhill was elevated, “presidential orders without specific time limitations carry over from administration to administration” and “a new president does not have to take affirmative action to keep existing orders in place.”

Dahle is now petitioning for rehearing by either the panel or the full Eighth Circuit, and the Cato Institute has filed an amicus brief supporting that petition. In the brief, we point out that the panel’s statutory holding raises a serious constitutional problem: Berryhill’s elevation via Succession Order was not an “appointment” under the meaning of the Constitution.

In The Federalist Papers, Alexander Hamilton explained that because the president alone would be responsible for choosing nominees, “The blame of a bad nomination would fall upon the President singly and absolutely.” But if an appointment is made by contingency order rather than by name, then the accountability mandated by the Appointments Clause vanishes. The people cannot blame President Obama for Berryhill’s performance, because Obama did not choose Berryhill for the position. Indeed, the people cannot blame any single person for Berryhill’s accession to the position of acting commissioner, because her accession resulted from the combined actions and inactions of no fewer than four people. That is precisely the diffusion of accountability that the Appointments Clause forbids.

The Eighth Circuit should grant rehearing to reconsider its decision in light of the Appointments Clause. When there is no clear line of accountability for a nomination, political accountability suffers. Requiring the president to take accountability for federal officers by actually naming those officers is not too much to ask.

Colin Grabow and Alfredo Carrillo Obregon

In February of last year, the tanker Catalunya Spirit berthed next to a power plant on Puerto Rico’s southern coast and began discharging its cargo of liquefied natural gas (LNG). That’s not unusual. LNG tankers regularly arrive in Puerto Rico to provide the natural gas used to generate over 40 percent of the territory’s electricity. What is unusual, however, is where the Catalunya Spirit’s cargo originated: Russia. The same month that tensions were ratcheting up with Moscow over its aggression toward Ukraine—culminating with its February 24th invasion­­—Puerto Rico was importing $29 million worth of Russian gas.

Leaving geopolitical optics aside, the sourcing decision appears puzzling from both a geographic and efficiency perspective. Why would the island import natural gas that originated in distant Russia rather than the much closer U.S. mainland—one of the world’s top exporters of LNG?

A large part of the answer almost certainly lies in U.S. maritime protectionism.

Passed in 1920, the Jones Act restricts domestic waterborne transportation to vessels that are U.S.-flagged, constructed in U.S. shipyards, and mostly U.S. owned and crewed. But of the world’s more than 640 LNG tankers, zero comply with the law. The cost and difficulty of building one in the United States and then operating it under the U.S. flag does not make economic sense. As a result, while U.S. LNG has been transported by tankers to 39 countries since 2016, sending it to Puerto Rico—or any other part of the United States—remains an impossibility.

This means Puerto Rico must purchase its LNG from abroad. Last year LNG tankers arrived at the island from Trinidad and Tobago, Brazil, Nigeria, Oman, and Spain (while the Catalunya Spirit’s gas originated in Russia, the LNG was loaded in Spain. Interestingly, Spain was the third‐​largest destination for U.S. LNG exports in February 2022, meaning LNG tankers laden with U.S. LNG destined for Spain may have crossed paths with the Catalunya Spirit headed in the opposite direction).

Last year wasn’t Puerto Rico’s first purchase of Russian LNG either. In February 2019 the LNG tanker La Mancha Knutsen delivered $25 million worth of Russian gas from France to Puerto Rico, while in October of that year the Catalunya Spirit transported $26 million worth of Russian gas to the island from Belgium. Altogether, from 2019–2022 Puerto Rico purchased over $80 million in Russian gas.

Here’s a look at where Puerto Rico obtained its LNG supplies from 2017–2021 (note that while one of the sources used to create this chart, the International Group of Liquefied Natural Gas Importers, shows Russian LNG accounting for 4.26 percent of imports by volume in 2019, the Puerto Rico Institute of Statistics places the figure at 8.14 percent):

In contrast, neighboring Dominican Republic and Jamaica met none of their LNG needs with Russian gas during that time. Indeed, unlike Puerto Rico much of their LNG was purchased from the United States. Such outcomes are difficult to explain without the Jones Act.

But the law’s role in encouraging the use of Russian energy goes beyond LNG. In terms of petroleum oils, Puerto Rico also showed a greater preference for those from Russia than the United States. The Dominican Republic, meanwhile, imported far less from Russia—and significantly more from the U.S. mainland—than Puerto Rico (sufficiently granular data was not available for Jamaica).

Puerto Rico’s minimal use of American energy is even acknowledged by Jones Act supporters. In March the president of the American Maritime Officers union admitted that “fuel cargoes delivered routinely to Puerto Rico are not typically sourced in the [United States].”

Let’s not make the mistake, however, of thinking the Jones Act’s role in tilting the playing field in favor of Russian energy imports is unique to Puerto Rico. Prior to the imposition of a March 2022 import ban, the Philadelphia Inquirer noted that a local refinery was among the country’s biggest consumers of Russian oil. The newspaper pointed out that, while similar grades of crude were available from U.S. sources, “it costs more to transport domestic crude by rail or American‐​flagged ships to Northeastern refineries.”

California refineries were also importing Russian crude prior to the ban. According to Susan Grissom of the American Fuel and Petrochemical Manufacturers trade association, this turn to the international market instead of domestic sources was attributable to “a lack of pipeline and rail transportation options and cost‐​prohibitive Jones Act shipping requirements.”

Reliance on Russian energy even continues today given the importation of fuels from Indian refineries using Russian oil.

Such outcomes make a mockery of claims from Jones Act supporters that the law ensures the country’s economic security. More accurately, the law is best understood as a form of self‐​sabotage that disrupts domestic commerce and imposes higher costs on American businesses and consumers.

The Jones Act is perhaps the foremost example of Henry George’s dictum that “What protection teaches us, is to do to ourselves in time of peace what enemies seek to do to us in time of war.” Those seeking to undermine the United States would be hard‐​pressed to find a better approach than hamstringing Americans’ ability to move critical supplies—including energy products—within the country. Thanks to the Jones Act, they don’t have to lift a finger.

Peter Van Doren

The Environmental Protection Agency (EPA) recently announced proposed emission standards that would mandate a large increase in the sale of new zero‐​emission vehicles from model years 2027 through 2032. Compliance with the proposed rule is estimated to require 67 percent of new vehicles to be electric in 2032 compared to 5.8 percent in 2022. Informed analysts claim that the rule is extremely ambitious: “The new rule will effectively try to shove electric vehicles down the throats of the public at a faster rate than it has shown a willingness to swallow them.” The Energy Information Administration in its 2023 Annual Energy Outlook (Figure 10) would seem to confirm the ambitious nature of the proposed rule, projecting electric vehicles sales of around 15 percent in the early 2030s and still under 20 percent by 2050.

But the unrealistic nature of the proposal is actually a persistent characteristic of environmental policy. So persistent, in fact, that Charles Jones used the phrase “policy beyond capability” in a 1975 book (chapters 7–8). Alan Altshuler in a 1979 book (p. 73) elaborated: “There was a widespread view in 1970 that the manufacturers could do virtually anything if simply told they had to.”

The history of environmental regulation consists of ambitious unrealistic goals followed by missed deadlines and lack of enforcement. The most ambitious unrealistic goal was the California legislative proposal in 1970 to ban the internal combustion engine by 1975. The California State Senate approved the bill while floor consideration in the Assembly failed by one vote. The 1970 national Clean Air Act required ambient air quality standards be achieved by 1975. The deadlines were extended many times (pp. 237–238). By 2005, of the 338 deadlines set by the Clean Air Act Amendments of 1990 only 37 had been met by the deadline (Table 2) specified in the statute.

This pattern has been described (pp. 239–240) as “Institutionalized Nonattainment.” As of March 2022, 15 counties with a population of 20,941,659 are in nonattainment of the 2012 annual standard for particulate matter (PM2.5). For pollutants other than PM2.5,37 states, districts, and territories have nonattainment counties with a total population of 131,418,000. Finally, as of 2016 over half of U.S. river and stream miles violate water quality standards.

If agencies attempt to implement unrealistic policies Congress often retreats quietly. It enacts legislative language to the monies appropriated for the Departments that restricts their ability to implement unrealistic regulations. To implement the 1970 Clean Air Act requirements the EPA proposed parking surcharges and parking space reductions. Congress responded in 1974 with a ban on use of any EPA funds to regulate parking (Altshuler pp. 78–79).

Under rare circumstances unrealistic policies proceed far enough to alienate voters and receive direct congressional attention. 1974 model year automobiles were required to have electronics that prevented automobiles from being started unless the seatbelts were in use. Motorists revolted and in October 1974 Congress enacted (pp. 180–81) legislation (pp. 21, 42–43) prohibiting the use of that technology or any seat belt warning buzzer that sounded for more than eight seconds.

Environmental policy has these characteristics because it has a large theological component. Saving the planet is different from bargaining over the Library of Congress Budget: “the emissions of greenhouse gases from Interior Department lands (about 20 percent of the United States) were ‘playing God’ with the Earth’s climate.”

So, the Biden EPA proposal is probably unrealistic. But environmental policy proposals have always been unrealistic. The retreat from unrealism will probably be quiet. But if motorists can’t buy the cars they want, the retreat will be visible and rapid.