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Patrick G. Eddington

The new version of the Foreign Intelligence Surveillance Act (FISA) Section VII “reform” bill was posted earlier this afternoon on the House Rules Committee website. Its backers will no doubt try to sell it as a genuine reform measure. In reality, it’s an example of the classic Capitol Hill game of “Let’s not, but say we did.”

To give you a sense of how successful the National Security State‐​friendly House Intelligence Committee has been in hijacking this debate, remember that it was less than two months ago that the House Judiciary Committee—which has always had primary jurisdiction over FISA since its enactment in 1978—passed an excellent and substantive FISA reform bill out of its committee by an incredible 35–2 bipartisan vote. That bill contains two incredibly important provisions: 1) a warrant requirement for FBI personnel if they want to access stored FISA Section 702 data on US Persons, and 2) language banning the purchase of information from data brokers by federal law enforcement, instead requiring a warrant to get that kind of data as well.

Neither provision is in the bill posted this afternoon by the House Rules Committee.

Also of note is that the new bill creates a special carveout for House and Senate members to be informed if the FBI conducts a FISA Section 702 database query that returns or might return information on the member of Congress:

No other American gets that kind of special treatment under the bill.

The bill also allows completely undefined “national security investigations”:

I could go on, but you probably get the point by now.

So is it a done deal?

Tomorrow, the House Freedom Caucus is holding a press conference on this issue:

The announcement does not tip HFC’s hand on where its members stand. Will they encourage passage or oppose it? Will they threaten another motion to vacate the chair unless the House Judiciary bill is brought up instead?

How this small but incredibly powerful voting block comes down will decide whether or not real FISA reform will happen this Congress.

Eric Gomez and Benjamin Giltner

In November 2023, we published the initial version of a dataset breaking down the backlog of US weapons that have been sold but not yet delivered to Taiwan. The dataset indicated that the overall size of the backlog was just shy of $19.2 billion, with traditional capabilities, such as F‑16 aircraft and Abrams tanks, making up the largest share by dollar value.

Based on interest in the original dataset, we have decided to update the Taiwan arms backlog dataset monthly, and release summaries explaining what, if anything, has changed within the backlog. We will also be updating our sources and methods as we locate new outlets of information and refine our methodology.

As noted in previous posts, the US arms backlog to Taiwan matters for three reasons. First, growing demands on the US defense industrial base will stress Washington’s ability to simultaneously arm itself and its friends, raising difficult questions of strategic prioritization. Second, sending weapons to Taiwan now, especially those that enable an asymmetric defense against invasion, should reduce the likelihood of US‐​China conflict over Taiwan in the future. Finally, the Taiwan backlog is the impetus for ongoing policy debates on speeding up US arms sales that will have long lasting implications and could accelerate arms deliveries to bad actors.”

Between November 2023 and the end of January 2024, the US arms backlog to Taiwan decreased by approximately $140 million, remaining slightly above $19 billion. Figure 1 shows the January 2024 backlog broken down by type of capability. To compare the proportion of capabilities between January 2024 and November 2023, see Figure 2.

Every item removed from the backlog was a traditional capability, while every item added to it was an asymmetric capability. Of the three items removed from the backlog, two completed deliveries in 2023 and one was canceled. The three items added to the backlog are not new sales but were existing sales missing from the November 2023 version of the dataset. One of those items does not have information on the dollar value. This means the overall size of the backlog is likely higher than $19 billion.

Table 1 shows changes in the backlog by weapon system. Items removed since November 2023 are in red while items added are in green.

Sources and Methodology

Generally, data on arms sale announcements are much easier to find than data on weapons deliveries. The primary data source we use for arms sale announcements in the backlog dataset is the Defense Security Cooperation Agency (DSCA). Since November 2023, however, we noted at least one instance where the press reported an arms sale that was not included in DSCA’s list of major arms sales but was relayed to Congress.

To address this issue, we searched through every issue of the Congressional Record since January 2015 to locate instances of arms sales notified to Congress but not mentioned on the DSCA’s website. While nearly all announcements appear in both sources, we located one large arms sale that only appeared in the Congressional Record. Going forward, we will be using the Congressional Record to catch any major arms sales to Taiwan that are not reported by DSCA.

Our primary data source for weapon delivery timelines is the Stockholm International Peace Research Institute’s (SIPRI) arms transfer database, supplemented with press reporting. The SIPRI data are extensive. However, it is only updated once per year, and is somewhat out of date—the forthcoming spring 2024 SIPRI update will only cover deliveries to the end of 2023.

We will continue to supplement SIPRI’s data on weapons delivery with press reporting, with a focus on reports that cite Taiwan’s Ministry of National Defense (MND) as a source. The major new data source on weapon delivery timelines we are adding in this update is the MND’s archive of English‐​language “Defense News” press releases, which occasionally provide information on delivery timelines.

Additions to the Backlog

There are three additions to the Taiwan arms backlog dataset. None of the additions are for new sales between November 2023 and January 2024. Instead, they were sales that were originally overlooked or excluded from the dataset.

First, in July 2019 the DSCA announced a sale of 250 man‐​portable Stinger air‐​defense missiles for $223 million. This sale did not appear in the November 2023 dataset because of press reports indicating delivery of Stingers from the 2019 sale. However, subsequent reporting from Taiwan in early 2024 indicated that only a first batch of Stingers arrived in 2023, with the rest expected to arrive later in 2024. Therefore, we have added this sale back to the dataset and will remove it once deliveries are complete. We code the Stingers as an asymmetric capability.

Second, the December 5, 2022 edition of the Congressional Record contains a notification of a sale of 100 Patriot Advanced Capability‑3 Missile Segment Enhancement (PAC‑3 MSE) interceptor missiles to Taiwan valued at $882 million. According to the notification, the sale is a modification to a January 2010 arms sale of Patriot batteries and missiles to Taiwan. The December 2022 PAC‑3 MSE sale was missing from the November 2023 dataset because it was not mentioned in DSCA’s archive of major arms sales. A January 2024 report from Taiwan News quotes the MND saying deliveries of the missiles will occur in batches between 2025 and 2026. We code the PAC‑3 MSE missiles as an asymmetric capability.

Third, on May 10, 2023, the MND announced that it would purchase 18 additional High Mobility Artillery Rocket System (HIMARS) launchers from the United States for an unspecified amount of money. These additional launchers come on top of an October 2020 DSCA announced sale of 11 launchers, for 29 total. The additional HIMARS were excluded from the November 2023 dataset because they were not included in the DSCA archive. Full delivery of the original 11 HIMARS is expected in 2025, with the 18 additional units arriving in 2026. HIMARS is coded as an asymmetric capability in the dataset. However, due to the lack of cost information, we do not know how much it impacts the backlog’s topline figure.

Reductions to the backlog

Three items were in the November 2023 backlog dataset that we have removed. Two arms sales completed delivery in 2023, and one arms sale was canceled.

In December 2015, the DSCA announced a sale of 13 Phalanx close‐​in weapons systems to protect Taiwan’s surface warships against drones, missiles, and aircraft. According to an April 2023 press report, MND officials said that final delivery of the Phalanx guns would occur “before the end of the year [2023].” Delivery of the Phalanx systems reduces the overall size of the backlog by $416 million. We coded the Phalanx as a traditional capability because they are a subsystem of another traditional capability.

In June 2017, the DSCA announced a sale of upgraded electronic warfare systems for four Keelung-class destroyers. There is relatively little reporting on the delivery timeline of the electronic warfare systems compared to other US arms sales to Taiwan. The most recently available, credible report we located comes from late 2018 and gives a completion date of 2023, but does not specify a month. Delivery of the electronic warfare systems reduces the overall size of the backlog by $80 million. The electronic warfare system is coded as a traditional capability because it is a subsystem of another traditional capability.

The final removal from the arms backlog dataset is the cancellation of a $750 million order for Paladin self‐​propelled howitzers, which the DSCA originally announced on August 4, 2021. In May 2022, the Washington Post reported that the howitzers were facing delays. Originally, we kept the Paladins in the November 2023 backlog because we could only find sources mentioning a delay of the program. However, we have since found more recent reporting citing Taiwan’s MND that confirmed the Paladin deal was canceled. The report links the expanded HIMARS buy to the decision to cancel the Paladins. We code the Paladin as a traditional capability.

Conclusion

Between November 2023 and January 2024, the backlog of US arms to Taiwan decreased slightly. However, it remains close to the $19 billion mark and is likely higher given the unknown price tag for additional HIMARS launchers. Two arms sales were completed by the end of 2023, but most of the changes in the dataset are driven by refining our sources and methods instead of new sales being announced or old sales being delivered.

The January 2024 update is good news for the balance of asymmetric and traditional capabilities that Taiwan is waiting to receive from the United States. In November 2023, traditional capabilities, which are less useful for Taiwan in an invasion scenario, made up 63 percent of the backlog by dollar value while asymmetric capabilities were 22 percent (munitions made up the remaining 15 percent).

With the January 2024 update, these figures are now 57 percent for traditional capabilities, 28 percent for asymmetric capabilities, and 15 percent for munitions. Canceling the traditional Paladin in favor of the asymmetric HIMARS was a good choice for Taiwan.

Taiwan Arms Backlog Dataset, January 2024

Patrick G. Eddington

In the legislative business, there are certain “tells” that one side is losing the policy debate so badly that they have to resort to extreme tactics to try to pull out a win. Such appears to be the case with the House Intelligence Committee, which it seems is all but demanding a secret House floor session to debate portions or perhaps the entire compromise FISA reform bill.

This according to a late Sunday evening scoop by POLITICO’s Jordain Carney:

Since 1830, the House has met in secret session only four times: in 1979 (Panama Canal Treaty), 1980 (Soviet‐​Cuban activity in Nicaragua), 1983 (also on Nicaragua), and 2008. The latter session was on the FISA Amendments Act, which created the now‐​infamous FISA Section 702 program which will be the subject of this possibly upcoming new House secret floor session.

This is becoming the legislative equivalent of an episode of the “War on Terror” era Fox Television series 24.

In this particular episode, House members will be herded into the chamber and told that if they don’t agree to support the legislation before them “people will die.” They will have no real opportunity to question the veracity of the claims or alleged evidence presented to them, and then be informed that they can’t whisper a word publicly about what they were just told because it’s secret, and if they do they might become the subject of a special counsel investigation like a current sitting and former president has been.

I’d like to believe that this entire scheme will fall apart, but I’ve learned over my more than 35 years in Washington that when in doubt, always bet on fear.

This bill, which directly impacts the First and Fourth Amendment rights of potentially millions of Americans, should be debated in the open, under an open rule (i.e., unlimited amendments only subject to a pre‐​printing requirement in the Congressional Record). If it is debated openly, it would be a much‐​needed step in the direction of restoring real force to two cornerstones of the Bill of Rights.

Nicholas Anthony

Researchers at the Atlantic Council say the United States is falling behind on central bank digital currency, or CBDC, development. But is it really? According to the Human Rights Foundation’s CBDC Tracker, the Federal Reserve has been conducting research and pilot programs for years. However, even if those developments do not meet the Atlantic Council’s standards, there’s no need to enter a race to the bottom by creating a CBDC.

A Thumb on the Scale?

The Atlantic Council’s report opens by immediately informing readers that the European Central Bank, the Bank of England, the Bank of Japan, the Reserve Bank of India, and the People’s Bank of China “have all made significant strides forward in their development of central bank digital currencies (CBDC[s]) and fast payment systems.”

Curiously, however, it’s not until the end of the piece that the researchers acknowledge that the Federal Reserve Bank of New York has been working on Project Cedar—a project to test wholesale CBDC designs. Even then, though, it’s not just the Federal Reserve Bank of New York and it’s not just Project Cedar.

According to the Human Rights Foundation’s CBDC Tracker, the Federal Reserve Bank of New York also announced work on a CBDC proof‐​of‐​concept project. Furthermore, the Federal Reserve Bank of Boston announced Project Hamilton to build and test a “hypothetical central bank digital currency for wide‐​scale, general purpose use.” To coordinate efforts, the Biden administration called for “the creation of a Treasury‐​led interagency working group to support the Federal Reserve’s efforts.” And finally, the Federal Reserve has been publishing CBDC research.

So, the United States has been quite active on the CBDC front.

Proponent’s Miscalculation

With that said, CBDCs that have been launched to the public already offer a cautionary tale. The Chinese government has given out millions of dollars in CBDC lotteries in an attempt to spur adoption. For example, in Shenzhen, $1.5 million in CBDC was given to 50,000 people. In Suzhou, $3.1 million in CBDC was given to 100,000 people. Yet the effort was less than successful. A former People’s Bank of China research director said, “The results are not ideal … usage has been low, highly inactive.”

The Chinese government handing out millions of dollars to try to get people to use the CBDC highlights what’s probably the biggest miscalculation among CBDC proponents: the failure to identify a sound justification for the creation of a CBDC in the first place.

When Meta proposed creating a cryptocurrency in 2019, government officials quickly latched on to the idea of launching a CBDC to combat the market and protect the government’s monopoly on money issuance. Yet, as that story faded and interest waned, organizations pushing CBDCs tried to re‐​position the idea as a solution for financial inclusion, faster payments, monetary policy, and currency adoption. While these areas have all been due for improvement, Norbert Michel and I have explained at length that none of these benefits are likely to come from the creation of a CBDC.

Therefore, it seems proponents have now turned to the argument that the United States should create a CBDC so that it can influence other countries to do it the “right way.” In urging the Federal Reserve to do more, the Atlantic Council writes,

What’s concerning about this approach from the Fed is that central bankers around the world are asking for the Fed’s help. Central bankers often privately ask some version of: “Where is the Fed on this?” On a range of issues from privacy to cybersecurity, the Fed’s leadership would be welcome and its guidance and technological expertise listened to, even if the United States doesn’t determine there’s a need for a specific kind of payments innovation in its own domestic system.

First, the Federal Reserve does not exist to act as a consultant for foreign governments. A US CBDC should not be created on these grounds. Second, if it is concerning for central bankers that the Federal Reserve has not launched a CBDC, perhaps they too should reconsider launching one.

Conclusion

The Atlantic Council is right to say that the dollar should be improved, but the creation of a CBDC would not be an improvement for American citizens. In fact, based on the Human Rights Foundation’s CBDC Tracker, it doesn’t seem that a CBDC has been an improvement for much of anyone around the world.

If Congress wants to make positive changes for the dollar, it should look to strengthening financial privacy, promoting currency competition, and creating a freer financial system.

Colleen Hroncich

With a long‐​time career as a Physician Associate in cardiology, Sharon Masinelli might not seem like someone who would become an education entrepreneur. But sometimes fate takes an interesting turn. “My children were homeschooled in a hybrid program for about seven years,” she explained in a recent Cato Institute panel. “And I was driving a very long distance to get to these other programs. I finally decided it was time to start something a little bit closer to where we lived.”

Sharon started St. John the Baptist Hybrid School in Kennesaw, GA, in 2019. “It was just a group of families who all had said, ‘Yes, we need a good option for our families in this area,’” she recalled. “We started the program with about 50 students the first year renting out of a church. And then COVID hit at that time, and it became a very popular option for us. We had a waitlist the second year, because we were open when the public schools were not. And so we grew. And then by the third and fourth year, we had gotten to 120 students.”

St. John the Baptist operates as a hybrid homeschool program in the Catholic tradition for grades K‑12. Elementary students have on‐​site classes on Mondays and Wednesdays with the option to take enrichment classes on Fridays. The high school program meets in person on Mondays, Wednesdays, and Fridays. Parents receive lesson plans for instruction at home on homeschool days. The school also offers standardized testing, and scores are reviewed with parents to customize the learning plan for each student.

Although a hybrid, St. John the Baptist has the look and feel of a school. As Sharon told the Cato audience, “We have uniforms. We’re in very traditional looking classrooms. It’s just economical, particularly for larger families who may want to be more highly involved in their child’s education. Rather than sending them five days a week and wondering, ‘What did you talk about today in language arts?’ or ‘What did you do today in math?’ the parent is taking over on those other days of the week.”

The typical day at St. John the Baptist includes math, physical education, language arts, and science. The students do science experiments at the school, which is quite helpful for homeschooling parents. History and religious classes are held once a week. The Friday enrichment classes include art, music, Spanish, and writing and math labs. In addition to the regular high school classes, students can take virtual AP and Dual Enrollment courses through the school’s partnership with TandemEdu and Arrupe Virtual Learning Institute.

When an audience member asked about the most important things parents who are thinking about homeschooling should consider, Sharon was blunt about the challenges: “It is actually a lot of work on the parents. Whoever is home and homeschooling the child must be fully in on the job of homeschooling. It is hard work. It’s very rewarding work, don’t get me wrong. But it is not an easy task. And it takes a lot of time getting used to how you homeschool your child and your child’s temperament, and having a schedule or not having a schedule. There are things that may work for one child that don’t work for the next child. And so you have to figure that out. And the only way to do it is just to do it, and then make sure you’re adjusting as needed.”

Another audience member asked about working with public schools and the question that always comes up when homeschooling is discussed: what about socialization? “We highly encourage our families to go out into the community and play community sports. We don’t want them in a bubble,” Sharon explained. “Our program is a VELA recipient, and so we find ways to reach out to other VELA programs and collaborate with them. We have dances with another hybrid program. It’s just it’s in the best interest of everyone to collaborate as much as possible. We do not want to alienate the public schools or even the private schools. It is an effort from multiple angles to educate our children and to have them in the real world setting.”

If you’re interested in learning more about St. John the Baptist Hybrid School and the other microschools and hybrid schools who participated in our Showcasing Education Entrepreneurs event, you can watch the recording online. And check out the full library of Friday Feature blogs to read about a wide variety of exciting educational options.

Patrick G. Eddington

If published reports are accurate, House Speaker Mike Johnson (R‑LA) intends to bring some sort of Foreign Intelligence Surveillance Act (FISA) reform bill to the House floor. As it stands now, Section VII of FISA—of which the serially abused Section 702 program is a key part—is set to expire on April 19 unless Congress renews it. Given the multiple legislative meltdowns in the House since the start of the year—the failure to pass aid bills for Ukraine, Israel, and Taiwan that can clear the Senate, as well as the failed impeachment of DHS Secretary Mayorkas—it’s no surprise that the House GOP leadership is looking for any kind of legislative win.

But when Congressional leaders act out of political desperation is usually when bad law gets made, and that’s especially been true of giving executive branch agencies and departments radically expanded surveillance powers in the post‑9/​11 era.

It’s worth remembering that in the fear‐​filled aftermath of al Qaeda’s deadly terrorist attacks on our country, Congress passed the sweeping and also frequently abused PATRIOT Act less than two months after that terrible day—and before the Congressional Joint Inquiry to investigate the attacks had even been constituted, much less issued any report. And as became apparent in the years after its enactment, the Section 215 telephone metadata surveillance component of the PATRIOT Act was both repeatedly abused and ineffectual before it was finally terminated in 2019.

The same was true of the illegal STELLAR WIND mass electronic surveillance program started under George W. Bush’s administration in the days immediately after the September 11, 2011 attacks, as I’ve previously noted in Senate testimony.

Indeed, it was the exposure of that program in December 2005 by the New York Times that led to the creation of the FISA Section 702 program in July 2008. Because executive branch officials made false claims of legality and effectiveness about the PATRIOT Act Section 215 program and STELLAR WIND, Congress should be just as skeptical now about Biden administration claims that previous FISA Section 702 abuses have been curtailed.

Department of Justice (DoJ) officials tout internal FISA Section 702 database query audits as evidence that their reforms are working and that there’s no need for additional congressional legislative reform action on the program. These internal audits are designed to catch potential improper searches of the FISA Section 702 database by FBI personnel. But data related to those audits have only been released in summary form; the underlying audits themselves have never been made public.

Thus, there is at present no way for Congress or the public to judge whether the Administration’s summarized claims of Section 702 compliance and database query audit efficacy are in line with the actual audit findings themselves.

Last June, the Cato Institute filed a Freedom of Information Act (FOIA) request with the DoJ seeking the release of the underlying FISA Section 702 database query audits. This week, after waiting in vain for over eight months for the DoJ to comply, Cato filed a lawsuit in DC federal court to compel the release of the audits.

The fact of the matter is that in light of the past false executive branch claims of legal propriety and operational effectiveness of multiple post‑9/​11 surveillance programs, we’ve learned the hard way that those claims cannot, and should not, be taken at face value. Cato is doing what it can to help Congress do its job, but the House and Senate should themselves demand that those audits be made public before any vote to reauthorize the Section 702 program. Anything less would be a disservice to the voters whose rights they took an oath to protect.

Scott Lincicome

One the goals of our ongoing Defending Globalization project is to challenge prevailing misconceptions about the global economy, and newly‐​released data on inflation‐​adjusted US trade in goods give us two new examples.

First, the data continue to show that, for all the protectionist talk and policy coming out of Washington these days and all the bold pandemic‐​era predictions of “de‐​globalization,” actual American companies and consumers aren’t really buying it. In fact, inflation‐​adjusted US trade in goods (imports and exports) last year was right off its 2022 record high—even as the Biden administration leaned into Trump‐​era US protectionism (which targets goods, not services), as post‐​pandemic Americans shifted their consumption back towards services (thus potentially limiting goods imports), and as economies in Europe and Asia struggled (thus potentially limiting US goods exports).

Steadily increasing US goods trade flows have put the $4.4 trillion total above pre‐​pandemic levels and far, far above those seen during the supposed “hyperglobalization” heyday of the 1990s and 2000s.

These data once again show how globalization is driven by people, not governments, and how talk about the United States’ turn inward remains primarily a political, not economic, phenomenon. Maybe that latter point changes in the years ahead, but so far there’s little sign of it.

Second, the same dataset reiterates the prevailing view among economists that tariffs and other protectionist policies won’t reduce the US trade deficit, which is driven not by those and other trade policies but seismic macroeconomic factors. Leaving aside for the moment the fact that the trade deficit (especially for just goods) isn’t an economic problem to be solved, we see again in 2023 that Trump‐​Biden efforts to increase tariffs, Buy American mandates, localization subsidies, and supply chain “resiliency” initiatives—which again target goods, not services—have done little to change the general downward trajectory of the US goods trade balance since the 1990s.

Thus, while the US‐​China trade deficit declined last year, bilateral deficits with other countries “soared to new highs.” (Notably, the only thing that did substantially, albeit temporarily, alter the goods deficit’s long‐​term trajectory was the Great Recession—hardly something we want to repeat.)

In the coming months, we’re sure to hear plenty from campaigning politicians about tariffs, the trade deficit, and US trade policy more broadly. As these two examples (and many others) indicate, much of what’s said will be misleading, if not outright wrong. While we shouldn’t expect such facts to intrude on the campaigns’ own messaging, that doesn’t mean the rest of us should play along.

Travis Fisher

On February 3, Elon Musk posted a simple message on X: “The only action needed to solve climate change is a carbon tax.” Five days later, that message has over 22 million views. And perhaps for good reason—it’s accompanied by a compelling video titled “Elon Musk’s Unbelievably Simple Killer Break Down on Climate Change,” and the pro‐​carbon‐​tax message is easy to grasp.

Musk makes taxing carbon dioxide (CO2) sound straightforward. However, the drawback of his message is that it’s oversimplified because it ignores prominent sticking points in the policy debate over the carbon tax. Specifically, Musk fails to propose the level of the CO2 tax—or even discuss how to derive it—and glosses over the scope and burden of potential CO2 taxes.

To be clear, I respect Elon Musk—he’s a world‐​changing entrepreneur and steadfast advocate for free speech. Although I oppose the subsidies and mandates for electric vehicles in the United States, I appreciate the renewed competition Musk has brought to the US auto industry with Tesla. He’s also widely considered to be an engineering genius and a (somewhat) libertarian public figure. Depending on the day, he’s also the richest person in the world (or second or third).

For all these reasons, it’s worth digging in when Musk claims to have found a simple solution to one of the most vexing public policy problems in human history: climate change.

What Exactly Did Musk Say?

Musk’s tweet on February 3 is new, but his support for a carbon tax is not. In fact, the audio used in the eight‐​minute video accompanying Musk’s tweet comes from a speech he gave at the Panthéon‐​Sorbonne University in Paris in December 2015. That speech coincided with the 21st Conference of the Parties to the United Nations Framework Convention on Climate Change, or COP 21, which gave us the Paris Agreement.

You can watch video from the longer version of that presentation, including a Q&A session, or read the full transcript.

It seems Musk’s recent message was resurrected in response to the ongoing farmer protests in Europe. In a reply to his own tweet, Musk wrote: “We should not, for example, impose draconian laws on farmers or make citizens uncomfortable by limiting air‐​conditioner usage!” On the point of not limiting my air conditioning use in the summer, Musk and I completely agree.

The takeaway from the message is simple: ask your legislators to tax CO2 emissions. Much of the short video and the longer presentation reflect standard economic theory suggesting that the government should tax negative externalities to internalize the costs of economic activities that impose a cost on others. Economists tend to refer to these taxes as “Pigouvian,” named after economist Arthur Cecil Pigou, who pioneered externality theory in his 1920 work The Economics of Welfare.

So, what fault could anyone possibly find in this approach, particularly when thousands of American economists support the idea? As with most simple solutions in politics, it’s complicated.

Glaring Omission: What’s the Level of the Tax?

Musk did not specify the external cost per ton of CO2 emissions. Instead, he said: “We need to go from having untaxed negative externality, which is effectively a hidden carbon subsidy of enormous size, $5.3 trillion a year according to the IMF every year. We need to move away from this and have a carbon tax.” He is no doubt referring to a July 2015 working paper from the International Monetary Fund (IMF) that claims that the lack of a CO2 tax is itself a subsidy. I agree there is likely an external cost associated with CO2 emissions, but what is it?

First, the IMF paper doesn’t say what Musk claims. It reads, in relevant part: “While externality cost accounts for the bulk of the post‐​tax energy subsidies, at more than 80 percent in both 2013 and 2015, a detailed examination reveals that about three‐​fourths of these subsidies are related to local environmental damages and only about a quarter are due to global warming effect of CO2 emissions.” (emphasis added)

In other words, a carbon tax would only address a quarter of the global “hidden carbon subsidy,” according to the IMF paper. Further, in the United States, we already have a robust (and arguably too strict) regulatory regime addressing the cited local environmental damages from criteria air pollutants like sulfur dioxide, nitrogen oxides, and particulate matter, meaning we have addressed those externalities.

Second, if we want to internalize the climate externality, what should be the level of a CO2 tax? Mainstream economics tells us that the optimal carbon tax would be set at the social cost of CO2 (SCC). The IMF relied on a 2013 US Interagency Working Group study on the SCC that used a 3 percent discount rate and multiple integrated assessment models (IAMs) to come up with a central estimate of about $43 per ton for the SCC.

If the $43 per ton SCC estimate were a stable or well‐​supported figure, Musk might have an economic case for establishing a carbon tax at that level. But here’s where the idea of a CO2 tax gets dicey—the level of the SCC is, at best, an educated guess, and it depends more on the parameters chosen by the modeler than the magnitude of future costs and benefits. For example, consider the chart below showing the range of SCC estimates using the same IAM (the FUND model) under a range of discount rates.

Recall that discount rates are used in cost–benefit analyses to give the appropriate weight to costs and benefits that occur in the future. The higher the discount rate, the less weight the model gives to future impacts. There is a political dimension to this technical question—for example, advocates of a low discount rate previously argued that the discount rate should match lower interest rates but have been silent as interest rates have risen in recent months. It is a hallmark of such arbitrary modeling that anyone choosing any discount rate could be accused of cherry‐​picking and ignoring relevant data.

Note the wide range in the SCC estimates for 2050, when the United Nations wants the globe to reach net‐​zero CO2 emissions. Using a 2.5 percent discount rate, the 2050 SCC will be about $43 per ton, which is right at the 2013 working group estimate and very close to the 2016 working group estimate of $42 per ton. But when we look at the 2050 SCC using a 7 percent discount rate, it implies the economically efficient carbon tax would be just $0.63 per ton of CO2. An amount so low would scarcely warrant a new federal regime designed to collect it, and it certainly would not drive the global economy to net‐​zero CO2 emissions.

The optimal level of the CO2 tax should be a central component of Musk’s proposal, yet he declines to offer his own SCC estimate. Perhaps that is the safest territory, given that the US federal government’s estimates of the global SCC have ranged from $43 per ton (under President Barack Obama, 3 percent discount rate) to $6–9 per ton (under President Donald Trump, 7 percent discount rate) to $53–63 per ton (Trump, 3 percent discount rate) to $190 per ton (under President Biden, 2 percent discount rate). If the global SCC—the climate externality—could just as easily be zero as $50 per ton or $200 per ton, what is the economic imperative to internalize it?

One final point about the level of the carbon tax. In the Q&A portion of the 2015 speech in Paris, Musk said: “Any price you put on it will be more right than close to zero, which it is right now.” In his defense, maybe he meant any politically feasible carbon price, which would likely be very low (according to the most recent data, just 38 percent of Americans say they are willing to pay a monthly carbon fee of $1). But taking Musk literally, it is easy to imagine a CO2 tax that is less right than zero. Take, for example, a carbon tax of $500 per ton. Even if we think the SCC is $190 per ton, zero is closer to that than $500 per ton.

The Scope and Burden of a Carbon Tax

It’s unclear whether Musk would be willing to establish a global governance system to create and enforce a global CO2 tax. He only said, “Whenever you have the opportunity, talk to the politicians. Ask them to enact a carbon tax.” But there are no global politicians, thankfully, and many of the people and politicians of other nations are focused on economic growth, even if it means increased emissions.

In the United States, we have a bevy of local, state, and federal policies that address the climate externality, and that regulatory cocktail cannot be unmixed. With so many existing regulations, mandates, and subsidies—and a few subnational CO2 cap and trade policies—does it make sense to layer a CO2 tax on top of everything else?

The choice of a national or global scope also impacts SCC estimates. The Government Accountability Office explained under the Trump administration: “Current national estimates are based on domestic damages and are about 7 times lower than prior estimates based on global damages.”

Regarding the burden of a carbon tax (meaning who pays it), Musk said, “Maybe it takes five years before the carbon taxes are very high so that means that only companies that don’t take action today will suffer in five years.” This statement implies that companies will be the ones suffering under a regime of very high CO2 taxes. It ignores the fact that energy costs are baked into the manufacturing, transportation, and operating costs of everything a consumer buys. Consumers who don’t radically change their lifestyles will also suffer.

For example, a CO2 tax of $190 per ton translates to an increase of $1.71 per gallon of gasoline. That means today’s average price of about $3.15 per gallon would rise to $4.86 per gallon if the Biden administration implemented a carbon tax at its most recent estimate of the SCC. Musk claims the increased costs could be offset by reductions in other types of taxes, but it’s difficult to imagine a CO2 tax scheme that would not be regressive, damaging to the overall economy, and harmful to consumers. Put differently, if fossil fuel companies were the main ones hurt by a CO2 tax, someone will have to explain to me why so many of them advocate for it.

Finally, there is wide political discretion in estimating the emissions embodied in different consumer goods, as we have learned in recent debates over a CO2-based tariff on imported goods. This is yet another practical problem with implementing a carbon tax—among many others, including the fundamental problem of using a price instrument to reach an emissions quantity goal (net zero)—that goes unaddressed in Musk’s video.

Conclusion

Recently, some researchers have acknowledged that a carbon tax is not a straightforward or comprehensive solution. For my part, I wish more experts were candid about the complexities involved in climate policy, particularly in estimating the magnitude of the externality caused by carbon dioxide. Unfortunately, without attempting to solve the methodological problems, Elon Musk has left millions of followers with the impression that taxing CO2 is “the only action needed to solve climate change.”

Romina Boccia and Dominik Lett

The Congressional Budget Office (CBO) released its annual Budget and Economic Outlook, providing 11‐​year fiscal projections for 2024 to 2034. The CBO’s new report arrives as Congress gears up for another budget fight with annual discretionary spending and a supplemental Ukraine‐​border security deal hanging in the balance. While these issues capture headlines, the real drivers of the growth in federal spending that the CBO highlights are Social Security and Medicare, which neither Democrats nor Republicans are ready to address. As a result, the current fiscal situation is unsustainable. Excessive spending and rising interest costs will drive debt to record‐​high levels within the decade, threatening America’s fiscal and economic security.

Last year, we witnessed the official end of the COVID-19 pandemic national emergency (one of the most expensive emergencies ever), the adoption of new discretionary spending limits that have yet to be enforced, and the downgrading of the US debt by a major credit rating agency for the second time in history (the first was in 2011 by S&P). In its press release, Fitch Ratings explained, “The rating downgrade of the United States reflects the expected fiscal deterioration over the next three years, a high and growing general government debt burden, and the erosion of governance.”

Not much has changed since Fitch’s acknowledgment of what fiscal experts, including yours truly, have been pointing out for some time now. The CBO’s latest report reinforces that the US fiscal health is worsening, and congressional budgetary mismanagement and an abdication of responsibility for automatic entitlement spending growth are at fault. Here are some key highlights:

Debt Grows to 116 Percent of GDP by 2034

Federal publicly held debt (debt borrowed from credit markets) is currently $27.1 trillion. Here are a few debt milestones the United States will hit:

2025: public debt exceeds the annual economic output of the entire country, measured by gross domestic product (GDP)
2028: public debt exceeds the World War II record high of 106 percent of GDP
2034: public debt rises to an unprecedented 116 percent of GDP

The fiscal picture becomes far more dire when extended beyond the traditional 10‐​year budget window. The CBO projects that debt will reach a jaw‐​dropping 172 percent of GDP by 2054 (see Figure 1). The long‐​term debt trajectory is unsustainable, as CBO Director Phillip Swagel, Federal Reserve Chair Jerome Powell, and many others attest.

Debt is likely already harming the economy. Most economic literature suggests a debt‐​to‐​GDP ratio above 78 percent slows economic growth. As debt rises, it creates burdensome consequences, crowding out private investment, reducing incomes, and increasing interest rates. Without a course correction, the United States risks either a depressed economy below its full potential with recurring bouts of inflation that eat away at Americans’ savings and incomes or a sudden and severe fiscal crisis where bondholders lose confidence in the Treasury’s ability or willingness to service debt. One likely path: a depressed economy and excess inflation will eventually trigger said crisis, with that outcome becoming increasingly likely over the next 15–20 years.

Trillion‐​Dollar Deficits Are Here to Stay

For fiscal year (FY) 2023, the budget deficit (how much spending exceeds revenues) was $1.7 trillion. That’s an increase of $320 billion, or 23 percent, over the FY 2022 deficit. If the CBO excludes “savings” from the Supreme Court’s strike down of President Biden’s proposed student loan forgiveness scheme, the FY 2023 deficit is $2 trillion. As a percentage of GDP, FY 2023’s deficit was 6.2 percent. That’s the largest deficit‐​to‐​GDP ratio observed in US history outside of major wars or severe recessions.

Over the next decade, excessive spending is the primary cause of elevated deficits. The CBO projects outlays growing from $6.5 trillion in 2024 to $10 trillion in 2034, a 54 percent increase. Meanwhile, revenues increase from $4.9 trillion in 2024 to $7.5 trillion in 2034, a 51 percent increase. The gap between spending and revenue becomes more apparent when comparing projections to historical averages (1974–2023). As shown in Figure 2, projected outlays are significantly higher than the 50‐​year historical average.

These estimates are likely optimistic as the CBO isn’t in the business of making realistic fiscal assumptions that reflect political history. Rather, the CBO takes current policy and legislative deadlines as a given and simply extends these assumptions over time. As former CBO Director Doug Holtz‐​Eakin points out:

“The CBO assumes that current law will evolve over the next 10 years exactly as it is currently written down. So, for example, nearly all provisions of the 2017 Tax Cuts and Jobs Act will sunset at the end of 2025, raising taxes by about $3 trillion over the next 10 years. From a budget perspective, this produces a sharp reduction in the deficit and a more favorable overall debt picture. From an economic perspective, this sharp tax increase will be a strong headwind to growth. There is, however, no way that this will happen, so both the budget and economic outlooks will be misleading. Interpret the CBO projections accordingly.”

Entitlements and Interest Costs Dominate the Long‐​Term Fiscal Picture

Entitlements, including Social Security and health care programs, are the largest cause of spending‐​driven deficit growth. Between 2024 and 2034, Social Security spending will grow from $1.5 trillion to $2.5 trillion. Over the same time frame, major health care programs, including Medicare and Medicaid, will grow from $1.6 trillion to $2.8 trillion. Combined, Social Security and major health care programs represent 63 percent of spending growth.

The two largest entitlement programs, Social Security and Medicare, are on the path to insolvency. Medicare’s hospital insurance trust fund will be exhausted by 2031. Social Security’s Old‐​Age and Survivors Insurance Trust Fund will be exhausted by 2033. Without reform, beneficiaries will face indiscriminate cuts.

Interest costs are the other major driver of higher spending over the next decade. From 2024 to 2034, interest costs will increase from $870 billion to $1.6 trillion, an 87 percent increase. According to CBO’s projections, interest costs will exceed discretionary defense spending next year. As interest costs consume a larger share of tax revenues (22 percent by 2034), and as non‐​interest spending continues to grow, the government will end up borrowing yet more money at an accelerating pace just to fund program spending that’s already on the books.

Over the long‐​term 30‐​year spending window, Social Security, health care programs, and interest costs boost federal spending to 30 percent of GDP. These three budget categories will grow by 8 percentage points of GDP from 2024 to 2054. Every other major budget category declines or stays flat as a percentage of the economy over the same period, under current policy. Figure 3 displays major budget categories as a share of GDP.

Cultivating a Culture of Fiscal Responsibility

As bleak as the US fiscal outlook is, there is some light at the end of the tunnel. The House Budget Committee recently passed the Fiscal Commission Act, which seeks to stabilize the debt over 15 years, educate the public on the nation’s deteriorating fiscal state, and improve the Medicare and Social Security’s trust funds’ solvency over a 75‐​year window. A well‐​designed fiscal commission, alongside other budget reforms, could put the United States on the right path. If Congress kicks the can down the road yet again, it will only make the necessary reforms more severe and invite economic deterioration. Let’s hope legislators will choose to work together to make the compromises needed for a sustainable fiscal future that enables this and the next generation to enjoy a freer, more vibrant, and stronger America.

James Craven and Patrick G. Eddington

Just three days after the Supreme Court lifted a lower court injunction that blocked federal agents from cutting the razor wire installed at the border by the Texas National Guard, former president Donald Trump urged “all willing States to deploy their guards to Texas to prevent the entry of Illegals, and to remove them back across the border.”

The following day, Trump’s exhortation was answered by the governors of Oklahoma, Idaho, and Florida. It’s a scenario one Trump‐​aligned congressman had already described as a civil war before Trump’s clarion call.

This recent crisis is something the justices should keep in mind as they consider whether Section 3 of the Fourteenth Amendment—which prohibits certain people from holding “any office, civil or military” if they “have engaged in insurrection or rebellion”—bars Trump from office.

What could happen if Trump again issues a call‐​to‐​arms, but this time designed to help him escape a criminal conviction—or worse, to once again contest the will of the voters after losing the coming election? Would governors considering Trump’s request for military support be afraid that their assistance could lead to a Section 3 disqualification that ends their political career? Or would they yield to Trump—again—safe in the knowledge that the Supreme Court had already ruled Section 3 a dead letter?

Many commentators have argued that the court can somehow thread the needle between these outcomes, preserving the strength of Section 3 while leaving Trump on the ballot. Appealing to notions of democracy and implying dire consequences if the court fails to heed their warnings, they urge that the court can dodge the issue this time, and in doing so, leave the country better off.

But finding a way out of this case would be more dangerous than ruling against Trump—for two reasons.

First, each of the major legal arguments against enforcing Section 3 would substantially damage that constitutional clause, creating a permission structure for would‐​be insurrectionists to test new boundaries on Trump’s behalf. The court’s options exist on a spectrum where the most limited holding it could pursue has the least rational force, while more credible (though in our view, still unpersuasive) holdings would explicitly leave Section 3 inoperable in many scenarios. Either approach would create space for new leaders to emerge and attack our constitutional form of government.

Second, assessing the threat of social unrest and violent conflict in the wake of a decision disqualifying Trump and comparing it to the alternative yields a surprising result. While a violent response is possible in the short term, the net effect of a ruling affirming Section 3 would be to decrease the odds of violent conflict by changing the calculus of political leaders who would become less likely to legitimize or directly support insurrection due to the credible fear that they too could be disqualified from office.

Put simply, there is no conflict between the court enforcing the best legal reading of Section 3 to disqualify Trump and the court taking the most prudent course to avoid the worst potential violent outcomes for our nation. Indeed, disqualifying Trump may be our last, best chance to slow our country’s accelerating drift from functional political norms towards a system that increasingly capitulates to violence and intimidation.

—

Proponents of the preserve-Section-3-but-don’t‑use-it-now approach might most favor the theory that Section 3 does not apply to the office of the presidency. This idea—that the presidency is not a “civil or military office”—relies less on the plain meaning of those words and more on the presence of others: that specific prohibitions on insurrectionists holding the offices of “Senator or Representative” and “elector of President and Vice‐​President” exempt the office of the presidency by omission.

Kurt Lash, for one, argues that it’s “common sense” that “Section 3 is structured in a manner that moves from high federal office to low state office, and the apex federal political offices are expressly named.” Joshua Blackman, making light of scholarship urging Trump’s disqualification, headlines a similar argument in his two‐​hundred‐​and‐​thirty‐​eight page article “The Sweeping and Forcing of the President into Section 3.” Some optimists may see the upshot of such a ruling as allowing the presidential election to go forward while preserving the legitimacy of Section 3 for, say, those governors inclined to deploy the National Guard when Trump says they should.

Is that plausible? Setting aside the perhaps more common‐​sense understanding that the presidency is both a civil and a military office, this argument was already answered over 150 years ago when Section 3 was debated on the Senate floor. As noted by scholar Gerard Magliocca and republished in a Congressional Research Service report on Section 3:

During the debate on Section Three, one Senator asked why ex‐​Confederates “may be elected President or Vice President of the United States, and why did you all omit to exclude them? I do not understand them to be excluded from the privilege of holding the two highest offices in the gift of the nation.” Another Senator replied that the lack of specific language on the Presidency and Vice‐​Presidency was irrelevant: “Let me call the Senator’s attention to the words ‘or hold any office, civil or military, under the United States.’”

A Section‐​3‐​does‐​not‐​apply‐​to‐​presidents ruling thus has three major problems. First, it would have to ignore the plain meaning of “civil or military office.” Second, it would have to credibly maintain that the drafters of Section 3 intended for insurrectionists to be eligible for the most powerful political office, just not less powerful ones. Third, it would have to maintain that assertion despite plain evidence that the drafters of Section 3 said that they did not intend to do that. The deep flaws of this argument would likely be laid bare not just by the media, but by the dissents.

Would a ruling so devoid of rational force dissuade anyone from testing the limits of Section 3? We think it would not.

What about the argument that Section 3 can only be enforced by an act of Congress?

As our colleague Ilya Somin covers more at length, Section 3 itself provides for no enforcement mechanism and no such enforcement mechanism has ever been required for any other qualification for president.

And if the Reconstruction‐​era Congress had intended that another law was required to give force to Section 3, why would they not have passed it immediately after passing Section 3? Was such authority supposed to be found in the Readmission Act passed before Section 3? If so, wouldn’t that act still keep Section 3 operable? The act states that “no person prohibited from holding office under the United States, or under any State, by section three of the proposed amendment to the Constitution of the United States, known as article fourteen, shall be deemed eligible to any office in either of said States, unless relieved from disability by Congress” (Ch. 70. 15 Stat. 74). It has not been repealed.

Moreover, it seems plenty of others agreed that Section 3 was in full operation after it was passed, because many people were disqualified from office during Reconstruction despite the absence of either criminal convictions or Section 5 enabling legislation.

We recognize, however, that a circuit court ruling by Chief Justice Salmon P. Chase did hold that Section 3 is not self‐​executing in a case where ruling otherwise would have resulted in a convicted murderer being allowed back on the street. We note that in a prior case, Chase had argued that Section 3 was self‐​executing, and in fact that it was the sole criminal punishment intended for Confederate officers in the wake of the Civil War. But more pressingly, we note that the Court is not bound by Chase’s circuit court opinion—and to follow it would leave little left of Section 3.

If Section 3 required an act of Congress to have force, then candidates like Trump would have a strong chance of escaping its consequences even when engaging in outright rebellion so long as the opposing party does not have filibuster‐​proof majorities in both chambers. This would effectively allow future insurrectionists to reliably game out whether they are safe from Section 3’s consequences or not. And in most cases, they would be.

Finally, consider the argument that Trump did not truly engage in “insurrection.” Because the court only reviews the facts below for clear error, and because the factual record below is robust, the court would likely have to redefine insurrection so that it no longer meets the facts of the case to find that Trump did not engage in one.

This would be fraught. To begin with, Congress has already plainly recognized January 6 as an insurrection.

On June 30, 2021, the House of Representatives passed H. Res. 503, which established the Select Committee to Investigate the January 6 Attack on the United States Capitol. In the Select Committee’s final report, the committee members used the word “insurrection” no fewer than 78 times to describe the actions of President Trump, his confederates, and members of the mob that attacked the Capitol. The Committee also voted out multiple criminal referral charges to the Department of Justice, most significantly including 18 USC 2383: Rebellion or insurrection.

And on January 13, 2021, the House impeached Trump for “insurrection,” with a bipartisan majority of the Senate voting to convict. That bill specifically invokes Section 3:

…section 3 of the 14th Amendment to the Constitution prohibits any person who has “engaged in insurrection or rebellion against” the United States from “hold[ing] any office … under the United States”. In his conduct while President of the United States—and in violation of his constitutional oath faithfully to execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in violation of his constitutional duty to take care that the laws be faithfully executed—Donald John Trump engaged in high Crimes and Misdemeanors by inciting violence against the Government of the United States.

Though that vote fell short of the two‐​thirds threshold constitutionally required for impeachment, it’s telling that fifty‐​seven senators embraced this language. We also note that an impeachment‐​level supermajority would not be necessary if, as discussed above, some specific legislative action were required to enforce Section 3. We maintain that it is not, but if it were, both of these legislative actions could potentially overcome that hurdle.

Finally, the court would have to circumscribe not only the colloquial meaning of “insurrection,” but its historical meaning too. The Colorado Supreme Court opinion, taking a page from the work of originalist scholars William Baude and Michael Paulsen, makes a convincing case that Trump’s actions fall within the contours of any plausible definition of “insurrection.” Take, for instance, this one from Noah Webster’s dictionary at the time Section 3 was passed:

Rising against civil or political authority; the open and active opposition of a number of persons to the execution of law in a city or state. It is equivalent to SEDITION, except that sedition expresses a less extensive rising of citizens. It differs from REBELLION, for the latter expresses a revolt, or an attempt to overthrow the government, to establish a different one, or to place the country under another jurisdiction.

Any attempt to redraw these boundaries would in effect install a high ceiling under which a wide range of insurrection‐​like activity could proliferate without fear of disqualification. This would provide substantial room for politicians to follow Trump’s lead knowing Section 3 would pose no obstacle.

—

But even if it is clear that a Supreme Court refusal to apply Section 3’s disqualification mechanism to Trump would rob the constitutional provision of its force, must the court do so anyway to prevent dire social consequences? We do not deny that disqualifying Trump could incite organized, violent efforts to defy the court’s order. But a complete analysis requires acknowledging that if Trump would be willing to employ such tactics here, he would, most likely, employ similar tactics at any stage of his defeat.

Below is our analysis of the risks the nation would face in the wake of Trump’s disqualification, and our explanation of why accepting these risks now is better than the alternative.

While 74,223,369 Americans voted for Trump in 2020, only about 3,000 appear to have participated in the breach of the Capitol (based on those arrested, pled out, convicted, or still being sought), which works out to 0.00404185372 percent of Trump voters and just 0.00091047041 percent of the US population as a whole.

The attempted insurrection was unprecedented, arguably treasonous, terrifying for those on the receiving end of mob violence and threats, and fatal for some (either at the time or later)—but it was also an isolated event.

There was no attempt by Trump supporters to raid National Guard or Reserve facilities for weapons, explosives, etc. in support of a general uprising. Despite the high level of political polarization and endless trash‐​talk on social media and cable network channels, there was no broad‐​based, country‐​wide uprising against the federal government by Trump supporters during or after January 6, 2021.

Some would argue that after more than three years of being fed a steady stream of lies about the outcome of the 2020 election, an assumption that there would be no mass uprising by Trump supporters if the Supreme Court upholds the Colorado Supreme Court’s decision is a bad bet. To be sure, the recent and ongoing defiance by Texas even after the Supreme Court attempted to clarify federal legitimacy in immigration and border security decisions is a troubling sign, and the ease with which Trump convinced several governors to join the effort is more troubling still. Even so, these and related events only underscore why the court should affirm the Colorado Supreme Court’s decision.

Section 3’s disqualification provision would leave Trump with vanishingly small odds of lawfully attaining power. That would dissuade his allies in state and local government from marshaling their troops because they would have little reason to believe Trump could protect them from the consequences and every reason to believe they would be subject to the same disqualification. And it would give pause to Trump’s numerous, would‐​be successors who may seek to imitate him through more January 6 scenarios.

Alternatively, if the court were to reverse the Colorado decision and render Section 3 effectively unenforceable, it would likely embolden Trump and his most extreme supporters to believe that he can act with impunity if he manages to evade conviction in his pending criminal cases and ultimately win back the presidency. And if they sensed that the court avoided disqualifying Trump out of a fear of violence, then their use of violent threats would be validated and encouraged.

It’s fair to be concerned that among the tens of millions of Trump’s supporters, there is a potential critical mass of individuals with sufficient training, equipment (read: firearms), and motivation to engage in violence directed at symbols of federal governmental authority, perhaps even including some public officials. And while in the beginning such persons might act individually or in small groups, the potential for the formation of larger, more cohesive paramilitary formations cannot be ruled out.

Right now, that risk is likely heavily offset by the successful and ongoing manhunts and prosecutions of those who engaged in the January 6, 2021, insurrection. Key leaders involved in that event are behind bars, and two of the most prominent organizations responsible for the breach of the Capitol either no longer functionally exist (Oath Keepers) or have become so decentralized (Proud Boys) so as not to represent a credible threat to the authority and stability of the federal government.

But if political leaders give these groups legitimacy, that could change. While a ruling disqualifying Donald Trump under Section 3 would give politicians who might consider embracing these efforts pause, a refusal to disqualify Trump would instead give them confidence that there is a degree of political violence the system will tolerate.

The worst‐​case scenario is that, like the current border standoff, political actors could directly support Trump’s efforts by deploying state troops or the National Guard and employing other armed, paramilitary elements as auxiliaries. This could provide these disparate groups the organization and focus necessary to do serious damage to our constitutional republic.

Section 3 of the Fourteenth Amendment is a powerful guardrail for democracy that was won at a high cost to our country. The court should enforce this powerful provision to disqualify Trump, and in doing so, protect both the nation and the rule of law.