A new study from Cato adjunct scholar John Early explores how the Census Bureau overstates U.S. inequality by excluding taxes and welfare payments from the agency’s income estimates. Early shows that, when accounting for the taxes Americans (mostly middle- and higher-income) pay out of their own income and the welfare payments Americans (mostly lower-income) receive, 2017 income inequality between the top and bottom households shrinks from almost 17-to‑1 to just 4‑to‑1:

Accounting for taxes and transfers, which better reflects Americans’ actual living standards, Early’s report also shows that U.S. income inequality actually declined over the last 70 years – contrary to popular belief.

As he notes, the Census Bureau’s overstated inequality statistics are commonly used to justify even more welfare spending and programs – despite the fact that, as we showed last year, inflation-adjusted transfer payments to low-income Americans approximately tripled between 1979 and 2018, and that the share of transfer payments received by middle-income Americans more than doubled in that same time.

Early’s study also debunks the oft-repeated claim that American incomes and economic well-being have stagnated in recent decades: When accounting for taxes, transfers, and inflation, median household income and average hourly earnings have increased substantially between 1967 and 2017.

Indeed, as the chart below shows, the American middle class is shrinking primarily because households are moving into higher, not lower, income brackets:

More income inequality myth busting can be found in Early’s new book, The Myth of American Inequality: How Government Biases Policy Debate, co-authored with former Sen. Phil Gramm and Dr. Robert Ekelund, available for purchase online and in bookstores now.

(Special thanks to Cato’s dataviz wizards for their help creating the animated chart above.)

It’s not every day you find a government document calling for Cato Institute employees to be charged with treason, but as a new article in The Dispatch details, here we are:

In March 2020, a maritime shipping advisory panel offered a simple suggestion to the government: Charge all past and current members of two libertarian think tanks with treason.

It is certainly not the first time a bunch of libertarians angered members of a bureaucratic panel. But this backlash stemmed from criticism of the Jones Act, a century-old law that imposes requirements for shipping between American ports.

Haley Byrd Wilt’s story($) provides a good overview of the situation, but this post provides a few noteworthy details that were left on the cutting room floor.

For many months Cato’s Patrick Eddington and Colin Grabow have been collecting internal emails from the U.S. Maritime Administration (MARAD) obtained via the Freedom of Information Act (FOIA) process. Unfortunately, responses from MARAD have often been incomplete, with the agency citing various exemptions from the law to justify withholding information. While some exemptions are no doubt legitimate, other, less-convincing ones pushed us to challenge MARAD’s recalcitrance. After months of appeals, repeated missed deadlines to provide promised information, and threats of legal action on our part, MARAD finally sent the required materials last month.

After reading through what MARAD sent, we now can understand why the agency was so reluctant to comply with the law.

Almost at the end of the 41‐​page document is what appears to be a set of recommendations related to a March 2020 meeting of the Marine Transportation System National Advisory Committee (MTSNAC)’s International Shipping Subcommittee. Among them: “Charge all past and present members of the Cato and Mercatus Institutes with treason.”

It seems we’ve touched a nerve.

Although it’s impossible for us to determine who made this request and whether MARAD ever considered it (we should hope not), the situation remains deeply troubling. First, it’s undeniably true that someone who sits among government officials in meetings with MTSNAC suggested charging American citizens with treason, a federal crime punishable by death, due to their political speech. This is manifestly antithetical to the values of a free society.

Second, it’s also undeniably true from the FOIA’d documents that this opinion – and many other, less-salacious ones in support of the Jones Act – are permitted or even welcomed at the supposedly-impartial government agency charged with overseeing the nation’s waterborne transportation system. Devotion to the Jones Act in the halls of MARAD and among rent-seeking members of the domestic maritime industry is apparently so strong that equating scholarly criticism of the law with treason didn’t even elicit the batting of a bureaucratic eyelash.

No wonder MARAD tried so hard to keep the documents from public light (a troubling situation in its own right).

For some time, Cato scholars have regarded the Jones Act as a protectionist failure whose persistence is best explained by public choice theory and regulatory capture. This latest discovery, while disturbing, only reinforces that view and emboldens our repeal efforts. We’ll surely have more to say about this and other FOIA revelations in the weeks and months ahead. Until then, please visit Cato’s dedicated Jones Act webpage and find out why freeing the country from this antiquated law is long overdue.

October 17, 2022 marked the day that hearing aids became available over the counter to people over age 18 with mild-to-moderate hearing loss. The Over-the-Counter Hearing Aid Act of 2017, a rider to the FDA Reauthorization Act of 2017, ordered the Food and Drug Administration to create a new category, OTC hearing aids, as devices that use air conduction to improve hearing for people in the above category.

This good news can make hearing aids more affordable and accessible for an estimated 30 million people who suffer from hearing loss. Opening this market will generate competition and innovation, drive down prices and increase consumer choice. A pair of hearing aids can cost as much as $6,000, and the FDA estimates the new rule will save consumers roughly $2,800 for a pair of hearing aids.

But there’s one possible—though unintentional—wrinkle in the new FDA rule. The new OTC hearing aid rule creates a new “prescription-only” category for people with severe hearing loss or those under age 18. That might make it even more costly and difficult for those people to get hearing aids.

For the past several decades, the FDA has classified hearing aids as “restricted medical devices,” not as “prescription-only” devices. Under this classification, patients could not obtain hearing aids without first seeing a professional who would test and fit them with the device. But those regulations expressly permitted audiologists to fill that role and did not require patients to see a physician or other prescribing health care practitioner. The federal regulations preempted state laws restricting access to hearing aids and limiting audiologists’ roles.

The new OTC rule removes the “restricted device” designation from air-conduction hearing aids for people over 18 with mild to moderate hearing loss and preempts any state laws that might block such patients’ access to OTC hearing aids. But the FDA also lifted all remaining state law preemptions. It also created a new, “prescription-only” category for the remaining types of hearing aids that were previously classified as “restricted.” Congress did not mandate the new “prescription-only” category. Nor did Congress require the FDA to remove preemptions of state laws on hearing aid dispensing.

The FDA’s removal of the old preemptions might mean that some states’ old laws may now block patients under 18 or with severe hearing loss from getting hearing aids without a prescription from a physician. For example, Rhode Island law requires patients to obtain a certificate of need from a state-licensed physician before they can purchase hearing aids. This would mean the FDA’s new rule might make it easier for some patients to get hearing aids while making it harder for others.

Responding to state officials’ queries, the FDA claims the agency does not intend for its new rule to have that effect:

A State can authorize many kinds of practitioners to order the use of (or prescribe) a prescription device. Federal regulations in § 801.109 do not require that a prescriber be a physician (a person licensed to practice allopathic or osteopathic medicine), physician assistant, or nurse practitioner. Instead, the relevant requirements for prescription devices apply in the case of practitioners licensed by the law of the State to use or order the use of the device (see § 801.109). FDA’s intent is that the same professionals who recommended, selected, fitted, and dispensed restricted hearing aids before the effective date would continue to do so for prescription hearing aids after the effective date. Further, the final rule does not require the involvement of an additional licensed practitioner such as a physician. A licensed audiologist, for example, would not need to consult a physician under FDA’s final rule. (Emphasis added in bold)

While the FDA’s intent might be clear, states have the police power to license occupations and professions and define their scope of practice. The FDA’s new “prescription-only” classification for some hearing devices makes the rules ambiguous. Do state regulators enforce heretofore preempted state laws, or do they reinterpret those laws to comport with the FDA’s intent? States can also update their laws, but most state legislatures have adjourned and won’t be convening until early next year. Hopefully, federal and state policymakers will clear the confusion quickly.

Of course, none of this regulatory perplexity would occur if Congress ended the FDA monopoly on requiring prescriptions, as Michael Cannon and I point out in this white paper. And if states replaced occupational and professional licensing laws with third-party certification, consumers wouldn’t have to rely on regulators’ interpretations of ambiguous edicts to exercise their right to self-medicate.

As readers of this space are aware, alternative voting ideas such as ranked choice voting and all-party primaries are drawing new interest. In fact, America has a rich if sporadic history of electoral innovation—from Nebraska’s one-off nonpartisan legislature to the ventures in proportional representation that went on in many cities in the first half of the twentieth century.

One excursion that might be worth a second look, at least as object lesson, is Illinois’s longstanding use of cumulative voting, an arrangement that does well at protecting minority political interests at the cost of inviting gamesmanship. For more than a hundred years, until 1980, members of the Illinois lower house were elected in three-member districts, with the distinctive feature that individual electors could divide their three votes among three different candidates, cast all three for the same person, or allocate them two-and-one.

Perhaps the most salient feature of this arrangement was the opening it gave for a sizable but less-than-majority bloc of voters to win one of the three seats in a district by concentrating its votes. Sometimes the relevant voter concentration was racial or ethnic, as when a black candidate managed to secure a seat in a white-majority district.

Often, though, it was political. Disciplined triple voting could enable Republicans to pick off some seats in predominantly Democratic Chicago, while Democrats used the same technique to win some seats downstate.

Not surprisingly, this selection method gave the Illinois lower house a distinctive texture. For example, its GOP caucus included members from Chicago who could speak knowledgeably about city problems, just as there would be many Democratic members with firsthand experience of small-town and rural matters.

Voters would often confer seats on members of different factions within the local majority party, fostering intra-party diversity. Thus, a mostly Democratic district might elect one liberal Democrat, one Democrat of more moderate leanings, and one Republican, with a more conservative and Republican district doing the opposite.

As a Chicago Tribune account put it, the era of cumulative voting “produced some of the best and brightest in Illinois politics,” including many distinguished reformers in a state long known for tough machine politics.

The late Rep. Abner Mikva, who went on to serve as a federal judge, recalled that the system enabled him to bypass the Chicago machine as an independent Democrat. “I never could have gotten elected if the party could have simply beat me one-on-one,” Mikva said. “I didn’t have a lot of money.”

According to Mikva, by targeting the 25 percent threshold that would suffice to win, “You could appeal to a much smaller set of voters. That involves a much smaller amount of money being spent on them…advertising, media, so on.”

Although cumulative voting did keep many seats outside the party bosses’ grasp, the way the rules worked could actually reinforce some patterns of strongarm politics. All the factions faced a continual tactical problem of making sure they fielded the correct, which is to say winnable, number of candidates.

For example, a political group that could capture one seat through disciplined triple voting might be left empty-handed if it ran two or three candidates who split its vote. As a result, potential spoiler candidates were predictably pressured to stay off the ballot, and parties regularly left one or two of their ballot positions unfilled, reducing voters’ effective choice.

In fact, it became common for the parties to agree informally on an uncontested two-one split that would result in no competition at all. A 1970 reform sought to ensure some modicum of competition by providing that each party had to at least nominate, if not actively support, at least two candidates.

In other words, two functions emerged as vital to cumulative voting strategy: arm-twisting political hopefuls into not behaving as spoilers, and then, should a real race emerge anyway, disciplining voters to cast the needed vote combinations. Yet political machines are actually better than loose assemblages of citizen volunteers at organizing to get these sorts of tasks done. The same is true of striking, and sticking to, informal deals with other factions. The resulting paradox is that cumulative voting may actually have strengthened the grip on Illinois of a machine politics style.

Why did voters finally ditch the system in 1980? A legislature had voted itself a big pay raise, and amid the resulting wave of popular ire advocates organized a constitutional amendment billed at cutting the number of legislators—which, incidentally, eliminated cumulative voting. It passed.

Although launched with reformist motives, Illinois’s cumulative voting system might disappoint the sort of reformer who prizes sincerity and deplores gamesmanship. On the other hand, it does seem to have excelled at including minority viewpoints, and may even have advanced some rough approximation of proportional representation, a goal some election reformers are currently eager to reach. Beyond all that, it also—like so many policy ventures—yields an object lesson in unforeseen consequences.

Can the government censor you for wishing a judge happy birthday? It may seem absurd, but a bill that would allow exactly that was recently added to the National Defense Authorization Act. If passed into law, every American would risk facing mandatory takedown orders for posting basic facts about federal judges online, including their birthdates, the colleges attended by their children, and the jobs of their spouses. The bill stifles access to relevant information about public officials, arbitrarily limits its restrictions to the internet but not other media, and allows speech to be suppressed even if it poses no possible security threat. For all these reasons, as I wrote late last year in the Wall Street Journal, this law would clearly violate the First Amendment.

Here’s how the law would work. If you post “covered information” about a federal judge anywhere online, that judge (or a federal official designated by that judge) can send you a written request to take it down. If you don’t comply within 72 hours, the judge can sue you. If you lose, you not only have to take the information down but also have to pay the judge’s court costs.

What qualifies as “covered information” about a judge? Some facts covered by the bill are the type of personal financial information that none of us would want to make public: bank account numbers, credit card numbers, social security numbers, etc. But in addition, the law covers information that can often be found in public directories like the white pages, including a judge’s home phone number and home address.

And most surprisingly, the law even covers the type of basic biographical facts that one would expect to find on a judge’s Wikipedia page, including “full date of birth,” “identification of children … under the age of 18,” any school attended by immediate family (including a judge’s adult children), and any employer of immediate family (including a judge’s spouse, parents, and adult children). The bill would thus allow an enormous amount of government censorship of truthful speech about federal judges.

The impetus for these restrictions was an indisputably horrific and tragic event: the murder of Daniel Anderl, the son of Judge Esther Salas, at their home. But it’s in the wake of such tragedies that serious constitutional concerns can sometimes be overlooked, and such is the case for this bill. Securing the safety of the federal judiciary is a worthy goal, but it’s one that can and should be achieved without banning truthful speech and infringing First Amendment rights.

Several Supreme Court cases demonstrate why this bill would violate the First Amendment. In Smith v. Daily Mail (1979), the Court explained that “state action to punish the publication of truthful information seldom can satisfy constitutional standards.” Thus, the Court struck down a West Virginia statute that criminalized printing the names of alleged juvenile offenders in any newspaper. The Court held that “if a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order.”

A decade later in Florida Star v. B.J.F. (1989), the Court struck down a Florida law forbidding the publication of the names of rape victims in mass media. The Court clarified that punishments for publishing lawfully obtained truthful information may be imposed “only when narrowly tailored to a state interest of the highest order.” The Florida law did not meet this “narrowly tailored” standard for three reasons: (1) because Florida courts could have taken more steps to protect a victim’s name from being released; (2) because Florida imposed liability “regardless of whether the identity of the victim is already known throughout the community”; and (3) because Florida did not ban other means of communicating the names of victims outside mass media, such as person-to-person gossip.

Most recently, in Bartnicki v. Vopper (2001), the Court held that the First Amendment even protects a radio station airing an illegally intercepted cell phone call between a teachers’ union president and the union’s chief negotiator discussing contract negotiations. The Court noted that the subject of the call was a matter of public concern and that “one of the costs associated with participation in public affairs is an attendant loss of privacy.” Because the radio station that played the call had not itself intercepted it, the Court reasoned that “a stranger’s illegal conduct” did not remove First Amendment protections.

As these cases show, the Supreme Court has consistently protected the First Amendment right to publish truthful information. How then could a bill imposing such broad bans on truthful speech survive constitutional scrutiny? In a clear attempt to escape the force of these precedents, the bill does provide an exception for posting covered information about a judge “if the information is relevant to and displayed as part of a news story, commentary, editorial, or other speech on a matter of public concern.” Because the Supreme Court’s precedents in this area have been limited to “truthful information about a matter of public significance,” defenders of the bill have argued that this exception saves its constitutionality. But in fact, this exception is not enough to satisfy the First Amendment’s requirements.

Federal judges are public officials and quintessential examples of public figures. Truthful information about them can thus help to facilitate speech on matters of public concern, even when that truthful information is not itself posted as part of a commentary or news story. For example, the Wall Street Journal last year published a bombshell investigative report revealing dozens of conflict-of-interest violations by federal judges. The investigation looked at the stock held not just by judges, but also by their spouses and minor children, all of which can amount to a violation. If online encyclopedias and databases were no longer allowed to publish the employers of a judge’s family members or even the names of their minor children, it’s easy to imagine how such investigations could be hampered in the future. Loss of access to truthful information can mean loss of the ability to produce future news and commentary.

Courts confronting state laws similar to this proposed federal bill have recognized this fact. Florida enacted a law that limited the freedom to “publish or disseminate the residence address or telephone number of any law enforcement officer.” When an online commenter posted such information about a particular officer and was charged under the law, the state argued that the post was unrelated to any matter of public concern. But a federal district court rejected this argument, explaining that “the issue of police accountability is certainly political and of legitimate public interest.” In striking down the law, the court held that the posted information was “linked to the issue of police accountability through aiding in achieving service of process, researching criminal history of officers, organizing lawful pickets, and other peaceful and lawful forms of civic involvement that publicize the issue.” And another federal court struck down a similar Washington State law, likewise holding that such information facilitates speech and civic involvement.

The reasoning that both of these courts applied to police officers applies just as much to federal judges. Access to information about public officials aids in self-governance and promotes accountability. That’s true whether or not that information is itself contained within a news or commentary article. When it comes to banning truthful facts about public officials, an exception limited to information “relevant to and displayed as part of” some other news or commentary is not a broad enough exception to evade the Supreme Court’s precedents.

Nor is the bill “narrowly tailored to a state interest of the highest order.” The bill applies only to posting covered information “on the internet.” It does not ban spreading exactly the same information in print, on TV or radio, or in person. In making this arbitrary distinction, the bill notably suffers from exactly the same narrow-tailoring problem that the Supreme Court identified in both Daily Mail and Florida Star: underinclusiveness.

In Florida Star, the law at issue prohibited using “any instrument of mass communication” to spread a victim’s name, but it did not ban “the backyard gossip who tells 50 people.” This loophole showed that the law was not narrowly tailored, because “when a State attempts the extraordinary measure of punishing truthful publication in the name of privacy, it must demonstrate its commitment to advancing this interest by applying its prohibition evenhandedly, to the smalltime disseminator as well as the media giant.” A law is unlikely to achieve its aims “without more careful and inclusive precautions against alternative forms of dissemination.” Likewise in Daily Mail, the law banned only the printing of alleged offenders’ names “in any newspaper” but not airing those same names over the radio, meaning the law did “not accomplish its stated purpose.”

Applying these principles, a federal district court preliminarily enjoined a California law that restricted publication of state officials’ information online but did not restrict it elsewhere, just like the proposed federal bill. As that court noted, the California law did “not prohibit a major newspaper or television channel from publishing the information, but would potentially prohibit an online blog with a limited audience from doing so,” which raised “serious questions about whether it is serving its intended goals.”

Further, the proposed federal bill also fails the “narrow tailoring” requirement because it does not allow for the type of “individualized adjudication” that the Florida Star Court explained is “indispensable” when the government aims to ban truthful speech. As the Court emphasized, “categorical prohibitions upon media access” are impermissible “where important First Amendment interests are at stake.” The Florida law was not narrowly tailored because it did not allow for “case-by-case findings” as to the harm of a particular disclosure, which would have to take into account “whether the identity of the victim is already known throughout the community.” As the Court noted, punishing the “dissemination of information which is already publicly available is relatively unlikely to advance the [government’s] interests.”

The enjoined California law was also not narrowly tailored for the same reason. It made no distinction “between acts that ‘make public’ previously private information and those that ‘make public’ information that is already publicly available.” And the law did not provide for “case-by-case oversight.” It allowed officials to send takedown orders whenever they felt threatened by the posting of their information, but it did not “require that the threat be credible or that a third-party review whether the official’s request is well-founded.”

So too with this federal bill. It makes no distinction between commonly known facts (such as those that have appeared in dozens of news or commentary articles) and previously undisclosed facts. For example, many online articles mentioned the name of the school attended by Chief Justice John Roberts’s son when Roberts delivered the school’s commencement address in 2017. Had this law been in effect at the time, those articles presumably could have stayed up under the exception for news articles. Yet, the Chief nonetheless still could have sent a takedown notice to anyone else who posted the name of the school not in a news context, despite the fact that the name of the school had become widely known. And a judge could similarly send a takedown order for information posted online even when that information is widely available in print or from other non-internet sources.

And finally, just like California’s law, the federal bill has no requirement that the posted information be found to pose any conceivable risk to a judge’s safety. Its restrictions would extend to such innocuous online posts as wishing a judge a happy 60th birthday on Twitter (thus revealing the judge’s birthdate) or congratulating a judge’s spouse for starting a new job or a judge’s child for starting college.

Remarkably, several senators at the committee hearing advancing the federal bill last year praised it as explicitly modeled on California’s law, without even mentioning that the California law had been held by a federal court to be in likely violation of the First Amendment. If passed into law, this federal bill would most likely suffer the same fate in court. Better not to go down that path at all. Congress can protect the safety of federal judges without censoring truthful speech.

At the Cato Institute’s New Challenges to the Free Economy (from Left and Right) conference, former FTC Commissioner Joshua Wright warned that a return to the enforcement of the Robinson-Patman Act (RPA) of 1936 would be bad news for consumers.

The FTC has not brought a claim under the antiquated law since the 1990s and not vigorously enforced it for much longer. But in recent weeks Commissioner Alvaro Bedoya has echoed FTC Chair Lina Khan in calling for its revival, something that the latter pushed for in her famous paper, Amazon’s Antitrust Paradox.

The problem, per Wright, is that this law’s return would constitute a regression away from using the consumer welfare standard being the lodestar of antitrust, back to the “big is bad” impulses of the early to mid-20th century. It would amount to enforcing rules that “certainly resulted in higher prices,” prioritizing small competitor companies over customers.

What is the RPA? On its face, the RPA outlaws price discrimination to different buyers of the same “commodity.” In practice, the law was introduced to hack away at large grocery chain stores that were revolutionizing the retail market in the early 20th century. Lawmakers were concerned that A&P and other chains were hurting the prospects of traditional “mom and pop” stores. The RPA attempted to correct for the economic advantages these chains had in buying commodities directly from wholesalers with bulk discounts. By forcing wholesalers to charge the same price to all buyers, the aim was to prevent a wholesalers’ lower price to one retailer allowing the latter to undercut its competitive rivals in the final market.

The law stipulated:

It shall be unlawful for any person engaged in commerce, in the course of such commerce, either directly or indirectly, to discriminate in price between different purchasers of commodities of like grade and quality… and where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition…

As Professors Roger D. Blair and Christina DePasquale explain, in reality, price differences between buyers were often due to “service costs, selling costs, purchase volumes, [and] wholesale functions performed by the buyer.” Price differences, in other words, often reflected phenomena that resulted in higher firm productivity or economies of scale. By inhibiting more efficient firms from receiving wholesale discounts, the RPA therefore denied retail consumer savings in the form of lower prices. As antitrust law evolved towards an emphasis on consumer welfare, the RPA was thus regarded as a relic of a bygone era — an attempt to keep alive small businesses by raising prices on consumers.

So why the mooted revival today? Well, many modern trustbusters explicitly reject the consumer welfare standard in favor of more structural conceptions of what markets should look like. And there are new boogeymen in town that are revolutionizing retail and generating panic: big tech platforms. It’s quite easy to see that the RPA would be used in the crusade against large online e‑commerce retailers, such as Amazon.

Last year, a Columbia Law Review article outlined how “building a prima facie RPA case [against Amazon] would not be difficult.” Suppose Amazon and a small local store buy Product X from a wholesaler, who charges different prices for the item based on the volume being sold. In this simplified situation, the local store would be able to claim that it is being treated adversely in comparison to its competitor, in violation of the RPA.

As Jeffrey Westling has explained, this could result in cases against businesses such as Amazon or, say, Walmart:

Rather than going after the wholesaler, the FTC could in theory bring a claim against an online marketplace for receiving lower prices from the wholesaler: The law contains a provision under which a buyer could be held liable for receiving lower prices if the buyer induces that lower price. The Supreme Court, however, has made clear that inducement constitutes a violation of the act when the buyer correctly anticipates that it will disrupt competitive processes in the secondary market. This means a buyer can violate the act for simply seeking out lower prices when buying goods for retail.

Yes, there are affirmative defenses that can be used to protect against such charges: if it can be shown the price difference was justified by different costs, for example, or was a concession to meet a competitor’s price. But enforcement of the act puts the onus on businesses to prove their innocence by showing that, say, production and shipping in bulk lowered costs. The mere threat of legal action would no doubt chill certain retailers from even seeking to obtain the lowest prices possible from sellers, to the detriment of retail customers.

Enforcing the RPA appeals to those who want to curb Big Tech companies, then, as cases utilizing it can be a lot simpler than having to provide detailed analysis of competitive effects of mergers or other conduct. But the fundamental economics behind the RPA remains unsound. It is a bad law that was effectively suspended because it acts to protect small competitors, not customers. If enforced again it would no doubt smother efficiencies once more, resulting in higher prices for customers.

Border Patrol arrests of suspected gang members increased in fiscal year 2022. But thanks to a recent Cato Institute Freedom of Information Act request, we know that the numbers are still far below the numbers a decade ago. The overall trend in arrests of gang suspects is going down (Figure 1). In 2010, Border Patrol reported that it arrested 1,327 suspected gang members. The total through 11 months of fiscal year 2022 was 697.

As a percentage of total arrests, suspected gang members were the second lowest on record in fiscal year 2022 at a miniscule 0.03 percent of arrests. Although the trend is down, it is still worth expressing skepticism about these “gang affiliation” claims from Border Patrol since the government often claims that people are affiliated with gangs or smuggling operations without evidence or with evidence to the contrary. There is no reason to believe that the willingness of law enforcement to fabricate gang affiliation claims has lessened in recent years.