In a recent Wall Street Journal op-ed, two well-respected conservative legal scholars, J. Michael Luttig and David B. Rivkin, outlined a radical argument about Electoral Count Act reform: that the entire premise of having such a law is unconstitutional. Instead, they contend, Congress should have no discretionary role at all in certifying the results of a presidential election. The Journal’s editorial board made a similar argument. This prompted a reply letter to the editor from my Cato colleague Thomas Berry, building on his Briefing Paper explaining why there is indeed a proper, constitutional role for Congress to play here.
The legal case by both sides has been well-covered, but I’d like to further elaborate on how the very existence of the legal dispute raises some important policy risks in the position advocated by Luttig and Rivkin.
The desire to constrain Congress and push election disputes into the judiciary to the greatest degree possible is an understandable and largely correct impulse. There are good reasons to trust courts more than Congress in these matters. As I’ve previously discussed, an ideal ECA reform should be based on disentangling two distinct constitutional roles. The first, which is by far where most disputes actually arise, is over the state law question of who a state has rightfully appointed as its members of the Electoral College. Or to put it simply, who really won the state’s popular vote. This question starts with the state legislature prescribing a manner of choosing electors (in all states, popular election), then the state government’s executive administration of that prescribed manner (actually conducting the election), then any appeals to the state courts as provided by state law, and ultimately to the federal courts for any federal claims raised. It is right and proper that Congress should simply commit itself to accepting the outcome of this process, not second-guessing it.
However, that still leaves a second category of possible constitutional defects in how the electors voted and who they voted for. These questions fall within Congress’s responsibility to “count” the electoral votes, which inherently includes deciding if something is a valid vote at all. The relevant constitutional rules include, among other things, requirements that the electors must vote on a certain day, that they may not vote for presidential and vice-presidential candidates who both live in the elector’s state, and any disputes about the constitutional eligibility of candidates. It is these sorts of rules which are the sticking point for any notion of cutting Congress out of the process altogether.
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Russian Oil Is Off the Table but the Jones Act Serves as a Barrier to Using Domestic Supplies
With imports of Russian oil (as well as coal and natural gas) now banned, the country’s refineries must decide on alternative sources. The good news is that there are U.S. grades of crude oil well-suited for refineries on the East and West Coasts. The bad news is that the protectionist Jones Act stands in the way of getting this oil from where it is produced in the United States to other parts of the country where it is needed.
Passed in 1920, the Jones Act restricts the domestic waterborne transportation of goods—including energy products—to vessels that are U.S.-flagged and built as well as mostly U.S.-crewed and owned. Meeting these requirements isn’t cheap. A U.S.-built tanker is estimated to cost nearly four times more than one built overseas ($150 million versus $40 million) while operating costs are also significantly higher.
The inevitable result is expensive shipping rates that can make it cost-prohibitive to transport oil within the United States, thus tipping the scales in favor of imports.
Beyond costs, most Jones Act-compliant tankers are smaller medium range tankers typically used to transport refined products rather than crude oil (switching between the two is no easy task). Of the tankers in the Jones Act fleet, only 11 are larger Suezmax tankers designed for crude oil transport and these are almost exclusively used to ship crude from Alaska to West Coast refineries.
The seemingly obvious solution here would be for the Biden administration to waive the Jones Act to enable the cost-effective purchase of U.S. crude, but that’s less straightforward than it may seem. While the executive branch can waive the Jones Act via requests from the Secretary of Defense, that authority was pared back by the 2020 National Defense Authorization Act (NDAA). Previously allowed for reasons of national defense—a term sufficiently flexible that it allowed for Jones Act waivers following natural disasters such as Hurricane Maria—the 2020 NDAA (much to the delight of pro-Jones Act lobbyists) restricted waivers requested by the Secretary of Defense to those deemed “necessary in the interest of national defense to address an immediate adverse effect on military operations [emphasis added].”
Beyond requests from the Secretary of Defense, civilian entities can also seek Jones Act waivers via requests to the Department of Homeland Security. These, however, must be both deemed in the interest of national security and are subject to a canvassing of the existing Jones Act fleet to see if sufficient vessels already exist (two such waivers were issued last year during the Colonial Pipeline shutdown following requests from Valero and CITGO). This waiver route is unlikely to prove successful given that several Jones Act tankers are currently idle and available for use (albeit at rates higher than foreign alternatives).
That leaves waivers from the Secretary of Defense. Even if such a waiver could be justified on grounds related to military operations, language in the 2020 NDAA limits its duration to 10 days with extensions possible to a maximum of 45 days.
But tensions with Russia appear unlikely to be resolved in a matter of weeks. If policymakers want to tilt the playing field in favor of U.S. crude for the longer-term—more accurately, level the playing field by granting U.S. oil producers access to the same efficient shipping available to foreign oil producers that export to the United States—then more durable changes to the Jones Act will need to be made. Congress will have to act.
Already Rep. Ed Case (D‑Hawaii) has introduced legislation that would exempt energy products sent to Hawaii from the Jones Act so long as restrictions on Russian energy imports remain in place. That’s a good starting point. Providing a similar exemption to Puerto Rico would be another logical step given its own usage of Russian fuel imports. And a total exemption for domestic energy transport, ideally on a permanent basis, would be better still.
U.S. usage of Russian energy serves as a fresh reminder of the oft-overlooked harms inflicted by the Jones Act and the myriad ways it undermines both the country’s prosperity and national security. Let’s hope this sets the stage for a much-needed and long-overdue examination of this protectionist relic and the glaring failure of U.S. maritime policy.
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Decoding Biden’s Executive Order on Cryptocurrency
President Biden’s executive order on cryptocurrency is finally here. Despite the anxiety that has been brewing since talks about the order first emerged in January, it is ultimately seeking answers, not action. And luckily for the President, the Cato Institute has many of the answers he seeks.
Let’s consider a few of the questions from the order.
1. What type of regulations are needed to establish consumer protection and financial stability?
There’s been no shortage of discussions in the space regarding how cryptocurrency regulation might take shape. In fact, Jennifer Schulp even hosted a four-part event series dedicated to digging deeper into the discussion (Parts 1, 2, 3, and 4).
As the Biden administration digs into this question, however, it is critically important that the discussion is built on a sound foundation. Senator Tommy Tuberville (R‑AL) made this point well at a senate hearing last week when he asked witnesses what market failures need to be addressed in the cryptocurrency market. Before any new regulatory regime is launched, it’s critical that this question be addressed.
For specific examples of how to best regulate, see:
- A Simple Proposal for Regulating Stablecoins
- A “Narrow” Path to Efficient Digital Currency
- The Trap of the Trilemma of Cryptocurrency Regulation
Price Gouging? Or Paying Nurses What They’re Worth?
Here is a poor, unsuccessful letter I sent to the editor of Health Affairs.
Kudos to Y. Tony Yang and Diana J. Mason [“COVID-19’s Impact On Nursing Shortages, The Rise Of Travel Nurses, And Price Gouging,” Jan. 28] for shining a light on the growing problem of hospitals recognizing the value of nurses and paying them accordingly.
Congratulations also to Minnesota, Illinois, and Massachusetts for enacting legislation to ban this practice.
Without such advocacy on behalf of hospital administrators, nurses might start getting funny ideas about their worth.
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Russia Shows the Limits of Propaganda
Despite widespread concerns about the influence of English-language Russian state media such as Russia Today and Sputnik, Russian claims about its invasion of Ukraine have not taken hold abroad. This failure seems puzzling. Journalists and politicians have alleged that potent Russian information operations tipped the 2016 American election to Trump, and the Brexit vote to “leave”. We need not assess those claims here. Instead, a closer look at the differences between 2016 and now point toward a better understanding of misinformation online, an understanding favoring “more speech” rather than speech suppression.
Unlike its current efforts to sell its war, Russian information operations in the 2016 American presidential election and the UK’s Brexit vote sought to amplify existing “wedge issues” in American and British politics. Immigration, police brutality, and elite corruption were not new issues. Russia did not create new narratives but seized upon stories and trends that had already proven divisive in the west.
The most obvious limit of this approach is that it only works with what is already there. It cannot create new grievances from whole cloth. As a result, foreign propagandists may aim to deepen existing divisions, but they cannot expect to build support for particular policy goals. Indeed, even when this approach may seem successful, it runs the risk of simply taking credit for work done by domestic discontent. The failure of Russian propaganda about Ukraine seems to show that as long as counter-speech is available, misinformation may reinforce existing beliefs, but it cannot easily change minds.
Americans were asking questions about Hillary Clinton’s speeches to banks long before Wikileaks released details of the speeches stolen from Clinton’s campaign chairman by Russian hackers. Although Russian media amplified the story, it was one many Americans already wanted to hear. When it came to Ukraine, however, most Americans didn’t have strong feelings about the country, limiting the stories Russia could hope to sell. As of December 2021, while Putin called the situation in western Ukraine a “genocide” on Russia Today, most Americans had heard only “a little” or “nothing at all” about Russia’s military buildup on Ukraine’s borders. In the west, Russian propagandists simply didn’t have much to work with to slander Ukraine.
In the runup to Russia’s invasion, Russian state media echoed the government’s justifications for its “special military action” – that Ukraine was committing genocide in the Donbass and that Ukrainians needed to be liberated from a Nazi regime. During the war, it has amplified false claims that President Zelensky fled to Poland and credulously shared claims that a laptop allegedly taken from a Ukrainian militia contained NATO battle plans.
However, beyond the outer fringes of western politics, neither Russia’s contrived casus belli nor its wartime information operation have been taken seriously in Europe or America. Zelensky is Jewish; an unlikely Nazi, and Third Reich analogies have been defanged by overuse in western politics. Because American, European, and Ukrainian audiences have been able to see Ukrainian President Zelensky “still here”, with his people, in Kyiv, Russian assertions otherwise floundered. Indeed, like Turkish President Erdogan in the face of a 2016 coup attempt, Zelensky was able to use social media to instantly and directly respond to claims that he had fled. Social media has afforded leaders an intimate, resilient medium for being seen in command.
Russian propaganda did nothing to prevent a massive shift in American and European public opinion – and foreign policy – against Russia. As long as people can see them, deeds matter more than words. In a contested media environment – one in which Russian propaganda had to compete with western journalism, unfiltered social media, and Ukrainian counternarratives, Russian propaganda lost decisively. Social media research firm Omelas found that “as Russian forces started moving into Ukraine, these media operations began to lose traction with their target audiences.” Crucially, Russian state media’s efforts to sell the war in the west were dead in the water as soon as the invasion began, before RT and Sputnik were blocked by social media platforms and banned by the European Union.
Despite their reach on cable television and social media, Russian state media simply wasn’t believed. Indeed, on social media, lack of interest in the narrative they were selling limited their reach as users refrained from resharing foreign “de-Nazification” claims. To the extent that Russian information operations seemed to succeed in the past, they may have simply joined a popular chorus of domestic voices.
The exception that proves the rule, and further militates in favor of a free and open media ecosystem, is Russia. In Russia, instead of being one perspective among many, the Russian government’s view is the only one available to most Russians. Broadcasters who oppose the war are swiftly taken off the air, and a new media law threatens those who publish “false information” about Russia’s invasion with up to 15 years in prison. The net effect of boycotts by western companies and Russian state censorship is isolating Russia from the rest of the internet.
As a result, unlike in the rest of the world, Russia’s claims about its invasion are widely believed at home. Tragically, some Russians previously unaware of the invasion’s magnitude have refused to believe the accounts Ukrainian relatives who have called them while fleeing Russian artillery. What makes the Russian media ecosystem different from others is not the presence of Russian propaganda but the absence of anything else.
As the west embraces an unprecedented private boycott of Russia and considers new restrictions on foreign propaganda, it would do well to recognize that a free media and access to the truth on the ground routed the Russian narratives before the censors could get their boots on. Disinformation is more a problem of demand than supply, and western media consumers had no desire to buy Russia’s claims. Only in a strictly controlled, tightly regulated media ecosystem could Russian claims carry the day. Without censorship, the value and potential aims of propaganda are limited.
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1.4 Million Skilled Immigrants in Employment-Based Green Card Backlogs in 2021
The United States had about 1.4 million employment-based immigration cases winding their way through its permanent residence process in 2021. The backlog of cases is nearly ten times the total number of green cards generally made available for employment-based immigrants in most years. Skilled Indian immigrants will suffer the most from this backlog, with more than 200,000 likely to die before they could conceivably receive a green card (absent a change in the law). Another roughly 90,000 children of immigrants—mainly Indians—will “age out” of green card eligibility during their waits. Only about half of the pending Indian immigrants will likely receive green cards under current law.
Figure 1 shows the number of employment-based immigrants by year since 2018 (the first year that the government reported the data) broken down by stage in the process. As of September 2021, there were nearly 320,000 petitions pending, about 875,000 approved petitions that were wait listed because of the annual green card limits, and about 245,000 who had filed an application for adjustment of status to receive a green card (i.e. legal permanent residence).
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AMA Statement on “Test to Treat” Does Not Align Well With Patients’ Interests
During his State of the Union Address last week, President Biden announced a plan to make it easier for people to get access to the new antiviral drug Paxlovid. This drug, if taken during the first 3 to 5 days of a symptomatic COVID infection, is 89 percent effective in preventing the case from progressing to hospitalization or death. Under the plan, dubbed “test to treat,” people with symptoms may go to a designated pharmacy, community health center, nursing home, or supermarket, where a pharmacist can perform the test for COVID and, if it returns positive, prescribe the antiviral drug to the patient at the same time. This is a positive move.
As Josh Bloom of the American Council on Science and Health and I wrote last January, when the Food and Drug Administration granted Emergency Use Authorization to the drug, it required patients to get a prescription for the drug from a health care practitioner once they test positive on a COVID test. It can be very difficult for patients to get the test result and the doctor appointment within the critical 3 to 5 day window after symptoms commence in order to ensure the drug will work. By allowing patients “one stop shopping” where they can get the test and the prescription from a pharmacist, the new policy works around that problem.
Unfortunately, the American Medical Association (AMA) poured cold water on the idea in a statement it released on March 4:
The AMA is pleased the administration is ramping up supply of antivirals so in the near future they will be broadly available. But, in the meantime, establishing pharmacy-based clinics as one stop shopping for COVID-19 testing and treatments is extremely risky. Pharmacy-based clinics typically treat simple illnesses such as strep throat. Yet, COVID-19 is a complex disease and there are many issues to consider when prescribing COVID-19 antiviral medications. Leaving prescribing decisions this complex in the hands of people without knowledge of a patient’s medical history is dangerous in practice and precedent. We urge patients who test positive for COVID-19 to contact their physician to discuss treatment options. COVID-19 is not strep throat—it is a complicated disease that has killed nearly 1 million people in the United States.
The AMA understandably worries about “scope creep,” i.e., expansions in the scope of practice of the various adjunct and/or competing licensed health professions. For example, state chapters of the AMA frequently fight attempts by nurse practitioners and physician assistants to deliver primary care and other services to patients. They always claim to be concerned about patient safety but are arguably concerned about the competition as well. As I have written here and here, it is in the best interest of patients for states to expand the scope of practice of the various health professions to enable them to practice to the full extent of their training. This gives patients greater choice and access to health care.
The AMA points out that Paxlovid can interact with many other drugs a patient may be taking. For example, Paxlovid can interact with statin drugs (used to treat high cholesterol) and several sedatives and blood thinners. The AMA claims people should consult a physician if they get a positive test.
As a doctor, I don’t want to discourage people from consulting physicians for medical advice. But pharmacists are experts at recognizing and avoiding drug-drug interactions. In fact, we doctors frequently consult pharmacists for that very reason when we prescribe medications to patients who are taking multiple other medications. And it is not uncommon for prescribing physicians to get phone calls from pharmacists informing them that a drug they prescribed interacts with another drug their patient is taking and suggesting an alternative medication. Pharmacists have the training—and the software—to identify drug-drug interactions.
Multiple states permit pharmacists to prescribe oral contraceptives and pre-and post-exposure prophylaxis for HIV. Every state permits pharmacists to give vaccinations for various illnesses. I wrote this policy analysis with Courtney Joslin of the R Street Institute that argues for expanding pharmacists’ scope of practice to greatly improve access to and the affordability of health care for millions of consumers.
Sadly, at times, the goals of the AMA don’t align with the goals of patients. Its continuing battle against “scope creep” can be seen as just another form of protectionism.