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Patrick G. Eddington

If government bureaucrats are internally describing the civil society organization you work for as “vexsome,” it’s a good sign you and your organization are doing a good job of holding a federal agency or department accountable for its actions or misconduct. Yesterday via X (formerly known as Twitter), we learned that the Federal Bureau of Investigation (FBI) views Cato’s Freedom of Information Act (FOIA) program and related litigation activity exactly that way.

Today, John Greenwald, founder of the FOIA repository known as The Black Vault, posted that in response to a FOIA request seeking the latest version of the FBI’s FOIA “vexome filer” list, the only organization publicly identified on the list is the Cato Institute.

As Greenwald noted in his post,

Intriguingly, the only entity clearly identified in this new release is the CATO Institute. The CATO Institute is a public policy research organization, or think tank, based in Washington, D.C. Known for its libertarian philosophy, it focuses on advocating policies that advance individual liberty, limited government, free markets, and peace. The reasons for its explicit mention, while other names remain undisclosed, remain unclear.

The previous version of the FBI’s “vexsome filer” list published in 2016 contained no such redactions and included the names of prominent journalists and researchers, including Ken Klippenstein now at The Intercept.

This time around, the FBI has invoked FOIA exemptions b6 and b7C, which allow the FBI to withhold the names of individuals for privacy‐​related reasons. How that exemption could be lawfully invoked for public figures like journalists is indeed a mystery.

Since 2019, Cato has filed hundreds of FOIAs and dozens of FOIA lawsuits, many against the FBI. In every case, the FOIA or litigation was initiated to uncover information regarding questionable, or outright illegal, activities by the FBI, as well as to get a better understanding of FBI operations.

That the FBI keeps an internal, derogatory list of those persons and organizations that extensively utilize FOIA to conduct oversight of its activities speaks volumes about the Bureau’s organizational mentality.

Thomas A. Berry and Nathaniel Lawson

Chief Justice John Marshall famously stated in Marbury v. Madison (1803) that “[i]t is emphatically the province and duty of the judicial department to say what the law is.” This principle forms the core of judicial review, which under our Constitution’s separation of powers scheme serves as a critical check on the executive and legislative branches.

Unfortunately, a precedent in the Federal Circuit (the appeals court that handles trade and intellectual property cases, among others) has undermined this check. But now the Federal Circuit has an opportunity to overrule this misguided precedent, and it should take it.

In January 2018, President Donald Trump issued an international trade “safeguard measure” that, among other things, imposed tariffs on solar panel imports. In June 2019, the US Trade Representative granted an exclusion from these tariffs for “bifacial” solar panels, panels that can capture sunlight on both sides. But a year later Trump revoked this exclusion and increased the tariff rate, supposedly under the authority of a statutory provision permitting the president to make “modification[s]” to international trade measures. The Solar Energy Industries Association, alongside several other groups, challenged these acts as beyond the president’s statutory authority to make “modifications.” The US Court of International Trade agreed that President Trump had exceeded his authority.

On appeal, a three‐​judge panel of the Federal Circuit reversed. Yet the court did not conclude that the president’s interpretation of the statute was correct, or even that the president’s interpretation was better than the plaintiffs’ interpretation. Instead, the court held that it was bound to uphold the president’s interpretation under the Federal Circuit precedent of Maple Leaf Fish Co. v. United States (1985). That precedent mandates deference if the case involves foreign affairs and the executive’s interpretation is not a “clear misconstruction of the … statute.”

Now the plaintiffs are asking the full Federal Circuit to review the case, and Cato has filed an amicus brief supporting that petition and urging the Federal Circuit to overrule Maple Leaf. In our brief, we explain that Maple Leaf is contrary to the separation of powers, which is “essential to the preservation of liberty” (Federalist 51). Judicial review serves as a critical check against executive attempts to extend laws beyond their meanings. But that critical check only has bite when the judiciary interprets the law independently from the executive. Maple Leaf prohibits the judiciary from exercising such independent judgment.

Furthermore, Maple Leaf is contrary to both Supreme Court and prior Federal Circuit precedent. Up until the misguided Chevron era (which should also end this year), the Supreme Court did not defer to executive interpretations of the law. And in recent years the Court has returned to that approach, independently determining the meaning of statutes using traditional rules of construction, even in cases involving foreign affairs. Nor do Federal Circuit precedents before Maple Leaf provide any better support for Maple Leaf’s extreme deference.

Those precedents merely say that courts should apply the plain meaning of statutes involving foreign‐​affairs powers and not artificially cabin them. The cases do not support deferring to executive interpretations of pure questions of law.

Maple Leaf was wrongly decided, and its precedent forced the panel to reach the wrong outcome in this case. The Federal Circuit should grant rehearing en banc, overrule Maple Leaf, and reverse the panel’s decision.

Jeffrey A. Singer

Three years after its first‐​in‐​the‐​nation drug decriminalization measure (Measure 110) went into effect, Oregon’s lawmakers are poised to re‐​criminalize possessing and using drugs. Lawmakers note that Oregon’s overdose rate has risen dramatically and exceeded the national average since Measure 110 took effect in 2021.

I have argued here that policymakers were mistaken if they believed decriminalizing drugs would necessarily lead to a drop in overdoses. Decriminalizing is not the same as legalizing. As long as people who use drugs need to go to the black market for them, they can never be sure of the dose or purity of what they are buying or if it is the drug they think they are buying. I also argued that it is inappropriate to judge Measure 110 so soon after the law went into effect. For example, in its first year, the country was amid the COVID-19 pandemic, and public health measures made it even more challenging than usual for Oregonians to access harm reduction and treatment programs.

However, writing in the New York Times this week, addiction and neuroscience journalist Maia Szalavitz contends that, while people may be quick to assume that the rise in overdoses during Measure 110’s implementation suggests cause and effect, it is essential to remember that correlation is not causation. Szalavitz provides crucial information placing Oregon’s overdose problem in proper context.

Szalavitz points to numerous studies showing that illicit fentanyl flooded the drug market in waves, beginning in the eastern US and working its way west. Szalavitz cites work by Brandon del Pozo of Brown University Medical School, showing nearly identical surges in overdose rates in every region of the country as fentanyl began dominating the drug market. Szalavitz cites research showing that almost 90 percent of overdose deaths involving fentanyl and its analogs occurred in 28 states east of the Mississippi River. Additional research published in 2023 showed a similar wave making its way across the country, finally dominating western states, including Oregon, around 2021.

Investigators at Brown University Medical School and the Research Triangle Institute (RTI International) used Centers for Disease Control and Prevention overdose mortality data from 2008–2022 and a synthetic control group consisting of 48 states and the District of Columbia to study the association between overdose fatality rates and Measure 110. They used a changepoint analysis to determine “when each state experienced a rapid escalation in fentanyl.” The researchers concluded:

After adjusting for the rapid escalation in of fentanyl, analysis found no association between M110 and fatal drug overdose rates.

Future evaluations of the health effects of drug policies should account for changes in the composition of unregulated drug markets.

The researchers also found:

Recriminalization in Washington State saw an increase in the fatal overdose rate.

Before lawmakers return to tactics that have proven to be a dismal failure for more than 50 years and risk exacerbating Oregon’s drug overdose problem, they should listen to drug policy researchers who point out that Oregon’s surge in overdose deaths corresponds to the late arrival of fentanyl in the state relative to other parts of the US.

If lawmakers want to know where to place the blame for Oregon’s overdose crisis, the answer should be obvious: prohibition.

David J. Bier

A bipartisan group of senators has introduced a new immigration bill (“Border Act”) backed by the White House. The bill is a mixed bag. In general, the main purpose of the bill is to spend tens of billions of taxpayer dollars on detaining and deporting more immigrants from the border rather than finding ways to let them come legally.

These provisions will lead to more chaos and even more demands for more money. But some elements of the deal would improve the system, making legal immigration slightly easier for some groups.

Reckless government spending

The overall legislation—which includes foreign aid to Israel, Ukraine, and Taiwan—will cost $118 billion. This money is designated as emergency supplemental funding, meaning that Congress does not need to find a way to pay for it. It also occurs outside of the normal budgetary process, which means that Congress will completely disregard all tradeoffs between this spending and other alternative uses for the money. The immigration‐​related portion is $20.1 billion—$6.5 billion more than the White House requested.

This money will mainly go toward the most well‐​financed law enforcement agencies in the United States. The federal government already spends more on immigration and trade enforcement than all other federal law enforcement combined. For context, $20.1 billion is roughly double the FBI’s annual budget. Regardless, as my colleagues Romina Boccia and Dominik Lett write, “rushing funding out the door is more likely to lead to wasteful spending.”

The increases proposed by this bill and the timeframes in place to spend them (usually September 2026) effectively guarantee gross financial mismanagement:

Customs and Border Protection (CBP) is adding nearly $7 billion to a $18 billion budget, and most of the money is going to the Border Patrol, which has a budget of about $5 billion.
Immigration and Customs Enforcement (ICE) is receiving $7.6 billion—nearly double its annual budget.
US Citizenship and Immigration Services will add $4 billion to a $313 million budget for asylum processing.

The bill also plans to fund permanent infrastructure and permanent positions with supplemental appropriations, making it likely that this one‐​time supplemental becomes a regular occurrence. Aside from the new expulsion authority, the centerpiece of the bill’s policy changes is to make USCIS handle all asylum processing from the border, costing nearly $4 billion upfront and involving the hiring of 4,338 Asylum Officers.

But USCIS is usually fee‐​funded, so this supplemental is effectively like creating a new appropriated subagency. If Congress thinks these appropriations are necessary, Congress should find a way to pay for it with offsets from elsewhere in the budget.

Expulsion authority trigger

The key provision of the bill would allow the president to expel immigrants regardless of the viability of their legal rights to remain in the United States if average daily encounters at the southwest border hit 4,000 in a week (about 120,000 in a month) or 8,500 in any single day. This includes people who apply to enter legally at ports of entry.

Since March 2021, the daily average for a month has always exceeded 4,000. Expulsions would be mandatory if the daily average for a week exceeded 5,000, or 8,500 in a single day, and expulsions would have to continue until the rate declined for two weeks to a daily average of less than 3,000 (a pace of 90,000 for a month) if the 4,000 threshold was used or 3,750 (112,500 for a month) if the 5,000 threshold was used. Under this provision, expulsions would have been mandatory almost continuously since March 2021.

Expulsion authority will not significantly deter crossings. This provision purports to resurrect the Title 42 expulsion authority in use from March 20, 2020 to May 10, 2023, albeit with some important differences as described below. During that time, Title 42 was used primarily against single adults from northern Central America and Mexico. From April 2020 to April 2023, they accounted for 83 percent of all expulsions and were expelled 94 percent of the time with the remaining 6 percent likely criminally prosecuted. As Figure 2 shows, total arrests of this demographic rapidly grew during the Title 42 era before falling again. It would be strange to resurrect such an ineffective policy.

Ending expulsions reduced known “gotaways” (successful evasions of Border Patrol). During the Title 42 expulsion era, the number of detected successful evasions of Border Patrol known as “gotaways” exploded to the highest levels in well over a decade. Gotaways rose from 13,696 in February 2020 to a peak of 73,463 in April 2023, just before Title 42 ended. Since Title 42 was terminated, successful evasions of Border Patrol have declined 79 percent to a daily average of about 500, or 15,500 per month, in January 2024. Evasions increased because Title 42 quickly returned people to Mexico where they could try to cross illegally again and because, with no right to request asylum, they had no reason to turn themselves in. Reinstating expulsion authority would harm border security.

The expulsion authority in this bill is significantly more complicated than Title 42 expulsion authority because the bill provides for the screening by asylum officers of immigrants who express a fear of torture or persecution in the country to which they’re being expelled. Involving asylum officers will make this provision significantly more difficult to enforce. The bill also places a time limit on its use in any given year (270 days in year 1, 225 days in year 2, and 180 days in year 3). This will undoubtedly cause more confusion and surges of individuals attempting to enter the United States. The expulsion authority would thankfully expire after three years.

New asylum screening

Even when expulsions aren’t in effect, the bill finds other ways to try to accelerate removals. Current law says asylum officers should screen out border crossers without a “credible fear” defined as having a “significant possibility” that they could establish eligibility for asylum. Officers also must screen for eligibility for the Convention Against Torture deportation relief, which uses a higher “reasonable fear” standard, which is somewhat higher than the “credible fear” standard. This is the standard that will now be applied for everyone.

This higher screening threshold for release after an asylum interview has effectively already been in place since May 2023 when the Biden administration implemented its so‐​called asylum ban rule that creates a presumption of ineligibility for asylum for people crossing illegally. It has led to a modest reduction in the overall “fear found” rate, but still about half of all applicants are approved and are released to pursue their applications.

Internal relocation bar

The bill also requires asylum officers to screen out asylum seekers when they have “reasonable grounds for concluding” that they could have relocated to another part of their home country. This bar already exists, but it has been interpreted to require it to be reasonable in all circumstances, so it’s not clear exactly how this would be applied. However, the bar is not applied at the credible fear stage, but rather at the final merits decision stage, given the difficulties with assessing this ground. The Trump administration attempted to change this, but the Biden administration never implemented it.

Nonetheless, very few border crossers are even subject to fear screenings, so raising the standard and imposing the relocation bar will not matter without a seismic shift in border processing. Changing the screening standard will not lead to significantly more removals. The only way to increase removals is to increase screenings dramatically and then have the resources to expel people whose fear claims are rejected. The bill tries to rectify this with a massive infusion of money, but even these resources will be insufficient.

It is extraordinarily unlikely that USCIS, which already struggles to hire people, will find, hire, and train nearly 4,400 new asylum officers in less than three years. Even if it does, ICE will not have the detention and related resources to detain and remove them.

New asylum process

The bill creates a new process for asylum seekers that would completely remove their processing from the immigration courts and turn it over to USCIS. The government could choose to use this process whenever it wants (p. 116), but it would presumably be used during times when it cannot detain everyone who crosses or for groups such as families who are difficult and expensive to detain. Only people who express a fear of return are subject to this process. Anyone else would be subject to normal detained expedited removal proceedings if resources allow (if they don’t, they’re just released with an immigration court date).

This new non‐​detained process allows people who express a fear of return to be released at the border under alternatives to detention electronic monitoring (p. 116) and receive a fear screening interview after 90 days (p. 121). This process will only be used as operational constraints allow (p. 189). The asylum officer may grant asylum in this initial interview if the applicant shows “clear and convincing evidence” of their eligibility. If they are found to have a fear of persecution, then they go onto a merits decision. If they get denied there, they can appeal to a newly created appeals board.

USCIS lacks the capacity to do any of this. Its asylum processing is quite possibly even more broken than the asylum processing in immigration courts. The bill appropriates $4 billion to change this, but it is impossible to imagine that USCIS would be able to do screenings for more than a fraction of arrivals for years. There are currently over one million pending asylum cases with USCIS, and it completes just about 50,000 per year. It has funding for 1,028 officers, and it has only been able to fill 760. The bill increases their wages and streamlines hiring, but it is highly unlikely it will ever reach a staff of 5,366 officers.

Legal immigration changes

More green cards: The bill will increase legal immigration—green cards—for family‐ and employer‐​sponsored immigrants by 50,000 per year for the next five years (250,000 green cards). This is the bill’s best provision. These caps have been barely touched since the Immigration Act of 1990. For context, this is about 14 percent of the annual cap, but it makes up barely half a percent of the 9 million applicant backlog. About 62 percent of the green cards would go to family‐​sponsored immigrants. The caps were previously only increased based on unused green cards in earlier years. The figure shows how this increase compares with prior years’ caps.

Afghan Adjustment Act: This provision allows Afghans who were evacuated from Afghanistan to adjust to legal permanent residence.
Employment authorization for backlogged workers: H‑1B visa holders—and their spouses and children—who have a pending I‑140 employer‐​sponsored green card petition filed on their behalf are authorized to work. This mandates the current spousal H‑4 employment authorization regulation and expands it to include the children of those workers. It is disappointing that this provision only includes H‑1B visa holders and their family members, while similarly situated workers with other visas are excluded.
Documented dreamer protections: Children of H‑1B visa holders who had at least eight years in the United States in the status of an H‑4 dependent of the H‑1B worker will be deemed to qualify as a child of the worker, if the parent reaches the front of the green card line. They also would be eligible to keep their H‑4 status and receive work authorization. This is a great change but again, it’s incredibly disappointing that the senators decided to exclude children on other visas.
Visitor visas for family of citizens and green card holders: Visitor visas are usually denied for family members of citizens and green card holders because they could be seeking to immigrate permanently. The bill would include Sen. Rand Paul’s bill that would create a process to issue them visitor visas.
Mandates processing asylum seekers at legal crossing points: Whenever the expulsion authority is in effect—which can happen at 4,000 encounters per day—the government must process a minimum of at least 1,400 “inadmissible aliens” at ports of entry (p. 219). This is the current administrative limit for the CBP One phone app appointment scheduling process. The bill explicitly recognizes “a process approved by the Secretary to allow for safe and orderly entry into the United States” outside of the visa categories (p. 207). However, the bill does restrict the ability of DHS to grant parole at southwest ports of entry to quite limited categories (p. 188). This would prevent a CBP One entrant without fear from receiving work authorization by virtue of receiving parole. Asylum seekers would be unaffected because the bill requires them to see employment authorization.
Asylum seeker work authorization: The bill requires that immigrants released from custody under the new asylum process are granted work authorization, which is valid for two years and renewable until the process concludes. They must be granted the work permit if they receive a positive fear determination (at the latest 90 days after entry) or if no determination could be made within 90 days (p. 321). This is a huge change from the current system that requires a six‐​month waiting period, an application for asylum, and a separate application for work authorization, which has a filing fee.

It is worth noting that the deal doesn’t touch the highly successful parole sponsorship programs.

Conclusion

The Senate bill has some very positive immigration policy provisions, most notably greater legal immigration. The changes to border policy are either temporary or marginal. The biggest issue is the astounding sums that the bill appropriates outside of the appropriations process to fund fast‐​tracked deportations and expulsions. These sums will have to become baked into the appropriations process going forward, meaning that this temporary supplemental will become a permanent, unprecedented increase in immigration‐​related spending without offsets.

David Kemp and Peter Van Doren

One year ago, a freight train derailed in East Palestine, Ohio causing a leak of hazardous chemicals and a large fire. Despite a strong public backlash and apparent political support, a bipartisan bill to institute new safety requirements on trains carrying hazardous materials has not become law.

A recent New York Times article suggests that rail accidents went up because the bill did not pass:

After a freight train carrying hazardous chemicals derailed a year ago in East Palestine, Ohio, forcing the evacuation of hundreds of residents and upending life in the town for months, the rail industry pledged to work to become safer, and members of Congress vowed to pass legislation to prevent similar disasters.

No bill was passed. And accidents went up.

Derailments rose at the top five freight railroads in 2023, according to regulatory reports for the first 10 months of the year, the most recent period for which data exists for all five companies.

Factually, the article is correct. Data from the Federal Rail Administration (FRA) does show that, in the first 11 months of 2023, there was a slight uptick in accidents. But when viewed over a longer time horizon, last year’s data seem less worrisome.

Total accidents and derailments at the five largest (known as Class I) railroads increased between 2022 and 2023. (Our numbers differ slightly from those reported by the Times because the FRA just released data for November 2023 and because we do not know exactly which parameters the Times used to filter the data. In the following figures we look at accidents in the first 11 months of the year on main line tracks for five Class I railroads: BNSF Railway, Union Pacific [UP], CSX Transportation, Norfolk Southern Railway (NS), and Grand Trunk Corporation [GTW, the U.S. subsidiary of Canadian National Railway].)

Figures 1 and 2 illustrate the increase in the context of the overall improvement in safety since the Class I railroads consolidated roughly two decades ago. Measured both by total accidents and by derailments, railroad safety has improved dramatically.

And the five railroads, individually, have experienced similar trends, as shown in figures 3 and 4. Total accidents have fallen by nearly half and derailments by about 60 percent since 2000.

However, from 2022 to 2023, both accidents and derailments have slightly increased. How does this annual change compare to changes in previous years? Figures 5 and 6 show the year‐​to‐​year percentage change in total accidents and derailments since 2000.

Both charts show that the data fluctuate, and that the trend of the data is not different from zero statistically. Between 2018 and 2019, derailments increased by 15 percent. And between 2019 and 2020, they decreased by 19 percent. Using one year’s change to predict the next year’s change would yield incorrect predictions.

Accidents caused by overheated bearings, which led to the East Palestine derailment, more than doubled from 2022 to 2023. Figure 7 shows that the number of accidents caused by overheated bearings also fluctuates since 2000, though in this case the data vary around a trend that is statistically significant and declining.

What if we assessed railroad safety using the number of railcars in accidents that released hazardous materials? Ironically, Figure 8 shows that even with the eight cars that released hazardous chemicals in East Palestine, the railroads improved between 2022 and 2023. But even though last year’s change exhibits an improvement that railroads might cite in their defense, such a claim would be misleading because the long‐​term trend is not different statistically from zero.

The Times article includes a few brief acknowledgments of the real issues involved in the discussion of rail safety after East Palestine. First, it mentions rail lobbyists’ argument that the proposed rail safety bill’s requirement that the railroads install detectors to monitor for overheated bearings “would inhibit the ability of railroads to introduce new practices and technologies to reduce accidents.” Any measures to try to improve rail safety should pass a cost‐​benefit test, and prescribing specific measures potentially forces railroads to forgo more effective, less costly innovations.

Second, the Times notes that rail is much safer than the primary alternative, trucking, for transporting hazardous materials.

And third, it notes that CSX “reported an accident rate — which measures accidents as a percentage of the distances traveled by trains — that was slightly lower in 2023 than in 2022.” The article also mentions that “Its total accidents still rose.”

But “total accidents” means very little without accounting for the volume of freight railroads are transporting. A railroad that experiences a doubling of its absolute number of accidents while sending out ten times as many trains has had an improvement in its safety record, irrespective of the increase in total accidents.

Despite what the Times article and other reporting suggest, as we showed in our blog last year freight rail has seen a remarkable improvement in safety since the 1970s. In fact, looking at all railroads and types of track and considering accident rates per billion‐​ton‐​miles of freight, figures 9 and 10 (reprinted from that blog with slightly updated numbers) show that the number of freight cars that derailed and the number of cars in derailments that leaked hazardous materials both improved by an order of magnitude from 1980 to 2020.[1]

The rail accident data from last year do not lead us to conclude that the safety progress over the past four decades is reversing. 

[1] These figures use FRA’s data on accidents from all railroads, not just the Class I railroads. The Bureau of Transportation Statistics data are in the ton‐​miles of freight for only the Class I railroads. Class I railroads are estimated to account for about 70 percent of total rail ton‐​miles of freight. Thus, the estimates likely overstate the actual rate of derailments per ton‐​mile.

Neal McCluskey

Usually, when you simplify something, it gets easier. But not when you are the federal government, and not when it comes to the labyrinthian student aid system. Simplifying the Free Application for Federal Student Aid—the gateway to federal loans, grants, and more—has turned into a bureaucratic debacle, with the upshot that aid decisions will be made much later than usual for families in the midst of important college decisions.

The major underlying causes of this meltdown are that the federal government is mammoth and the whole darned system is absurdly complex. These might be problems the Framers hoped to avoid with the Constitution giving the federal government no authority to meddle in education.

The College Cost Reduction Act (CCRA), just passed through the House Committee on Education and the Workforce, could have been committed to streamlining the system. It could have targeted many programs for elimination, added no new ones, and kept what remained simple—“simple” defined as money following students to colleges without the feds trying to decide what schools and programs are worthy, and expecting loans to be repaid with interest.

Alas, the bill strays significantly from these guidelines, but it would probably be an improvement over the status quo. What follows are major highlights and lowlights.

The Good

On the positive side, the CCRA would eliminate and streamline some things, first and foremost ending PLUS loans. These loans, which can be taken by graduate students and parents of undergraduates, have no set maximums, so they supply major fuel for college price inflation. The CCRA would also end the Federal Supplemental Educational Opportunity Grant (FSEOG) and Leveraging Educational Assistance Partnership (LEAP) programs, which give federal dollars to colleges and states, respectively, to give to students. The bill would also pare down the alphabet soup of loan repayment options, reducing them to one 10‐​year plan and one income‐​driven.

The CCRA would also reduce some regulations, including the “90/10” rule that says no more than 90 percent of a school’s revenue can come through federal aid programs, and “gainful employment” regulations, which threaten to end access to aid for schools whose graduates do not earn enough money, as defined by the feds. Both are targeted at the relatively small and politically disliked for‐​profit college sector, though 91 percent of young people—not just those attending or planning to attend proprietary schools—say that future employment is a major reason they are going to college.

The bill would also improve accreditation, opening it up so that new, non‐​traditional schools can more easily get accredited and, hence, become accessible to students with federal aid. Right now, there are mainly regional, input‐​focused accreditors that tend to favor brick‐​and‐​mortar, how‐​many‐​volumes‐​in‐​your‐​library institutions, making it harder for new models such as online, or competency‐​based institutions, to compete.

Finally, on the plus side, the CCRA would rein in the ability of the US Secretary of Education to unilaterally declare changes to how loans are repaid, at least if they would cost the government more. That would help to block the sort of unconstitutional student debt cancellation actions the Biden administration has repeatedly taken.

The Bad

Unfortunately, a lot of the good in the bill is offset by the bad. For instance, rather than just ending funding for school and state grants, the bill would create a Promoting Real Opportunities to Maximize Investments and Savings in Education (PROMISE) program that would give colleges money akin to FSEOG. The bill would also establish “Pell Plus”—additional funding for Pell Grant recipients—but only for students on pace to finish on time, in eligible programs, and that hit a “value‐​added” earnings threshold. Both programs require that participating colleges lock in maximum prices for students for up to six years—a problem if students enter in 2025 and the country experiences major inflation any time before 2031.

The CCRA also has a “skin in the game” requirement—basically, colleges would cover some losses when their graduates fail to repay their loans—which is reasonable given that colleges make money no matter how their students fare. But it is something of a distraction: It is the federal government’s failure to meaningfully assess potential borrowers’ abilities to handle degree programs that puts money in the hands of students unlikely to finish. Schools are just doing what the feds incentivize them to do—enroll students—and this places the blame on the institutions, not the politicians where it belongs.

Regarding loans, the act would end interest capitalization, in which unpaid interest is added to a loan’s principle. That hurts taxpayers, especially as inflation lowers the value of a dollar over time. It also complicates lending, which should be simple: you borrow with interest and pay back the principal and interest accrued.

Finally, while the accreditation changes are perhaps more freeing overall, the CCRA includes micromanagement, such as requirements to use specific outcomes measures, having at least one representative of the business community on an accreditor’s board, and a prohibition on diversity, equity, and inclusion mandates. Such decisions should be up to accreditors and schools, not the feds.

Conclusion

Overall, the CCRA would take us closer to where we need to be—ideally, no federal aid—but it could go much further.

Jeffrey A. Singer

Last weekend, Senate negotiators announced a bipartisan compromise on a supplemental spending package that will create tougher immigration and asylum laws aimed at addressing the chaotic flow of migrants across the southern border. The package also contains aid to Ukraine and Israel and the FEND OFF Fentanyl Act  (Fentanyl Eradication and Narcotics Deterrence Off Fentanyl Act).

The FEND OFF Fentanyl Act targets individuals and international drug trafficking organizations that are linked to trading illicit fentanyl and fentanyl precursors with financial and property sanctions. President Biden imposed several such sanctions in December 2021 with Executive Order Number 14059. The FEND OFF Fentanyl Act makes those sanctions permanent. It adds others against individuals and organizations engaged in buying, selling, or laundering money attached to the trade in illicit fentanyl and its precursors.

If federal sanctions like these worked, organized crime would be a relic of the past. But it is alive and well.

Putting pressure on Chinese fentanyl precursor manufacturers might aid their competitors in India. And because waging war on drugs is like a game of whack‐​a‐​mole, the precursor business will pop up in countries other than India as opportunities present themselves.

Worst of all, this feckless political theater ignores the iron law of prohibition: “The harder the law enforcement, the harder the drug.” As Josh Bloom (Director of Chemical and Pharmaceutical Science at the American Council on Science and Health) and I wrote in a recent article for USA Today, a class of synthetic opioids loosely called “nitazenes” may soon produce the next overdose scourge.

“Nitazenes” are compounds derived from benzimidazole, which is benzene linked with imidazole. American chemists argue that the compounds don’t technically meet the United States Adopted Name (USAN) definition of “azenes.” Nevertheless, the name has stuck. Since 2019, toxicology labs in Europe, the UK, and North America are increasingly finding isotonitazene (users call it “iso” or “tony”) in overdose toxicology studies.

The precursors for making benzimidazole derivates are ubiquitous. Unlike fentanyl derivatives, which all have the piperidine infrastructure, manufacturers of benzimidazole derivatives start with the fused benzene and imidazole “rings” to produce countless chemical reactions. Pharmaceutical and chemical manufacturers use benzimidazole in a panoply of products with widely varying effects.

Benzimidazole derivatives include angiotensin II inhibitors, which clinicians prescribe to treat high blood pressure. (Examples include azilsartan, candesartan, and telmisartan.) Many antihelminthic drugs (used to treat human roundworm infestations) are benzimidazole derivatives. Proton pump inhibitors like omeprazole and pantoprazole, which effectively treat acid reflux and gastric hyperacidity, are benzimidazole derivatives, as are antipsychotic agents such as clompimozide and droperidol.

In the 1950s, the Swiss pharmaceutical company CIBA used benzimidazole derivates to make a powerful synthetic opioid, etonitazene, which is roughly 1,000 times more potent than morphine. Thus, the “recipe” for making nitazenes was born. CIBA never brought the drug to market. However, isotonitazene appeared in the illicit drug market in 2019.

Chemists in basement labs, using ubiquitous ingredients, can make innumerable nitazenes using benzimidazole. People who buy these products on the black market will unknowingly participate in these drugs’ first clinical trials.

The iron law of prohibition has fostered a new frontier in the illicit drug business: synthetic opioids. Drug traffickers need no longer rely on growing and transporting natural products—like opium and cocaine—to derive their drugs. Now they can make opioids and stimulants in underground labs from “scratch,” using common ingredients.

If the FEND OFF Fentanyl Act puts too much “heat” on fentanyl precursor distributors, drug traffickers might switch to making nitazene with its different, readily available precursors that are harder for law enforcement to track to nitazene makers.

If lawmakers want to know who to blame when the nitazene crisis arrives, they should look in the mirror.

Romina Boccia and Dominik Lett

Congress designated $12 trillion as emergency spending over the last 30 years, according to our recent policy analysis. That’s equal to 43 percent of public debt. Despite the true size and scope of emergency spending remaining obscured until recently, some legislators have been leading the way on the interlinked issues of emergency spending and emergency powers.

Congress should rein in emergency abuse. During emergencies, Congress overspends because legislators are not subject to effective spending restraints. Excessive emergency powers further undermine legislative accountability. Coming out of one of the largest emergency spending sprees in US history, the time to rein in emergency abuses is now, before the next disaster strikes. America cannot afford another unrestricted emergency spending splurge given our already unsustainable fiscal trajectory, driven by high interest costs and the growth in health care and old‐​age entitlement spending.

Here are seven emergency spending reforms to address emergency abuse:

Offset emergency spending

Congress should establish a budget enforcement mechanism to offset new emergency expenditures, preferably at the same time as emergency spending takes place or at least over the near‐​term future with spending reductions to lesser priorities in the budget. Under the current system, legislators leverage emergencies as a pretext to pass budget‐​breaking initiatives with no consideration for future budget restraint. Establishing an offsetting mechanism gives appropriators the flexibility to address emergencies when necessary while also incentivizing forward‐​thinking budget planning.

The Responsible Budget Targets Act introduced by Rep. Emmer (R‑MN) and Sen. Braun (R‑IN) (H.R.7420 and S.772, respectively) implements offsets over a six‐​year period. As Kurt Couchman of Americans for Prosperity explains:

[The Responsible Budget Targets Act] would keep emergency response from becoming a budget loophole by requiring cap reductions over the following six years. A $6 billion emergency, for example, would reduce the caps in the following six years by $1 billion each year. The aversion to unnecessary spending restraint or new revenue in the near future would help Congress limit emergency response to what’s actually needed and be less of a vehicle for waste.

Raise emergency spending voting thresholds

Under Senate rules, legislators can make a “point of order” objection to emergency designations. Strengthening and enforcing similar procedural rules would help prevent superfluous and excessive emergency spending. In the face of a significant and broadly recognized crisis, legislators should be able to overcome their political differences and a higher voting threshold. The point is not to make emergency designations impossible but to create a meaningful hurdle that only genuine emergencies can clear.

In 2019, Rep. Walker (R‑NC) and Sen. Romney (R‑UT) introduced the Budgeting for Disasters Act (H.R.3217 and S.1579, respectively) which proposed increasing the number of votes required to waive the Senate point of order against an emergency designation from three‐​fifths to two‐​thirds. Raising this voting threshold would be a step forward in deterring the use of emergency funds for non‐​emergency priorities.

End executive emergency declarations after 30 days

Under the National Emergency Act, the president can declare a national emergency, formalize a state of emergency and unlock extraordinary emergency powers. Both President Trump (border wall) and President Biden (student loan debt) leveraged emergency powers to bypass the democratic process at the expense of the taxpayer. Creating a “shot clock” where emergency declarations automatically expire unless extended by Congress would limit costly executive overreach and challenge our never‐​ending state of emergency.

The ARTICLE ONE Act introduced by Rep. Roy (R‑TX) and Sen. Lee (R‑UT) (H.R.3988 and S.1912, respectively) reigns in excessive emergency powers by restricting presidential emergency declarations to 30 days unless reauthorized by Congress. Other bills that include the same or a similar policy change have garnered support from both sides of the aisle, including the National Security Powers Act of 2021, the Congressional Powers of the Purse Act, and the Protecting Our Democracy Act.

Enhance transparency over executive emergency spending

The National Emergency Act requires the president to submit emergency expenditure reports to Congress during and/​or after an emergency. The intention is to provide transparency and accountability to aid Congress in policing executive abuses of emergency funds. The current system is convoluted, and reports are not easily available or detailed. Congress should hold the executive accountable and make these expenditure reports both more detailed and publicly available.

The National Emergency Expenditure Reporting Transparency Act introduced by Rep. Gosar (R‑AZ) and Sen. Marshall (R‑KS) (H.R.4615 and S.2300, respectively) takes a big step in the right direction by amending the Federal Funding Accountability and Transparency Act to include NEA reports. The public and concerned legislators deserve to know how the executive expends taxpayer dollars during emergencies.

Correct the budget baseline distortion

Congress uses the Congressional Budget Office (CBO) baseline to benchmark new proposals. Under the Balanced Budget and Emergency Deficit Control Act, the CBO must assume discretionary appropriations, even if for one‐​time emergency priorities, grow each year with inflation. This practice creates a ratchet effect, building an expectation for higher spending and distorting the budgetary picture.

In 2019, Sen. Enzi (R‑WY) introduced the Bipartisan Congressional Budget Reform Act (S.2765), which made a slew of budget‐​related reforms, including removing all cap‐​exempted spending from the budget baseline. Exempting emergency spending from the baseline better reflects the reality that emergency designations should be temporary, one‐​time expenditures.

Justify emergency designations

In 1991, the Office of Management and Budget (OMB) laid out a five‐​part test that all emergency designations should meet: necessary, sudden, urgent, unforeseen, and nonpermanent. Despite the 2011 Budget Control Act codifying this definition into law, these emergency criteria are not well enforced. Prior designations we have spotlighted make one question whether appropriators even consider these criteria at all when designating emergency funds. Congress should require any legislation with emergency funding to include a findings section that describes how each emergency designation meets all five of the OMB’s criteria.

As the Congressional Research Service (CRS) explains, committees are already required to produce accompanying reports for appropriations. These reports include details about everything from budget authority to budget justifications to agency‐​specific directives. Requiring appropriators to explain why new emergency designations are justified is a low bar to clear and so commonsense that many Americans probably already assume it is happening. Moreover, it could expose just how ridiculous some of the most egregious emergency designations truly are.

Regularly report on emergency spending

In a similar vein, Congress could require regular reporting on emergency designations for each fiscal year. Prior to our study, no comprehensive analysis of emergency spending existed. That is despite emergency spending making up an increasing share of the overall budget and most of the information being readily available.

Previous work by the CBO, Government Accountability Office, and Congressional Research Service can act as a good guide. If GAO or CRS were to produce more regular reporting, here’s what they should attempt to answer:

How much federal spending was designated as an emergency for the purposes of budget enforcement?
How much federal spending was exempted from normal budget enforcement, including emergency designations and related cap adjustments such as Disaster Relief, Wildfire Suppression, and Overseas Contingency Operations?
How was emergency spending distributed in annual and supplemental appropriations? For supplemental appropriations, what emergency designated provisions are unrelated to the event/issue(s) that prompted the supplemental?
How was emergency spending distributed in mandatory or direct spending?
What type of emergency, if any, prompted the usage of emergency‐​designated funds?
Are emergency provisions consistent with emergency designation criteria?
How does new emergency spending compare to prior fiscal years? Are certain programs routinely funded through emergency designations or related budget categories exempt from normal budget enforcement?
What is the budgetary impact of new emergency spending, including emergency spending’s contribution to the national debt?

Set guardrails

Congress has a habit of playing fast and loose with emergency spending, with deleterious effects on the deficits and debt. The next major emergency could significantly worsen our already dire fiscal situation, rapidly advancing the prospects of a severe fiscal crisis. Legislators have the opportunity and obligation to establish sensible emergency guardrails now before it’s too late.

Walter Olson

Donald Trump’s ongoing claims that the 2020 presidential election was stolen from him occupy a curious position in our current political discourse. They are plainly of the highest importance, and yet they are seldom scrutinized with much empirical or statistical care. Polls find that something on the order of a third of Americans and a majority of Republican voters accept the idea that Joe Biden was not the lawful winner in 2020. Once accepted, this belief naturally tends to foster further beliefs: that America’s election system in general is untrustworthy, that the American republic has itself in some sense been stolen, and (in some versions) that the actions of those who invaded the Capitol on Jan. 6, 2021 should be seen as understandable and perhaps pardonable.

For all the centrality of these fraud claims to the election coming up this year, they don’t get exposed to much ongoing critique of a detailed, systematic or rigorous nature. Those outside the Trump orbit have their own reasons for not spending time on them: that the claims were never strong enough to merit credence to begin with; that they were uniformly rejected after being examined by courts; that they have been refuted in audits and reviews by state and local authorities and other knowledgeable persons; that their backers are an amalgam of amateurs and lawyers trying to keep cases going, rather than scholars or practitioners conversant with the methods by which election‐​watchers commonly sift data to detect vote irregularities.

Into this gap step Justin Grimmer and Abhinav Ramaswamy of the Democracy and Polarization Lab at Stanford University. Grimmer is also associated with the Hoover Institution; last summer in this space I praised a joint paper of his (with Eitan Hersh of Tufts) finding that “nearly all contemporary election laws have small effects on partisan election outcomes.”

Here is the abstract of Grimmer and Ramaswamy’s new, comprehensive 85‐​page paper:

Even years after the 2020 election, Donald Trump continues to claim that fraudulent and illegal votes cost him the 2020 election. In this paper we provide the most comprehensive assessment of his empirical claims to date. All of the claims we evaluate fail to provide evidence of fraud or illegal voting. Trump’s claims of fraud or illegality are riddled with errors, hampered by misunderstandings about how to analyze official voter records, and filled with confusion about basic statistical techniques and concepts. Often, the claims are based on the casual impressions of what happens in a “normal” election based on little more than intuitions. Worse yet, several claims are simply misstated by Trump’s legal team or Trump. As a result, sometimes the public claims do not even match the weak evidence in Trump’s legal challenges. This paper provides a resource for assessing many of the most prevalent claims made about the 2020 election and a guide to anticipating potential objections in future elections.

It will be objected that a paper of this sort has no natural audience: those friendly toward Trump’s claims will not find or read it, while those opposed, if they happen to read it, will see it as merely bouncing the rubble on claims long since refuted. To me, though, persuasion still matters, and for that reason I am grateful to the authors. Whether or not they meant to, they have written an account of the susceptibility of crowd thinking that could make a pertinent appendix to Charles Mackay’s Extraordinary Popular Delusions and the Madness of Crowds, with its classic accounts of the Dutch tulip craze and the South Sea Bubble.

You can read it here (you may or may not need a DropBox account) or check out a longer summary by Steven Rosenfeld at The Fulcrum.

Scott Lincicome

Last Friday’s Department of Energy (DOE) move to temporarily pause pending requests to export liquefied natural gas (LNG) outside the United States has elicited not only a firestorm of criticism (including from us), but also proposals in Congress to reverse the DOE action. Just two days ago, for example, House Energy and Commerce Committee Chair Cathy McMorris Rodgers announced that the House would soon vote on a measure to overturn the LNG pause, while a group of Republican senators introduced legislation to eliminate DOE’s power to block natural exports altogether.

At stake is a burgeoning industry with domestic and international significance, both economically and geopolitically. The recent growth in LNG exports from the United States should not be taken for granted—the fact that the United States went from importing LNG just fifteen years ago to the world’s largest exporter is an amazing feat and a testament to the powerful growth enabled by (mostly) unhindered production and free trade.

As I explained in a new column for The Dispatch and in a 2013 Cato briefing paper on US energy export restrictions, systemic reform—not simply a narrow reversal of this week’s DOE pause—is needed here. That’s because current law (the Natural Gas Act of 1938 and its amendments) provides DOE—and thus any president who might just be in the middle of a close reelection campaign—with essentially unlimited discretion to block natural gas exports destined for countries without a free trade agreement (FTA) with the United States on undefined “public interest” grounds.

Given that many US LNG export shipments are “destination flexible,” and that most of the world’s biggest and most geopolitically‐​important LNG consumers—including in Europe and Asia—don’t have a US FTA, getting a DOE‐​approved export license is essential for US LNG projects. That fact, in turn, makes the approval process an almost‐​irresistible point of attack for anti‐​fossil fuel activists and any politician wanting to win their support. Reforming that process to take DOE—and thus politics—out of the equation (and thus put far more knowledgeable private investors in charge of these important, billion‐​dollar projects) is a smart and obvious move.

There is, moreover, precedent for just this kind of reform. Back in 2013, for example, I advocated for eliminating the outright ban on US exports of crude oil—something Congress finally did via a 2016 law that allowed the president to block US oil exports only in times of a declared national emergency. (Who says Congress doesn’t work fast?!) After decades of exporting virtually no crude oil, the United States has become a global oil export powerhouse, improving both domestic and global energy security.

(Web source.)

At the same time, liberalization did not put significant upward pressure on domestic gasoline prices: As the US Government Accountability Office explained in a 2020 report, “[b]ecause gasoline prices are largely determined on the global market, U.S. refiners could not pass on to consumers the additional costs associated with the increase in crude oil prices.” Even though last Friday’s action affects only pending LNG export applications and thus leaves current approved capacity unaffected, all US natural gas producers and exporters deserve this same freedom, to the benefit of not only these market players but also global energy markets, the US economy, and US foreign policy.

Congress seems poised to act. For example, Senator Tim Scott’s (R‑S.C.) Unlocking Domestic LNG Potential Act of 2024 removes the “public interest” determination from the DOE’s purview and hands it—in a stricter form—to the Federal Energy Regulatory Commission (FERC). This would be a positive move in at least two respects.

First, Congress should not let the DOE play politics the way it did last week—it should take back the authority the DOE so clearly abused. Second, returning the authority to FERC is consistent with past practice (recall that the original authority in the Natural Gas Act of 1938 went to the Federal Power Commission, renamed to FERC in 1977), would give LNG exporters a one‐​stop‐​shop for environmental and public interest review, and would mitigate against future political abuse.

Although FERC is not perfect, it has been a bulwark against Executive Branch politics, as it demonstrated in rejecting a 2018 DOE proposal to bail out coal and nuclear power plants. An additional reform that would make the transport and trade of natural gas the default policy would be to allow some Natural Gas Act filings to go into effect by operation of law, as with Federal Power Act filings, rather than languish at a deadlocked or understaffed FERC.

Of course, it’s not just the Natural Gas Act that needs reform. As I noted this week (and repeatedly in the past), US trade law is littered with measures that let the Executive Branch—and thus politics— decide the fate of private commercial transactions that just‐​so‐​happen to cross national borders. The Trump‐​era Department of Justice, in fact, went so far as to claim in court that one of those laws— Section 232 of the Trade Enforcement Act of 1962—would let the president ban imported peanut butter on subjective “national security” grounds. And US courts have been loath to question such declarations, even when the president himself admits that the laws’ conditions haven’t been met.

Other potential declarations of national emergency have crept into the energy space, including proposals to use Section 202(c) of the Federal Power Act (another DOE function) to prop up coal‐​fired power plants. At one point in President Trump’s efforts to boost the domestic coal industry, invoking the Defense Production Act was on the table.

Because the risk of politicization is ever‐​present, these laws need reform too. But, as the LNG pause demonstrates (and given the stakes involved), the Natural Gas Act is a great place to start.

Travis Fisher, Cato’s Director of Energy and Environmental Policy Studies, contributed to this article.