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Walter Olson

When the Supreme Court ruled 6–3 this June in 303 Creative LLC v. Elenis that Colorado could not force a website designer to create a customized client website that ran contrary to her personal beliefs, a wave of public criticism mounted almost at once that took many of us by surprise.

The criticism concerned not the merits of the ruling but its procedural underpinnings, and in particular Lorie Smith’s having been allowed into court at all to challenge the law.

To quote Neil Gorsuch’s majority opinion, Smith was “worried” that Colorado would penalize her over her speech, but (critics said) the state hadn’t taken any enforcement action against her yet, nor had she even had to turn away any business. Instead, she couched her action as what First Amendment lawyers call a pre‐​enforcement challenge. This made it, the critics said, not a real case or controversy, but maybe a “fake case,” a “made‐​up case.”

Such talk dominated much of the early popular discussion of the case. And yet courts have long accepted pre‐​enforcement challenges to restrictions on speech, as an exception to their usual refusal to entertain challenges to prohibitions until charges have been filed. The reasoning is that even a not‐​yet‐​enforced law banning expression may quite effectively chill someone’s speech, to the point that there might be no one left speaking to provide a court challenge.

In the 303 Creative case, all the appellate‐​level judges to hear the case, including the Supreme Court dissenters led by Justice Sonia Sotomayor, accepted that Smith had established the “credible threat” of enforcement needed to get into court under this test, even as they went on to divide on the merits of her case.

In a Cato Daily Podcast shortly thereafter with Caleb Brown, I noted the historical paradox involved in this kind of standing’s coming under fire from commentators on the legal left (passage starts around 2:40):

Now, ironically, of course, the development of pre‐​enforcement challenges … to prevent government violations of speech rights was something developed in large part by progressives, to the applause of groups that didn’t want to put [holders of] unpopular views in the position of “you have to risk going to jail before you find out how the courts rule on the law.…

If for some reason the courts listened and did away with, or sharply limited, pre‐​enforcement challenges, it is progressive objectives that would suffer most.

On this subject, I recommend as both thorough and useful a forthcoming article by Richard Re of the University of Virginia School of Law that he has excerpted in several posts at the Volokh Conspiracy. He makes a few simple points about the case at hand before drawing out some implications:

Smith’s standing was a straightforward application of current doctrine regarding pre‐​enforcement standing, especially since Colorado essentially stipulated that Smith was right in perceiving a credible threat of enforcement against her speech. Nor is it surprising that justices like Sotomayor declined to pursue the standing angle. Contrary to implications from quarters like Vox, Slate, The New Republic, and Sen. Sheldon Whitehouse (D‑R.I.), “there is no procedural scandal here.”
Nonetheless, the case stands as one of multiple data points — others include the student loan case and the U.S. v. Texas immigration case — suggesting that narrow views of standing might increasingly hold appeal for progressive legal advocates as a way of fending off challenges to the merits of government action. “Already, Justice Alito may be a more likely vote for standing than, say, Justice Kagan. However, most of the conservatives still tend to enforce vigorous standing rules.” (More from Clark Neily on standing here.)
That, in turn, is part of yet a wider pattern, including issues that might seem a bit farther afield, such as the degree of deference courts should accord government actors. Many of these are subject to recurrent ideological cycles that depend, at least in part, on perceptions of which “side” has the upper hand in the courts (and among executive‐​branch government actors).

However these wider trends may play out, the result in 303 Creative suggests that the First Amendment still looms large enough in the thinking of senior judges that they aren’t actively looking for ways to foil pre‐​enforcement vindication of speech rights, even if doing so might please some voices on the outside. Let’s be glad of that.

Jeffrey A. Singer

The District of Columbia Department of Health recently posted a message on “X” to get residents to abandon nicotine e‑cigarettes. The message stated,

1 Vape = 20 cigarettes. #dontbe1 #staysafe #vapefree

One #vape pod contains 20 cigarettes worth of nicotine. Call 800-QUITNOW (800–784-8669) to get help quitting. #dontbe1 #staysafe #vapefree

The people over at the DC Department of Health should have read the results of comprehensive research and analysis published by the UK Government Office for Health Improvement and Disparities, released one year ago, which came to the following conclusions:

Based on the evidence that the team reviewed, the conclusions were that:

in the short and medium term, vaping poses a small fraction of the risks of smoking
vaping is not risk‐​free, particularly for people who have never smoked
evidence is mostly limited to short‐ and medium‐​term effects and studies assessing longer‐​term vaping (for more than 12 months) are necessary
more standardised and consistent methodologies in future studies would improve interpretation of the evidence

Biomarkers of toxicant exposure are measurements of potentially harmful substance levels in the body. The evidence reviewed suggests there is:

significantly lower exposure to harmful substances from vaping compared with smoking, as shown by biomarkers associated with the risk of cancer, respiratory and cardiovascular conditions
similar or higher exposure to harmful substances from vaping compared with not using nicotine products
no significant increase of toxicant biomarkers after short‐​term secondhand exposure to vaping among people who do not smoke or vape

If DC’s public health officials are worried about teens taking up vaping, they should read this study by researchers at Brown and Harvard Universities, using data from 2009–2018, which concluded:

Among nonsmoking youth, vaping is largely concentrated among those who would have likely smoked prior to the introduction of e‑cigarettes, and the introduction of e‑cigarettes has coincided with an acceleration in the decline in youth smoking rates. E‑cigarettes may be an essential tool for population‐​level harm reduction, even considering their impact on youth.

Anti‐​vaping zealots fixate on the nicotine in e‑cigarettes. Nicotine is the addictive component of tobacco smoke. However, it is one of the least harmful components of tobacco smoke. It is a relatively safe stimulant.

Like caffeine, nicotine is a stimulant that improves focus. Unlike caffeine, nicotine increases the production of beta‐​endorphins that relieve anxiety, which may explain why some tobacco smokers light up when they want to calm down. Furthermore, research suggests nicotine might reduce the incidence of Parkinson’s Disease and has stimulated research into its potential therapeutic applications for this affliction. It also may be potentially helpful to treat depression, Tourette’s Syndrome, and Alzheimer’s’ Disease. And, as with caffeine, one can ingest toxic levels of the drug.

Recent studies suggest that nicotine normalizes cognitive deficits, called “hypofrontality,” in people with schizophrenia. There is evidence that nicotine improves short‐​term memory in schizophrenic patients. Nicotine’s beneficial effects on schizophrenia have led many researchers to suspect that people with this disease are self‐​medicating.

Public health agencies have no problem recommending people replace tobacco smoke with nicotine patches or chewing gum. Yet they have a seemingly visceral dislike for replacing tobacco smoking with nicotine e‑cigarettes, even though recent research, including this Cochrane study, suggests nicotine e‑cigarettes are more effective than patches or gum. Perhaps it’s because the act of vaping too closely resembles smoking.

The Surgeon General has expressed concern about public health misinformation on social media. According to the American Psychological Association, misinformation pertains to getting the facts wrong, whereas disinformation pertains to intentionally spreading false information to mislead others.

Based on the evidence that nicotine e‑cigarettes are an effective tobacco harm reduction tool, it is not unreasonable to ask if the DC Department of Health’s anti‐​vaping campaign should be classified as disinformation.

Justin Logan

Friday afternoon, Daniel Raisbeck and I published a longish article in Foreign Policy magazine throwing cold water on the idea of using the U.S. military to counter fentanyl.

The piece responds to the growing chorus of calls among GOP presidential candidates — the top three candidates in the polls have all endorsed using the U.S. military against Mexican cartels — as well as to the recent statement from Rep. Dan Crenshaw, the chair of a new Congressional Task Force for Combating Mexican Drug Cartels.

Crenshaw, who went to high school in Colombia, announced that “Colombia is the model” for what we should do in Mexico. In Crenshaw’s view:

“We need to somehow figure out diplomatically how to make this Mexico’s idea. That they’re asking for our military support, such as close air support, such as an AC-130 gunship overhead while they’re prosecuting a target and surrounded by sicarios.”

Crenshaw is correct that it would be a huge change if the Mexican government were to ask for close air support from the U.S. military in its own counterdrug operations. But there is no sign that such a political change is on or even over the horizon.

As Daniel and I point out, the larger problem with the Colombia analogy is that the United States initially got involved in Colombia because of the enormous flows of cocaine coming into the United States from Colombia. But our involvement did absolutely nothing to reduce those flows of cocaine into the United States:

“… cocaine prices in the United States consistently declined in the 1980s, and then remained relatively flat throughout the 1990s. The idea of attacking the drug supply at the source relies on the idea that interdiction will reduce availability and drive prices up, limiting consumption and negative consequences at home. If price is not even increasing, that is proof positive that a supply‐​side model is not working.”

You don’t have to take our word for it: You can check the U.S. Office of National Drug Control Policy’s own data (the below chart shows the expected price of a pure gram based on different quantities purchased) from a 2008 study:

This chart may be many things, but it is not a “U.S. counterdrug policy in Colombia worked” story.

Daniel contributed a tremendous amount of detail regarding the progress that Colombia made with U.S. assistance — Crenshaw is correct in saying that Colombia is not suffering from the degree of drug war violence that it was in 1993. But its homicide rate is roughly equivalent to Mexico’s today, which is as much an alarm bell about Mexico as it is consolation about Colombia. And in the latter country, there are some alarming trends happening today:

“According to the International Committee of the Red Cross, seven different armed conflicts are now taking place in Colombia (an increase from six in 2022)…. Although each of the unofficial armed actors takes part in illegal mining, extortion, and other criminal activities, their main source of financing — and the main source of the conflicts among them — is the cocaine trade. The major difference between the situation now and that of the 1990s is that no single group enjoys a monopoly over the drug trade while waging an all‐​out war against the state, as the FARC then did. Instead, a multitude of armed actors fight both the state and one another over strategic coca‐​growing areas and export routes.”

The Foreign Policy piece raises a number of other vexing realities, including the extent to which fentanyl is even harder to interdict than cocaine was and how U.S. military involvement would likely deepen the ongoing militarization of Mexico.

But since Crenshaw invoked the Netflix series Narcos as an authority for his story about Colombia, we mentioned the grim opening of the subsequent Narcos series, set in Mexico, as a cautionary note about getting too theatrical, something the congressman has done before. Our piece concludes:

“The first episode [of the Mexico series] sets the scene quite clearly, with DEA agent Walt Breslin growling over a spliced cut of grim drug war clips:

“I’m going to tell you a story, but I’ll be honest: It doesn’t have a happy ending. In fact, it doesn’t have an ending at all. … It’s about … a war. … A drug war. The kind that’s easy to forget is happening, until you realize that in the last 30 years in Mexico it’s killed half a million people —and counting. … I can’t tell you how the drug war ends. Man, I can’t even tell you if it ends.”

Crenshaw and the leading Republican candidates for president want you to believe that they have a plan for how the drug war in Mexico ends.

Ask yourself: Should you believe them?

Please give the article a read.

Walter Olson

I’ve got a new article in Reason on an unusual regulatory arrangement in Maryland that requires universities to ask permission of the state higher education commission to start new degree programs, and invites rival institutions to file objections on the grounds that they would be harmed by the resulting competition for students.

In short, it replicates for higher education the kind of “certificate of need” rules strongly criticized by libertarian thinkers in the realm of health care. As in health care, I write, the “result can be state‐​enforced cartel arrangements that protect inefficient incumbents, slow innovation, and leave consumers with fewer and less attractive choices.”

The Maryland program is not, for the most part, rationalized as a matter of cost containment and, in fact, is very poorly suited to such a purpose. It does nothing to curb the number of students that can be admitted, only the opportunities they can be given. In practice, the rules often protect incumbent programs with low rates of student completion, which are among the worst offenders in contributing to government spending and burdensome student debt.

The fiercest disputes under the law tend to be over degrees in sought‐​after professional fields like business, engineering, and computer technology. (The Maryland Higher Education Commission guidelines provide that basic liberal arts programs are not normally suitable subjects for objection since colleges have a core interest in offering them.)

Contrary to the picture sometimes painted by “campus life gone wild” accounts, the top fields in which Maryland’s major state system awards degrees are sober and career‐​oriented: business, computers, and health professions. (All the social sciences combined, including economics and political science, come in as fourth.)

After documenting some recent battles under the law, worsened by a racial angle in which the state tries to bend over backwards to assist historically black colleges and universities (HBCUs), I quote a Baltimore Sun editorial: “The insanity of it” is that the conflict has little to do with the well‐​being of the students and “everything to do with protecting the institutional prerogatives and egos of the schools.” The best way to promote students’ interests, I argue, would be to allow competition and choice. You can read the piece here.

Colleen Hroncich

One of the great things about the increase in microschools, hybrid schools, and similar options is the flexibility they give families. Rather than being locked into a Monday through Friday, 8 a.m. to 3 p.m. schedule, parents can find the options that meet the individual needs of their children. Streams of Hope Christian School in Fort Wayne, Indiana, takes flexibility to a whole new level.

Despite being only in its fourth year, Streams of Hope offers an amazing range of education options: full‐​time school; part‐​time school, which meets each morning and covers all core subjects; homeschool enrichment classes, which meet in the afternoon; online classes; and a Friday homeschool co‐​op. A new hybrid option, which will meet in person two or three days a week and provide at‐​home lessons for the other days, is in the works.

Executive Director Jill Haskins says the school was started by a teacher who had been offering classes from her home for 30 years. The pastor of Heartland Church in Fort Wayne asked the teacher to start a school at the church. Jill, a former public school teacher who had been homeschooling her children for six years at that point, enrolled her youngest son in Streams of Hope when it opened in 2020. The following March, Jill became a teacher at the school; she took over as Executive Director earlier this year.

“We’re still working on figuring out what a couple of the programs will look like,” she says. “I don’t know what will stick and what won’t long term. We’re just trying to figure out what the need is and how to meet that need.”

According to Jill, the 2020 opening was unrelated to the pandemic and accompanying school closures. “They had been planning on opening prior to Covid hitting and never once closed down during Covid, which was amazing,” she notes. “We’ve grown kind of massively in the past four years. I think Covid is probably one of the catalysts that helped bring that growth.”

While each day and each class is different, the school follows a general schedule. A typical day starts with morning prayer and announcements and individual teacher/​student check‐​ins. Then students work independently, in small groups, and in whole class groups. Half‐​day students leave at noon, while full‐​day students eat lunch. After lunch, full‐​day and homeschool students participate in afternoon classes, which are focused on enrichment and creative pursuits.

Streams of Hope has multi‐​age classrooms. Jill currently has 26 students in her class; the youngest is in 6th grade and the oldest is in 12th. There are two additional classrooms with fewer students and narrower age spans. Jill says they plan to even out the age ranges in each classroom as the other teachers gain more experience.

There are currently 42 students enrolled in the full‐ and half‐​day private school option that covers all of the core curriculum. In the afternoon enrichment sessions there are 25 students, which includes a mix of full‐​time and homeschool students. While many of the students take individual online classes, only two are enrolled exclusively online. And there are 33 children in the homeschool co‐​op.

Some private school leaders are hesitant to adopt creative scheduling options that include part‐​time and à la carte classes because they fear it will be too complicated. “From the administrative, back‐​end side of things, it creates a bit of extra work,” Jill acknowledges. There are different enrollment forms, and the school really emphasizes the distinction for families. “We’re very specific to clarify ‘You’re enrolling in the private school option, you are a private schooler. You are not a home schooler.’ Or ‘You are enrolling in an à la carte homeschool class. You are still a homeschooling family.’” And there are logistic challenges of which child is being dropped off and picked up at what time. But she says it’s not too complicated overall, and it’s seamless for the students.

“We’re still kind of exploring what our hybrid option is going to look like,” she continues. “Our hybrid students will be enrolled at our private school, so they wouldn’t be homeschooled. But will they be doing two or three days here and two or three days at home? And are we going to do that project based? Is it going to look completely different than how we do things here or are we going to give them the planner pages like our regularly enrolled students do and then just have them continue that at home? We don’t quite know yet. That’s something we’re trying to develop and figure out.”

The front page of the Streams of Hope website proclaims, “We approach education in ways that meet the needs of each individual student & family.” It’s clear from the multitude of options available at the school that they really strive to live up to that goal.

Jordan Cohen and Jonathan Ellis Allen

The Kiel Institute for the World Economy, a German think tank, has released its newest update to the Ukraine Support Tracker. This is a valuable resource that visualizes support to Ukraine from across the globe. In the latest report, Kiel claims that, based on the latest announcements, the European Union and individual European countries have committed to send double the assistance to Ukraine that the United States has.

This commitment by the Europeans is good for their security and it is also good for U.S. taxpayers who, since 2022, have shouldered the largest percentage of aid to Ukraine.

However, the main issue with this finding is that Kiel compares European multiyear commitments to single‐​year U.S. commitments. In fact, the United States does not conduct multiyear arms transfers, especially when it comes to security assistance, like Europe. This is for a few reasons.

First, U.S. procurement of multiyear weapons contracts is rare and bureaucratic. According to 10 U.S.C. 3501, the United States can only legally conduct multiyear procurement of weapons under seven conditions, most of which relate to when having a multiyear contract will result in significant savings, that the cost and need for the weapon will remain the same, and that doing so will promote U.S. national security.

Finally, this can only occur when the Department of Defense receives congressional approval. Even though the 2023 and 2024 National Defense Authorization Acts allow for multiyear procurement for certain munitions to help restock U.S. munitions depots depleted since the start of the Ukraine war, the recency and limited dollar amounts authorized mean any multiyear commitments to Ukraine likely will not come for a number of years.

Second, the United States has delivered much of this aid through a mechanism known as the Presidential Drawdown Authority. This allows the United States to take up to $11 billion of existing weapons from U.S. stockpiles in any fiscal year and transfer them to a crisis situation. These weapons, therefore, can only be sent on a yearly basis.

There is no legal mechanism that Congress or the executive branch can enact that allows for multiyear drawdowns. This lack of a legal mechanism for drawdowns also holds for many other U.S. security assistance programs.

The Kiel report also misses distinction on certain other differences. For example, the report shows the differences between assistance delivered and assistance committed, but not always clearly.

Moreover, the report claims that, in terms of percent GDP, Norway is the top contributor. However, that includes all multiyear deals, compared to just one year of GDP. Doing so once again draws a miscomparison and fails to account for the still unknown future U.S. commitments.

In actual aid delivered, the United States still edges out the EU and its member states, but Europe is finally catching up. So far, the United States has delivered 69.48 billion euros. The EU and its members have delivered 69.08 billion euros, but the Kiel report includes the additional 62.66 billion euros committed over the next four to five years as well.

Given the consistency of U.S. commitments since the war began, it is more than likely that there will continue to be more commitments every year.

Fortunately, what the report does show is that Europe is stepping up its commitments to Ukraine. In fact, the EU and all European countries (not just EU members) have delivered 83.62 billion euros, some of which are part of a 156 billion euros multiyear commitment. This is a promising sign that Europe is paying more to defend itself. But it is not time to compare the apples of Washington’s single‐​year commitments and the oranges of Europe’s multiyear commitments.

Chris Edwards

Congress is scheduled to consider a farm bill this fall to reauthorize farm programs and the Supplemental Nutrition Assistance Program (SNAP). Extending current programs would cost $1.5 trillion over 10 years, but there will be efforts to boost benefit levels and add new programs.

The farm bill will be a fiscal responsibility test for Congress in the wake of the May debt‐​ceiling deal. Will House Republicans insist on cost savings in the farm bill, or will the bill pass in the usual budget‐​busting frenzy?

In a group led by Scott Faber of EWG, we discussed yesterday with House and Senate staffers reasons why farm subsidies should be curtailed. One option on the table is imposing tighter income limits on crop subsidies, which are currently paid to many high‐​income landowners. Subsidizing rich people should be opposed by both progressive Democrats and Republicans of either the free market or populist variety.

However, an obstacle to reform is that some members are intensely parochial—they focus on keeping the handouts flowing to their states at the expense of overall budget discipline.

In June, Senate Republican leader Mitch McConnell demanded quick passage of the farm bill: “Congress needs to do its job and get this legislation across the finish line — swiftly.” Ironically, he praised the “fiscal sanity” of the debt‐​ceiling deal while also insisting on a farm bill that “puts farmers first” rather than taxpayers first.

Congress should not pass a farm bill “swiftly” because we need a debate about subsidizing wealthy farm businesses. Fortunately, some farm‐​state members accept the need for at least modest reforms. Senators Chuck Grassley and Sherrod Brown note that “just 10 percent of farm operations receive 70 percent of all yearly farm payment subsidies,” and they are proposing to “create a hard cap of $250,000 in total commodity support for any one farm operation.” That would be a step forward, although the proposal does not cap crop insurance, which has no income limits and even benefits billionaires.

Another reason not to pass a farm bill “swiftly” is that we need a debate about the nutrition failings of SNAP. SNAP spending has soared to more than $120 billion a year with almost one‐​quarter of the benefits going for junk food. It makes no sense that the government is paying $30 billion a year for empty calories when the obesity rate and federal debt are soaring.

Senator Marco Rubio has proposed national rules to cut the junk food, but a simpler reform would be to approve waivers for states that want to cut foods from their programs. Numerous states have requested waivers in the past, but federal officials have denied them.

Democrats are lining up against SNAP cuts this year, but “conservative lawmakers sought large cuts in SNAP in the 2014 and 2018 farm bills, so the new farm bill is a logical target.” Indeed, SNAP is a logical target for cuts, but so are subsidies for wealthy farm businesses.

More on SNAP here and farm subsidies here.

Marc Joffe

While California struggles with a housing shortage, city and county zoning laws prevent residential development on large swathes of land within the state. One such restriction is Solano County’s Orderly Growth Initiative, which generally prevents landowners from creating residential subdivisions on land zoned as agricultural.

Aside from exacerbating the state’s housing shortage, measures like the Orderly Growth Initiative (often called Urban Growth Boundaries) restrict the liberty of property owners to use their land as they see fit. But Solano County’s restrictions may soon face a challenge from a group of Silicon Valley investors.

The group, operating under the name California Forever, includes investors Marc Andreessen, Patrick and John Collison, Chris Dixon, John Doerr, Nat Friedman, Daniel Gross, Reid Hoffman, Michael Moritz and Laurene Powell Jobs. They have purchased over 50,000 acres of agricultural land in the eastern portion of the county.

Their intention is to build a set of walkable neighborhoods with access to good‐​paying local jobs as well as educational, dining, and shopping opportunities. None of that, however, will be possible given current zoning restrictions.

To free itself from these restrictions, California Forever will likely need to pass a ballot initiative relaxing the Orderly Growth Initiative. Success at the ballot will require overcoming objections from local leaders. These objections have strong rebuttals, as I suggested in a recent San Jose Mercury News op‐​ed and expand upon here.

Critics fault the proposed city for not being near transit, with the implication that it will lead to more driving and greenhouse gas emissions than urban infill projects. But the northwestern edge of the land accumulated by California Forever is near the Capitol Corridor rail line operated in conjunction with Amtrak. The line provides service to Sacramento and San Jose, along with transfers to BART in Richmond and Oakland. Today, departures on this line are limited and travel times are relatively long, but the Capitol Corridor Joint Powers Authority has a plan to increase and accelerate service.

The core of the prospective new city is several miles away from the Capitol Corridor. To ensure that city residents can reach San Francisco, San Jose, and Sacramento without a car, developers could build a rail spur on an unused right‐​of‐​way or provide multi‐​use trails that would allow cyclists to easily reach the nearest station.

But, as communications technology improves and remote work becomes normalized, the need for residents of a new eastern Solano County city to commute should be limited. Because the city will include a collection of densely populated, mixed‐​use communities, residents will live within a short walk, bike ride, or scooter trip from shopping, dining, recreational, educational, and co‐​working facilities, reducing the need for car trips.

Infill projects are great in theory but often meet with stiff local resistance, which contributes to high construction costs and delays. The result is that expensive housing is often made affordable to some only through lavish taxpayer subsidies.

California Forever’s critics have also questioned how the new city will acquire water given the area’s modest rainfall. Project promoters suggest upgrading the North Bay Aqueduct, but desalting nearby bay and river water may also be an option. The nearby City of Antioch is currently completing a desalination plant, which could serve as a model for a similar facility serving California Forever. Admittedly, obtaining approvals for a new desalination plant in California can be challenging. Intense use of water recycling technologies could also reduce the city’s need for water on a per‐​resident basis.

Another objection is that California Forever will abut Travis Air Force Base, purportedly creating a national security threat. But areas near the northeastern edge of the base are already built up, and concerns about security have yet to make news. This objection might also come as a surprise to residents of San Diego, many of whom live within walking distance of the city’s naval facilities. Similarly, Colorado Springs residents live near Peterson Space Force Base, and Tacoma residents are close to the gates of Joint Base Lewis‐​McChord. Indeed, the Pentagon itself is located near a neighborhood of 8,200 residents and 300,000 square feet of retail space.

There are further concerns about the stealthy way in which California Forever acquired its real estate portfolio and the wealth of its investors. But if the group went public at the beginning, its acquisition costs would have been much higher. There is no evidence that sellers received less than market value for their land, which is all they could reasonably expect. But news that the investment group sued landowners for trying to collectively negotiate was disappointing.

Just as California Forever’s investment group has the right to buy land at a price acceptable to sellers, those sellers should be free to work together during the negotiating process.

Projects by the ultra‐​rich have been both good and bad. Among the lasting and well‐​regarded contributions of the super‐​rich are the New York Public Library (from Jacob Astor), Stanford University (Leland Stanford), and Public Broadcasting (initially funded by the Ford Foundation).

There is no guarantee that billionaires’ efforts will succeed. They can be frustrated by personal vanity, poor execution, or simply bad luck. The same can be said for efforts to start new cities. Sponsors need only look a few hundred miles south for a cautionary tale. California City, an intentional community in Kern County initially conceived in the late 1950s, has proven to be a spectacular failure. Fewer than 15,000 residents are scattered across the city’s 204 square miles, and most of the roads in its master plan were never paved.

A far more successful master‐​planned California city is Irvine. Incorporated in 1971 and built on former ranchland, the city now ranks among the top ten best places to live in the United States, according to Niche. Irvine continues to gain population in the midst of a general downtrend across most of California.

Only time will tell whether California Forever will be allowed to move forward and whether it will succeed. In any case, its ballot initiative campaign will shine a light on the adverse impacts of land use restrictions.

Vanessa Brown Calder and Anastasia P. Boden

California passed a gender quota law in 2018 that received significant attention. The woman quota was the first of its kind in the U.S. and it required that publicly held companies headquartered in California have a minimum number of female directors, depending on board size. If companies did not comply, they could face fines of $300,000 per unfilled seat.

However, in late 2022, a Los Angeles Superior Court found that the state’s quota violated the equal protection clause of the California Constitution and overturned the law. The court’s decision currently prevents the law from being enforced, but the ruling is being appealed and as a result may be reinstated.

Despite California’s legal troubles with the rule, other states have implemented or proposed similar legislation: For instance, Washington passed a law in 2020 that “requires a public company to maintain a board of directors that is composed of at least 25% which self‐​identify as women” or to provide shareholders with an analysis of board diversity prior to annual meetings. Illinois recently proposed a gender‐ and race‐​based quota, but the legislation stalled after infighting broke out about which minority groups should be included. Iowa has long held a gender quota for all government boards, committees, and commissions.

There are a handful of other states that have considered “true” board quota legislation that directly affects the gender composition of corporate boards[1] as well as states that have instituted weaker board diversity reporting requirements.[2] But international experience indicates both types of proposals are unlikely to help professional women meaningfully: Norway was one of the first countries to pass a gender quota law in 2003, but although “the purpose of quotas was to catalyze a wider change in society,” data from 20 years later demonstrates the law apparently had a mere symbolic effect.

According to research by Nima Sanandaji, various indicators suggest that board quotas did not meaningfully change the trajectory of working women’s careers. As The Economist wrote in 2018, “Ten years on from Norway’s quota for women on corporate boards… gender quotas at board level in Europe have done little to boost corporate performance or to help women lower down.” Another Norwegian study found no evidence gender quotas had an impact on the gender division of managers, and eight years following the quota’s introduction, the Nordic Labour Journal noted that Norway had no female CEOs in its 60 largest firms.

Outcomes for wages and other professional indicators are similarly disappointing. For instance, Norwegian economists investigated whether Norway’s quotas led to higher earnings for women, but they did not find noticeable effects. It seems that Norway’s board quotas benefited a select number of already highly privileged women who hold multiple directorships (called the “golden skirts”) but led to no meaningful changes for working Norwegian women generally.

If California’s law is reinstated, or similar laws adopted by other states, the outcomes are likely to be similarly disappointing. Unfortunately, recent research suggests some adverse effects for California’s now‐​suspended legislation. Although the legislation unsurprisingly increased the proportion of women on corporate boards, support for female board members declined following the legislation. That is particularly disappointing given that women were making tremendous gains before the quota went into effect. Prior to the law’s passage, female representation on the nation’s top 3000 boards had increased for 7 straight quarters in a row.

California’s quota also resulted in statistically large and adverse economic effects. These effects include a negative stock market reaction, a total loss in market value in excess of $60 billion, and high compliance costs, especially for small firms. In Norway, some firms chose to delist rather than comply and suffer any associated economic consequences.

Of course, the entire notion that requiring more women on corporate boards leads to better working conditions or has other trickle‐​down effects is based on stereotypes about women. California’s law explicitly stated that it was based on the notion that women have a certain leadership style, are more likely to comply with corporate laws, carry less corporate debt, and are more risk‐​averse than male board members. During litigation over the quota, the state even suggested that female representation was low because men find other board members at sports games and women are not interested in sports.

The Supreme Court has repeatedly struck down gender‐​based laws that stereotype in this way, even when the measures are intended to help women. For example, it struck down a law that granted women a lower drinking age based on stereotypes about better female behavior. As future Supreme Court Justice Ruth Bader Ginsburg observed in a brief to the Court, the law perpetuated the stereotype of men as society’s active members and “women as men’s quiescent companions.” The Equal Protection Clause mandates that the government treat similarly situated parties equally absent an important reason to discriminate.

If board quota legislation is intended to simply increase nominal women on corporate boards, it is likely to achieve that goal (though female representation was increasing before government intervened). But if the legislation is intended to have more significant or widespread impacts on women’s professional lives, this is as unlikely in 2023 as it was when California’s rule was passed just a few years ago. And in any event, neither is a sufficient justification for state‐​mandated differential treatment. Our Constitution guarantees equality of liberty, not equality of outcome.

More importantly, gender quota laws send the wrong message: that women are unable to get ahead in the workplace without special treatment. This message not only undermines women on corporate boards, but also undercuts the achievements of successful professional women everywhere.

Jeffrey A. Singer

September is National Recovery Month. Begun in 1989, this national observance occurs every September “to promote and support new evidence‐​based treatment and recovery practices.” This provides a perfect opportunity to release a new Cato policy analysis, “Expand Access to Methadone Treatment: Remove Barriers to Primary Care Practitioners Prescribing Methadone,” that I co‐​authored with Sofia Hamilton, a research associate in health policy studies.

The National Center for Health Statistics reported that more than 107,000 people died from drug overdose deaths in 2021. More than three‐​quarters of overdose deaths involved opioids. Recent research estimates the number of adults with opioid use disorder (OUD) ranging from 6.7 million to 7.6 million. These estimates suggest one to two of every 100 U.S. residents have OUD.

Researchers at the University of Pittsburgh School of Public Health published a study in 2018 that shows the overdose rate has been on an exponential growth trend since at least 1979 and shows no signs of slowing. Different drugs have predominated at various times over the decades, but the trend has been relentless.

A Joint Economic Committee of Congress report shows that overdoses began rising in 1959. There is good reason to believe that sociocultural and psychosocial dynamics are at play, as many people are choosing to use potentially dangerous drugs nonmedically—recreationally or for self‐​medication.

Expanding access to OUD treatment would reduce the number of people who seek drugs in the dangerous black market and, in turn, reduce the risk and incidence of overdose deaths.

Federal law requires people to seek treatment for opioid use disorder from Opioid Treatment Programs, or OTPs, approved by the Drug Enforcement Administration and regulated by the Substance Abuse and Mental Health Services Administration. Our paper details the burdensome requirements and restrictions these federal agencies place on OTPs and patients.

Adding to the problem, states impose their own restrictions and regulations on OTPs. Some impose certificates on need requirements, some cap the number of OTPs, and some have imposed moratoria on new OTPs. NIMBYism by residents plays a significant role as well. Some states also impose additional restrictions on OTPs dispensing take‐​home methadone and other clinical practices that go beyond SAMHSA’s requirements.

Federal and state restrictions are why there are not nearly enough OTPs to serve the population with OUD. Only about 400,000 people with OUD received methadone treatment in 2019, while 1.6 million U.S. residents reported they developed OUD that year.

Our paper examines the approaches to methadone treatment that have been the norm in the U.K., Canada, and Australia for more than 50 years. In those countries, primary care providers treat OUD with methadone, often coordinating with local pharmacies. Government regulators allow practitioners much more leeway to use their clinical judgment and knowledge of their patients in their treatment protocols. This has vastly expanded access to methadone treatment in those countries.

The paper reviews the experiences of pilot programs in the U.S. that allow primary care practitioners to provide methadone treatment in the office setting, as well as the results of a COVID pandemic‐​induced pilot program that temporarily relaxed restrictions on take‐​home methadone.

We conclude that lawmakers in the U.S. should reform laws on the federal and state levels to allow primary care clinicians to engage in methadone treatment in the office setting. This would not only expand access to treatment, but by treating people with OUD in the office setting—as we treat people with other physical and mental health disorders—we remove the stigma and dehumanization of people with OUD.

In recognition of National Recovery Month, in addition to the release of our policy analysis, I will moderate a policy forum in Cato’s Hayek Auditorium on September 13 on “Expanding Access to Methadone Treatment” from 11:00 AM to 12:30 Eastern Time, where we will explore ways to improve access to this proven treatment.

The event will feature Rep. David W. Norcross (D‑NJ), principal sponsor of the Modernizing Opioid Treatment Access Act (MOTAA) in the U.S. House of Representatives (the first serious effort to reform federal methadone treatment law in decades), Jeffrey H. Samet, MD, MPH (Professor at Boston University School of Medicine and Boston University School of Public Health), and Helen Redmond, a journalist, filmmaker, addiction treatment expert, and adjunct faculty at New York University School of Social Work.

You can register here to attend the event in person or watch it online.