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Justin Logan

The Biden administration marked the two‐​year anniversary of the war in Ukraine by announcing a new round of sanctions and other economic efforts at coercing Russia. Unfortunately, the new sanctions suffer from the same flaw as its overall Ukraine policy: a disconnect between strategic ends and tactical means.

Biden says the new sanctions will “target individuals connected to [Aleksey] Navalny’s imprisonment as well as Russia’s financial sector, defense industrial base, procurement networks and sanctions evaders across multiple continents,” and “ensure Putin pays an even steeper price for his aggression abroad and repression at home.” Their export restrictions seek to punish actors “providing backdoor support for Russia’s war machine.” The administration also seeks to “further reduce Russia’s energy revenues.”

These measures are likely to achieve all those goals. But even achieving those goals are very unlikely to contribute to the strategic end the administration seeks, which is a Russian defeat in Ukraine. The history of sanctions and other economic coercion is not a happy one, especially when dealing with a highly motivated great power, as Russia is in Ukraine. Economic coercion usually fails without a high level of global compliance with the effort, and when the target state sees the end it is pursuing as being worth paying high costs. To date, many of the most important Russian sanctions (like the oil price cap) have been leaky, and the Russian economy, though injured, has avoided damage severe enough to force the government to revise its aims.

Until and unless the administration engages on the central issue — Ukraine’s strategic orientation and US support for its membership in NATO — it will be left counterpunching with tactical measures that cannot force Russia to end the war on Ukraine’s terms.

David J. Bier

Several news reports indicate that in his upcoming State of the Union address, President Biden plans to announce a major executive action to “shut down the border.” This action would be the latest in a long list of measures President Biden has taken to attempt to do so. Table 1 below lists over 120 actions the administration has taken to block the entry of people at the southwest border. What we know about Biden’s new plan sounds a lot like actions that he already taken.

Members of Congress have repeatedly accused President Biden of “intentionally undermining border security.” But the list below demonstrates just the opposite. Biden has tried every conceivable configuration of enforcement strategies, including: expulsions to Mexico, Remain in Mexico, mass deportations, mass detention, mass electronic surveillance of released asylum seekers, an asylum ban, coordinated crackdowns with foreign countries, blocking legal travel between foreign countries on the way to the United States, messaging campaigns, and much, much more.

Of course, a long list of actions—some of which are now reversed—doesn’t necessarily demonstrate that more enforcement is actually occurring. For this reason, this post concludes with a series of nine charts showing how much immigration enforcement has increased under this administration. In fact, virtually every measure of border enforcement currently is, or has at various points been, at a level that is higher than when Biden came into office—often higher than at any point under the Trump administration.

President Biden increased Title 42 expulsions and later Title 8 deportations to record levels. His administration is detaining far more immigrants than Trump was in January 2021 or even 2020 pre‐​pandemic. The number of immigrants under electronic surveillance is higher than ever before. He even tried the “Remain in Mexico” policy, achieving a higher level of monthly enrollments in 2022 than Trump at any point in 2020, before shifting enforcement strategies yet again. In 2023, he ordered more immigrants removed via immigration courts than any prior administration. He convinced Mexico to engage in the highest level of immigration enforcement to date. In his first two years in office, Biden removed a higher percentage of crossers than Trump did in his last two years in office.

When President Biden’s political opponents attack him for “intentionally undermining border security,” they are often just misconstruing actions taken to expand the border crackdown. For instance, a DHS memo from the president’s first day in office supposedly suspended deportations for 100 days. Yet, only a select group of deportations were briefly suspended, and the memo explicitly required the “surging of resources” to the border to carry out even more expulsions and deportations of recent border crossers. It was an intensification of border enforcement in pro‐​immigrant framing.

The same could be said for the administration’s expansion of “alternatives to detention,” which is just a euphemism for electronic surveillance of released immigrants. Critics treat this innovation as a favor to immigrants because they aren’t being detained, but they wouldn’t have been detained either way because congressional funding is limited to only about 34,000 beds. Ultimately, the surveillance program gets criticized even though it increases the administration’s ability to track border crossers.

Or take the Biden administration’s decision to terminate Remain in Mexico, which sent asylum seekers to wait in Mexico for hearings in the United States. The administration found that it had led to a massive 33 percent recidivism rate among enrollees and was sucking up resources that could be used to carry out other crackdowns. He ended Title 42 expulsions to Mexico so that the administration could impose even harsher punishments. Biden has replaced Remain in Mexico and Title 42 with an outright asylum ban and the first‐​ever permanent deportations of some non‐​Mexicans to Mexico.

The claim that Biden is unwilling to take any actions to address illegal immigration contradicts the evidence, both qualitative and quantitative. Yes, illegal immigration persists at extremely high levels compared to prior years. But as this extensive list of actions demonstrates, that is not the result of an unwillingness to carry out draconian actions toward border crossers, but rather, because the United States is among the freest countries on earth and has the best labor market in the world. We should be shocked when huge numbers of people don’t show up at the border—which has only been achieved through economic downturns.

The answer to why these measures did not work is complicated in some ways, but the basic point is simple. When large numbers of immigrants do arrive, the government lacks the resources to detain and remove all of them. That’s why the Biden administration has asked for unprecedented resources to carry out its deportation agenda, effectively doubling Immigration and Customs Enforcement’s annual budget. But even this level of resources will be insufficient. Because the benefits of living and working in the US are so great, many immigrants will still find a way.

As long as people persist in the misconception that Biden has “opened the borders,” they will feel no need to adopt approaches to ending illegal immigration that don’t involve just more enforcement. Indeed, it was only after the Biden administration’s failed attempts to “shut down the border” with Title 42 that it opened up new legal avenues to enter into the United States, like its successful parole sponsorship initiatives for Cubans, Haitians, Nicaraguans, and Venezuelans. But these programs have low caps and aren’t open to most immigrants arriving today.

The administration should review this list of 120+ failed actions and reconsider potential new actions that will just try more of the same. It should instead focus on the successful actions that have effectively reopened the border to legal migration.

Colleen Hroncich

“This year’s million dollar prize for the Yass award goes to Valiant Cross Academy.”

Those words, spoken by Janine Yass at the December 2023 Yass Prize Celebration, set off a whirlwind for Anthony Brock. He and his brother Frederick founded Valiant Cross, an all‐​male school in Montgomery, Alabama, in 2015; Anthony serves as Head of School while Frederick is Director of Operations.

The pair come from a long line of educators. Anthony was a teacher, tutor, mentor, assistant principal, and then principal in a county that borders Montgomery. But he knew he needed to get back to Montgomery. “It’s the birthplace of the civil rights movement. It’s also known as the cradle of the Confederacy,” he said. “There’s so much change happening right here in Montgomery. Right now we have 200,000 residents, and we’re averaging about 70 homicides a year. And most of those are African American males. And so, Fred and I were plagued. We were burdened. We were called. We definitely feel called by God to come back to this city, to impact young men.”

Anthony says he realized in college that not everybody had the solid foundation at home that he had, so he set out to help change that. “I really never believed in an achievement gap. I always thought it was an opportunity gap and an exposure gap. You know, it’s a belief gap,” he explained. “So we came back and in 2015 we founded Valiant Cross Academy. We started by walking the neighborhood. All we had was a flyer, and we convinced 30 families to try us out that first year.”

The school began with sixth grade and added a grade each year. There have now been two graduating classes, so they’re seeing the fruits of their efforts.

“By the 11th grade, we’re placing all of our young men on a track to either go to a vocational school, start doing dual enrollment with two local colleges, or to learn a trade,” Anthony said. “Right now we have barbering and we also have a Cisco networking component where they can get their programming and networking credentials in Cisco networking. And we also have the Red Tail Scholarship program partnership, so our young men can also work on their pilot’s license.”

Valiant Cross has a somewhat traditional curriculum that is mastery based and aligned with the Alabama College and Career Readiness Standards. But there are many unique facets of the school. Language arts and social science are integrated with science and math to engage and motivate students. There’s also a lot of music woven throughout. The school day starts with morning village, which is when all the young men will go into the church to pray, have a quick talk, and do their affirmations.

Anthony explained that they also supplement the curriculum with a lot of extras. “We believe that we need to teach them about their history. And that mainly comes in celebrations of who they are. So you can see it reflected in the artwork in the building and the decorations in the classrooms. Specifically, a lot of African American men that have come throughout history, who have made contributions to society, that’s the big focus. We believe that they need to see it to realize and believe that they can really achieve those things.”

“One of our first 30 scholars was actually lost to crime. He was a homicide victim near Montgomery,” Anthony said in explaining the life or death nature of their work. He thinks the boys need more men in their lives. “So what we’ve done is provide layer upon layer of protection, mentoring, and love on these young men. A lot of people that hold them accountable.”

Thanks in part to winning the Yass Prize, Valiant Cross is opening an elementary school next year. “We really need to catch them earlier,” said Anthony. “Everything is full steam ahead. We should be opening up with our kindergarten, first grade, and potentially second grade next year. And we’re going to add a grade each year until we become a K‑12 model.”

Anthony said he likes to focus on hope. He thinks every young person deserves to have “a village of people who can either walk with them or go out in front and lead the way for them.” He wants Valiant Cross graduates to be strong producers, providers and protectors for their families. “There’s so much that they’ve seen, that they’ve dealt with. But you don’t have to keep on perpetuating that. You can be the person that stops that cycle in your family. And takes it on a different trajectory.”

In addition to supporting the new elementary school, the Yass Prize is helping Anthony spread the word about Valiant Cross and encourage similar schools. “I want to know where there is some more interest in a school like Valiant Cross. I really wish that more young men could get this opportunity,” he said.

One of Anthony’s goals is to give kids a private school education without paying for it; only five to ten percent of students pay tuition. The rest of the funding comes either from one of Alabama’s school choice programs or fundraising. The spread of school choice policies around the country may help more schools like Valiant Cross be accessible to families across the income spectrum.

Brent Skorup, Anastasia P. Boden, and Jennifer J. Schulp

In this “smart” and digitized world, nearly everything we do could be captured, stored, and made accessible to the government. The time we wake up (using our phone’s alarm), the places we go (using our car’s built‐​in GPS), the news stories we read, the snacks we purchase for our kids, the route of our daily run, and even the temperature at which we prefer to keep our homes is routinely collected and stored by commercial companies. 

Normally, the government cannot access that information, absent a manual process such as issuing a subpoena, obtaining a search warrant, or making a formal, emailed request to a company for customer information. The Securities and Exchange Commission’s (SEC) consolidated audit trail (CAT) system threatens to change all of that by both collecting data on every stock and options trade made in the United States and personally identifying information of the individual who made the trade. The CAT system gives government agencies a blueprint for pervasive and constant government surveillance:

1) it requires regulated parties to collect data daily and retain immense amounts of sensitive information about their customers; 

2) it offers no chance to opt out; and 

3) it demands unfettered access to customers’ data on the theory that the government might need the information for future law enforcement. 

Cato and the Investor Choice Advocates Network have filed, in an 11th Circuit Court of Appeals case called American Securities Association v. SEC, an amicus brief urging the court to set aside the 2023 SEC order funding the CAT system, which implicates the Fourth and Fifth Amendment rights of American investors.

The Supreme Court reiterated in Utility Air Regulatory Group v. Environmental Protection Agency that in evaluating the authority of agencies, courts must “expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’” Congress has not clearly given the SEC authority for an invasive surveillance system like the CAT system, which raises questions of “vast political significance.”

First, the CAT system may violate investors’ and brokers’ Fifth Amendment right against compelled self‐​incrimination. As Justice Samuel Alito wrote when he was Deputy Assistant Attorney General, “the compulsory organization, filing, and creation of documents are acts that clearly are testimonial and may be self‐​incriminating.” While the government can sometimes compel the production of documents that are “customarily kept,” much of the information the SEC demands for its CAT system is entirely new and, therefore, potentially testimonial. Government agencies cannot be allowed to mandate new “customs” of records collection and then use those “required customs” to violate Americans’ Fifth Amendment rights.

Second, the CAT system may violate Americans’ Fourth Amendment rights against unreasonable searches and seizures of their “papers” and “effects.” Investors and brokers may have a possessory and privacy interest in the digital financial records they produce for collection in the CAT repositories. One’s “effects” almost certainly include financial records, as founding‐​era legal dictionaries, for example, specifically contemplate and define one’s financial records as one’s “effects.”

Further, the SEC, without a warrant, absent a showing of even reasonable suspicion, is acquiring and (in the SEC’s own words) searching massive amounts of investors’ and brokers’ personal information and transactions stretching back years. This information is mandated by, not voluntarily conveyed to, the SEC for future warrantless searches and therefore appears to violate investors’ and brokers’ Fourth Amendment rights.

Because Congress has not spoken clearly about the agency’s authority to create this type of surveillance system, the order funding the CAT system should be set aside.

Patrick G. Eddington

Maximum public transparency has never been achieved during prior congressional debates over the Foreign Intelligence Surveillance Act (FISA) Section 702 electronic surveillance program. In an effort to break that pattern, the Cato Institute today filed a motion for a preliminary injunction (along with my declaration) against the Department of Justice (DOJ) over a long‐​standing Cato Freedom of Information Act (FOIA) request seeking internal DOJ audits of the Section 702 program.

As I’ve noted previously, throughout its 15‐​year history, the Section 702 program has been responsible for violations of Americans’ Fourth Amendment rights at scale. Executive branch officials claim that the number of US‐​person‐​related queries of the Section 702 database have dropped from almost 3.4 million in 2021 to a mere several hundred thousand in 2022—still a radically high number of queries that generally appear to have had little if any connection to a genuine national security threat.

And there is one additional critical fact about the Section 702 program’s abuses that has never received significant press coverage or congressional attention.

The actual internal DOJ audits of the Section 702 program remain secret; only summaries of them have ever been made public. Accordingly, American citizens and Congress have no way of comparing DOJ claims about alleged reductions in violations with what the original audits themselves reveal about those violations.

In an effort to remedy that problem, in June 2023 Cato filed a FOIA request seeking the release of the Section 702 database audits available as of the date of the request. Instead of promptly processing Cato’s request, the DOJ sat on it for months.

Mindful of the looming April 19, 2024, expiration of the Section 702 authority, on February 8, Cato filed suit in federal district court in DC to compel disclosure of those records. With the DOJ still having failed to respond to Cato’s request, today Cato filed a preliminary injunction in the DC circuit court seeking expedited processing and release of the Section 702 query audits on or before March 29. We expect a decision from the court sometime next month.

Had the House Permanent Select Committee on Intelligence (HPSCI) done its job—i.e., actually pushed the DOJ to make the full audits public—Cato would never have been forced to file the FOIA request and the subsequent legal actions in this case.

Instead, HPSCI chair Mike Turner (R‑OH) has been at war publicly and privately with other House GOP and Democratic members on the Judiciary Committee over their efforts to renew the Section 702 program only if it has a warrant requirement for the search of stored US persons data and a ban on the purchase of such information from data brokers. Turner’s actions should cause all House members to reevaluate whether or not the HPSCI should have any jurisdiction over surveillance programs that put Americans’ Fourth Amendment rights at risk.

Romina Boccia

Since the House Budget Committee passed the Fiscal Commission Act out of committee in January, several critics have come out of the woodwork to argue against the bill. Criticism ranges from calling the commission process undemocratic, to claiming that Social Security and Medicare (or at least Part A) don’t contribute to the debt, to worrying about tax increases that might get passed under false pretenses, to calling the commission a death panel.

Below I list prominent critiques and their main charges, and defuse each argument in turn:

Claim: “Social Security and Medicare Part A are fully self‐​funded and do not contribute to the debt…(National Committee to Preserve Social Security and Medicare); “Social Security and Medicare “should be protected in any discussion about the debt or deficit…Social Security is not a driver of the nation’s debt, so it shouldn’t be cut to pay it off.” (AARP)

Response:

Social Security and Medicare are major contributors to the US budget deficit (making up 11 and 33 percent of the 2023 deficit, respectively) and national debt, with no real assets to back up their promises. Both old‐​age benefit programs face a huge funding gap that will require either benefit cuts or tax hikes in the near future. These programs are financially unsustainable and require reform to avoid indiscriminate benefit cuts by 2031 for Medicare and by 2033 for Social Security. You can find more details about the dire financial situation of these programs here.

Claim: “Any changes to Social Security and Medicare should go through regular order and not be relegated to a commission unaccountable to the public and rushed through the Congress.” (National Committee to Preserve Social Security and Medicare)

Response:

The 16‐​member fiscal commission consists of 12 elected officials who are accountable to the public, and only elected officials are eligible to vote on the commission. The commission’s proposal would benefit from expedited procedures in Congress but would still need to be voted on by both the House and Senate, including clearing the 60‐​vote Senate threshold, plus clearing the president’s desk as a final step. Hardly an unaccountable process. Moreover, the federal budget process is broken, and Congress rarely follows regular order. In the 49 years since the budget process was established, Congress followed regular order only four times. In 17 of these 49 years, Congress avoided passing any budget, period. You can find more details about the fiscal commissions’ design and limited powers here.

Claim: The biggest drivers of the debt are ‘tax expenditures’ – giveaways to the wealthy and large corporations like the Trump/​GOP tax cuts of 2017 that Republicans insist be extended.” (National Committee to Preserve Social Security and Medicare)

Response:

Spending increased 42 percent, as a percentage of gross domestic product (GDP) between the peak budget surplus in 2000 and 2022. Revenues declined by a measly 2 percent over that same period. Clearly, the growth in spending is the biggest driver of US debt. My colleague Adam Michel gave congressional testimony on this very topic. He wrote:

“Current data show that if the Treasury collected as much revenue [today] as it did in 2000 when it had a 2.3 percent budget surplus, it would still have a budget deficit of about 5.1 percent of GDP [today]. Between 2000 and 2022, total federal outlays as a percent of GDP increased by 7.4 percentage points, from 17.7 percent to 25.1 percent, according to Office of Management and Budget data. Figure 4 shows that total receipts fell by 0.4 percentage points during the same period, from 20.0 percent to 19.6 percent. In 2000, the federal government had a budget surplus of 2.3 percent of GDP; by 2022, the surplus had turned into a deficit of 5.5 percent of GDP.”

Claim: “This commission is a power grab that is trying to bypass the regular democratic process by hiding behind closed doors and fast‐​tracking a plan that escapes public scrutiny and accountability, and rips away the security older people rely on and have paid for….” (AFL-CIO); “a fiscal commission that represents the interests of wealthy elites can be set up with special procedures to bypass Congress. That means, the people we elect to represent us might not even get a say in whatever cuts a fiscal commission proposes.” (AFGE)

Response:

Quoting Michael V. Murphy who is senior vice president at the Committee for a Responsible Federal Budget on this one:

“Commission critics charge that it would set up a secret, behind‐​closed‐​doors way to slash Social Security and Medicare. This is nonsensical and irresponsible.

The legislative language and public statements by bill supporters during congressional hearings make clear that all options would be on the table for the commission to consider, including additional tax revenues. The bill requires public hearings and an awareness campaign to engage the public to be part of the commission’s work. And any recommendations still must be approved by a three‐​fourths majority of commission members, as well as the full Congress, and signed by the president — hardly a secret process.”

Claim: “The American people want more jobs and lower costs, not a death panel for Medicare and Social Security.” (White House Deputy Press Secretary Andrew Bates)

Response:

Calling the fiscal commission a “death panel” is a gross misrepresentation of a bipartisan process to identify reforms to stabilize the debt and avoid a US fiscal crisis. Critics charge that the commission will end or “kill” these important programs, as we know them. The commission is actually designed to save these programs, requiring Congress to improve Medicare and Social Security’s solvency over the long term, instead of allowing indiscriminate benefit cuts to take place.

Not adopting the commission is more likely to be a death sentence for these programs, or at least put undue stress on the most vulnerable beneficiaries by threatening them with sudden and severe income reductions and access to health care when the trust funds run dry (in 2031 for Medicare, and in 2033 for Social Security).

Turns out similar death panel myths have been around since at least the Affordable Care Act debate. And they are difficult to correct due to human bias. If you’re already inclined to believe me, you may find my argument that the commission is the opposite of a death panel convincing. However, if you’re inclined to believe the Biden administration, my trying to persuade you otherwise just made you believe the death panel claim more. This is according to research by Peter Ubel of Duke University’s Fuqua School of Business, Brendan Nyhan of Dartmouth College, and Jason Reifler of Georgia State University, who argue that:

“This ‘backfire effect’ complicates any efforts to overcome misinformation…. This quirk represents a fundamental problem of human nature—we are more apt to believe those things that we want to be true and disbelieve those things that we don’t want to be true. When evidence and beliefs collide, it is easier to change how we view evidence than it is to change our beliefs.”

Claim: “[The fiscal commission] is a tax trap designed to get Republican fingerprints on a tax increase in exchange for ‘spending cuts’ that never materialize.” (Americans for Tax Reform and the following co‐​signers: American Commitment, Center for Free Economy, Club for Growth, Competitive Enterprise Institute, Independent Women’s Voice, Job Creators Network)

Response:

The fiscal commission does not explicitly call for tax increases to close the fiscal gap, and it also does not rule them out. Quoting Jason Pye with FreedomWorks on this point:

“The criticism is that a fiscal commission would be a vehicle for tax increases because the Fiscal Commission Act includes language that would require the commission to ‘propose recommendations that meaningfully improve the long‐​term fiscal outlook, including changes to address the growth of direct spending and the gap between the projected revenues and expenditures of the Federal Government.’ This is the only mention of revenues in this context in the bill. The opposition to the Fiscal Commission Act borders on the irrational…”

Because growing spending is the primary cause of rising deficits and debt, any serious proposal should significantly reduce spending and adopt structural reforms that rein in automatic spending increases that are out of line with revenue projections. Tax increases are not the answer to a spending‐​driven debt problem. Higher taxes without significant old‐​age benefits and health care reforms are more likely to fuel higher spending while depressing economic growth. That’s a recipe for failure and economic stagnation.

A Promising Step in the Right Direction

While the current fiscal commission approach is far from perfect, it is a positive step toward bringing more attention to the nation’s rapidly deteriorating fiscal state and advancing proposals to avert a severe fiscal crisis or a prolonged economic decline. At a minimum, the fiscal commission would make policymakers and the public aware of the policy and economic tradeoffs of fiscal reform.

Given current deficit projections, a future without fiscal reforms will likely be characterized by repeated bouts of inflation, as the federal government comes to increasingly rely on the Federal Reserve to finance the exorbitant US debt through fiscal quantitative easing. The US budget is highly unsustainable, and a well‐​designed fiscal commission offers the greatest promise for overcoming the congressional gridlock and unproductive partisanship that has stifled reasonable reform options thus far.

Perhaps these critiques are a good sign. It may mean that opponents are getting a strong sense that Congress is finally getting serious about tackling the worsening debt crisis before it gets out of hand. The status quo is untenable. Let’s give the commission a fair shot.

Note: A previous version of this post compared spending in 2001 (the last time the federal government had a budget surplus) and 2022. The piece has been corrected to compare spending in 2000 (peak budget surplus) and 2022.

Michael F. Cannon

The Biden administration has announced it will soon increase prices and other obstacles for academics who seek to use federal Medicare and Medicaid data. Academics are protesting the change, claiming it would prevent the sort of research that has improved those programs and could improve them more in the future. Like all interest groups seeking to preserve their government subsidies, these university professors overstate their case.

Still, they have the better argument.

Medicare and Medicaid spend nearly $2 trillion each year to subsidize health insurance and medical care for some 100 million enrollees across both programs. Each year, these programs generate billions of economic transactions in a maelstrom of cash and medicine. (If you think you understand numbers that big, you don’t. Go home.) Even if Congress wanted to ensure taxpayers were getting value for that $2 trillion—and let’s be honest, the evidence there is slim—the Centers for Medicare & Medicaid Services’ 6,700 employees would scarcely be adequate.

In the normal course of business, though, Medicare and Medicaid generate and collect insane amounts of data. We’re talking data about geography, patient demographics and diagnoses, what medical goods and services enrollees receive and from whom, the prices for those services, and more.

The federal government lets researchers access and use those data. As a stable genius might say, Medicare and Medicaid are so “unbelievably complex” that letting researchers access those data can help “figure out what’s going on.”

And it has! Using those data, researchers have found that as much as a third of Medicare spending is pure waste. Medicare might be spending $300 billion per year on medical care that does nothing to make enrollees healthier or happier. We wouldn’t have known that otherwise.

Researchers have found that—contrary to both left‐​wing orthodoxy that Medicare is a swell price negotiator, and right‐​wing orthodoxy that Medicare invariably sets prices too low—Medicare overpays long‐​term care hospitals to the tune of $30,000 per admission.

In 2022, my colleague Jacqueline Pohida and I published a lengthy article on how Medicare persistently rewards low‐​quality care and discourages high‐​quality care. We relied almost entirely on research that academics performed with CMS data.

Hundreds of academics have signed an open letter to CMS protesting the change. They say it is unfair to single out academics for these price increases while exempting private firms.

More fundamentally, they argue that increasing the price of accessing these data will reduce the amount of research on, public understanding of, and the performance of those programs.

Those first two predictions are undoubtedly correct. It is far less clear that such research has resulted in concrete benefits. That’s not the academics’ fault. Pohida and I explain that Medicare has “a five‐​decade history of rewarding low‐​quality care, discouraging high‐​quality care, and resisting efforts to improve quality or even to measure quality.”

Even when research has led to changes in policy, it is unclear whether those changes produced tangible benefits. Congress hasn’t exactly cut Medicare spending by a third, for example. The academics note that research showing Medicare subsidizes avoidable hospital readmissions led to the Medicare Hospital Readmission Reduction Program. The HRRP plausibly reduces subsidies for unnecessary readmissions. Yet the Medicare Payment Advisory Commission found the HRRP had no effect on underlying trends in readmissions.

We can forgive the academics for overstating their case. They are afraid of losing a substantial government subsidy on which they are relying so they can contribute to the sum of human knowledge—as well as gain status in their profession, achieve lifetime job security, etc.

But even if this interest group might be conflating its self‐​interest with the public interest, government subsidies are generally bad, and one can make a good economic argument against government subsidies even for public goods…it’s still hard not to agree with the academics here.

Taxpayers have a right to know how CMS is spending their money. CMS is collecting these data anyway. Furnishing these data to academics—who are just about the only people trying to figure out what’s going on in these programs—scarcely costs taxpayers anything. CMS should be giving away Medicare and Medicaid data at least as freely as it shovels taxpayer dollars out the door to high‐​cost, low‐​quality health care providers.

Even if such research has not delivered any tangible benefits yet, at some point it will become extremely useful. Congress cannot keep spending at its current rate. The federal debt is at 95 percent of U.S. GDP and rising. Health care is the only category of federal spending that is growing as a share of GDP. In other words, Medicare and Medicaid cuts are inevitable. When that day comes, it will matter a lot to have research that shows which cuts would inflict the least pain.

David Boaz

Sigh. Another year, another ranking of presidents. And as usual the academics who vote in such surveys especially like presidents who conducted wars and significant expansions of the federal government. Also they like Democrats, more so than in previous years.

This time it’s the Presidential Greatness Project Expert Survey, surveying 154 academic social science experts in presidential politics.

Presidential scholars love presidents who expand the size, scope and power of the federal government. Thus they put the Roosevelts at the top of the list. And for a long time (in a different poll, from Siena College) they rated Woodrow Wilson—the anti‐​Madisonian president who gave us the entirely unnecessary World War I, which led to communism, National Socialism, World War II, and the Cold War—6th. Recently he’s fallen to 13th, presumably because of the increased publicity about his racism. In this survey he fell from 10th in 2015 to 15th this year. Not far enough, by a long shot.

Ronald Reagan, who did not resegregate the federal workforce or turn a European war into World War I, fell from 7th in 2018 to 16th this year. President Biden, after three years of vastly expanding the scope and cost of the federal government, is rated 14th. John F. Kennedy, a charismatic guy whose greatest substantive accomplishment was the launch of the Vietnam War, climbed into 10th place. Franklin D. Roosevelt, who never relinquished his claim on power, moved to no. 2, passing George Washington, who twice gave up power, ensuring that the new United States would be a republic. Lincoln is ranked first.

Perhaps not surprisingly, the survey directors write,

this survey has seen a pronounced partisan dynamic emerge, arguably in response to the Trump presidency and the Trumpification of presidential politics.

Proponents of the Biden presidency have strong arguments in their arsenal, but his high placement within the top 15 suggests a powerful anti‐​Trump factor at work. So far, Biden’s record does not include the military victories or institutional expansion [!] that have typically driven higher rankings

Self‐​described liberal and conservative scholars didn’t diverge much in their rankings of most presidents until Reagan. Our most recent presidents are more visible to the participants, and it’s hard to resist one’s personal preferences. Reagan, both Bushes, Obama, and Biden show sharp partisan divides. But not Trump, rated the worst president by liberals (really? worse than Wilson?) and 3rd worst by conservatives.

In his 2009 book Recarving Rushmore: Ranking the Presidents on Peace, Prosperity, and Liberty, Ivan Eland gives high grades to presidents who left the American people alone to enjoy peace and prosperity, such as Grover Cleveland, Martin Van Buren, and Rutherford B. Hayes. The fact that you can’t remember what any of those presidents did is a plus. At the bottom he places Wilson, Truman, McKinley, Polk, and George W. Bush. If you’ve ever wondered whether a particular president deserves the respect he seems to get, you might take a look at Libertarianism.org’s “Everything Wrong with the Presidents.”

Lately we’ve had a string of presidents who thought their office was invested with kingly powers. Both President George W. Bush and President Barack Obama used executive orders to grant themselves extraordinary powers to deal with terrorism. Lawmaking by the president, through executive orders, is a clear usurpation of both the legislative powers granted to Congress and the powers reserved to the states. The president’s principal duty under the Constitution is to “take care that the laws be faithfully executed”—not to make laws, as presidents have increasingly done.

Clinton aide Paul Begala boasted: “Stroke of the pen, law of the land. Kind of cool.” President Barack Obama declared: “We’re not just going to be waiting for legislation.… I’ve got a pen, and I’ve got a phone, and I can use that pen to sign executive orders and take executive actions and administrative actions that move the ball forward.” President Donald Trump upped the ante: “I have an Article II, where I have the right to do whatever I want as president.”

President Biden has presumed to use executive power to forgive student debt, support “clean energy,” impose an eviction moratorium, and more. But that’s not enough for his “progressive” supporters, who have urged him to impose a comprehensive legislative agenda by executive order, acting once again as if Congress’s unwillingness to pass the president’s agenda is justification for executive fiat.

Thus have presidents openly dismissed the legislative process. They should take a look at the White House’s own website, where they would read: “Under Article II of the Constitution, the President is responsible for the execution and enforcement of the laws created by Congress.” Exactly. Not to make the laws, but to execute and enforce them. No matter what agenda the president seeks to impose by executive order, Congress should stop him. The body to which the Constitution delegates “all legislative powers herein granted” must assert its authority.

On this Presidents’ Day—which is officially Washington’s Birthday—think of the example set by George Washington. Twice he gave up power, setting a standard for future presidents. And, to quote White​House​.gov again, as president “He did not infringe upon the policy making powers that he felt the Constitution gave Congress.”

Paul Matzko

Journalism has been in palliative care for quite some time now, but an already dire situation has taken a turn for the worse over the last six months. Hundreds of journalists, including those at major regional papers like the Los Angeles Times and Washington Post, have been laid off. Billionaire owners who snapped up struggling periodicals are rethinking their investments. It’s been enough for Clare Malone, writing in the New Yorker, to ask, “Is the media prepared for an extinction‐​level event?”

It is by no means a great time to be an employee of a legacy news outlet, but it’s vitally important that we understand precisely *why* the traditional news industry is collapsing before we pursue any policy solutions half‐​cocked.

Let me start with what is not a major cause of the news industry’s decline. News outlets often accuse platforms like Google and Facebook of “piracy” for sharing links to news articles. But as I’ve written at length, news aggregators are natural complements to news producers, not antagonists to them; it’s a mutually beneficial exchange of content for distribution.

Unfortunately, those who misunderstand that complementary relationship have sought to extract cash from Big Tech to bail out Big Ink. But in doing so they have actually hastened the decline of legacy newspapers by spooking the platforms into avoiding news content altogether, leading to a massive, immediate, and dire decline in organic user traffic and thus diminished advertising revenue.

Inasmuch as there is a proximate cause of death for the news industry, it’s a function of the digitization of classified ads, which were once the largest revenue source for most pre‐​internet newspapers; they were “rivers of gold,” to quote Rupert Murdoch. But Craigslist, eBay, and other platforms transmuted those golden rivers into consumer surplus by reducing the friction and expense of person‐​to‐​person commerce. There is no shoving that genie back into its bottle. (Not that we should want to try.)

Others have blamed “ruinous competition” for the crisis as consumers are suddenly able to access almost any news outlet anywhere in the world. News outlets were once the beneficiaries of geographically‐​defined semi‐​monopolies, able to charge high premiums from advertisers who had few other ways to reach so large an audience. But today, legacy news outlets must compete for readers with thousands of other news outlets from all over the country and even the world. This is correct, however, the problem for news outlets is inestimably larger still.

That’s because offline news is not merely competing with online news; offline news is competing with online everything.

An hour spent reading through New Yorker articles counts exactly the same as an hour spent swiping through TikToks or scrolling through Twitter’s infinite feed or watching a video on YouTube or streaming a movie on Netflix or listening to a podcast and so on, ad infinitum. Every platform is competing for scarce consumer attention (and advertiser and/​or subscription dollars).

Consumer attention is relatively elastic and online content is somewhat fungible. This is a point that Clare Malone’s New Yorker essay makes quite effectively.

In addition to consistently publishing very good journalism, the Times has a robust cooking app, a series of popular games, and the product‐​review site Wirecutter. It is not so much a newspaper as a digital life‐​style brand. Both the Washington Post and the Los Angeles Times have made efforts to expand their non‐​news offerings—the Post beefed up its health section and the L.A. Times leaned into food coverage and around‐​the‐​town entertainment guides. But, even as outlets have tried to complement news coverage with other offerings, they’ve faced a fresh dilemma: news subscriptions—the great hope of media—are now directly competing with entertainment ones. The Reuters Institute for the Study of Journalism released a report in 2023 that found respondents often weighed their renewal of news subscriptions against digital streaming services. “We have Disney+, Hulu, Netflix, Amazon Prime, currently HBO Max and Spotify, Kocowa, and BritBox,” one survey respondent said. “I used to have The Washington Post but it got too expensive to have all the subscriptions.” Another said news was “as important as anything, but if I were to cut one, I would first think of cutting my news subscription before any other.”

It’s worth noting that this was the case even before the advent of the internet. In addition to reporting on politics and current events, newspapers added topical inserts, weekend editions, sports sections, cartoon pages, crosswords, and a host of other “lifestyle” content.

But it turns out that this strategy can work in both directions. News + lifestyle content = lifestyle content + news. The equation sums up the same. It doesn’t really matter whether you’re a newspaper that adds Wordle or if you’re a lip‐​syncing video app that adds UnderTheDeskNews. Both are engaged in direct competition for scarce consumer attention with a package of content that includes news.

This reality ought to force legacy news producers to ask some uncomfortable questions of themselves. Consumers are voting with their eyeballs in a newly unconstrained attention marketplace. If news organizations are unable to make a convincing pitch for their current product, perhaps the failure lies with them rather than with the market.

But instead of facing up to the very real challenges of producing a compelling news product in a digital age, it’s tempting to blame the “addictive” nature of digital technology. Our failures, they say, are not actually our fault; it must, instead, be those sinister, algorithmic magicians who brainwash gullible idiots — also known as the general public — with dopamine‐​enhancing features that convince them to, <checks notes>, get something for free that they could pay us for instead! What fools!

The good news is that there are news producers who are experimenting and adapting to the new landscape. There are crowd‐​sourced investigative journalists, TikTok analysts, digital‐​only local news startups, and hyper‐​specialized newsletters. It’s an entire, emergent “new news” media ecosystem that has a real chance of providing a sustainable and robust alternative to legacy news institutions.

Clare Malone’s essay on the news media’s “extinction‐​level event” was illustrated with a header image showing an asteroid made of up fiery 1s and 0s plummeting towards a group of dinosaurs carrying the names of various newspapers and periodicals. (Props to illustrator Nicholas Konrad for picking a T‑Rex to represent The New York Times.) But to continue the metaphor, the destruction of these lumbering dinosaurs — as hopelessly devastating as it may first appear to be — may just clear the way for new alternatives that may soon be walking upright on their own two feet.

Walter Olson

On Friday, New York Judge Arthur Engeron found Donald Trump and officials of his Trump Organization to have engaged in extensive financial fraud, and ordered them to pay $355 million under Section 63(12) of New York’s Executive Law, under which the state’s attorney general can seek unusually broad remedies for such fraud. The figure is expected to grow with the charging of back interest.

There are some plausible criticisms that can be made of this outcome, and other criticisms that are flimsy indeed yet popular among people who should know better.

Start with some of the plausible criticisms. The power to order equitable disgorgement, as it is called, is one that judges often use sparingly, in part because its consequences can be harsh. If you lie about having a degree and are found out years later, should you have to fork over everything you earned over a career that depended on the bogus credential? This kind of logic, if you call it that, underlies some (though only some) of the big dollar figures in this case.

For example, the judge found Trump used faked‐​up statements of financial condition to swing the necessary financing on his Old Post Office hotel project in Washington, DC. As a result, the judge ordered the former president to disgorge the entire $126,828,600 in profits he made over the five years he owned the project. This kind of reasoning leaves fortunes to hang on the web a prosecutor can spin with but‐​for arguments.

Likewise, Trump’s current predicament reveals longstanding problems with the appeals bond system. Trump now has to post bond for the entire amount of the judgment, which will require a major commitment of assets even assuming an appeals bond company helps shoulder the risk. Liability reformers have long expressed concern that following giant verdicts the requirement for defendants to post full appeals bonds can prevent or discourage them from pursuing appeal.

There’s more. New York Attorney General Letitia James, in my view, committed a serious error of judgment when she made it a campaign theme to go after Trump by name — though contrary to some imaginings, elected prosecutors virtually never get taken off cases, nor do cases get thrown out, for reasons like that. To be fair, it’s not as if there wasn’t a steady stream of news revelations giving someone in her position strong clues that an investigation of the Trump Organization would probably strike pay dirt: the indictment and conviction of Trump CFO Allen Weisselberg and lawyer Michael Cohen, the 2017 discovery by Forbes that the Trump Tower triplex had been reported at three times its actual square footage, the Trump Foundation scandal, and on and on.

But some of the defenses offered on behalf of Trump simply don’t hold water, chief among them the claim that Trump’s conduct was somehow victimless and that the counterparties, primarily banks and insurance companies, came out fine.

Prof. Orin Kerr tackles this claim in a blog post well worth reading in its entirety, and there is more to say. Invoking the other side’s due diligence, for example, is no magic pass. Engoron: “Because the Trump Organization is a private company, not a publicly traded company, there is very little that underwriters can do to learn about the financial condition of the company other than to rely on the financial statements that the client provides to them. Markarian [Claudia Markarian of Zurich Insurance, a Trump counterparty] credibly testified that, because of that, it’s important to know that our customers are being truthful to us. If they’re not giving us true information or accurate information, that greatly impacts our underwriting decisions.”

Another underwriter understood the Trump Organization to have represented “that there was no pending litigation or notices or communications that could lead to litigation and implicate the D & O [directors’ and officers’] policy, which he viewed in a positive light.” Oops! There was a pending investigation, which soon resulted in the presentation of claims under the policy. At that point the insurer realized risks were far higher than postulated, and come renewal time, it asked for a premium more than five times the old rate.

Lying about his net worth and property values also enabled Trump to get markedly lower interest rates from banks. Engoron credited an expert for the state who estimated that Trump saved $168 million in bank interest by posing as a better risk than he was. You can argue about this number, but it’s hard to argue it’s zero.

Overall, misgivings and all, I share Kerr’s reaction: it’s “not obvious to me what particular part of Judge Engoron’s 92‐​page ruling is legally wrong.”