The U.S. baby formula industry is in trouble. For most of 2022, parents faced bare shelves when looking for formula. Even in the last week, 34 percent of households reported difficulty finding formula. What’s more depressing, Reckitt Benckiser, an infant formula producer, expects low supplies to persist into the spring.

While reports of problems began in August 2021, alarm bells didn’t ring until the shutdown of a major U.S. plant in early 2022. The shutdown caused a massive supply shock and by June 2022, national out-of-stock levels of infant formula exceeded 90 percent. The crisis wasn’t just bad luck but a perfect storm of supply chain disruptions and longstanding bad policy, made worse by a slow and lackluster response from policymakers.

Policymakers provided “band aid” solutions that slightly helped but conditions are far from stable. However, to make things worse, one of the more effective fixes—the suspension of prohibitive tariffs on imports of infant formula—is set to expire on December 31, 2022. Given Reckitt’s expectation that low supplies will extend into the spring, the expiration of the tariff suspension is nonsensical and problematic. Figure 1 illustrates the baby tax set to return on January 1, 2023.

Back in May, I wrote about the myriad trade restrictions that limit infant formula imports. Firstly, baby formula is subject to complex tariff-rate quotas (TRQs). The Congressional Research Service estimates that more than 80 percent of formula imports that entered the U.S. between 2012 and 2021 faced an average effective rate of 25.1 percent. In light of the crisis, Congress passed legislation suspending some tariffs on infant formula and infant formula base powder imports. Figure 2 illustrates the difference in formula imports based on those that received the tariff suspension and those that did not. As clearly illustrated, imports overall increased by almost 4‑fold between January and September 2022.

Infant formula is also subject to onerous U.S. regulatory (“non‐​tariff”) barriers. For example, the Food and Drug administration (FDA) requires specific ingredients and labeling. So, in acknowledgement of the unnecessary barriers applied to imports, the FDA began accepting applications from foreign formula producers to sell formula in the U.S. without needing to meet all the FDA’s arcane requirements. Though, while the agency reviewed dozens of applications, it only approved eight (the most approved in June). Both the tariff suspension and relaxed FDA enforcement discretion helped foreign producers access the U.S. market leading to significant leaps in import levels, and thus greater supply for parents.

But the good news ends there. Absurdly, Congress’s expiration does not match the FDA enforcement discretion expiration. The tariff suspension expires on December 31, 2022 and the FDA’s relaxed discretion expires in October 2025. As a result, these foreign companies will be subject to high tariffs come January 1, 2023. This mismatch will inevitably reduce U.S. consumption of formula from the approved eight companies as foreign formula producers will either absorb the cost or pass it on to consumers, either way, raising U.S. prices.

Those on welfare were especially vulnerable during the crisis and their future is still uncertain. The Special Supplemental Nutrition Program for Women, Infants, and Children (WIC) only allows beneficiaries to buy formula in store from the company awarded the state contract for WIC sales. The U.S. Department of Agriculture (USDA) created flexibilities during the crisis so that WIC recipients could buy any formula available in store, but this policy also expires at the end of January 2023. Reckitt, a British company and now the most popular brand in the U.S. benefitted from this WIC flexibility and reportedly fed more than 40 percent of all low-income WIC infants. The expiration threatens those on WIC currently using Reckitt since after January 31, 2023, these parents will have to switch back to the state-contracted formula (which still may not be available in store and parents will need to forego their benefits and pay out-of-pocket to buy formula online).

Finally, in May, President Biden controversially delegated certain Defense Production Act (DPA) authorities to direct domestic production of infant formula to the Health and Human Services (HHS) Secretary, Secretary Xavier Becerra. Becerra authorized Abbott and Reckitt to use specific language in contracts with suppliers to ensure they received priority when ordering necessary ingredients including sugar, corn syrup, and single-use filters. On the other side of the coin, Becerra invoked DPA authority to require Cargill, a primary supplier of these inputs, to prioritize certain orders for these formula manufacturers. However, the lack of transparency that notoriously surrounds DPA invocations makes it unclear how effectively the DPA helped increase domestic production of baby formula.

Further, sugar and syrups, for instance, are key ingredients for formula and also experiencing a supply crisis. In fact, in September, the National Confectioners Association urged relaxation of sugar TRQs mandated by the U.S. sugar program as candymakers reported significant stress in the supply chain contributing to historically high prices. Yet again, bad longstanding policy prevents supply chain flexibility; the U.S. sugar program purposefully restricts the supply and importation of sugar to elevate prices, which is good for sugar farmers but detrimental for all sugar-consuming industries, including infant formula manufacturers.

The infant formula crisis hurt millions of Americans, lasted far too long, and elicited a disappointing response from federal policymakers. Not only have imports simply increased supply to mitigate scarcity, they also provided variety for consumers. Moreover, the crisis provides the important lesson that a nation’s resilience is borne out of freedom, not substantial domestic manufacturing, which can insulate a nation from competition, stymie innovation, and increase vulnerability to domestic shocks. The numerous barriers that impede a free market in infant formula lessened the ability of retailers to adapt and parents paid the price waiting for policymakers to enact change. Even then, the solutions fell short. Hopefully it doesn’t take another crisis to persuade the administration and Congress to permanently reform these egregious barriers that harm more than help.

This week, the Congressional Budget Office (CBO) released its annual report of options to reduce the deficit. This report comes at a welcome time as Congress is negotiating a year-end spending package in which it might increase deficits steeply. Instead of making the fiscal situation even worse, Congress should hit the deficit brakes and reduce spending.

Based on CBO’s budget and economic outlook (last issued in May 2022), federal deficits will average 5.1 percent of gross domestic product (GDP) per year between 2023 and 2032. Or roughly $1.6 trillion each year over the next 10 years. Under that scenario, federal debt held by the public would reach 110 percent of GDP by 2032—the highest level ever, exceeding the debt following World War II.

Projecting out even further, publicly held debt would reach 185 percent of GDP at the end of CBO’s long-run 30‐​year projection period. And this rosy scenario assumes Congress allows middle-class tax cuts for individuals and families to expire as scheduled in 2025, which is unlikely. Under more realistic assumptions, where Congress extends those tax cuts and revenues return to their 50‐​year average, publicly held debt would exceed 260 percent of GDP by 2052. And even this shocking outlook may prove to be rosy as it does not take into account the potential for unexpected crises, such as a prolonged recession, war, or another pandemic.

CBO presents 76 options to reduce deficits in its latest report. I selected five that deserve more congressional attention because they would reduce spending growth in some of the largest federal programs that are also growing at the fastest rate (savings are over 10 years):

Reduce tax subsidies for employment-based health insurance: $900 billion

My Cato colleague Michael Cannon recently wrote that “The tax exclusion for employer‐​sponsored health insurance is the largest source of compulsory spending in the United States, larger than the federal Medicare program.” He’s argued that “federal lawmakers should eliminate the exclusion for employer‐​sponsored insurance and other health‐​related tax preferences.” This policy has been identified as a key driver of rising health care costs in the U.S.

One of CBO’s options would limit the income and payroll tax exclusion for employment-based health insurance to the 50th percentile of premiums. In other words, this policy would tax employer contributions that exceed $8,900 a year for individual coverage and $21,600 a year for family coverage as employment income (based on 2024 premium figures, adjusted for inflation). Falling far short of eliminating the tax exclusion, CBO’s option takes a step in the right direction.

Cap federal Medicaid spending: $836 billion

My Cato colleague Chris Edwards recently wrote that state-administered programs that rely on federal matches tend to continually expand. He argues that “Converting matching programs to fixed block grants would reduce overspending incentives.”

One of CBO’s options would cap federal Medicaid spending, saving $836 billion over the next decade, assuming the federal contribution were to grow no faster than inflation, as measured by the chained CPI (C‑CPI‑U).

Reduce Social Security benefits for higher earners: $184 billion

I’ve previously argued that to the extent that the government provides income subsidies to retirees, it should focus them on those retirees with limited means to support themselves.

One of CBO’s options would adjust the Social Security benefit formula to slightly reduce benefits for the top 50 percent of earners who enter the Social Security program. No current beneficiaries would be affected.

Increase the Social Security retirement age: $121 billion

I’ve also previously argued that Congress should raise the early and full Social Security eligibility ages by 3 years each (to 65 and 70) and index both to increases in longevity. Life expectancy at birth has increased by nearly 20 years as Social Security’s eligibility has increased by only two years (from 65 to 67—to be fully phased in by 2027).

One of CBO’s options would gradually increase the full Social Security retirement age from 67 to 70, over a period of 16 years. The benefit eligibility age would increase by two months every year, beginning with workers born in 1962, until it reached 70, affecting workers born in 1978 and after.

Adopt a more accurate inflation index to adjust federal benefit programs: $250 billion

Some federal benefits are indexed for inflation to protect beneficiaries from a decline in purchasing power when the prices of goods and services rise. However, the index used to calculate benefit increases, such as Social Security’s cost‐​of‐​living adjustment, is outdated. Congress recently adopted the more accurate chained CPI (C‑CPI‑U) to adjust tax brackets in the U.S. income tax code. Congress should also ensure that inflation adjustments for federal benefit programs use the most accurate index.

One of CBO’s options would adopt the chained CPI for Social Security benefits and other federal benefit programs.

Given inflationary pressures and a fiscal trajectory of high and rising deficits and debt, Congress should begin focusing on ways to reduce spending and deficits. CBO’s options to reduce the deficit are a good place to start.

On Tuesday, the House and Senate Armed Services Committees finally released the proposed text of the National Defense Authorization Act, all 4400 pages of it. And as had been previously reported, a “judicial privacy” bill takes up 30 of those pages. As I’ve explained in earlier posts, this judicial privacy bill would violate the First Amendment by censoring truthful speech about public officeholders. Unfortunately, the latest text of the bill as incorporated in the NDAA is even worse than previous versions.

The basics of the bill remain the same as prior versions, and those basics are bad enough. If passed into law, every American would risk facing mandatory takedown requests for posting standard biographical facts about federal judges online, including their birthdates, the jobs of their spouses, and the colleges attended by their children. The bill also arbitrarily limits its restrictions to the internet but not other media, and it allows speech to be suppressed even if it poses no possible security threat. As I wrote late last year in the Wall Street Journal, the law would clearly fail to satisfy First Amendment scrutiny under several Supreme Court precedents.

[UPDATE December 9, 2022: On Thursday afternoon, the House passed a further revised version of the NDAA that omitted the language about Section 230 discussed in the next four paragraphs. But even without this language, the plain text of the bill still applies to the “display” of information, not just to posting. As discussed below, that requirement will still apply to social media networks and other sites that host third-party speech.]

But the latest version of the text makes it explicit that the bill would not only stifle the speech of individuals, but would also place a tremendous burden on online speech platforms. In new text, not present in prior versions, the bill now announces that nothing in the bill shall be construed “to impose liability on an interactive computer service in a manner that is inconsistent with the provisions of section 230 … if the interactive computer service—(A) has removed or disabled access to material identified in a [takedown] notice or request, as permitted under [Section 230]; and (B) otherwise complies with” the portion of the bill describing how takedown requests work.

What is the purpose of this language? Section 230 is a provision of federal law that, among other things, protects the provider of an interactive computer service (a technical term for any interactive website, like a social media platform) from being held liable in court for “any action voluntarily taken in good faith to restrict access to or availability of material …” The most straightforward reading of the privacy bill’s new language is that it is solely meant to reassure that nothing about that protection will change. If a website owner complies with a takedown request sent under this new bill and removes information posted by a third party about a judge from the site, that is an action to “restrict … availability of material.” And because of Section 230, no one can sue the website for taking down that information. As the new bill language reiterates, removing third-party material from one’s own website is legally “permitted” because of this provision of Section 230.

But this new bill language is arguably ambiguous in its implications for what happens when a website does not comply with a takedown request. The new text says that the bill should not be construed to impose liability inconsistent with Section 230 if a site removes the information about a judge and otherwise complies with a takedown request. But what if a site does not comply with a takedown request? Does this language suggest, by negative implication, that the privacy law can be construed, in that scenario, “to impose liability on an interactive computer service” in a way that would otherwise violate Section 230?

Whether this negative implication is intended or not, one thing is now clear: the requirements in the bill to comply with a takedown request apply not just to individual writers posting information online, but also to online platforms that host information posted by third parties. If it did not apply to interactive computer services that host third-party speech, then it would make no sense for the bill to stress that Section 230’s protections for content moderation decisions still apply whenever an interactive computer service complies with a takedown request by removing third-party speech. If the requirements to comply with a takedown request did not extend to removals of third-party speech, online platforms would never have to face this question in the first place.

The plain text of the privacy bill defining who must comply with a takedown request further supports this reading. The bill states that “no person, business, or association shall publicly post or publicly display on the internet” covered information about a federal judge if that judge “has made a written request to that person, business, or association not to disclose” the information. The law thus extends to “businesses” who “display” information, not just to “individuals” who actually “post” the information themselves. In other words, under the plain text of the law, a takedown request could be sent not just to an individual who posts a judge’s birthdate on Twitter, but also to Twitter itself for displaying the tweet (even though it was not written by Twitter).

Whether or not the bill implicitly abrogates Section 230 in any other way, this requirement itself goes against the spirit of Section 230, at the very least. Besides protecting moderation decisions, Section 230 also declares that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” But if a platform refuses to comply with a takedown request sent under the judicial privacy bill, the platform could be sued for a court order requiring it to comply. And if a platform loses such a suit but still refuses to take down the post, it could be sued for money damages as well. Thus, the very enforcement structure at the heart of the bill arguably treats platforms as the publishers or speakers of information about judges posted by third parties—it certainly puts them on the hook to evaluate and respond to takedown requests just as if they were the actual posters of the information, with all the same risk of liability for noncompliance.

And the burdens of compliance are exponentially more burdensome and complex for large platforms that host billions of posts. In new language, the judicial privacy bill would now require the recipient of a takedown request to not just remove the “information identified in the written request” within 72 hours but also “identify any other instances of the identified information that should also be removed.” Thus, in the hypothetical above, Twitter would not just have to remove a tweet identified in a takedown letter, but also do the work itself to determine whether the birthdate posted in that tweet has also been posted in any other tweets. Indeed, more newly revised language bolsters this reading by emphasizing that the recipient of a request must “assist the sender to locate the covered information … posted on any website or subsidiary website controlled by that person, business, or association.”

Not only will compliance with these requirements be an onerous task for companies that control websites hosting billions of posts, it will also force those companies to make fast and difficult legal judgments. The judicial privacy bill carves out an exception for facts that would otherwise be covered if they are “relevant to and displayed as part of a news story, commentary, editorial, or other speech on a matter of public concern.” While I believe this exception does not go far enough to bring the law into compliance with the First Amendment, it is a crucial exception that at least prevents the most egregious forms of censorship. To protect the speech rights of its users, platforms will thus have to evaluate, for every takedown request, whether the posted fact in question falls under this exception (all within 72 hours!). And if they refuse to comply, they will potentially have to spend the legal resources to defend that view in court after an enforcement suit is initiated.

Besides this major concern for the rights of online platforms, the latest text of the bill makes a few other changes, and most of them make the bill even more restrictive of speech than previous versions. While prior versions allowed judges to send takedown requests for facts about themselves and their immediate family members, now those immediate family members may, in addition, send takedown requests for facts about their own immediate family. So a judge’s mother could censor the birthdate of her sister (the judge’s aunt), a judge’s brother could censor the employer of his wife (the judge’s sister-in-law), or a judge’s daughter could censor the college of her son (the judge’s grandson). If the purpose of the law is to guard judicial privacy, it is even harder to justify this level of censorship for biographical facts about extended family members.

In addition, the latest version now covers not just current but future schools attended by immediate family, so congratulating a judge’s adult daughter for acceptance to Harvard Law School would be covered. The new text also covers “the name or address of the employer” of a family member, whereas prior versions covered “the name and address.” This leaves no doubt, if there was any before, that the name alone of an employer is enough to run afoul of the law. So a sentence as terse as “Justice Barrett’s husband works for SouthBank Legal” would be covered and subject to takedown.

Finally, the procedure for enforcing a takedown request if a recipient does not comply within 72 hours has been changed in two relevant ways. Whereas prior versions of the bill required judges themselves to enforce their own requests by bringing suits, that responsibility is now given to the Director of the Administrative Office of the United States Courts, who can use Department of Justice attorneys. This change was likely made because federal judges would often not have the time or resources to bring enforcement suits on their own. But one additional potential consequence is that, if the bill becomes law, this change may make it easier to bring a pre-enforcement challenge to review the constitutionality of the law, since the Director is now a natural defendant for such a suit as the single federal official charged with enforcing the law.

Moreover, since judges themselves would no longer use their own resources to bring suit, recipients of takedown request would no longer have to pay “the costs and reasonable attorney’s fees” for those judges if they fight a takedown request in court and lose. While this is a small improvement to the law, it is still the case that businesses and individuals will have to pay their own litigation costs to defend their right to post truthful information, which is no small burden.

In sum, although there is a constitutional way to balance freedom of speech with reasonable concerns for judicial security, this law does not accomplish that balance. As the latest bill text makes clear, this law would burden not just individual writers but also large online platforms with the chilling effect of threatened litigation over simple and true facts. Even if the courts eventually strike down the unconstitutional portions of the proposed law, it will needlessly cause much litigation expense and self-censorship in the interim. Congress should go back to the drawing board rather than attempting to tweak this fatally flawed bill.

Senator Sherrod Brown (D‑OH) has just introduced the “Close the Shadow Banking Loophole Act,” a bill he claims will prevent “Big Tech and commercial companies” from operating banks “without proper oversight.” While the title–and the reasoning–might sound ominous, this bill does virtually nothing to ensure the safety and soundness of the banking sector. (The shadow banking theme is flawed too, but let’s leave that aside for now.)

It’s also strange that Senator Brown, someone known to stick up for the little guy, is behind a bill that undoubtedly protects large financial institutions from competition. Back in 2020, the Bank Policy Institute (BPI), the lobbying organization for some of the United States’ largest banks, released a report calling for the same thing. (BPI used nearly identical language.)

So, while Brown’s bill is new, this issue is not.

According to Brown–and BPI and other bank lobbyists–the issue is that anyone engaged in the same banking activity should be regulated in the same manner. The banks–and Brown–say that they do not want industrial loan companies (ILCs) to “get away” with being less regulated than “regular” commercial banks. While that premise seems fair, it’s more of a technical problem than anything else, and it only exists because the U.S. regulatory framework is a total mess.

The issue really amounts to a complaint that the parent companies of nonbanks (such as ILCs) will not be regulated by the Federal Reserve, something that the parent companies of banks cannot avoid. In other words, these regulations have nothing to do with the actual company dealing with the customers’ money. Simply put, the Federal Reserve regulates all holding companies that own banks, but not holding companies that own nonbank financial companies such as ILCs.

This issue blew up in the early 2000s when Walmart applied for an ILC charter. Walmart figured it could profitably provide banking services to low-income customers, something that progressive politicians say they want more of, but the political resistance was so fierce that Walmart gave up.

Again, it is not the case that Walmart’s bank–the one that would have been dealing with customers’ money–would have been exempt from the regulations faced by every other commercial bank. Walmart’s bank would have been required to abide by the same rules and regulations as all other banks.

The problem–because of the quirky U.S. banking law–is that Walmart itself would not have been regulated by the Federal Reserve, unlike the parent companies of regular commercial banks. This quirk exists primarily because of the Bank Holding Company Act (BHCA) of 1956. Funny enough, the BHCA was a legislative response to what had become an unworkable feature of the U.S. regulatory framework: a prohibition against branch banking.

While banks were generally prohibited from opening multiple branches, a separate holding company could own multiple banks. Congress could have just permitted branch banking. Instead, the BHCA codified the holding company process and restricted the ability of bank holding companies to be involved in nonbanking commercial activity. This feature, often referred to as the “separation of commerce and banking,” is essentially unique to the United States.

Nobody would design a system like the American one, and it’s very easy to see why:

• The only thing that really matters for bank solvency is the safety and soundness of the bank itself, not the legal entity that owns the bank.
• If federal officials want to force the parent company of a bank to serve as a financial backstop to the bank itself, something which remains controversial (see chapter 4), then it would be much easier to impose higher capital or liquidity requirements on the bank itself.
• There is no objective economic reason to separate banking from other types of commerce, and other sections of the U.S. banking code prohibit shady transactions between affiliated companies.
• Any well-funded and well-capitalized firm that wants to start a bank or provide financial services should be allowed to do so. A convoluted regulatory system that prevents competition, discourages innovation, and minimizes financial diversity imposes higher costs on consumers. (It sure doesn’t help the little guy.)
• A system that provides federally backed deposit insurance for accounts up to $250,000 goes well beyond helping the typical American (the average deposit account is only about $5,000), crowds out private investment and job opportunities, and creates a banking constituency that depends on taxpayer backing. (Again, it’s tough to argue that $250,000 in coverage has much to do with the little guy.)
• There is no objective economic reason that nonbank firms should be prevented from providing payment services.
• Although the Federal Reserve has regulated bank holding companies for decades, the United States has experienced banking crises during the 1970s, 1980s, and 2000s, all on the Fed’s watch. It might seem comforting to think that federal regulation can maintain stability, but that’s a false sense of security.

If Brown and his senate colleagues want to help U.S. businesses provide more banking services to the little guys, or anyone else, they’ll craft legislation to make the existing regulatory framework less burdensome, opening up competition in financial services. The existing regulatory framework is expensive, inadequate, anticompetitive, and harmful.

My Cato colleagues and I have a great set of recommendations Congress can start with. And I even have a short book that will help Senator Brown pick a better bill title next time.

Peru’s constitution came under threat the moment Pedro Castillo officially won Peru’s contentious presidential election in June of 2021. A formerly obscure teachers union leader who came to media prominence as the candidate for a Marxist-Leninist party (Free Peru), Castillo had no intention of playing by the established rules of the Peruvian republic. Though certainly erratic — the country now has its seventh president in six years — Peru’s institutions had still managed to withstand a series of impeachment trials and other clashes between the executive and Congress. A series of high-profile corruption scandals unleashed the strife. Amid the fallout, two-time former president Alan García committed suicide in 2019. Castillo, however, posed an institutional menace on an altogether different scale.

To begin with, his party’s program for the 2021 election included numerous measures that explicitly sought to violate the constitution’s unequivocal safeguards for private property, which it declares “inviolable.” The constitution also guarantees free enterprise, foreign investment, and press freedom. Castillo’s platform, on the other hand, set out an agenda of nationalizing the mining sector and other major industries, expropriating land, and getting rid of Peru’s successful private pension system, which, at the time, administered over USD $40 billion in citizens’ savings. Free Peru, which openly admires Vladimir Lenin and Fidel Castro, even declared the need to “regulate” the free press, claiming that a “muckraking” media was a “fatal” threat to democracy.

Most aggressively, Castillo’s government program openly called for a new constitution to replace the one in place, which it rejected as “individualistic, mercantilist, privatizing, and defeatist” in the face of foreign interests. Even before his inauguration, Castillo and his allies claimed that there was a need to summon a new constitutional assembly. Since Congress, which Free Peru did not control, was bound to stand in the way of such plans, Vladimir Cerrón, a Cuba-trained doctor and Castillo’s political mentor, argued for a dissolution of parliament. In theory, this would allow the executive to carry out fundamental constitutional changes unopposed.

In 2021, a wafer-thin majority of Peruvian voters chose to ignore such systemic risks. They perceived Castillo as a scourge against corruption and the political class, especially against one of its more emblematic members. His opponent, Keiko Fujimori, the daughter of former president-turned tyrant Alberto Fujimori, is a career politician who has wielded power since her adolescence and recently served jail time for money laundering.

Some 18 months after his victory, however, Castillo himself stands accused — by no less than the Attorney General — of leading a criminal organization in the heart of government alongside his political allies and family members. At the same time, Congress has managed to resist Castillo’s attempts to undermine its authority. Last November, a majority in Congress voted to reject Castillo’s request to travel to Mexico for a summit. It was the third time he was forbidden from leaving the country due to fears that he would flee as his political power dwindled.

Precious time flew by as Castillo’s struggles with Congress came to a gridlock, which, for the benefit of the economy, left him unable to implement any statist measures of note. Castillo’s attempt at a “self-coup” this morning, when he tried to dissolve Congress and set up a state of emergency, came soon after the former chief of Peru’s intelligence services declared that he had warned the former president of corrupt acts within his inner circle. On Wednesday, Congress was also scheduled to vote for a third time to remove Castillo from his post due to moral incapacity. The vote passed after the coup attempt, in the wake of which the Peruvian authorities arrested Castillo as he apparently tried to flee to the Mexican embassy.

In 1992, former president Fujimori succeeded where Castillo failed by dissolving an opposition-led Congress and ruling by decree until he had a new, favorable Congress elected. Fujimori, however, was extraordinarily popular— his approval rating exceeded 80 percent at the time of the coup— whereas 66 percent of Peruvians disapproved of Castillo’s performance according to a poll published last month. Crucially, Fujimori counted with the support of the military leadership, whereas both the army and the police promptly rejected Castillo’s desperate measures today.

Although Peru’s current constitution originally dates from Fujimori’s time in power, his eventual downfall due to his regime’s abuses of human rights took place under its framework. Upon Castillo’s election, I wondered whether the country’s constitution could survive an imminent onslaught once again, this time of a Marxist variety. As of now, the good news is that it did.

In the Washington Post Gillian Brockell explores how the House of Representatives has functioned in the past when it was very closely divided. The answer seems less encouraging than she suggests. In 1917, for instance, the Republicans had a plurality of seats, but not a majority, and third-party members joined the Democrats to elect a Democratic speaker. Did that divide cause gridlock? Not enough, in my view:

The 65th Congress was remarkably productive — not only did it authorize a declaration of war by a 373–50 vote, it also passed the 18th Amendment prohibiting alcohol, which requires a two-thirds majority in the House.

Just possibly the two worst votes taken by Congress in the 20th century. And Brockell left out the Espionage Act, the Sedition Act, and the Selective Service Act.

She also notes the great achievements of the 107th Congress in 2001–2002:

On big votes, like the Patriot Act, the creation of the Department of Homeland Security and the authorization for use of force in Iraq and Afghanistan, the party split didn’t matter at all: The vote margins were overwhelming.

Again not a great argument.

Too many Washingtonians — politicians, pundits, and journalists — believe that passing laws is a good thing, and passing more laws is a better thing. When Congress passes only, say, 296 laws in a two-year session, journalists call it “the least productive Congress in modern history.” I would urge journalists to think more carefully about whether passing more laws — that is more mandates, bans, regulations, taxes, subsidies, boondoggles, transfer programs, and authorizations for war — is a good thing. And whether the mere proliferation of laws is beneficial to society.

Is a judge “less productive” if he imprisons fewer people? Is a policeman less productive if he arrests fewer people? Government involves force, and I would argue that less force in human relationships is a good thing. Indeed I would argue that a society that uses less force is a more civilized society.

I can only hope that two years from now our divided 118th Congress will be described as “unproductive.”

I have written for years that the Food and Drug Administration should make the opioid overdose antidote naloxone over-the-counter. Public health attorney Corey Davis spoke of how urgent it is for the FDA to move quickly to reclassify this safe and effective harm reduction tool at a Cato Institute conference in 2019.

Even though, as I and others have pointed out, the FDA Commissioner can unilaterally reclassify the prescription-only drug as over the counter, the FDA has been deferential to the naloxone manufacturers, who have been reticent to submit applications. Over the past several years the agency has tried to nudge the manufacturers to apply for reclassification, even going to the trouble of developing the Drug Facts Label (DFL) the FDA requires manufacturers to place on OTC products. Then-FDA Commissioner Scott Gottlieb called this move “unprecedented.”

And last month the FDA issued a notice in the Federal Register that “a preliminary assessment that certain naloxone drug products–up to 4 milligrams (mg) nasal spray and up to 2 mg autoinjector for intramuscular (IM) or subcutaneous (SC) use–may be approvable as safe and effective for nonprescription use.”

It appears the FDA’s nudging might be finally having an effect. The Wall Street Journal reported yesterday that Emergent BioSolutions, Inc., makers of the popularly used Narcan brand naloxone nasal spray applied to the FDA to have the product reclassified to OTC. The FDA announced plans to fast-track the approval process and the drug might be available over the counter as soon as March, 2023.

Perhaps Emergent BioSolutions was further nudged by the announcement, last week, that a new start-up company planned to produce a naloxone nasal swab and seek over the counter approval from the FDA. A randomized trial of the product suggests it might even work to reverse opioid overdoses faster than the nasal spray. And Harm Reduction Therapeutics, Inc. a non-profit partially funded with settlement funds from government lawsuits brought against now bankrupt Purdue Pharma, the makers of OxyContin, also announced plans to develop an OTC naloxone product.

Soon competition in the OTC naloxone market will drive prices down while increasing access to the valuable harm reduction tool. It is upsetting to think of the overdose deaths that could have been averted while Americans waited to get to this point, but they soon may have ready access to naloxone off the shelf in pharmacies, supermarkets, convenience stores, and even vending machines.