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Walter Olson

After some time in the making, my paper for the Nevada Policy Research Institute is now out, entitled “Efficient, Timely, and Reliable: A Framework for Election Law in Nevada.” In 47 pages, I try to lay out a combination of electoral reforms and practices that could plausibly appeal across Red/​Blue lines in a state that is politically closely divided. I emphasize speedier tabulation of results and reasonable efforts to calm public distrust, all without sacrificing the benefits of convenience and modernization while coping with the unusual voter roll maintenance challenges Nevada faces as the state with the nation’s most transient population. There are ample endnotes that I hope will be of use to those exploring the contentious recent history of election law change in the Silver State.

Ballot Access News recently covered my paper in a blog post and I thought did a skillful job of pulling out some of its main recommendations:

Nevada has recently had a poor performance regarding timely reporting of election results, and Olson points out that there are tradeoffs and tensions between competing goals of an election system.

Among his recommendations are:

#1: Nevada should complete its transition from “county‐​led voter registration to a so‐​called top‐​down system with extensive statewide direction … with a single constantly updated statewide uniform database overseen by the secretary of state.”

#2: An accurate voter database should be a top priority, with investment in “multiple frequently refreshed high‐​quality data sources and proactively reaching out to households and addresses following evidence of moves and other relevant changes.”

#3: “Nevada should stay in the Electronic Registration and Information Center, and work to improve and refine its capabilities.”

#4: “To keep voters informed of the progress of their ballots, Nevada should finish the job of adopting strong ballot tracking and notification.”

#5: In addition to their signature, voters should have to write their driver’s license number or last four digits of their Social Security Number on their mail‐​in ballots.

#6: Nevada should invest in making ballot drop boxes more secure and in employee protocols for handling ballots, and

#7: End the practice of ballot harvesting.

Most of the issues I address in the new paper turn up in other states as well, so I hope the report will be of interest to readers and reformers nationwide. I’ve already cited some of its observations in posts in this space on speedy vote tabulation, ballot tracking and notification, and drop box security, with more likely to come.

Ryan Bourne

President Joe Biden will reportedly use his State of the Union (SOTU) speech to blame corporations for high grocery bills.

The public remains deeply angry at the prices they pay for food shopping. A majority of those voters concerned about inflation cite “the cost of food and groceries” as the source of their angst.

Between January 2010 and January 2021, the price index for food consumed at home increased by less than 18 percent in 11 years. Since Biden became President, it has increased by 21 percent in just three years.

This mainly reflects the impact of high inflation, of course, much of which was baked in due to monetary excess and one‐​off supply‐​shocks from 2020 through 2022. As supply conditions have improved food prices overall are no longer going up as quickly as inflation in general. But visits to the grocery store are still a reminder of the sharp, enduring food price spikes we experienced in 2022 and early 2023.

This remains a big political problem for Biden in an election year. His administration is thus doubling down on blaming high food prices on greedy companies rather than failures of macroeconomic policy. And why wouldn’t it? The media have spent two years boosting quack corporate greed theories of inflation and downplaying the role of monetary policy. This narrative risks becoming the legacy of this whole episode: much of the public thinks corporate profit‐​seeking has been in some way or a great deal responsible for the inflation we’ve experienced, with few attributing blame to the actions of the Federal Reserve.

Of course, this lends itself to a range of terrible policy ideas. Rather than monetary restraint, the supposed answer is price controls and regulations on companies’ pricing structures. It’s reported Biden may even use his SOTU platform to endorse legislation put forward by Sen. Bob Casey (D‑PA), Sen. Elizabeth Warren (D‑MA), and others. All these proposed laws are either economically incoherent or based on highly misleading data.

Shrinkflation

Before the Super Bowl, President Biden complained about shrinkflation—the practice of firms reducing product or portion sizes while keeping package prices the same, thus raising the per unit price of the food, drink, or product.

Have you noticed in the past couple of years how the amount of cereal or chips in a packet have fallen? Biden thinks this is a nefarious plot to rip off customers. Senator Casey has even advocated legislation that would empower the Federal Trade Commission (FTC) to promulgate rules treating this as an “unfair or deceptive act or practice.”

Shrinkflation did happen across a range of food products, particularly in 2022. But this itself is just a manifestation *of* inflation, which ultimately had macroeconomic roots (too much money chasing too few goods).

The Bureau of Labor Statistics, which calculates the Consumer Price Index, already tries to account for inflation that manifests as shrinkflation. Their analysis shows that about 10 percent of the increase in unit prices for snacks occurred through reduced package size, with the same phenomenon, though less significant in scale, for candy and chewing gum, coffee, and ice cream. It may be the case that the basket of goods the CPI examines doesn’t capture every case of inflation, which means it’s plausible that by under‐​accounting for shrinking packages, the official CPI still understates the inflation consumers have faced.

The point is that in an inflationary environment, firms must decide whether to raise their headline prices or trim product sizes. Remember, inflation, ultimately, is a rise in all prices across the economy, including firms’ costs. This doesn’t mean all prices will rise by the same amount (supply and demand shifts mean relative prices between goods change too). Nor will inflation affect all prices at the same time—for some firms, costs rose first, and for others their product prices.

But, in time, inflation raises all prices, so just eating losses as your costs go up because of inflation is not an option for companies. As economist Dean Baker told Politico, “Costs have gone up — wages are 20 percent higher than they were in 2019. We’re not going to have a world where people get to keep their 20 percent pay increases and pay what they did four years ago for food.”

The logical implication is that in the absence of shrinking the amount of product within a package, firms would have raised package prices even higher than they did. Banning “shrinkflation” is effectively a mandate to raise package prices, rather than pursuing a size‐​price bundle that some (particularly low‐​income) consumers might prefer. It would also encourage gaming, with firms no doubt launching new package sizes that they sell concurrently with existing sizes, before discontinuing the latter, leading to costly legal disputes.

Biden attacking shrinkflation is thus all about anti‐​corporate vibes—the idea that businesses are screwing you over by squeezing product sizes underhandedly. To the extent he really believes this to be true, however, Biden should probably be grateful to firms that opted to shrink their product sizes. The alternative was higher package prices, which would have made deeply unpopular food price inflation even more salient.

Greedflation

The context for this anti‐​business sentiment has been a relentless propagation of “greedflation” theories from Democratic politicians and some economists. These take many forms, but the most popular tale says that firms exploited customers’ knowledge of major business cost shocks from the pandemic and Ukraine war to raise prices by more than was justified by those rising costs. Hence, businesses caused inflation.

The evidence? Greedflation theorists typically use a basic accounting identity to suggest that:

A change in unit prices (inflation) = A change in worker compensation (unit labor cost) + A change in unit profits + A change in unit costs of other inputs.

They then look at various periods and if unit prices have gone up at the same time as unit profits for companies, they conclude that higher prices are being driven by higher profits. The Economic Policy Institute (EPI), for example, produced a report claiming that, between Q2 2020 and Q3 2021, 54 percent of price increases were driven by fatter profit margins. Using the same methodology, Groundwork revived this analysis recently by looking at what happened during Q2 and Q3 of 2023, concluding that “corporate profits drove 53 percent of inflation during the second and third quarters of 2023 and more than one‐​third since the start of the pandemic.”

Those periods are cherry‐​picked because other periods tell a different story. Chris Conlon, an economist at NYU Stern School of Business, points out that, through the year Q3 2022 to Q3 2023, under this same logic, profit accounted for minus 22 percent of price increases (markups were falling) while labor costs more than accounted for inflation (increasing it 128 percent).

Was the greedflation then because of greedy workers, rather than firms? Neither EPI nor Groundwork have suggested so. Looking at the share of price rises like this is misleading too. Between Q2 and Q3 2023, prices did not increase significantly, so Groundwork was effectively calculating that a tiny change in prices could be accounted for by a similarly tiny rise in profits over that period.

In any case, this sort of analysis by accounting identity is terrible economics. Firms cannot just increase inflation by reaching for profits. If one firm raised prices for customers on that basis, then other competitors would undercut them. Even in markets where firms had more market power, consumers would have less money left over to demand other products, pushing other prices down and having little overall effect on measured inflation.

What about if most or all firms across the economy colluded to restrain output and increase prices at the same time? Then we’d have expected to see real GDP in the economy fall significantly to explain the level of inflation we saw in 2021 through 2023. Yet real GDP grew strongly in the period EPI complained about profits driving inflation and continued growing reasonably last year when Groundwork made the same complaint. So there’s little evidence of these huge effects in the macroeconomic data.

More importantly, the reason consumers have been able to pay these higher prices was because there was a huge increase in the money supply between early 2020 and mid‐​2022. If a central bank allows the money supply to get out of control, this can increase total spending power across the economy.

That extra demand for goods and services can produce rising consumer prices and rising profits across many sectors in the short term, not least because wages (a big cost for firms) tend to be stickier. Prices and profits thus rise at the same time, as does real GDP. Yet it was monetary excess causing all this, not greedy companies’ profits causing inflation.

Price Gouging

Unfortunately, many Democrat politicians seem to think it illegitimate for firms (including grocery stores) to raise prices when demand for their product rises (as opposed to their costs going up). That way of thinking also seems to have infected their macroeconomic worldview: if rising prices across the economy at any period can’t be explained by firms’ rising costs, then it must be greed or excessive profit‐​seeking, rather than the first‐​order effects of too much macroeconomic stimulus.

If all this were just idle musings from populist politicians, that would be one thing. But Senator Warren and others have introduced federal legislation that would make it “unlawful for a person to sell or offer for sale a good or service at a grossly excessive price” during an “exceptional market shock.”

That is, they want to ban companies from “excessive” price increases following “a natural disaster, failure or shortage of electric power or other source of energy, concerted labor action, lockout, civil disorder, war, military action, national or local emergency, public health emergency, or any other cause of an atypical disruption in such market,” regardless of what has happened to demand.

This anti‐​price‐​gouging legislation would enshrine in law that firms couldn’t raise prices by more than the FTC considered justifiable, with the legislation suggesting this be capped at the level of prices charged pre‐​emergency or what the accused business’s competitors are charging. If this legislation had been in place during the pandemic, it would thus have acted as an effective price control across much of the economy suffering from excess demand. That would have been a recipe for prolonged shortages for many goods and services.

The legislation grants an affirmative defense to businesses accused of gouging only if they have revenues less than $100 million and can prove that price hikes arose due to additional business costs. For larger companies with US revenues above $1 billion or who discriminate between buyers from a dominant position, charging more than normal would be a presumed violation with potentially massive fines of “5 percent of the revenues earned by the person’s ultimate parent entity.”

Conclusion

Democratic politicians, including President Biden, are keen to suggest that companies are to blame for the high cost of groceries and shrinking package sizes. Both, however, are symptoms of higher inflation between 2021 and 2023, caused by too much macroeconomic stimulus relative to the economy’s propensity to produce goods and services.

In propagating this false narrative, the federal government isn’t just mis‐​educating voters about the ultimate causes of inflation. It is also fueling legislative attempts to control firms’ prices or pricing structures. Giving the FTC powers to judge shrinkflation an “unfair or deceptive act or practice” risks costly legal disputes and companies feeling forced to raise package prices, even when consumers might prefer fewer units of the product within a package. A federal anti‐​price‐​gouging law risks prolonging shortages of goods in high demand during emergencies.

David J. Bier

This updates an earlier post.

Border Patrol Chief Jason Owens confirmed last week that the number of known successful evasions of Border Patrol (“gotaways”) have fallen to just 800 per day in fiscal year 2024—down 70 percent from 2,671 the week before the Title 42 expulsion authority ended on May 11. A decline in gotaways this large and fast is unprecedented in Border Patrol’s history, and even as the administration faces unrelenting criticism, this stands as a major immigration win.

I have previously written about this phenomenon, using numbers leaked by Border Patrol to friendly journalists who report them without the context of the broader trend. But this update confirms that the low numbers continued into January and February. Figure 1 shows the monthly data using the chief’s update and media reporting for more recent numbers and a Freedom of Information Act for the older numbers. Gotaways fell from a high of 73,463 in April 2023 just before Title 42 ended to about 21,758 in February 2024. Ending Title 42 appears to have been the biggest single benefit to border security in its history.

Interestingly, the decline in gotaways has persisted even when the number of arrests has increased. Getting rid of Title 42 without letting people come legally was never going to change every aspect of the situation, but it has not made the situation worse. From the standpoint of border security, the situation has improved dramatically because fewer people are escaping screening by the Border Patrol. This means Border Patrol can more effectively screen out criminals. Moreover, contrary to the apocalyptic claims about ending Title 42, the average number of Border Patrol arrests has not increased.

Figure 3 shows the “gotaway” rate—that is, the share of gotaways out of all arrests and gotaways. This is a rough approximation of Border Patrol effectiveness, controlling for the total inflow. As it shows, since Title 42 ended, the gotaway rate has fallen dramatically to below 14 percent, the lowest level outside of a couple months in 2019. This is a return to the trend under the Obama administration in reducing the rate of successful crossings. Every month since August 2023 has been below 15 percent—the longest such period on record. According to the Rio Grande Valley sector chief, this trend of low gotaway rates continued in that sector into March, and Fox News is reporting a low rate nationwide in March as well.

None of this should be a surprise. In our amicus brief outlining reasons to be skeptical of claims that Title 42 would cause a surge in illegal crossings, we explained that Border Patrol’s practice of placing people back on the other side of the border incentivized illegal crossings by giving individuals repeated chances to enter illegally. It also motivated people who would otherwise turn themselves in for asylum to slip in covertly.

Gotaway data have become more reliable over the past decade because border surveillance has increased dramatically from 2005 to 2023. Now, nearly the entire border has some form of electronic surveillance at all times. Moreover, the Obama administration made efforts to systematize the criteria for recording a gotaway to make the measure more consistent and reliable in 2014. Additionally, communication between stations was improved to remove double counting.

CBP also estimates the successful crossing rate using surveys of deportees. It first estimates the total flow of deportees returning to the US border based on surveys conducted by Colegio de la Frontera Norte International Border Survey. It then subtracts the number of deportees that it arrested and assumes the remainder escaped detection. Of course, some do attempt to reenter when they initially indicated no intention to do so, and some do not attempt to reenter when they said they did. CBP has made additional efforts to account for individual characteristics of crossers to resolve some of this problem.

While the model‐​based estimates are certainly not perfect, these data show that CBP’s observational data (gotaways) are improving compared to the models. Figure 4 compares the observational apprehension rates to the model‐​based rates. It shows that the observational data converged with the model‐​based data around 2014. From that point on, the observational gotaway data accounted for between 75 percent and 100 percent of modeled gotaways.

Although the gap between observational and modeled estimates was the largest in 2020 since 2014, observational gotaways still accounted for about 75 percent of modeled gotaways. 2020’s decline in modeled effectiveness likely reflects that people’s intentions changed in response to the pandemic and fewer people tried to enter illegally than the model predicted. There was no observed increase in gotaways during fiscal year 2020, which ended in October (though there was a dramatic increase by December 2020).

The United States has a legitimate interest in regulating the entry of serious criminals and other threats to Americans, and border security is a significant component of that effort. Ending Title 42 improved border security and reduced successful illegal entries. This should force the many members of Congress and the administration who opposed ending Title 42 to rethink their position.

Jeffrey A. Singer

Almost exactly one year after Colorado became the sixth state to allow mental health patients access to doctorate‐​level prescribing psychologists (RxPs), Utah lawmakers passed SB 26, which grants that freedom to Utahns. The bill has gone to Governor Spencer Cox’s desk for his expected signature.

As I explained in a 2022 Cato briefing paper, RxPs have been providing medication‐​assisted psychotherapy in the US Military Health System, US Public Health Service Commission Corps, and US Indian Health Service for more than 30 years. In 1999, the territory of Guam granted its residents access to competent doctorate‐​level clinical psychologists trained to prescribe mental health meds to their patients. New Mexico became the first state to grant its patients access to RxPs in 2002, followed by Louisiana in 2005, and, subsequently, Iowa, Idaho, Illinois, and Colorado.

While prescriptive authority laws vary by state, they generally follow the guidelines the military health service developed in the 1990s: clinical psychologists with PhD or PsyD degrees must obtain a two‐​year Master’s Degree in Clinical Psychopharmacology (MSCP), which includes supervised clinical experience, and pass a standardized Psychopharmacology for Psychotherapists Exam (PEP). Next, they get a provisional license that allows them to practice under the supervision of a licensed prescribing health care practitioner for two years. When they complete those two years, they receive an unrestricted license. Utah lawmakers have adopted similar requirements.

As explained in the briefing paper, the US has a worsening shortage of mental health care practitioners. Clinical psychologists significantly outnumber psychiatrists. Roughly half of psychiatrists don’t accept health insurance. One recent study shows less than 11 percent of psychiatrists engage in talk therapy these days—most practice pharmacotherapy.

In most states, if clinical psychologists engaging in talk therapy determine their patients need adjunctive medication to facilitate treatment, e.g., antidepressants, governments require them to refer their patients to a licensed prescribing health care practitioner for the prescription. This makes it more costly and inconvenient for many patients and fragments their care.

Psychiatrists are often unavailable and, if they are, may not accept insurance. In such cases, psychologists may refer their patients to any other licensed prescriber. Among licensed prescribers that state governments authorize to prescribe psych meds are general surgeons like me, orthopedists, OB‐​GYNs, and ENT doctors.

States also permit family physicians, nurse practitioners (NPs), and physician assistants (PAs) to prescribe mental health meds. In most cases, clinical psychologists who have taken the additional training that RxPs must undergo know more about clinical psychopharmacology than doctors, NPs, or PAs.

A study published last summer found a statistically significant drop in suicide rates in New Mexico and Louisiana (the two states with the oldest RxP laws) after they granted competent clinical psychologists prescriptive authority.

The American Medical Association and the American Psychiatric Association have long opposed expanding appropriately trained clinical psychologists’ scope of practice to include prescribing mental health meds. The AMA boasts to members about its ongoing battle against what it calls “scope creep.”

The American Psychiatric Association voices concern that the additional didactic and clinical training RxPs undertake is not enough for them to safely prescribe. It’s curious, therefore, that the American Psychiatric Association doesn’t lobby state lawmakers to restrict physicians who are in other medical specialties, such as the surgical specialties, Ob‐​Gyn, cardiology, and family medicine, from prescribing mental health meds. Doctors in these fields rarely receive didactic or clinical training in clinical psychopharmacology that begins to approach what RxPs must complete.

In October 2022, I moderated an online event with prescribing psychologists and the American Psychiatric Association President, discussing this and other issues in greater detail. You can watch it here.

For decades, organized medicine’s entrenched incumbents have successfully dissuaded state lawmakers from granting prescriptive authority to competent psychologists. But, as the country’s mental crisis worsens, government walls blocking access to mental health care are starting to crumble.

Now Utah joins the list of states making it easier for people to get access to medication‐​assisted mental health services.

Jeffrey Miron

Non‐​libertarians tend to believe that if X is good (bad), then policies encouraging (discouraging) X are beneficial. (X might be drugs, guns, sex‐​education, savings, and numerous other examples.)

Libertarians believe these issues (whether X is good/​bad, versus where policy should promote/​discourage X) are separate. Policies have their own costs; they may not move X in the desired direction; and they sometimes generate backlash that pushes X in the wrong direction or generate other, undesired consequences.

A recent paper supports the libertarian perspective when X is COVID-19 vaccines:

During the COVID-19 pandemic, some US states mandated vaccination for certain citizens. We used state‐​level data from the CDC to test whether vaccine mandates predicted changes in COVID-19 vaccine uptake, as well as related voluntary behaviors involving COVID-19 boosters and seasonal influenza vaccines. Results showed that COVID-19 vaccine adoption did not significantly change in the weeks before and after states implemented vaccine mandates, suggesting that mandates did not directly impact COVID-19 vaccination. Compared to states that banned vaccine restrictions, however, states with mandates had lower levels of COVID-19 booster adoption as well as adult and child flu vaccination, especially when residents initially were less likely to vaccinate for COVID-19. This research supports the notion that governmental restrictions in the form of vaccination mandates can have unintended negative consequences, not necessarily by reducing uptake of the mandated vaccine, but by reducing adoption of other voluntary vaccines.

Freedom wins again.

This article appeared on Substack on March 4, 2024.

Jeffrey A. Singer

Oregon voters passed Measure 110 in November 2020, which put an end to caging people who choose to consume drugs that the government prohibits. The drug decriminalization measure went into effect on February 1, 2021, at the height of the COVID-19 pandemic—a time when lockdowns and social distancing policies cut off people who use drugs from lifesaving harm reduction and treatment programs while exacerbating the isolation and despair that drive self‐​medication.

This unfortunate timing, plus a delayed rollout of the harm reduction and treatment programs that Measure 110 envisioned and funded, is why RTI Institute researcher Alex Kral, PhD informed attendees at an academic conference in Salem, Oregon last month that there were only four months of data useful for gaging Measure 110’s effects.[i] 

Responding to a dramatic increase in opioid‐​related overdose deaths that exceeded the national average since the measure took effect, lawmakers have decided to revert to the old tried and failed method of incarcerating people who use illicit drugs, a policy that has seen overdose deaths rise exponentially since at least the late 1970s. Oregon lawmakers overwhelmingly passed HB4002 today, recriminalizing drug use, and the governor is expected to sign it. HB 4002 also lets people arrested for drug possession avoid jail time if they enter a government‐​prescribed rehab program (though many people who use illicit drugs may not necessarily be addicted).

Oregon voters were mistaken if they believed that decriminalization alone would reduce overdose deaths. Decriminalizing is not the same as legalizing. If people who use drugs need to get them on the black market, they can never be sure of the dose or purity of what they are buying or if it is the drug they think they are buying.

And though ending drug prohibition will make drugs safer, regulated, and more difficult for minors to obtain—which is what happened when the US ended alcohol prohibition—harm reduction strategies will always be necessary and, sometimes, lifesaving, as they are for people who consume alcohol and tobacco.

With only four months of valuable data, Oregon lawmakers rushed to judgment and concluded decriminalization caused the disproportionate rise in overdose deaths over the past couple of years. However, researchers took a closer look at the data and found decriminalization had no connection to the increased overdose rate. It’s all about the fentanyl.

Numerous studies have shown that illicit fentanyl flooded the drug market in waves, beginning in the eastern US and working its way west. Work by Brandon del Pozo and colleagues at Brown University shows nearly identical surges in overdose rates in every region of the country as fentanyl began dominating the drug market. By 2018, almost 90 percent of overdose deaths involving fentanyl and its analogs occurred in 28 states east of the Mississippi River. Additional research published in 2023 showed a similar wave making its way across the country, finally dominating western states, including Oregon, by 2021—the year Measure 110 went into effect.

Del Pozo and colleagues used Centers for Disease Control and Prevention overdose mortality data from 2008–2022 and a synthetic control group consisting of 48 states and the District of Columbia to study the association between overdose fatality rates and Measure 110. They used a changepoint analysis to determine “when each state experienced a rapid escalation in fentanyl.” They concluded: “After adjusting for the rapid escalation of fentanyl, analysis found no association between M110 and fatal drug overdose rates. Future evaluations of the health effects of drug policies should account for changes in the composition of unregulated drug markets.”

The researchers also saw an increase in the fatal overdose rate once Washington State recriminalized drug possession in 2023 after its Supreme Court, in 2021, overturned a state law that made drug possession a felony (State vs. Blake).

Sadly, Oregon’s lawmakers didn’t give decriminalization combined with harm reduction a chance to work. They are delusional if they think going back to the formula that caused countless avoidable overdose deaths and filled our prisons is going to work now when it has never worked before.

And forcing people to enter rehab or face incarceration is bound to fail as well. Plenty of research suggests that, except in certain circumstances where drug users are uniquely self‐​motivated (such as doctors and commercial airline pilots who fear losing their licenses), coercive treatment is futile at best and may increase the likelihood of overdose in people who relapse after release from treatment.

Oregon’s drug recriminalization is a painful setback to the cause of ending America’s longest war. While not a substitute for legalization, decriminalization gave Oregon lawmakers a chance to move the country toward a more rational and humane drug policy. Sadly, they flinched.

[i] See minutes 21:00 to 23:00 of the webinar video at the link

Colleen Hroncich

Mercedes Grant knew there had to be a better way to educate students. A special education with experience in several states, she kept seeing the same problems. She didn’t think it made any sense to expect kids—especially students in special education—to learn in the same way and at the same pace.

Then she heard about microschools. “As soon as I started researching it, I knew that that is exactly what I wanted to do with my career. It was just the absolute perfect fit for me to be able to take the positive things that were happening within my classroom and create an entire school or microschool or learning center that looks just like that,” she recalls. “I didn’t want to leave teaching. This is my passion. And I feel like it’s my calling. I want to be an educator, but I did not like the constraints of public education. It was really, really hard for me to be able to teach in a way that I felt that was ethical.”

Mercedes took a big leap and opened Path of Life Learning microschool in Virginia last fall. They have around 32 students now and expect 60 in grades K‑6 for the upcoming year. Families can choose a two‐ or four‐​day option. Mornings are focused on traditional academic classes, while afternoons are all about enrichment.

Students are divided into cohort levels for academics. “We have some self‐​directed learning and self‐​paced learning for English and math. And for social studies and science, we do whole groups,” Mercedes explains. “In the afternoon, they do their clubs—we call that power hour. We have extended learning time for any skills that they might be missing or any work that they still need to complete. That is called grow your brain. And then we have time for other adults to come in and teach classes. We have music and sign language, and we also just added art and yoga.”

The microschool is held in a church, where they have three classrooms this year and will have five next year. They also have four acres of outdoor space, which Mercedes says has been terrific. “We have woods and a field. We’re getting ready to do a community garden. So we are definitely using the space,” she says. “Whenever possible, especially with our science lessons, we go into the woods, and we learn about what’s happening in the world around us. And we really get into paying attention and being quiet and enjoying the beauty of God’s world. That has been one of the best things, I think, is not being confined to the classroom space. We really, really enjoy being outside and we love our hikes. We love to just kind of explore nature. It’s been really beautiful and peaceful to have so much open air.”

With her background in special education, Mercedes has been heartened to see how well kids with various learning needs do at Path of Life Learning. “With the small space and the small numbers that we have, we are able to serve students with special needs very, very well,” she says. “We’re able to meet them where they are, and it’s just incredible because every student is able to be exactly where they need to be. So we love our special education students. They fit right in and are able to work at a pace and in a way that is meaningful to them, which is huge for me.”

This year, most of the students were already homeschooled. For next year, there are more coming from public or private schools. “I think the biggest appeal is the hybrid model. Most of my students are two days per week. We also offer the four‐​day option, but I do really think that people are turning back to more family time. They’re enjoying the quality time that comes with being able to spend more time with your children,” Mercedes says. “I really have seen the relationships flourish, my own included, when you’re not working all the time or even not parenting all the time. A lot of homeschool moms enjoy the fact that they can get things done and really focus on their kids when their kids are at home. The feedback that I’ve gotten from that is very positive.”

Mercedes realizes she’s tapped into an underserved market. “I filled up in three weeks last year, and I have a waiting list with over 50 students—and I’m getting inquiries every day,” she says. While she loves her location and wants to keep it, she wants to help serve that unmet demand. “I really love this model. Unless we get more educators or more entrepreneurs to create this model in this area, I just feel like it’s the natural course to continue to expand and find ways to plant seeds.”

As a military wife, Mercedes has a special affinity for giving military families more options—85 percent of her students are from military families. “We have seven different military bases here,” she explains. “Our military kids often get lost because we drift. We’re very transient. My son has been to nine schools. He’s a senior this year and he’s just kind of drifted, and it’s so hard. So if we can offer a space for students that have been transient or that haven’t been able to successfully find a school home that is appropriate to them, how rewarding would that be? And to be able to say, ‘You know what? I can’t work with you this year, but I’m going to keep growing so that I can make more space for you in the future.’ I think that’s a beautiful thing and it’s a blessing. And I don’t take that lightly. I really want to serve as many kids as I can in a way that remains true to our vision. So, I still want to stay micro, have multi‐​age and low class numbers, and do this the right way and the more joyful way of learning. But I really do want to serve more people.”

Mercedes doesn’t know what her next steps will be, but she’s open to whatever God has planned for her. “Who would have known that this girl working in rural Kentucky would be opening her own school less than 10 years later?” she asks. “It’s incredible.”

Jeffrey A. Singer

As I explained in a Cato briefing paper last year, overdose prevention centers (OPCs) are a proven harm‐​reduction strategy, begun in Switzerland in 1986. There are 147 sanctioned OPCs in 16 countries and 91 locations, including two in New York City, which announced they had reversed more than 1000 overdoses a year and a half after they opened. This saved the city millions of dollars in ambulance and emergency services.

The two OPCs in New York City are operating in defiance of federal law. A law passed in the 1980s, 21 U.S.C Section 856, or the “Crack House statute,” makes it a federal felony for organizations to allow people to use illicit drugs on their premises knowingly. So far, the US Justice Department has not taken action against OnPointNYC, the harm reduction organization operating the two OPCs, or the City of New York, which sanctions them.

Now comes more evidence to support harm reduction advocates’ claims that OPCs save lives. A study published in the February 2024 issue of The Lancet provides clear evidence that OPCs reduce overdose mortality in surrounding neighborhoods.

The researchers examined the overdose mortality rates in Toronto, Canada, between May 2017, when nine OPCs opened in the city, and December 2019. They found that overdose fatalities dropped significantly during that period in neighborhoods surrounding the OPCs but not in other neighborhoods. Referring to the OPCs as “safe consumption services” (SCS), the authors concluded:

We found that the period during which SCS were implemented in Toronto was associated with a reduced overdose mortality in surrounding neighbourhoods. The magnitude of this inverse association increased from 2018 to 2019, equalling approximately two overdose fatalities per 100,000 people averted in the square mile surrounding SCS in 2019. Policy makers should consider implementing and sustaining SCS across neighbourhoods where overdose mortality is high.

Also in February, the Providence, RI City Council permitted a non‐​profit harm‐​reduction partnership, Project Weber/​RENEW, to open the state’s first OPC later this year. The organization is working with VICTA, a private substance abuse and mental health treatment program, which will offer services to OPC clients who want them. The Rhode Island legislature authorized privately funded OPCs in the state two years ago, provided they received local government approval.

And last May, Minnesota lawmakers authorized OPCs in that state.

Critics of OPCs voice concerns that they may attract drug‐​related crime in surrounding areas. But a study published in the Journal of the American Medical Association last November found “no significant increases in crimes recorded by the police or calls for emergency service in NYC neighborhoods where 2 OPCs were located” and concluded:

These findings suggest that concerns about crime and disorder remain substantial barriers to the expansion of OPCs in US cities, and initial data from NYC do not support these concerns.

As overdose fatalities mount, more states and municipalities are willing to give this proven harm‐​reduction strategy a try. Congress should adopt federalist principles by either repealing the Crack House statute or, if that is not feasible, amending it to allow state and local governments to permit OPCs within their jurisdictions, free from federal interference.

Thomas A. Berry and Nathaniel Lawson

The Framers of the Constitution understood that the separation of powers is “essential to the preservation of liberty.” In line with this understanding, the Constitution was designed to ensure that no single branch of government could accumulate too much undivided power. The Constitution thus vests “all legislative Powers” in Congress, vests the executive power in the president, and vests the judicial power in the federal courts. Critical to this design is the “nondelegation doctrine,” which prohibits Congress from blurring these lines by delegating its legislative power to the executive branch.

The Occupational Safety and Health Act (the OSHA Act) violates the nondelegation doctrine by granting the executive branch virtually unlimited policymaking authority. The OSHA Act grants the secretary of labor the authority to impose any “occupational safety and health standard” so long as it is “reasonably necessary or appropriate to provide safe or healthful employment and places of employment.” The secretary has delegated this power to the Occupational Safety and Health Administration (OSHA).

Through this statutory language, the OSHA Act grants the executive branch regulatory authority over essentially every American business. The only restriction on this regulatory discretion is that OSHA must deem its regulation to be “reasonable,” but in practice that is no restriction at all. No other statute grants an agency such a broad authority with such complete discretion.

For these reasons, an Ohio business has challenged the OSHA Act as an unconstitutional violation of the nondelegation doctrine. The US Court of Appeals for the Sixth Circuit rejected that challenge, but the business has petitioned the US Supreme Court for review. And Cato has filed an amicus brief supporting that petition.

Our brief recounts that for most of the last century, the Supreme Court has held that a delegation of authority complies with the nondelegation doctrine so long as it provides the executive branch with an “intelligible principle” to guide its discretion. But there is serious reason to doubt whether this lenient standard adequately protects against Congress delegating its legislative power. Before the New Deal era, the traditional standard in nondelegation cases was more strict, requiring Congress to decide major questions of policy and permitting the executive only to “fill up the details.”

But even under the lenient “intelligible principle” standard, the OSHA Act violates the nondelegation doctrine. In Panama Refining Co. v. Ryan (1935), the Supreme Court provided a two‐​part test to determine whether a statute violates the nondelegation doctrine: “(1) ‘whether the Congress has required any finding by the President in the exercise of the authority,’ and (2) ‘whether the Congress has set up a standard for the President’s action.’” 

The OSHA Act meets neither of these requirements. The Act’s “reasonably necessary or appropriate” language is even more vague than other provisions that have been upheld by the Supreme Court in previous nondelegation challenges. And unlike those upheld statutes, the OSHA Act provides no criteria binding OSHA’s discretion beyond that language.

Admittedly, the question whether a statute has crossed the line and unconstitutionally delegated legislative power can at times be difficult to discern. But as the Supreme Court itself has made clear, “the inherent difficulty of line‐​drawing is no excuse for not enforcing the Constitution.” The Court should take this case and get back in the business of meaningfully enforcing the nondelegation doctrine.

Gary Winslett

All those Taylor Swift songs you listen to on Spotify may get taxed pretty soon if the 13th Ministerial Conference of the World Trade Organization (MC13) happening this week doesn’t go well. There are several items on their agenda but possibly the most valuable is about something we all do every day and that, for the last quarter century, we haven’t had to pay extra taxes on, and now we might. It’s called the moratorium on customs duties on electronic transmissions.

That may sound remote and technical, but if trade negotiators don’t get it right this week, the end of that moratorium could mean new taxes on all of the digital goods and services that we all enjoy. The Zoom call you make to your aunt in Spain, the design files that international companies use to coordinate their production, the advertisements that American firms sell abroad, all of it and much, much more could start getting taxed. That is unless trade negotiators can come to an agreement on that moratorium, but that’s looking dicey at the moment. We are not out of the woods on this. 

Let’s back up. In 1998, when many of the digital technologies that we take for granted today like videoconference calls, downloadable songs, streaming movies, and much else were in their infancies (if they had even been born yet), the members of the World Trade Organization declared that they would refrain from issuing tariffs—in other words, taxing cross‐​border electronic transmissions. That moratorium has been routinely extended at every WTO Ministerial Conference (big WTO meetings that happen about every two years) since. In that time, internet usage, and with it digital trade, has expanded enormously, to the benefit of consumers, workers, and citizens basically everywhere.

From 2005 to 2021, trade in digitally delivered services more than tripled, and information and communication technology services increased more than five‐​fold. The United States is a powerhouse in services, especially digital‐​friendly services. US services exports grew from $563 billion in 2010 to $897 billion in 2022, a 42 percent increase. A lot of that growth either is or could be connected to digital technology.

In 2019, the digital economy was roughly one‐​tenth of the American gross domestic product, and from 2005 to 2019, it grew at more than double the rate of the nondigital economy. Outside of health care, some of the fastest‐​growing jobs are data scientists, statisticians, and software developers. Services are where many of the good‐​paying jobs of tomorrow will be. We thus have a duty to the American worker to ensure that the services they provide are treated fairly in global markets.

For their part, consumers get expanded access to digital services. A dad in Texas was able to hire a math tutor in Pakistan to help his kid over Zoom. Netflix subscribers now get a wide array of international shows like Squid Game (South Korea), Babylon Berlin (Germany), Money Heist (Spain), and The Great British Baking Show (UK). Elsewhere, I’ve dubbed this phenomenon ‘Peloton Globalization’ after American Pelotoners’ ability to get spin coaching digitally, including from instructors in other countries. Digitally delivered services are the fastest growing segment of international trade today.

(Source: Tibor Hanappi, Adam Jakubik, and Michele Ruta, “Why the WTO Moratorium on Digital Tariffs Should Be Extended,” VoxEU, Centre for Economic Policy Research, February 26, 2024.)

A lot of that growth has been greatly facilitated by a lack of government controls and by a lack of taxation on cross‐​border electronic transmissions. The WTO’s Information Technology Agreement played a massive role in promoting the growth of trade in digital services.

Furthermore, as I explained in a World Trade Review article in 2017, it was the most successful piece of trade liberalization under the auspices of the WTO since its creation nearly 30 years ago. As other scholars have noted, “WTO agreements such as the moratorium, by acting as a commitment device, contribute to lower policy uncertainty and facilitate investment and trade.” As I wrote about in a law review article here, unlike with physical goods, the international legal architecture around the digital trade in services is relatively new and evolving. Given all of this, the e‑commerce moratorium has been a commercially salubrious and politically routine matter for the WTO. At least until this year.

So who are this week’s trade anti‐​heroes? Even though extending the moratorium has the support of a large majority of WTO members, India, South Africa, and Indonesia want to block that extension so that they can place new taxes on cross‐​border electronic transmissions. The costs of implementing these taxes would significantly outweigh the revenue gains from them, meaning that not only do they hurt the growth of e‑commerce but they don’t even raise revenue particularly well (their ostensible purpose).

This is why, when scholars have looked at it, they have concluded that other taxes are far superior to taxes on electronic transmissions in terms of efficiency. Furthermore, once these taxes start to be used, it will be much harder to undo them. The e‑commerce moratorium ending is not a policy mistake that can easily be shaken off.

At past WTO ministerial conferences, the United States has been one of the global leaders in championing the e‑commerce moratorium. This time, we’re not doing that; leadership‐​wise, we’re just a blank space. At the World Trade Organization, the countries at the leading edge of technological frontier (the United States, the European Union, Australia, Canada, Japan, and New Zealand among others) have been negotiating what is referred to as the Joint Statement Initiative.

Late last year, however, the Biden administration weakened America’s support for new trade rules that would facilitate greater international trade in services. Specifically, President Biden’s US Trade Representative Katherine Tai announced that the United States would no longer support efforts under the WTO’s Joint Statement Initiative to create new rules on source, data flows, and data localization. Meanwhile, the US Trade Representative’s Office appears to have abandoned America’s global leadership on the e‑commerce moratorium.

So then the question is why? Why is the US Trade Representative opening the door to other countries slapping tariffs on e‑commerce that benefits American workers, American businesses, and American consumers? Some critics argue that US trade policy reflects the views of populist, anti‐​Big Tech groups who use other countries to tax and regulate American tech companies because their own domestic efforts have failed. That may be true.

Populists’ bad blood toward Big Tech could be an important contributing factor here, or that might be merely speculation and the populists’ critics need to calm down. But what’s not up for debate is that an end to the moratorium will hurt digital trade as well as the businesses and consumers that benefit from it.

The United States is a global cultural powerhouse (see: Swift, Taylor) and we benefit in all kinds of ways from all kinds of digital goods and services being able to move across borders. The United States, and more specifically the USTR’s office should enthusiastically champion the growth of digital services and should do everything it can to ensure that the WTO’s e‑commerce moratorium gets extended again. That’s the best end game of this week’s MC13.