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Colleen Hroncich

“A progressive Christian school that offers a culturally inclusive education designed to foster creativity and collaboration and critical thinking, and also a love for Christ,” is how founder Tiffany Blassingame describes The Ferguson School. A fourth-generation educator, Tiffany taught in public and private schools for more than 20 years before creating her microschool. “My mom, my grandmother, and my great grandmother were all educators, and that’s where the name Ferguson comes from—it’s our maternal line,” she explains.

She was head of school at a private school during COVID-19, and she became frustrated seeing families who wanted to enroll there for in-person learning but couldn’t afford the tuition. “I thought, what if we created a space—I didn’t know it was called a microschool at the time—but what if we created this space where we made the overhead lower? Like multi-age classes and a much smaller space?” Tiffany recalls. “We would be limited, but it would at least cut off a lot of the overhead of running a school. Because I understood what it was to like to run a private school.”

The Ferguson School, which meets at a church, started with two students and is now at 19. The upcoming school year will be year four. Tiffany says her students are primarily from low- to middle-income families that are looking for a non-traditional environment that fosters a sense of love and belonging as they begin to navigate their identity and their identity in Christ.

The school has a K‑2 grade classroom and a 3–5 grade classroom. Families can choose between a full-time option and a hybrid option where students attend Ferguson three days a week and work at home the other two.

The day starts with outdoor recess and then the kids go inside for a morning activity. Tiffany says it’s usually something hands-on like Legos, clay, or a puzzle—something that is still active and collaborative but gives them a chance to calm down from recess. After a morning meeting, they move into their literacy blocks, which start with a whole group lesson around a particular topic. Then they rotate through stations, which typically include a teacher-directed station, a tech/​blended learning station, and then some type of practice that’s related to the skill. After lunch, they have a STEM block that works like the literacy block but with STEM topics. Afternoon recess is held after the STEM block and then they have electives like Spanish, art, music, computer science, and library time.

Tiffany pulls from several instructional and social-emotional learning models to create a unique environment. “One of our social-emotional models, believe it or not, is the five love languages,” she says. “Our parents are learning about love languages. Our staff does yearly training on the love languages. We observe the students and figure out how they react to different ways of being shown that they are loved or that something is special.” For the older kids, they talk about the different love languages and then the students do their own self-assessment. With the younger ones, it’s primarily observation. At the first parent-teacher conference, they talk about what the parents have noticed about their children as they learn about love languages.

The students also have what Tiffany calls inclusion opportunities with a learning pod that is right across the hall from her classrooms. “We do some inclusion classes with students on the spectrum who are non-verbal,” she says. “So that’s another way the kids are able to practice showing how they care about someone and help others to feel that they are welcomed in our space. And also respect their space when we go for inclusion into their classes as well.”

Now that she’s gotten away from conventional schooling, Tiffany isn’t stopping. “The world of microschooling is challenging as far as, you know, lifestyle, finances, and those types of things,” she explains. “So I just started a microschool educator academy. It’s not for learning to start a microschool, which I see a lot of people doing. It’s for helping teachers to understand what it’s like to teach in a microschool, because it’s very different than public schools, charter schools, online environments, or traditional private schools,” she explains. The first cohort is starting at the end of July. Tiffany hopes the training allows microschool founders to step back a little and let their schools run because their teachers are so well-trained.

Tiffany realizes it’s hard to leave what you know and jump into a new environment. But she encourages both teachers and parents to give it a shot. To her fellow teachers, she says, “It’s going to be a challenge, but it’s so rewarding. You see the difference that you make.” Her message to families is similar: “Just try it. You want to be able to tell your child that you did everything you could to give them what they needed.”

Alan Reynolds

Consumer Price Index (CPI) inflation has been zero for two months. Over the past 12 months, prices of food at home are up 1.1 percent, and energy prices are up 1 percent. Yet headlines keep focusing on the 12-month averages of 3 percent for the total CPI and 3.3 percent for “core inflation” (less food and energy). But there is a big problem: Those 3–3.3 percent figures do not reflect a broadly defined measure of inflation since they are largely dominated by shelter costs.

Widely criticized Bureau of Labor Statistics (BLS) estimates of rent and owners’ equivalent rent (a price nobody pays) account for a third of the total CPI and over 40 percent of the core CPI.

That is why suspiciously extreme estimates of shelter inflation (known to lag reality by 12–18 months) have continually exaggerated reported inflation since July 2022.

As the new BLS CPI news report candidly emphasizes, “The shelter index increased 5.2 percent over the last year, accounting for nearly seventy percent of the total 12-month increase in the all items less food and energy index.”

Here is the unreported good news: Aside from shelter, CPI Inflation and core inflation rose only 1.8 percent over the past 12 months and were either flat or falling over the last two.

Colleen Hroncich

One of the most prevalent claims by opponents of school choice is that “public schools serve everyone.” This is asserted on social media, in commentaries, on yard signs, and even in Change​.org petitions. But it’s easy to see that the claim isn’t true.

For starters, it defies logic to think one provider of any service could “serve everyone”—or at least, serve everyone well. This is especially true when it comes to education given the vast range of needs and wants among children and families.

From a purely educational perspective, children have different abilities and aptitudes. They may prefer different environments, with some thriving in a more structured setting while others flourish with more freedom. And parents have diverse values, goals, and priorities. No wonder that even in the top-ranked district in any state, many parents choose other options for their children. It’s unlikely they would pay twice for education—once in school taxes and again in tuition—if their assigned school was serving their children well.

For families who can’t afford to pay twice for education, the situation can be much more dire. For example, Project Baltimore found that 13 Baltimore high schools didn’t have a single student score proficient or better on the 2023 state math test. Are these public schools really serving everyone?

For more evidence that public schools don’t serve everyone, we can look to stories of parents who have been arrested for sending their children to a better public school than the one they’ve been assigned to based on their address.

In 2011, Ohio mom Kelley Williams-Bolar was convicted of two felony charges and sentenced to 10 days in jail plus three years of probation. Her crime? Using her dad’s home address to enroll her daughters in a public school that was safer than their assigned school. According to Williams-Bolar, her dad helped raise her kids, and they spent a lot of time there, so she didn’t think using his address would be a problem. But the district accused her of stealing education. John Kasich, Ohio governor at the time, reduced her convictions to misdemeanors.

Pennsylvania parents Hamlet and Olesia Garcia were similarly charged with stealing education in 2012. The Garcias enrolled their daughter in Pine Hill Elementary in the Lower Moreland Township School District, listing Olesia Garcia’s father’s house as her residence. But district officials received word that the family lived in the Philadelphia school district and started investigating. The Garcias said their daughter lived in her grandfather’s house for eight months so they let her finish the school year at Pine Hill after moving back to their Philadelphia home that was only a mile from the school. Prosecutors disputed this and said the family never lived in Lower Moreland. In 2014, to avoid a potential felony conviction and jail time, Hamlet Garcia agreed to a plea deal where he admitted to lying about his daughter’s address and reimbursed the district almost $11,000 in tuition.

While these stories are particularly shocking, districts across the country regularly crack down on parents who are thought to be illegally sending their children to public schools. Last year, St. Louis Public Radio investigated local districts after learning about aggressive enforcement—including home visits and searches—against “educational larceny” in the Hazelwood School District. Residency investigations in Hazelwood have quadrupled since the 2019–20 school year, with most finding no violation.

According to a 2023 report by Available to All, a watchdog group that aims to increase access to the best public schools, “In at least 24 states, parents or guardians who use an address that is not their residence to enroll their children in school can be criminally prosecuted, resulting in steep fines and even jail sentences.”

In short, as many parents have found, it is profoundly inaccurate to say, “public schools serve everyone.” What about the argument on the flip side that private schools don’t serve everyone? It’s absolutely true. No individual private school can serve everyone—just as no public school can. But in the private sector, no provider claims to do that.

There is tremendous diversity among private educational providers, including traditional private schools, microschools that may serve just a handful of students, hybrid schools that include in-person and at-home learning days, and co-ops that support homeschoolers. And even among these different models, there is a lot of variety. There are religious and secular options. Some follow educational philosophies like Montessori, Charlotte Mason, Waldorf, unschooling, or classical—or a mixture of several.

The spread of school choice programs that allow state education funds to follow students to a variety of educational options is helping families across the income spectrum access these diverse learning opportunities. While vouchers and tax credit scholarships are typically only for traditional private school tuition, education savings accounts and individual tax credits can offset the cost of many different educational expenses, giving parents a greater chance to customize their children’s learning experience.

No school, public or private, can serve everyone—just as no restaurant, grocery store, doctor, or car dealership can. Fortunately, policymakers are increasingly recognizing that simple fact and expanding educational opportunities by enacting school choice programs. The best way to “serve everyone” is to enable each individual student to have options.

Gene Healy

I have no end of uncharitable thoughts about recent American presidents; yet, when I’m cataloging their sins, the words “undue caution” have never sprung to mind. Could it fairly be said of any 21st-century president—George H. W. Bush, Barack Obama, Donald Trump, or Joe Biden—that his real flaw was being “unduly cautious in the discharge of his official duties”? When it comes to “the most powerful office in the world,” is “undue caution” a problem worth worrying about?

Chief Justice John Roberts insists that it is. In fact, the self-styled judicial “umpire” considers the specter of presidential risk aversion grave enough to justify rewriting the rules of the game. Toward that end, in Trump v. United States, Roberts conjures up a broad suite of criminal-process immunities previously unknown to our Constitution. The new privileges shield the president in the first instance, but they’re really for us—designed to ensure that we Americans will never suffer from an insufficiently energetic executive. Thanks. . . . I guess?

But if you think greater risks lie in presidential recklessness and contempt for the law, the president’s new immunities may give you pause. Just how much we should worry isn’t clear to me, in part because I’m not sure how much the historically remote threat of criminal prosecution has restrained presidents over the years. But what the Court’s just done definitely isn’t going to help.

I’m certain of this much at least: as a matter of constitutional exegesis, the chief justice’s majority opinion is creative lawyering at its worst. It’s the most flagrant instance of legislating from the bench since Harry Blackmun decamped to the Mayo Clinic medical library to bone up on obstetrics and write trimesters into the Constitution.

My colleague Walter Olson summarizes the Court’s framework:

For a range of actions exercising core executive authority, including conversations with subordinates such as the attorney general, pardons, and appointments, immunity is absolute, even if actions were taken for a corrupt purpose or as part of a conspiracy otherwise criminal.
Exercise of less-than-core executive authority is still immune, the majority writes, “unless the Government can show that applying a criminal prohibition to that act would pose no ‘dangers of intrusion on the authority and functions of the Executive Branch.’”
[Moreover,] evidence relating to immune acts [is inadmissible] even if highly probative as to the commission of other crimes for which there is no immunity.

A genuine originalist would have a hard time deriving such broad presidential immunities from the constitutional text. As Justice Sonia Sotomayor points out in her dissent, the Framers knew how to draft special protections for public officials, as they did for members of Congress in Article I, section 6. Members of the legislative branch get three express privileges: “a Compensation for their Services,” limited protection from arrest while attending a legislative session (or traveling to or from one), and civil and criminal immunity for legislative acts. As a matter of constitutional text, the president gets one: a salary “which shall neither be encreased nor diminished during the Period for which he shall have been elected.” As James Wilson, the Framer with the best claim to being the presidency’s principal architect, told the Pennsylvania Ratifying Convention in 1787: “the executive power is better to be trusted when it has no screen. . . . Far from being above the laws, he is amenable to them in his private character as a citizen, and in his public character by impeachment.”

If you’re interested in a genuine originalist’s perspective on presidential immunities, the University of Virginia’s Sai Prakash has done the best work here. His 2021 Texas Law Review article, “Prosecuting and Punishing Our Presidents,” cited by Sotomayor, shows just how “atextual and ahistorical” Roberts’ approach was. (I’ve borrowed this post’s title from the coda to Prakash’s piece).

Prakash writes that:

Before the Constitution’s ratification, no one said that it granted the presidency special immunities, temporary or otherwise. Moreover, to my knowledge, no early President claimed such protections. And the Constitution’s text contains nary a hint that our presidents have special criminal immunities of whatever sort.

Nor, Prakash argues, should we “read constitutional silence on presidential arrestability as if that muteness somehow heralded an unrivaled immunity from detention, trial, and punishment.”

So how does Chief Justice Roberts manage to get there? By channeling penumbras and emanations from “the separation of powers principles explicated in our precedent” and the president’s allegedly unique role in American life and law.

No text, no problem, says Roberts. The argument that you need to put your finger on a constitutional provision granting such a privilege is “is one that the Court rejected decades ago as ‘unpersuasive.’” He goes on to mint new criminal process immunities through bootstrapping extensions of the Court’s past grants of limited executive privileges in presidential communications and civil litigation, themselves untethered to anything graspable in the text.

Just Security has a useful decision tree guiding you through the Trump v. United States framework. But a lot remains murky. For instance, the Court holds that “the separation of powers principles explicated in our precedent necessitate at least a presumptive immunity from criminal prosecution for a President’s acts within the outer perimeter of his official responsibility.”

How far does that official-responsibility perimeter extend? Does it cover ginning up a riot in the hope of intimidating Congress into overturning an election? Maybe: It’s complicated. After all, the presidency is vast; it contains multitudes. Our president is responsible for so much, really—who’s to say what his job isn’t? Roberts:

the President oversees—and thus will frequently speak publicly about—a vast array of activities that touch on nearly every aspect of American life. . . . He is even expected to comment on those matters of public concern that may not directly implicate the activities of the Federal Government—for instance, to comfort the Nation in the wake of an emergency or tragedy. For these reasons, most of a President’s public communications are likely to fall comfortably within the outer perimeter of his official responsibilities. There may, however, be contexts in which the President, notwithstanding the prominence of his position, speaks in an unofficial capacity—perhaps as a candidate for office or party leader. To the extent that may be the case, objective analysis of “content, form, and context” will necessarily inform the inquiry. But “there is not always a clear line between [the President’s] personal and official affairs.” [emphasis added].

“The analysis therefore must be fact specific,” Roberts concludes, “and may prove to be challenging.” I’ll say! (With apologies to Justice Antonin Scalia, I’m calling this the “Sweet Mystery of Office” passage.)

The unspoken premise in the majority opinion is that where there’s a policy need, there’s a constitutional privilege. Don’t sweat the details: if a particular immunity “is required to safeguard the independence and effective functioning of the Executive Branch,” then, as the old Prego ad had it, “It’s in there!”

But as Prakash notes in his excellent (if misleadingly titled) 2015 book, Imperial from the Beginning: The Constitution of the Original Executive, “the chief executive does not have the right to any and all means that might seem to him required for carrying his powers into execution.” The president needs a lot of things to do his job: money, officers and departments that report to him, an army to be commander in chief—but constitutionally speaking, he’s only entitled to his salary. “Indeed, if all necessary powers were vested with the President as a matter of right, the President would be able to expend funds, raise armies and create offices at will.”

In “Prosecuting and Punishing Our Presidents,” Prakash allows that there may be legitimate policy reasons to provide the president some measure of immunity from criminal process, at least while he’s in office. But it’s hardly the Court’s job to conjure them from whole cloth.

Legislating from the bench isn’t the only option, however; as Prakash notes, there’s also legislating, the legitimate, old-fashioned way. “Nothing precludes Congress from creating immunities the Constitution itself never established.” It could, via the Necessary and Proper Clause, grant the president everything the Roberts Court thinks he needs, or—moving with all due caution—enact “more targeted immunities”:

It could permit some prosecutions, say for non-jailable offenses, but bar prosecutions that might yield jail time. . . . Statutory solutions are superior. As compared to a constitutionally grounded immunity, statutes are easier to enact and repeal. If it subsequently appears that the genuine problem is not persecution of our presidents but their perceived criminality while in office, Congress can inter its statutory shields. Alternatively, if a minor tweak is needed here or there, Congress can readily fine-tune its law, broadening it in one area and contracting it in another.

In the days before the Court published its opinion, Trump:

escalated his vows to prosecute his political opponents, circulating posts on his social media website invoking “televised military tribunals” and calling for the jailing of President Biden, Vice President Kamala Harris, Senators Mitch McConnell and Chuck Schumer and former Vice President Mike Pence, among other high-profile politicians.”

How much did the possibility of criminal prosecution for official and quasi-official acts restrain Trump from making good on such threats last time around? Thanks to Roberts—whom no one can accuse of being “unduly cautious in the discharge of his official duties”—we may get to find out.

Nicholas Anthony

It has been three years since the postal banking pilot program made headlines in 2021, but it hasn’t had a single customer in at least two years (Table 1). It is long past time to put this idea to rest.

For those who missed the news when it originally made headlines, the US Postal Service (USPS) launched the program in September 2021. By taking advantage of a loose reading of the law, the program allows customers to transfer business and payroll checks up to $500 to gift cards for a flat fee of $5.95 at locations in Virginia, Maryland, New York, and Washington, DC.

To say the pilot program has been a failure may be an understatement. At its peak, the pilot program had only six sales. In fact, the project has only garnered seven sales across its entire three years of existence. 

Shortly before the program’s September 13 launch, Senator Kirsten Gillibrand (D‑NY) said, “This is a great first step toward creating a postal bank. [The] pilot program will demonstrate the value to these communities, and show that the USPS can effectively service underbanked urban and rural communities.”

After three years, it’s safe to say the postal banking pilot program has done no such thing. It has failed to deliver value to communities, and it has failed to show that “the USPS can effectively service underbanked urban and rural communities.” It’s time to put the idea of postal banking to rest. Congress should shut down the program and close the postal banking loophole.

Romina Boccia

While Fed Chair Jerome Powell made the rounds on Capitol Hill this week, discussions about the Federal Reserve’s expectations for inflation have once again come to the forefront. Unsustainable government spending is raising inflationary pressures with potentially devastating consequences for the US economy. In this context, the belief that debt doesn’t matter, especially championed by proponents of Modern Monetary Theory (MMT), appears more detached from reality than ever.

This notion, prevalent on the political left, claims that a government that issues its own currency can never run out of money in the same way a household or business might. Advocates argue that such a government can always print more money to pay off its debts, thereby sidestepping any constraints imposed by traditional fiscal discipline. While this might sound appealing, it’s a classic example of what sociologists call a “luxury belief”—an idea that is primarily held by those insulated from its real-world consequences.

“We are a sovereign currency, we can print all the money we want”—former House Budget Committee Chair John Yarmuth (D‑KY) at a congressional hearing.

Luxury beliefs, as sociologist Rob Henderson describes, are ideas that confer status on the rich while often burdening the less fortunate. The concept has traditionally been associated with cultural and social norms, but it applies equally well to economic theories like MMT. Proponents of this “magic money” theory, often shielded by their own economic stability, pay too little heed to how elegant theories on paper can lead to catastrophic outcomes in the real world.

A key argument against MMT’s false promise is that printing money for the sake of financing government spending leads to inflation. When a government prints money to cover excessive spending, it increases the money supply without a corresponding increase in goods and services. This creates an imbalance between available resources and the money available to purchase them, with the result being inflation—an increase in the price level that erodes the purchasing power of money. For the wealthy, this might mean adjustments to their investment portfolios or higher prices on certain items. For the poor and working class, however, inflation can be devastating.

Inflation Disproportionately Causes Hardship for Lower-Wage Workers

Inflation hits the most vulnerable the hardest. As FREEOPP has detailed in a recent study, inflation disproportionately affects the poor by increasing the cost of essential goods and services that they consume by more than is the case for the basket of goods enjoyed by wealthier individuals. This compounds low-earners’ financial struggles and exacerbates inequality. According to FREEOPP, “If we examine the absolute impact of inflation, we find that from 2004 to 2020, earners in the bottom decile experienced inflation that was 71 percentage points higher than for the top decile, on a compounded basis.”

In fact, as Timothy Carney, a scholar at the American Enterprise Institute, has pointed out, super-wealthy individuals, who rely less on their incomes, benefit from inflation as the value of their assets, such as homes and stocks, increases.

When those Americans living paycheck to paycheck see their costs of living rise without a commensurate and immediate increase in their incomes, this creates additional hardship. Essentials like food, housing, and transportation become more expensive, pushing them further into poverty and potentially leading to the need for additional borrowing, often at high rates, whether that be via credit cards or alternative financing methods. Unlike the wealthy, who can hedge against inflation with investments in assets like real estate and stocks, lower wage-earners, especially those living on current wages alone have more limited options to protect their finances against value erosion from inflation.

Elites Are More Insulated from Inflation

MMT’s proponents often come from academia, think tanks, and well-off political circles, environments where they are more insulated from the impacts of inflation. These individuals can afford to hold such beliefs without suffering the devastating consequences that lower-wage earners face when prices rise. Their luxury belief that the government can just print more money to finance deficit spending is rooted in a world of theoretical economics rather than the lived realities of everyday Americans.

This disconnect highlights a broader issue within economic policy debates. The luxury of academic and theoretical detachment allows influential voices to promote ideas that would be perilous if enacted. The consequences of such policies are less often borne by their proponents but by those least equipped to manage them—poorer working-class Americans.

Veronique De Rugy, a scholar with the Mercatus Center at George Mason University, recently wrote about this disconnect when it comes to industrial policy debates, arguing that “tariffs and industrial policy arguments [are] self-serving and counterproductive, designed to elevate one’s personal status without regard to the practical consequences for those with less power and privilege in the world.” Her treatment of the issue inspired this post.

Believing that government debt doesn’t matter, so long as this debt is held by a country that generates its own currency, is akin to ignoring economic fundamentals. Historically, unchecked money printing has led to hyperinflation and economic collapse in countries like Zimbabwe and Venezuela. The United States, with its vibrant economy and strong institutions, might not face such extreme outcomes, but the risk of significant inflation remains elevated if Congress continues reckless deficit spending. The current fiscal outlook is highly unsustainable, and the chickens will eventually come home to roost.

As Dominik Lett and I have recently warned, “If Congress leaves spending corrections to the last minute, legislators may perceive the draconian fiscal consolidation necessary to bring debt under control as less desirable than monetizing the debt. In such a scenario, printing more money might become the easiest or only politically feasible way out.”

A More Responsible Path Forward

The belief that debt doesn’t matter is a luxury belief that disregards the lived experiences of the poor and working class when inflation hits. While espousing MMT as some clever economic theory that surpasses traditional fiscal responsibility may confer intellectual and social status among certain elites, for legislators to blindly follow down the MMT path poses real dangers for those Americans most vulnerable to economic instability. Congress and the executive should prioritize fiscal responsibility and economic policies that enable prosperity for all Americans, not just the privileged few.

The 118th Congress and President Biden have squandered many chances to correct the fiscal course—from agreeing to an irresponsible debt limit deal to allowing executive spending to run amok to authorizing more money for foreign and domestic emergencies with no intention to pay it back. There’s still an opportunity for this Congress and President Biden to begin the important work of stabilizing the US debt and reducing inflationary pressures. The lame-duck period, following the November elections, might be an ideal opportunity to establish a fiscal commission to consider all the options before US legislators and propose a package that will rein in out-of-control spending and debt.

Whether US policymakers intend to follow MMT’s ill-conceived prescriptions or not, the current default option is most likely to lead us down the MMT-proposed path as autopilot spending increases consume more and more government revenue, driving up debt and increasing the likelihood of fiscal dominance in the future, where the Fed is backed into a corner of making monetary decisions to support government finances rather than to control inflation. This is a path to hardship and potential chaos we should avoid.

Thomas A. Berry, Brent Skorup, and Christopher Barnewolt

Americans pride themselves on their freedom to criticize the government. Indeed, there is widespread agreement that the First Amendment was added to the Constitution to protect the right of Americans to criticize the conduct of government officials. But for over fifty years, the Securities and Exchange Commission has wielded an immense power to silence the speech of its potential critics: The SEC will not settle a regulatory investigation with someone unless that person agrees to never deny the SEC’s accusations. This “no-admit-no-deny” policy has come to be known as the SEC Gag Rule.

Since its inception in 1972, this Gag Rule has prohibited hundreds of companies and their employees from denying SEC accusations, under the threat of renewed investigation and prosecution. Merely “creating the impression” that the SEC’s charges lacked merit violates the Gag Rule.

While the SEC insists a defendant’s submission to the Gag Rule is always voluntary, this claim is laughable on its face. The SEC is a powerful arm of the federal government with a multi-billion-dollar budget. Few defendants have the resources to defend themselves against a lengthy SEC investigation or lawsuit. Consequently, nearly all defendants agree to settle. Yet after settlement, the SEC’s accusations stand as the last word on the matter as defendants—even those who have done nothing unlawful—must remain silent for life.

The SEC’s Gag Rule means that the government’s side of the story will be the only side of the story the public ever gets to hear.

Thomas Joseph Powell is one of those people silenced by a “voluntary” settlement agreement with the SEC. He, and several others in his position, have sued to restore their First Amendment right to criticize SEC officials and actions. The Cato Institute filed an amicus brief with the Ninth Circuit Court of Appeals in Powell v. SEC, urging it to find that the SEC Gag Rule is unconstitutional.

While there are many constitutional problems with the Gag Rule, our brief focuses on two important points. First, we explain that the Gag Rule is a content-based restriction on speech, which under existing First Amendment doctrine must be subject to strict scrutiny. This means that to be constitutional, the restriction must further a compelling governmental interest and be narrowly tailored to achieve that interest. The Gag Rule fails both requirements. The government’s asserted interest—protecting “confidence” in the SEC—is not compelling. And the Gag Rule is not narrowly tailored, as the SEC has many other, less coercive options open to it.

Second, we point out that the Gag Rule violates the unconstitutional conditions doctrine. This doctrine holds that the government may not deny a governmental benefit to a person as punishment for his exercising a constitutional right. As the Ninth Circuit has recognized, giving the government free rein to grant benefits only if a person agrees to forfeit a constitutional right invites the government to abuse its power and erode constitutional protections. For this reason, any alleged “waiver” of constitutional rights—like the right to criticize a regulator—must be carefully scrutinized by the courts to ensure that it is not intended to chill such rights.

The Ninth Circuit should follow its precedent and the Supreme Court’s, declare the SEC’s policy unconstitutional, and enjoin the SEC from enforcing the Gag Rule against Thomas Powell and many others.

Jeffrey Miron

Over the past few years, multiple claimants have accused opioid manufacturers and related companies of misleading patients and doctors into believing their products are relatively safe; this allegedly caused expanded prescribing, addiction, and overdoses. Last month, the Supreme Court ruled against an $8 billion settlement that gave the owners of Purdue Pharma — the Sacklers — protection from future lawsuits. The court ruled that such protection is not authorized by bankruptcy law. 

These lawsuits, regardless of their legal merits, are unlikely to diminish the opioid overdose epidemic because they do not address the government policies that caused it and perpetuate it.

The risk of overdosing from the proper medical use of prescription opioids is low. As I wrote in a Cato policy analysis with Laura Nicolae and Greg Sollenberger: 

Opioid overdose deaths have risen dramatically in the United States over the past two decades. The standard explanation blames expanded prescribing and advertising of opioids beginning in the 1990s.

This “more prescribing, more deaths” explanation has spurred increased legal restrictions on opioid prescribing. Federal and state governments have enacted a variety of policies to curtail prescribing and doctor shopping, and the federal government has raided pain management facilities deemed to be overprescribing. Supporters believe these policies reduce the supply of prescription opioids and thereby decrease overdose deaths.

We find little support for this view. We instead suggest that the opioid epidemic has resulted from too many restrictions on prescribing, not too few. Rather than decreasing opioid overdose deaths, restrictions push users from prescription opioids toward diverted or illicit opioids, which increases the risk of overdose because consumers cannot easily assess drug potency or quality in underground markets. The implication of this “more restrictions, more deaths” explanation is that the United States should scale back restrictions on opioid prescribing, perhaps to the point of legalization.

The past five years have confirmed our conclusion from 2019. Prescribing has been declining, as has the number of overdoses attributed to prescription opioids. But overdoses from fentanyl, and total opioid overdoses, have risen sharply in recent years.

The lesson for policymakers is clear: prohibition kills. 

Lemoni Matsumoto, an undergraduate at the University of Chicago, contributed to this article.

Walter Olson

Here’s a roundup of election law and policy items I wish there were time to do as single posts:

Confirming the intuitive: when people are lied to about elections supposedly having been stolen, they become more willing to countenance political violence. [James A. Piazza, American Politics Research 2024] Those who falsely portray elections as stolen bear a heavy moral responsibility.
Count on the Illinois legislature to pull a stunt like changing the rules to yank the rug out from under adversaries who’d already committed to a ballot access method [Chicago Sun-Times editorial, Derek Muller and more; a judge disallowed applying the change to this year’s election]
From 2021, another entry for the null effect hypothesis I’ve explored: “We find no evidence that voting by mail increases the risk of voter fraud overall. Between 2016 and 2019, RBM (VBM) states reported similar fraud rates to non-RBM (non-VBM) states.” [Statistics and Public Policy, 2021; RBM = many registered voters receive a ballot by mail, VBM = all of them do so]
Last month I participated in two webinars on ranked-choice voting for the Federalist Society with Lisa L. Dixon and Martha Kropf, moderated by Maya Noronha, and for Vote Nevada with Sondra Cosgrove and Doug Goodman with a discussion of Ballot Question 3 – I come on at 37:45.
A climate of intimidation is changing America: “Former Gov. Roy Barnes of Georgia, a Democrat, said [Fulton County District Attorney Fani Willis] had asked him to lead the prosecution of Mr. Trump for election interference in Georgia.” He declined: “I wasn’t going to live with bodyguards for the rest of my life.”

Eric Gomez and Benjamin Giltner

The backlog of US arms sales to Taiwan grew in June 2024 to $20.5 billion, an increase of almost $840 million from the previous month. As shown in Figures 1 and 2, asymmetric capabilities account for the backlog’s growth in June.

June 2024 featured two major developments: the first arms sales under the newly inaugurated Lai Ching-te administration, and the release of a Ministry of National Defense (MND) report to Taiwan’s legislature that provides new information about several delayed arms packages.

For a detailed list of the arms packages in the backlog, see Table 1.

Lai Administration Off to a Good Start

The Defense Security Cooperation Agency (DSCA) announced four new Foreign Military Sales (FMS) cases to Taiwan in June 2024. These arms sales should please advocates of an asymmetric defense strategy for Taiwan as they suggest that the Lai administration is taking asymmetric defense seriously.

The four new FMS cases are split between maintaining Taiwan’s existing traditional capabilities and acquiring new asymmetric capabilities. Traditional capabilities are more flexible than asymmetric capabilities, but are also more expensive to buy and maintain. Though Taiwan’s military has made some progress toward an asymmetric strategy—which offers a better chance of resisting a Chinese invasion attempt—it has generally favored traditional capabilities.

Two of the June arms sales maintain Taiwan’s existing traditional capabilities while the other two acquire new asymmetric systems.

On June 5, the DSCA announced sales of standard and non-standard spare parts for F‑16 fighter aircraft for $220 million and $80 million, respectively. We did not include these two sales in the arms backlog dataset because they maintain existing capabilities that Taiwan could use to protect itself, whereas our dataset covers US weapons that Taiwan does not have yet.

Sales of F‑16 spare parts help Taiwan maintain the aircraft it already possesses, but Washington should not sell Taipei new aircraft. Traditional capabilities, like F‑16s, can conduct a wider range of missions than asymmetric capabilities, but their vulnerability to China’s superior traditional forces makes them less useful in a high-end conflict.

The two June 2024 FMS cases that are included in the backlog comprise a $300 million sale of 291 ALTIUS 600-Ms and a $60 million sale of 720 Switchblade 300s, both of which are loitering munitions—small unmanned aerial vehicles armed with explosives that detonate when the vehicle crashes into a target. Loitering munitions have been used extensively by Ukraine’s military against invading Russian forces. For Taiwan, putting many of these capabilities in the hands of small units gives options for conducting precise attacks, even if Taiwan’s more advanced strike capabilities like aircraft or artillery are disrupted or destroyed.

The State Department is confident that Taiwan will receive these 1,011 loitering munitions by the end of 2025. If this timeline proves accurate, it would be a major success story for a US arms sale to Taiwan.

MND Reports Reveal Significant Delays

A majority of the $837 million increase in the arms backlog comes from adding old weapons sales back to the backlog. Initially, we did not include these items in the backlog, as other sources indicated that these weapons had been delivered. However, two reports from Taiwan’s MND that we located and translated this month indicate that these weapons are, in fact, delayed.

The two MND sources are a June 2024 letter to the Legislative Yuan on the status of five arms sales (three delayed, two ahead of schedule), and an excerpt of a report on the MND’s 2024 budget request published in October 2023. Based on these sources, we added three asymmetric arms sales to the backlog worth a combined $477 million.

In late 2015, the United States announced sales of Stinger man-portable air defense missiles and TOW-2B anti-tank missiles to Taiwan. While SIPRI’s Arms Transfers Database claimed both packages were delivered, Taiwan’s MND said otherwise.

For the Stinger missiles, the October 2023 MND report says there have been multiple issues with both the 2015 sale (250 missiles for Taiwan’s navy) and a later 2019 sale (250 missiles for Taiwan’s army). Bureaucratic issues in the MND created a delay in both programs, requiring a new Letter of Acceptance for the sales, which was signed in 2020.

According to the MND report, delivery of the Stingers was originally supposed to occur in 2020 (navy sale only) but it was revised twice, first to 2022 and then to no later than 2025 (both navy and army sales). According to the Taiwanese press, Taiwan received an initial shipment of Stinger missiles in 2023, but based on the MND report and subsequent press reporting, we assess that neither the 2015 sale nor the 2019 sale have been completely delivered. The October 2023 MND report states that since 2021 Taiwan issued two letters of protest to the United States over delays in Stinger deliveries. The 2015 Stinger sale increases the backlog by $217 million.

As for the TOW-2B missiles, the United States announced a sale of over 750 missiles for $268 million in late 2015 which was revised downward in 2018 to 460 missiles for $131 million. In July 2019, the United States updated this sale, adding 1,240 TOW missiles valued at $241 million for a total of 1,700 missiles and $372 million.

Per the October 2023 MND report, the initial tranche of 460 missiles was supposed to be delivered by 2022, but this was pushed to late 2023. The June 2024 MND letter goes on to say that none of the 1,700 missiles have arrived due to US production delays and issues with pre-shipment quality control testing. Our dataset already included the 1,240 missiles, but not the 460 missile sales. Based on the new MND letter, we have added the smaller sale to the backlog.

Taiwan’s defense minister claimed that all 1,700 TOW missiles will arrive by the end of 2024. Yet the fact remains that Taiwan has not received any of a relatively simple capability first notified to Congress nine years ago.

The final addition to the backlog from the MND reports is a July 2019 modification to a 2015 sale of Javelin missiles and launchers. This modification covers 400 Javelin missiles and 46 launchers valued at $129 million (the 2015 sale was delivered in 2020). According to the October 2023 MND report, Taiwan was supposed to receive the 400 Javelin missiles and 46 launchers by the end of 2022. The June 2024 MND letter clarifies that all the launcher units were delivered, but not all the missiles have arrived. As of June 2024, 251 missiles have been delivered, with the remaining 149 scheduled to arrive by the end of the year.

The Javelin delivery timeline is not as significantly delayed as the Stinger and TOW missiles. However, it was missing from previous versions of our dataset, which we have fixed.

Conclusion

The month of June was a mixed bag for the Taiwan arms sale backlog. The first US arms sales to the Lai administration will advance Taiwan’s asymmetric capabilities, which are essential for effective defense against a Chinese invasion. However, new information from Taiwan’s MND reveals longer delays for several key asymmetric capabilities.

Putting Taiwan in a better position to protect itself from China will require shorter delays in arms deliveries, and US policymakers need to do more to identify and fix the sources of delays.

Taiwan Arms Backlog Dataset, June 2024