That’s the title of my latest Forbes column, which begins:

As chances for immigration reform fade ahead of this year’s congressional elections, the main sticking point seems to be the “pathway to citizenship” for those who are in the country illegally.

Reform opponents don’t want to reward those who break our laws, while activists on the other side refuse to consider a deal that doesn’t naturalize this entire population. Fixing our broken immigration system thus seems to turn on the question of what to do with the estimated 11–12 million illegal aliens living in our midst. (I’m reminded of John Candy’s final movie, Canadian Bacon, where a propaganda bit ominously decries: “Canadians: They walk among us.”)

But both sides are wrong to focus on citizenship and should instead target permanent resident status—otherwise known as green cards.

Read the whole thing, which includes a bit about the naturalization process that I’m now experiencing.

The Associated Press reports that “30 women protesters in Kazakhstan were arrested and thrown into police vans while wearing lace underwear on their heads and shouting ‘Freedom to panties!’”

Is this the beginning of a sexual revolution in authoritarian central Asia? Alas, no. The protest is a response to new rules from the Russia-led Eurasian Customs Union banning the sale or importation of underwear containing less than 6% cotton. The ban will outlaw 90% of the underwear currently being sold in those countries, stoking concerns of a return to Soviet-era underwear.

Although it is unclear to me at this point exactly why, lacy silk lingerie apparently threatens the economic vitality of Russia, Kazakhstan, and Belarus.

Banning clothes for economic reasons is unfortunately nothing new. In her thorough and informative book, The Travels of a T‑Shirt in the Global Economy, Georgetown professor Pietra Rivoli details the efforts of the English Parliament in the 17^th Century to keep people from abandoning English woolens in favor of cotton garments from India. In 1700, Parliament went so far as to mandate that all corpses be buried wearing nothing but wool.

Will trade historians one day write about the great Russian panty raid of 2014? Will they tell of the uprisings in the streets, the dangerous and exotic world of black market lingerie smugglers, Vladimir Putin’s regime-shattering silk drawers scandal? Only time will tell.

The purpose of trade barriers is always to control consumers, because free consumers are a danger to the goals of the state. And so, I call on free traders all around the world to stand in solidarity with these protestors. Freedom to panties! Freedom for all!

The latest NSA spying revelations involve international trade issues, in particular an Indonesian complaint brought at the WTO in response to a U.S. ban on clove cigarette. (The trade problem was that the U.S. banned clove cigarettes, which are mostly made in Indonesia, but did not ban menthol cigarettes, a competing U.S.-made product). According to the New York Times, the Australian government monitored communications between the Indonesian government and its DC-based trade lawyers, possibly in relation to this case, and passed the information along to the NSA. (Note that law prof Orin Kerr is skeptical about the way the story is presented in the Times.)

Let me offer the following thoughts:

1. It’s hard to imagine that any information gathered by the Australians had much impact on the WTO case. I suppose it could be a slight advantage to get an early look at your opponents’ arguments, and see how they are thinking about the issues. But I can also imagine that all this additional information would be a distraction, with too much time being spent on marginal points. It’s worth noting that, in spite of any information U.S. government trade lawyers may or may not have received, the U.S. lost the case. Thus, like most NSA spying, any spying here was probably of limited value.

2. Regardless of its value, this kind of spying is likely to be pretty offensive to our trading partners. The WTO has detailed rules of procedure for its disputes, one of which says the parties must act in good faith (“all Members will engage in these procedures in good faith in an effort to resolve the dispute”). It’s hard to see how receiving confidential information about your opponents’ arguments, if that happened, satisfies this requirement. It will be interesting to see if this gets discussed in upcoming WTO meetings.

3. I wonder whether all of these revelations about spying will accelerate proposals being made by foreign governments to develop non‑U.S.-based communications networks: “German Chancellor Angela Merkel said on Saturday she would talk to French President Francois Hollande about building up a European communication network to avoid emails and other data passing through the United States.”

There’s plenty of criticism flying around about the new farm bill. It spends unprecedented amounts of money to prop up one of the most successful industries in the country. It uses Soviet-style central planning to maintain food prices and make rich farmers richer. Its commodity programs distort trade in violation of global trade rules. 

But this year’s the farm bill had the potential to mitigate some these sins by repealing a number of high-profile protectionist regulations. Despite a few close calls, however, the final version of the bill kept these programs in place, exposing the United States to possible retaliation.

COOL

One of those programs is the mandatory country-of-origin labeling (COOL) law. This requirement was first imposed by the 2002 farm bill. Ostensibly designed to increase consumer awareness, the true impact of the program is to push foreign-born cattle out of the market. The law requires meat packers to keep track of, and process separately, cattle that was born and/​or raised for some time in Canada. The added expense benefits a portion of U.S. cattle ranchers at the expense of meat industry as a whole.

The negative impact on the Canadian and Mexican cattle industries was enough to prompt a complaint at the WTO. After the United States lost that case, the administration amended the regulation. But the new regulation, rather than bringing the United States into compliance, actually makes the law even more protectionist. Canada has made clear its intention to impose barriers on a wide range of U.S. products in retaliation.

Repealing this disastrous regulation through the farm bill was discussed during numerous stages of the legislative process, but no language on COOL was ever added to the bill.

Catfish

Another program that could have been fixed by the farm bill was a bizarrely redundant and purely unnecessary catfish inspection regime. The new system would cost an estimated $14 million per year to administer and (by the USDA’s own admission) do nothing to improve the safety of catfish. However, the new institutional requirements imposed on catfish farmers to comply with the new regime would all but eliminate Vietnamese competitors from the market. The U.S. catfish industry and their allies in Congress are all for it.

Even though both house of Congress had at one point or another passed bills that repealed the new catfish regime, the final bill that came out of conference kept the redundant system in place.

The inspection issue has complicated negotiation of the Trans-Pacific Partnership, of which Vietnam will be a member, and could become the basis of a complaint at the World Trade Organization. 

In the words of Sen. Mike Lee, the farm bill is “a monument to Washington dysfunction, and an insult to taxpayers, consumers, and citizens.” It is also the most popular vehicle for imposing protectionist regulations that serve a small set of businesses at the expense of the national economy. 

There was hope that this bill could roll back some of the damage done in the past, at least for a handful of odious regulations. That hope was sorely misplaced.

From the NY Times:

Flying doesn’t come cheaply these days, particularly on long-haul flights across the Atlantic. But Norwegian Air Shuttle, which specializes in low-cost flights within Europe, plans to bring its pared-down model to the United States and Asia.

Its strategy, however, comes with a few twists: Norwegian is moving its long-haul operations from Norway to Ireland, basing some of its pilots and crew in Bangkok, hiring flight attendants in the United States, and flying the most advanced jetliner in service—the Boeing 787 Dreamliner. In the process, it has infuriated established carriers and pilots.

… Norwegian started flying between Oslo and Kennedy Airport in New York in May and has round-trip fares starting at $509. The second-lowest price found recently was $895 on United Airlines flying out of Newark Liberty International Airport. Norwegian plans to add more than a dozen new routes this year, including direct service from London to New York and Copenhagen to Fort Lauderdale, Fla., once regulators approve its new registration in Dublin.

Not surprisingly, there is resistance:

But Norwegian’s novel model has raised stiff opposition from American labor groups, airlines and pilots who see it as a backhanded attempt to outsource cheaper labor and undercut competition. Norwegian, these critics argue, is unfairly taking advantage of an open-skies agreement between the United States and Europe even though Norway is not a member of the European Union.

I’m always shocked by the price of flights to Europe, so best of luck to Norwegian as it tries to navigate this regulatory process and bring lower fares to consumers.

The Strengthen and Fortify Enforcement (SAFE) Act (HB 2278) is part of the House’s attempt to split up comprehensive immigration reform into individual bills. The Act suffers from the fundamentally misguided belief of many Republicans that enforcement has to come before any attempt to rationalize our broken immigration system. Of course, if we fix our Kafka-esque immigration system, then many of the problems with unauthorized immigrants will greatly diminish, if not disappear. Focusing on enforcement is like someone saying during prohibition, “before we can talk about legalizing alcohol we first need to stop all these bootleggers and gangsters.”

The SAFE Act is also a constitutional boondoggle with many dangerous and suspect provisions that guarantee the act will be tied up in court battles, not to mention to litany of expected civil liberties abuses that will arise if the Act is ever enforced. The ACLU and the Center for American Progress have already pointed out many of the civil liberties concerns, as well as the bad policies that animate the Act.

Gone unnoticed is a large and consequential problem that has constitutional ramifications: the Act denies law enforcement and Department of Homeland Security funding to states or municipalities that have policies or practices that “prohibit law enforcement officers of a state…from assisting or cooperating with Federal immigration law enforcement[.]” If a state or municipality has such a policy then they “shall not be eligible to receive…any…law enforcement or Department of Homeland Security grant.” (Section 114).

California has just such a law. The TRUST Act, signed by Governor Brown in October 2013, prohibits California state officials from detaining people when U.S. Immigration and Customs Enforcement (ICE) issues a “hold” request (in order to transfer them to federal immigration authorities) if they have been convicted of only minor crimes.

Shockingly, if the SAFE Act is passed, then California will lose all “law enforcement or Department of Homeland Security (DHS) grants.” This includes FEMA grants, which is under the DHS. For a state that periodically catches fire and has a geologically unstable fault-line running along nearly its entire length, this truly puts them in a difficult situation.

Just in September, California was granted $20 million for 100 new police officers. Oakland, described as a “violence-plagued, cash-strapped city has cut the size of its police force from 830 officers in 2009 to just over 600,” received $4.5 million of that money. California would also be ineligible to receive Emergency Federal Law Enforcement Assistance (EFLEA) grants, which in past gave $1 million to assist California during the Rodney King riots and $4.96 million for assistance during the 1989 San Francisco earthquake.

Most devastating would be losing the $177.5 million that California received from FEMA in 2013 alone. California is one of our most disaster prone states, and a geological sword of Damocles constantly hangs over its head. In fact, the threat of losing law enforcement and FEMA funding is so perilous to all states, not just California, that the SAFE Act may be a heretofore unseen example of unconstitutionally coercive federal spending.

Because our Constitution doesn’t allow the federal government to simply command the states into compliance, the federal government accomplishes many things via conditional spending grants to the states. If states comply with the conditions, then they get funding. Since the New Deal, however, the Supreme Court has held that at some point “pressure turns into compulsion” and the conditions on the spending are too onerous on the state to be constitutional. In two cases, South Dakota v. Dole (1987) and the Obamacare case, NFIB v. Sebelius (2012), the Court has broadly sketched out the parameters of when “pressure turns into compulsion.”

But the sketch is very minimal. In Dole, the Court ruled that conditioning five percent of federal highway funding on a state changing its drinking age to 21 (yes, that’s why we have a “national” drinking age) is not unconstitutionally coercive. It’s just five percent of highway funding, after all, and states, the Court said, have a real choice whether to comply. In a less famous part of the Obamacare decision, however, the Court ruled that conditioning all existing Medicaid grants on states complying with the Affordable Care Act was unconstitutionally coercive.

Although commentators have focused on the size of the conditional grant in order to determine whether something is unconstitutional, the question really centers on whether or not a conditional spending grant is coercive. The absolute monetary size of the grant certainly has something to do with coercion, but other factors can be taken into account. As the Court said in Steward Machine Co. v. Collector (1937), whether “undue influence [is] exerted by the national Government on the States” is a “question of degree” and “at times, perhaps, of fact.”

Therefore, it is legitimate to look not just to the size of the grants, but to the type of grants used to induce states into not passing laws like the TRUST Act. Highway funding is one thing, but national security, law enforcement, and FEMA grants are entirely different. Although, from a policy standpoint, both FEMA and federal law enforcement grants have sketchy track-records that have garnered well-deserved criticisms from conservatives and libertarians, those criticisms are irrelevant to whether California and other states feel they need the money. 

A state like California, as well as all others, would almost assuredly feel compelled to repeal laws like the TRUST Act should the SAFE Act become law. This type of federal pressure is unconstitutional coercion.