Stock

Thomas A. Berry

Two years ago, Texas passed a law declaring that large social media services are “common carriers” subject to onerous regulations dictating what speech they must disseminate. The law prohibits services from removing, demonetizing, or blocking a user or a piece of content based on the viewpoint expressed. Services found to violate this requirement face liability for each piece of content they remove.

The law was soon challenged by NetChoice and CCIA, two internet trade associations whose members operate a variety of websites covered by the law. Although a federal district court held that the law violated the First Amendment, a panel of the Court of Appeals for the Fifth Circuit reversed that decision by a 2–1 vote. The panel held that the law does not inflict a First Amendment injury because the websites “are free to say whatever they want to distance themselves from the speech they host,” and thus would not be falsely identified as endorsing the speech they are forced to disseminate.

Florida passed a similar law around the same time as Texas’s, which was also challenged by NetChoice and CCIA. In that case, the Court of Appeals for the Eleventh Circuit struck down key portions of the law as violating the First Amendment rights of the websites.

The Supreme Court has granted review of both cases, and now Cato has filed a joint amicus brief supporting NetChoice and CCIA in both cases. There are many reasons why the laws violate the First Amendment, but our brief focuses on just one aspect of the Fifth Circuit’s decision: its reliance on PruneYard Shopping Center v. Robins (1980), a flawed Supreme Court decision that should be overruled.

In PruneYard, the Supreme Court held that California could force a private shopping center to host political pamphleteers on its property. The court held that there was no First Amendment injury to the shopping center because passersby would not likely believe that the shopping center endorsed the speakers it was forced to host. But as our brief explains, there are many reasons why compelling a private entity to disseminate speech inflicts an injury. The false appearance of endorsement is one possible relevant injury, but not the only one. Supreme Court decisions before and after PruneYard have recognized this fact, making PruneYard an outlier in First Amendment doctrine.

For example, in Wooley v. Maynard (1977), the Supreme Court held that New Hampshire could not force drivers to display the state motto “Live Free or Die” on their license plates. It did so despite the fact that drivers were highly unlikely to believe that other drivers endorsed the (required) license plates on their cars. Rather, the court recognized that a driver was injured simply by being forced “to participate in the dissemination of an ideological message by displaying it on his private property.” And before and after PruneYard, the Supreme Court has held in several cases that it is a First Amendment injury to be forced to fund the private speech of others. Here too, the harm is not in any false appearance of endorsement, but simply in the compelled support of speech.

Our brief urges the court to overrule PruneYard and fully endorse the more comprehensive view of compelled speech that underlies both Wooley and many compelled‐​funding cases. Americans have a First Amendment right not only to refrain from speaking but also to refrain from printing, funding, disseminating, staging, selling, or otherwise facilitating or supporting the speech of others. We have these rights for many reasons, not just because we (sometimes) want to avoid associating ourselves as supporters and adopters of that speech. We also may want to simply avoid spreading ideas we don’t think are worth spreading.

As our brief explains, the Supreme Court does not need to overrule PruneYard for NetChoice and CCIA to win these cases, but it should overrule PruneYard sooner or later. At the very least, the court should note PruneYard’s outlier status in First Amendment doctrine and decline to extend it to these novel circumstances. The court should reverse the Fifth Circuit and affirm the Eleventh Circuit, striking down the Texas and Florida laws as First Amendment violations.

Jeffrey A. Singer

Yesterday, December 7, 2023, Representative David Joyce (R‑OH), joined by four colleagues—Earl Blumenauer (D‑OR), Brian Mast (R‑FL), Lori Chavez‐​DeRemer (R‑OR), and Troy Carter (D‑LA)— introduced a revised version of the Strengthening the Tenth Amendment Through Entrusting States (STATES) Act. As its name implies, the bill seeks to bring US marijuana policy more in line with the Tenth Amendment and federalism.

The Tenth Amendment states:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The bill, which some call “STATES Act 2.0,” removes marijuana as a substance covered by the federal Controlled Substances Act. This means marijuana will no longer be on the Drug Enforcement Administration’s list of controlled substances. While the Biden administration has been open to the idea of rescheduling marijuana, the STATES Act would de‐​schedule it, a move I have long advocated.

It would also federally decriminalize people using, selling, or transferring marijuana if it is legal in their state, territory, or tribal reservation and if they comply with state regulations. Moreover, it allows for interstate commerce in marijuana. The legislation states:

IN GENERAL—No State or Indian Tribe may prohibit the transportation or shipment of marijuana through the State or the territory of the Indian Tribe, as applicable, if the originating and destination States or territories permit, as applicable, the manufacture, production, possession, distribution, dispensation, administration, or delivery of marijuana.

The bill authorizes the federal government to regulate and track interstate marijuana commerce to make sure the commerce remains between jurisdictions where it is legal.

The bill also removes existing federal obstacles to marijuana retailers’ financial transactions involving financial institutions by declaring that federal law will not consider transactions that are compliant with state laws to be drug trafficking, and such transactions will not be subject to the part of the Internal Revenue Service code that addresses revenue and expenses connected to federally prohibited drug sales.

The bill authorizes the Food and Drug Administration to regulate marijuana as it does other non‐​prescription and prescription drugs, as well as tobacco products. While I believe the FDA and the drug regulatory system need drug reformation, that is a matter for a separate discussion.

The legislation also maintains a federal prohibition on the sale of marijuana to people under the age of 21 and on the distribution or sale of marijuana at transportation safety facilities such as truck rest areas on highways. These are both matters on which Congress should defer to the states.

When Congress repealed alcohol prohibition in 1933, it respected states’ rights to regulate and prohibit alcohol use and commerce within their borders. The STATES Act exhibits the same federalist precepts. After 1933, several states continued to prohibit alcohol within their boundaries. In 1966, Mississippi became the last state to end alcohol prohibition. Still, many Mississippi counties remained “dry” until 2020, when Mississippi Governor Tate Reeves signed a bill legalizing alcohol possession in all state counties. By now, 46 states have passed laws that legalize or decriminalize marijuana or marijuana‐​based products to some degree and under some circumstances. The STATES Act respects states’ rights to prohibit, legalize, or regulate marijuana, mostly free from federal government interference.

The bill also allows for a federal excise tax on marijuana to help fund “a framework that supports critical components such as proper administration and oversight, consumer safety protections, and enforcement.”

Several states that have legalized recreational marijuana have imposed exorbitant marijuana sales taxes along with onerous regulations on retailers, which have increased the price to consumers and driven them to the cheaper black market. As I have written here, “The unintended consequences of excessive taxation are a weakening of the legal market in favor of the black market and lower government revenues.”

Notably, the authors of the STATES Act seem aware of this. The legislation states the federal excise tax should “be low enough to not exacerbate the level of taxation set by States, thereby avoiding the pyramid effect of adding Federal taxes on top of high State taxes.”

STATES Act 2.0 significantly improves the original version. With its bipartisan support and with 70 percent of American adults supporting marijuana legalization, the bill provides an excellent opportunity for Washington politicians to catch up to the people on this issue.

Nicholas Anthony

On November 28, Cecilia Skingsley, head of the Bank for International Settlements’ Innovation Hub, delivered a speech about central bank digital currencies, or CBDCs, that covered technological change, the use of cash, and the future of CBDCs.

Yet what really caught my attention was some of the more fundamental statements in the speech regarding the nature of money and the role of government. Namely, Skingsley argued that money is a public good and governments are innovators just like private sector companies. And thus, governments should charge ahead with CBDCs. Yet neither premise is correct.

Is Money a Public Good?

To set the foundation, Skingsley’s speech began by asserting that, “Money is a public good, and a very fundamental one.” She added:

[Money] should be neutral, and it should be easy to use, safe, and accessible for everyone. It is a clever solution to our need to make economic value portable. And who should be responsible for it? I would say central banks. Central banks are by legislation entrusted with offering money that meets criteria such as being a stable store of value and an efficient medium of exchange. They also provide a critical role as lenders of last resort in times of stress.

Central banks are monopolists in the provision of money as a public good. I strongly believe it should be so.

But money is not a public good. That term has a very specific meaning in economics. As explained by economists Paul Samuelson, Jeffrey Perloff, Stanley Fischer, Lawrence White, and many others, a “public good” is defined as a good that is both non‐​excludable and non‐​rival. Money has neither characteristic.

Let’s break down what these characteristics mean.

“Non‐​excludable” means that once one person has access to a good, others can’t be excluded (or, at least not profitably) from enjoying it as well. A classic example is the ocean. There’s no way to (efficiently) prevent others from catching every fish. “Non‐​rival” means that one person using a good does not subtract from the ability of others to use that good. In other words, the people using the good are not competing, or rivals, with one another. Here, a classic example is that of ideas. Anyone can think about economic theory without having to wait on others to stop.

So a public good is not simply a good provided by the public sector, or government. Rather, a public good is a good that can be consumed by someone and yet still be available for others to enjoy. At the same time, there is not an efficient way to prevent others from using that good. To have only one of these characteristics means a good is either a club good or common pool resource (Table 1). To have neither of these characteristics means a good is a private good.

Returning to Skingsley’s speech, money is not a public good. In fact, Lawrence White addressed this issue specifically in 1999. As White explained, people regularly and routinely compete as rivals when it comes to acquiring money. And in doing so, it is both cheap and effective to exclude others from using money once it is acquired.

Going beyond theory, it is also easy to see that the private sector has had a long and successful history of providing money. One need only look at the historical research conducted by George Selgin, Lawrence White, and Kevin Dowd. Again, as White has explained, these experiences largely only ended when “Central banks primarily arose, directly or indirectly, from legislation that created privileges to promote the fiscal interests of the state or the rent‐​seeking interests of privileged bankers, not from market forces.” In other words, the government took over the production of money from private markets.

At a time when CBDCs have primarily risen in response to cryptocurrencies, it’s difficult to not see the parallels. It’s not the so‐​called public good status of money that makes policymakers want a CBDC, but rather the ability to solidify control over money and payments.

What Is the Role of Government?

Turning to another argument in the speech, Skingsley sought to dismiss the idea that CBDCs are a solution in search of a problem. In short, the argument was that telling governments not to develop CBDCs is just like telling pharmaceutical companies to stop developing new drugs:

One thing we hear a lot is that “retail CBDC is a solution looking for a problem.” Why bother in the first place? Things are just fine. I hear that some in the financial industry are making just that argument.

Imagine for a second if a pharmaceutical company were to say, “That’s it, no more research. We don’t need new drugs, the ones we have are enough. And if we haven’t found the cure to certain diseases yet, we’ll probably have to live with that.” Or imagine car manufacturers saying, “That’s it, no more safety improvements!”

…

Let me again resort to history and provide an example. In 1989, engineers at Swedish phone company Ericsson were trying to develop wireless headsets. They invented Bluetooth.

They were not trying to stream wirelessly from a tablet to a TV and have fancy wireless speakers around the house; they were not thinking about wearables, power meters for bikes or the internet of things. All these things became possible after the basic technology was developed. Someone at the time might have thought, “What’s the problem with wires?”, and Bluetooth would never have been invented.

There is much to unpack here. First, to recognize that CBDCs do not offer any unique solutions is not to say there should not be research. In fact, it’s primarily because of research that CBDCs have been found to be a net negative for society. Therefore, to recognize that CBDCs do not offer any unique benefits for citizens, while presenting major risks, is to recognize that governments should not be launching them.

Second, there seems to be a blurring of the lines in this argument between the role of the government versus the role of the private sector. Perhaps coincidentally, International Monetary Fund managing director Kristalina Georgieva said earlier in November that, “Country authorities wishing to introduce CBDCs may need to think a little more like entrepreneurs.”

As I warned in response to that speech, government officials should not be trying to invent products and steer innovation to see what sticks like their entrepreneurial counterparts. Such interventions distort the market and restrict choices in the end.

To suggest that governments should operate like private companies is to fundamentally misunderstand the role of government. To the extent governments intervene, it should be because there is a clear and substantial market failure that only the government is able to address.

Reminiscing on the successes of Bluetooth, car companies, and modern medicine is indeed inspiring. But we should not forget the countless companies that failed along the way. Where entrepreneurs are many, countries usually only have one government. If a company fails to deliver a useful product, that company fails and another comes up with a better product. If a government fails to deliver a useful product, people are often stuck with it. Or worse yet, that product is forced upon people.

Conclusion

Skingsley’s speech was titled, “Shaping the Future Financial System in the Public Interest.” Yet, research appears to have already shown that CBDCs are not in the interest of the public. When surveyed in 2023, 34 percent of Americans opposed the idea of a CBDC. When those Americans learned of the costs and benefits, opposition rose to 74 percent. Later in 2023, 85 percent of Canadians surveyed said they would not use a CBDC.

In contrast, given other recent speeches and the spread of CBDCs across the world, it seems central bankers are extremely interested in CBDCs. Yet, whether this interest is due to the rise of cryptocurrency or a mistaken idea of public goods, the fact remains the same: governments should not needlessly intervene in the market.

Gene Healy

In recent decades, American universities have erected a multitude of new offices, deploying swarms of bureaucrats to harass undergrads and eat out the substance of campus intellectual life. Under the banner of Diversity, Equity, and Inclusion (DEI), these officers wield administrative power to stamp out behaviors that make students feel “unsafe” or “unwelcome.”

Of course, in DEI Thought, some students’ sensitivities count for more than others’. Faced with

pro‐​Hamas protests sweeping college campuses in the wake of the 10/7 massacre, university administrators suddenly lost their zeal for punishing “microaggressions.” When it comes to offenses like pro‐​Trump graffiti or culturally insensitive Halloween costumes, they’re ready to pounce: that stuff’s traumatizing, after all. But pogrom‐​endorsement? Hey, it’s complicated.

House Republicans blasted that double standard at Tuesday’s congressional hearing on “Holding Campus Leaders Accountable and Confronting Antisemitism.” But they offered few ideas for addressing the problem beyond strongarming college presidents into policing more speech.

That’s a perverse approach to the crisis of campus illiberalism. Reformers should have no truck with the infantilizing and un‐​American machinery of speech codes, mandatory trainings, and “bias response teams.” Instead, they should use this opportunity to disrupt and dismantle the DEI bureaucracy itself.

That bureaucracy has played a key role in the academy’s institutional capture by left‐​wing ideologues. A recent study found an average of 45 employees devoted to DEI programming across 65 major universities (the University of Michigan alone has 163). The new administrative class tends to be even more left‐​leaning than the faculty. University administrators are “twelve times more likely to call themselves liberal than they are to call themselves conservative”—twice the rate among professors.

Ideologues who can’t do and can’t teach are now entrusted with reshaping the campus intellectual climate. Some of them enforce that mandate with extreme prejudice. In a widely reported incident at Stanford Law School earlier this year, around 100 students shouted down a conservative federal appeals court judge giving a Federalist Society talk on “COVID, Guns, and Twitter.” Amid the caterwauling, Stanford’s associate dean for DEI took to the stage—not to tell the privileged little punks to pipe down and grow up—but to give them aid and comfort: “my job is to create a space of belonging for all people in this institution,” she scolded Judge Kyle Duncan, “and your work has caused harm.”

This corps of “belonging” enforcers draws institutional support from “extremely restrictive” campus speech codes and bias‐​response teams. A 2022 study by Speech First found that 56 percent of leading four‐​year colleges and universities had bias reporting systems in place encouraging student informants to officially report “offensive conduct or speech” for administrative response.

Virginia Tech’s “bias‐​related incidents” policy is fairly typical of such schemes. It warns against “jokes that are demeaning to a particular group of people,” “hosting a culturally themed party,” or any “words or actions that contradict the spirit of the Principles of Community.” As Cato’s amicus brief in Speech First vs. Sands notes, such vague and open‐​ended mandates are designed to “chill dissent by leaving all speech potentially subject to official disapproval.”

It’s working: A 2022 survey by the Foundation for Individual Rights and Expression (FIRE) asked students, “On your campus, how often have you felt that you could not express your opinion on a subject because of how students, a professor, or the administration would respond?” More than 80 percent said they had self‐​censored on controversial topics like racial inequality, COVID-19 vaccine mandates, transgender issues, gun control, and mask mandates. When everyone expects the campus inquisition, it tends to put a damper on open debate.

Worse still, many students have come to embrace the new censoriousness. In 2023, FIRE and CollegePulse polled some 55,000 students at over 250 schools on acceptable protest tactics against disfavored speech. A majority of undergrads (63 percent) now say it is in some cases acceptable to shout down a campus speaker; 45 percent say the same about “blocking other students from attending” talks; and 27 percent think there are times when “using violence to stop a campus speech” is permissible.

Where did American undergrads get such illiberal ideas? Just possibly from marinating in an institutional environment that likens unwelcome speech to violence and uses soft‐​Stasi tactics to suppress it. As the old PSA has it, “I learned it by watching you!”

DEI’s post‐​10/​7 disgrace should be a teachable moment, but many would‐​be reformers are learning the wrong lesson. Congressional Republicans have offered nostrums like using student loans to force deplatforming of “Anti‐​Semitic events” or ramped‐​up “hostile environment” enforcement from the Biden administration’s Office of Civil Rights. GOP state legislators in New York have drafted a “Dismantling Student Antisemitism Act” that would freeze state funding for SUNY schools unless they implement mandatory antisemitism training and bias reporting procedures.

But trying to make DEI programming “fair and balanced” is a fool’s errand. As Milton Friedman once quipped, “What would you think of someone who said, ‘I would like to have a cat, provided it barked’?”

Elected officials have no business trying to micromanage campus culture using the levers of state power. But neither is there any reason the taxpayer should be expected to fund this destructive nonsense.

Instead, at the state level, reformers should use the power of the purse to break the power of the DEI bureaucracy at public universities. The Manhattan and Goldwater Institutes have proposed model legislation toward that end. It bars the use of public funds to support DEI offices in state schools, bans mandatory diversity training, and prohibits the use of “diversity statements” in hiring and admissions. It’s an agenda that’s perfectly consistent with limited‐​government principle—unless you’re the sort of libertarian who’s too broad‐​minded to take his own side in a fight.

Private universities and colleges present a different set of issues. In a free society, they’re entitled to be as ”woke” and speech‐​restrictive as they like—so long as government’s thumb isn’t on the scale. But it is, in myriad ways, including lavish federal grants that require DEI “loyalty oaths” in faculty hiring, and a runaway Office of Civil Rights that pressures private universities to adopt sweeping speech codes and staff up with compliance officers. Even in private higher education, DEI is largely a state‐​sponsored industry. Policymakers—and private donors—who worry about rising illiberalism on campus should stop subsidizing its growth.

Alex Nowrasteh

During the 2020 campaign, Joe Biden said, “Milton Friedman isn’t running the show anymore.” It was incredible for a presidential candidate to mention the name of an economist who had died 14 years earlier. After reading Jennifer Burns’ new book, Milton Friedman: The Last Conservative (Farrar, Straus and Giroux, 592 pages, released November 14, 2023), however, I found that Biden’s statement is more understandable in Friedman’s case than for any other economist. Even John Kenneth Galbraith said, “In the history of economics, the age of John Maynard Keynes gave way to the age of Milton Friedman.” Burns’ book makes a convincing case for why Galbraith was correct about Friedman’s impact (but not much else).

Jennifer Burns, an associate professor of History at Stanford University and a research fellow at the Hoover Institution, makes clear in Milton Friedman: The Last Conservative that Friedman had a significant impact on the world and deserves the attention he receives even years after he passed away. Friedman was a brilliant economist who upended paradigms in macroeconomics, inspired a new generation of macroeconomists (rational expectations), made significant contributions to our understanding of microeconomics, advised policymakers, wrote and co‐​authored several popular books, spread his ideas widely, and so much more.

Burns’ book gives an excellent and readable account of Friedman’s life, contributions, and times. It’s readable, sympathetic, and fair. The Economist put Milton Friedman: The Last Conservative on their Best Book of 2023 list for good reason.

CSPAN After Words invited me to interview Burns about her new book (video below). My biggest problem with her book is the subtitle, The Last Conservative. Friedman described himself as a liberal, a classical liberal, a radical, a small “L” libertarian, and a Republican. But he bristled at the suggestion that he was a conservative. I asked Burns about this at the end of the interview. Here’s her answer:

You know there’s a couple different reasons I did and I’m very aware that Friedman did not call himself a conservative and would probably not like the title of the book. He didn’t go as far as F.A. Hayek did to write an essay, “Why I’m Not a Conservative,” and maybe if he had written that essay, I would say, “I can’t move forward with this title,” but I kind of mean it in two ways.

One is when you look at his, the people he interacted with, the people he gave his ideas to within American politics, those who found him most compelling, most of those people called themselves conservatives, and conservatism in the United States is different than conservatism in other countries, in large part because it incorporates what in other countries is called “liberalism” or “neoliberalism,” a celebration of the market and celebrating capitalism, which is a dynamic economic system, is in some ways in tension with being conservative because it drives a lot of social change.

Nonetheless, in the United States, you have this sort of hybrid political movement of people who are socially or religiously conservative with economists dedicated to the free market with, during the Cold War era, people who felt very strongly Soviet Russia needed to be combated. These people come together, they call themselves “conservative,” they’re called by others “conservative,” and Friedman is part of this movement, so that’s just sort of empirically a reason to call him that.

The other way, that is maybe even more substantive, came from understanding his approach as an economist, which was to look at ideas, traditions and approaches that had defined the discipline that were really being left behind in a postwar era. And then say, like, “hold on a second. There’s something here worth conserving,” and so I do see him as someone who conserves the kind of inherited wisdom of his discipline.

Monetarism is based on the quantity theory of money, an older idea that most economists in the 50s said, “it’s not really relevant anymore.” Likewise, the very practice of doing empirical historical research was very out of fashion, and so I think that was his intellectual orientation, I think within American society was his political orientation.

In terms of The Last [Conservative], I mean, that’s really gesturing a little bit to the current state of affairs where conservatism is very much in flux and, I think, contested, and up for grabs and the type of conservatism that Friedman represented, that synthesis of free market capitalism, religious traditionalism, and an aggressive foreign policy, and a sort of orientation to global markets and to global influence. That synthesis and the pieces are all there, but they don’t come together in the same coherent way they did when Friedman was at the height of its influence. I think it’s sort of a provocation and sort of an invitation. We don’t know if he’s the last conservative or not. It might look like that right now. For some people that will be cause for celebration, for others cause for loss, but the book is not yet written. So with my book I want to give people resources to think about kind of how we got here and to think, “what in our past do we want to carry with us into the future?”

I recommend the book to anyone with an interest in Friedman, how the economics profession changed from about 1930 to the 1970s, the rise and fall of different economic paradigms during that time, and the intellectual history of big political questions during those years. Last but not least, Burns writes well and explains complex ideas accurately and in a way that intelligent laypeople can understand – a rare gift.

Being in the interviewer’s chair for a change was different, but I enjoyed it. The goal of an interviewer is to steer the conversation, allow the interviewee to explain their ideas, and add some thought‐​provoking questions to get the interviewee to reveal the unexpected. The interview was not about me or my ideas but about Burns and her new book, so I had to crush my ego and hand it over to her. I did well, but not as well as I could have, and I learned some lessons that will help me in future interviews. Hopefully, you will enjoy my interview with Jennifer Burns about her new book, Milton Friedman: The Last Conservative. More importantly, I hope you pick up her book.

Neal McCluskey

Today, the National Center for Education Statistics released its latest data on private school enrollment, as well as lots of other private schooling numbers. The most important finding is that K‑12 enrollment in private schools rose from 4,652,900 in 2019 to 4,731,300 in 2021. That is consistent with what Cato’s Center for Educational Freedom found as it undertook survey work to keep tabs on the health of private schooling: enrollment decline at the beginning of the COVID-19 pandemic, increases thereafter as private schools tended to reopen to in‐​person instruction faster than public.

Note that the NCES press release says enrollment “held steady” between the 2019–20 and 2020–21 school years, rounding the start and end numbers to 4.7 million, and perhaps considering statistical margin of error (it does not say if it did) to indicate no change. But the difference between reported numbers is 78,400, or a 1.7 percent increase. On the flip side, factor in pre‑K —which NCES did not do in its press release—and private schools did experience enrollment loss, dropping from 5,485,800 to 5,473,540. That’s a 12,260-student dip, or 0.2 percent.

When it comes to the number of private schools, NCES reports a net loss, which we also found, continuing through the 2021–22 school year. There were 30,490 private schools in 2019 and 29,730 in 2021, a 2.5 percent reduction.

Of course, these data are pretty old: We are now in the 2023–24 school year. That lag is why Cato’s Center for Educational Freedom has tracked private school closings and openings since the start of the pandemic, and undertaken annual private school enrollment surveys. It is important to continually monitor the health of private schooling, which is especially vulnerable to economic and other shocks because it must compete against “free” government schooling. That forces many schools to constantly walk a tightrope between keeping charges low and remaining financially viable.

With that in mind, check out our Private Schooling Status Tracker, and look for the results of our latest survey soon!

Jeffrey A. Singer

Next Tuesday, the Senate Committee on Health, Education, Labor, and Pensions (HELP) is scheduled to consider S.644, the Modernizing Opioid Treatment Access Act (MOTAA). The bill is sponsored by Senator Edward Markey (D‑MA) and co‐​sponsored by Senators Rand Paul (R‑KY), Bernie Sanders (I‑VT), Mike Braun (R‑IN), Cory Booker (D‑NJ), and Maggie Hassan (D‑NH). It would expand access to methadone treatment for people with opioid use disorder (OUD) by allowing board‐​certified addiction specialists to prescribe methadone to patients in their offices or clinics. This would provide people with an alternative option to the current system that segregates and stigmatizes people with OUD by making them queue up daily at government‐​approved opioid treatment programs (OTPs).

As I wrote here, the bill doesn’t go far enough—there are not nearly enough board‐​certified addiction specialists to meet the needs of people with OUD. However, as I wrote here:

The Modernizing Opioid Treatment Access Act is the first serious attempt in many years to remove unnecessary government barriers to methadone treatment. The bill also helps to destigmatize people with OUD by treating them as suffering from a medical condition.

As Sofia Hamilton and I explain in a recent Cato policy analysis, methadone has been proven as an effective treatment for addiction and dependency since the 1960s. Before Congress passed the Drug Abuse Prevention, Treatment, and Rehabilitation Act of 1972,  primary care clinicians in the US would prescribe methadone, an opioid agonist, to patients and follow them in their office practices.

That all ended in 1972 when the federal government segregated people with opioid use disorder from people with other health conditions that doctors treat in their offices, requiring them to often travel miles each day to take a daily dose of methadone in front of OTP staff. In the UK, Canada, and Australia, primary care clinicians working with community pharmacies have always prescribed methadone, and people in those countries thus have much greater access to methadone treatment.

Ideally, Congress should allow primary care clinicians to prescribe methadone to people with OUD in the office setting, as they do in the countries above. Clinicians can already prescribe another opioid agonist medication, buprenorphine, in the office to treat OUD. And we doctors can legally prescribe methadone to treat patients’ pain in the office setting. There is no good reason for the government to apply different rules for prescribing methadone to treat OUD.

Most objections to allowing clinicians to prescribe methadone emanate from the operators of the OTPs. This comes as no surprise. It is reminiscent of the objections raised by the taxi cartels when Uber and Lyft emerged as competition. They argue that allowing clinicians to prescribe take‐​home methadone—and pharmacists to fill the prescriptions—would result in methadone getting “diverted” to the black market for sale to non‐​medical drug users. But the evidence doesn’t back up those claims.

Critics of allowing clinicians to prescribe buprenorphine raised similar concerns about diversion. But research in 2018 by Washington University’s Theodore Cicero and others shows:

The most common reasons for illicit buprenorphine use were consistent with therapeutic use: to prevent withdrawal (79%), maintain abstinence (67%), or self‐​wean off drugs (53%)… Among respondents who had used diverted buprenorphine, 33% reported that they had issues finding a doctor or obtaining buprenorphine on their own. Most (81%) of these participants indicated they would prefer using prescribed buprenorphine, if available.

The researchers concluded, “Diversion was partially driven by barriers to access, and an unmet need for OUD treatment persists.”

In March 2020, the Substance Abuse and Mental Health Services Administration (SAMHSA) temporarily liberalized methadone take‐​home rules for OTPs, allowing “stable” patients to take home up to a 28‐​day supply. The program was such a success that SAMHSA has extended the rule and is “working toward a permanent solution.” Researchers at the Centers for Disease Control and Prevention and the National Institute on Drug Abuse evaluated the impact of the relaxed take‐​home rules and wrote in JAMA Psychiatry in July 2022, “Monthly methadone‐​involved overdose deaths remained stable after March 2020.”

The National Institutes of Health reported that same month that “the percentage of overdose deaths involving methadone declined between January 2019 and August 2021.”

Interestingly, the National Institute on Drug Abuse stated in December 2021:

Methadone diversion is primarily associated with methadone prescribed for the treatment of pain and not for the treatment of opioid use disorders. In one survey, giving methadone away was identified as the most common form of methadone diversion, which aligns with other findings that 80 percent of people who report diverting methadone did so to help others who misused substances. (Emphasis added.)

Keep in mind that the law has always permitted clinicians to prescribe methadone for the treatment of pain.

Thus, it appears that, as with buprenorphine, the majority of people who use diverted methadone are using it to avoid withdrawal as they attempt to taper off of an illicit opioid they’ve been using. This is because they cannot get access to the scarce number of methadone OTPs.

As I pointed out here, ”Expanding access to OUD treatment would reduce the number of people who seek drugs in the dangerous black market and, in turn, reduce the risk and incidence of overdose deaths.”

Last September, I moderated a policy forum at the Cato Institute examining ways to expand access to methadone treatment that featured Rep. Donald Norcross (D‑NJ), a sponsor of the House version of MOTAA. You can view it here.

As the Senate HELP Committee starts to mark up the bill, lawmakers should dismiss unsubstantiated concerns about diversion that incumbent OTP operators would like to raise. On the contrary, based on the data, one can argue that the most effective way to minimize methadone diversion is to increase access to methadone treatment.

Justin Logan

Senator Rand Paul (R‑KY) has introduced a bill calling for the withdrawal of US forces from Syria unless Congress authorizes them to be there. A perverse set of events has brought this all to a head, but good constitutional hygiene and careful strategy are their own rewards. Because of Congress’s abdication, US troops in Syria have no military mission beyond serving as targets for regional militias. Our men and women in uniform deserve a clear and achievable mission, always and everywhere. They do not have one in Syria. (See my November Reason article for more on this.)

To recap: despite repeated pledges there would be “no boots on the ground” in Syria as part of the anti‐​ISIS campaign, President Obama put boots on the ground in Syria as part of the anti‐​ISIS campaign. In December 2018, President Trump noted that ISIS, having lost 99 percent of the territory it held during its vaunted caliphate, had been defeated, and pledged that there would be a “full” and “rapid” withdrawal of US forces from the country. Trump’s defense secretary and counter‐​ISIS czar (who is now President Biden’s point man on the Middle East) resigned in protest, and the officials who didn’t resign successfully worked to sabotage Trump’s decision to withdraw US forces.

Since the Israeli assault on Gaza in response to the October 7 Hamas terror attack, US forces in Syria have served as little more than shooting gallery targets for regional militias backed by Iran. Contrary to their ostensible purpose, they are not fighting ISIS. As noted in the most recent Inspector General report for the counter‐​ISIS campaign, US forces stationed at the major US base in Syria had “no kinetic engagements” with the enemy during the previous three months. Whatever rump ISIS faction exists in Syria, local incentives and capabilities exist for dealing with it. Handily.

As the former US Ambassador to Syria Robert Ford recently observed, the “real (but unstated) reason the US is there is to block Iran from using a road coming from Iraq into Syria.” But the Iranians simply take a somewhat longer route, and the cost we pay for making them do this has been regular rocket fire, the primary defense against which has been luck. This is a disservice to our servicemembers.

Congress should find the commensurate courage to debate this mission, and should they decide on war with Syria or Iran, the Constitution provides them the option of declaring war on Syria or Iran. Barring that, these troops have no lawful or coherent mission, and they should be brought home.

Ian Vásquez

“It is a breeze of fresh air for a country that has suffered so much in recent years.” That’s how Felix Maradiaga described last month’s victory of Nicaraguan Sheynnis Palacios in the Miss Universe 2023 pageant.

Maradiaga should know. He was a presidential candidate in 2021, for which he was imprisoned and, after more than a year and a half in jail, released, stripped of his citizenship, and exiled. He and Nicaraguans inside and outside of their country recognize that Palacios’ coronation represents much more than winning a beauty contest.

It did not take long for the spontaneous celebrations in Nicaragua’s streets and on social networks to be interpreted by Daniel Ortega’s dictatorship as a threat. First lady and vice president Rosario Murillo denounced them as an attempt to conduct a “destructive coup.” Last week, the regime charged the director of the local Miss Universe franchise, who remains outside of the country, with treason and has detained her husband and son.

In fact, Palacios’ victory not only succeeded in unifying a country fractured by the dictatorship. The opposition to the regime—read the Nicaraguan people—identified itself with Palacios upon learning that she participated in the mass, anti‐​government protests of 2018. “The authorities and their accomplices repressed those demonstrations, killing at least 328 people, injuring some 2,000, and detaining hundreds.… Many protesters were detained for months, subjected to torture and other ill‐​treatment including electric shocks, severe beatings, fingernail removal, asphyxiation, and rape,” according to Human Rights Watch.

The situation has only worsened since then. As the United Nations denounced in a report this year, the regime is committing “widespread and systematic human rights violations that amount to crimes against humanity.” The dictatorship has exiled hundreds of citizens and stripped them of their citizenship; it has closed down thousands of NGOs and dozens of media outlets and universities. In the Human Freedom Index, Nicaragua ranks 123rd out of 165 countries. When Ortega took power in 2007 it ranked 72nd.

Maradiaga is right when he says that Sheynnis embodies the spirit and odyssey of the Nicaraguan people. She comes from a humble background, graduated from a university shuttered by the regime, and evidently aspires to a modern and prosperous Nicaragua.

Most striking was Sheynnis’ answer to a question asked of her during the pageant competition, which seems to have assured her the victory: When asked who would be the woman in whose shoes she would like to spend a year, she replied: Mary Wollstonecraft because of her feminist struggle.

Who was Wollstonecraft? She was an English author who lived in the second half of the 18th century and who wrote A Vindication of the Rights of Woman, considered a foundational text of feminism. Wollstonecraft advocated for equal rights and freedoms between men and women. She said that women were not inferior, that they were rational beings, and deserved the same education and opportunities as men. She was a radical for her time.

Wollstonecraft was an Enlightenment thinker. Her circle included prominent classical liberals such as Thomas Paine and William Godwin. She opposed slavery and believed in the use of reason and the freedom of the individual. She was an enemy of monarchy, which she considered a form of tyranny.

Wollstonecraft was much more than a feminist; she was a liberal who wanted to limit the power of the state and promote values that she considered universal. Seen in that light, Palacios’ response to the pageant question appears quite astute.

Both for the people of Nicaragua and for the regime—which censored Palacios’ image when an attempt was made to paint her on a mural—Miss Universe has become a symbol of freedom.

Note: This article is based on a version that was originally published in El Comercio (Peru) on November 28, 2023.

Jeffrey A. Singer

The Washington Post reports today that the Biden administration will delay a decision on banning menthol cigarettes and cigars until March 2024, after receiving complaints from such organizations as the American Civil Liberties Union and several civil rights groups that a menthol ban might fuel a black market, which can exacerbate criminal justice disparities.

As I wrote here, these groups’ concerns about exacerbating criminal justice disparities are well‐​founded. According to the National Survey on Drug Use and Health, in 2020, 81 percent of Black and 51 percent of Hispanic smokers preferred menthol‐​flavored cigarettes. We must never forget the tragic story of Eric Garner. New York City’s exorbitant taxes on cigarette packages generated an underground market in untaxed individual cigarettes, called “loosies.” In 2014, police infamously encountered 43‐​year‐​old Eric Garner selling loosies on a street corner, and a policeman’s chokehold led to his death as he repeated, “I can’t breathe.” This happened without a menthol ban.

With menthol cigarettes more popular among Blacks and Hispanics, expect police to focus their attention on minority communities. The last thing this country needs is yet another reason for law enforcement to engage with minorities they suspect are committing the victimless crime of selling menthol cigarettes in the black market.

The European Union’s experience with a menthol ban suggests that the proposed product standard will not work and will likely foster a menthol cigarette black market. A recent EU survey finds 40 percent of menthol smokers switched to non‐​menthol, and only 8 percent quit smoking. More importantly, however, 13 percent reported getting menthol cigarettes from “other sources.”

A black market for smuggled menthol cigarettes has emerged. A major source is Belarus, where menthol brands such as Minsk, Fest, and Queen are smuggled into EU countries. The UK press reported that such “illicit whites,” as they are called, are smuggled into the country by gangs and can be purchased “under the counter” from small British tobacconists for the right price. More recently, researchers from Yale and Duke universities reported similar developments where states banned menthol tobacco in the Journal of the American Medical Association.

Proponents of a menthol ban believe that people who smoke menthol cigarettes have a harder time quitting tobacco. However, a 2022 study reported in the Journal of the National Cancer Institute found menthol smokers have no greater difficulty giving up smoking than non‐​menthol smokers. Moreover, FDA researchers have reported that there is “evidence of lower lung cancer mortality risk among menthol smokers compared with non‐​menthol smokers among smokers at ages 50 and over in the US population.” And a prospective cohort study involving more than 85,000 participants in twelve southern states, reported in the Journal of the National Cancer Institute in 2011, concluded that “menthol cigarettes are no more, and perhaps less, harmful than nonmenthol cigarettes.” Perhaps this is because menthol smokers tend to smoke fewer cigarettes per day.

The Food and Drug Administration also plans to order a dramatic reduction in the nicotine content of tobacco products. While nicotine is the addictive component of tobacco smoke, it is not nicotine but rather the other components of tobacco smoke that produce harm. Nicotine, like caffeine, is a stimulant that improves focus. Unlike caffeine, nicotine increases the production of beta‐​endorphins that relieve anxiety, which may explain why some tobacco smokers light up when they want to calm down.

Nicotine can be quite addictive, but regular caffeine consumption can also be addictive and lead to “Caffeine Use Disorder.” Aside from nicotine’s addictive potential, the drug is relatively harmless. It can raise blood pressure in some people, but so can caffeine. Both can be toxic if consumed at high dosages. And, as I wrote here, recent studies suggest that nicotine normalizes cognitive deficits, called “hypofrontality,” in people with schizophrenia and may improve short‐​term memory.

Rather than risk fueling a black market in higher nicotine cigarettes, the FDA should make it easier for people to obtain nicotine‐​containing e‑cigarettes, a proven form of tobacco harm reduction. Alas, the agency has been going in the other direction.

The delay of a decision on the menthol ban and nicotine reduction until next spring allows the Biden administration to consider the unintended consequences before it makes a public health mistake.