“Lost, Not Stolen” is a new 72-page report from a group of prominent conservative legal and political figures that knocks down some of the more frequently heard claims from Donald Trump and allies that the 2020 election was stolen or illegitimate. Their “unequivocal” conclusion is that Trump lost; in fact, they find no credible evidence that fraud changed the outcome even in a single precinct, let alone in any state.

Most of the report consists of a state-by-state refutation of claims circulated about voting results in Arizona and Georgia (six claims apiece), Michigan, Nevada, Pennsylvania, and Wisconsin. Note that the last-named of these states has already been the subject of a useful report from the right-leaning Wisconsin Institute for Law and Liberty, which I wrote about here, and that Republican authorities in states like Georgia have also carried out extensive audits and reviews regarding those states’ votes. 

The new report’s signers include three prominent retired federal judges (Thomas Griffith, Mike McConnell, Michael Luttig), former Solicitor General Ted Olson, Republican election lawyer Ben Ginsberg, former senators John Danforth and Gordon Smith, and longtime Congressional staff chief David Hoppe. I should mention that I have known three of these figures at various times over decades (McConnell, Ted Olson, Hoppe) and admired each for their insight, analytical skills, and dedication to principle.

There is no defensible case that Trump won the 2020 election. “We urge our fellow conservatives to cease obsessing over the results of the 2020 election, and to focus instead on presenting candidates and ideas that offer a positive vision for overcoming our current difficulties and bringing greater peace, prosperity, and liberty to our nation.”

Cato adjunct scholar Ilya Somin has more on the report, and Price St. Clair at the Dispatch traces its origins over a year and a half of work. Let’s hope it finds a wide audience. 

The Senate’s bipartisan working group on election law reforms, led by Sen. Susan Collins (R‑ME) and Joe Manchin (D‑WV), today unveiled their long-awaited deal on a variety of issues including the Electoral Count Act, the law at the center of the casting and counting of Electoral College votes every four years. 


In addition to Collins and Manchin, the working group also includes Rob Portman (R‑OH), Kyrsten Sinema (D‑AZ), Mitt Romney (R‑UT), Jeanne Shaheen (D‑NH), Lisa Murkowski (R‑AK), Mark Warner (D‑VA), Thom Tillis (R‑NC), Chris Murphy (D‑CT), Shelley Moore Capito (R‑WV), Ben Cardin (D‑MD), Todd Young (R‑IN), Chris Coons (D‑DE), Ben Sasse (R‑NE), and Lindsey Graham (R‑SC). 


At Cato, my colleagues and I have been working on the Electoral Count Act, including analysis of particular provisions, meetings with policymakers, and a recent policy analysis outlining our overall conclusions and providing a model template with a section by section set of recommendations.


From the description released, the proposed “Electoral Count Reform Act of 2022″ covers the most important points, and reflects broad consensus among the scholars and organizations across the political spectrum. These changes include a process for ensuring only a single conclusive set of votes is sent by each state, expedited judicial review by a three-judge panel to handle possible rogue state officials, a higher threshold to raise objections in Congress, and clarifying the “failed elections” provision to ensure that it only covers extreme natural disasters. Between concerns that this bill would be too narrow and only make cosmetic changes at the behest of Republicans, versus prior Democratic plans that went too far and were overcomplicated, this announcement strikes a happy medium: a bill that is broad in scope but simple and conservative in substance. 


The status quo Electoral Count Act, as we saw in 2020, is a ticking time bomb and an invitation to a constitutional crisis. This announcement is a major step forward in fixing that problem. It should be a top priority for every member of Congress who takes seriously their oath to defend the Constitution. 

Amidst mounting pressure from the Biden administration and led by Senate Majority Leader Chuck Schumer, the Senate last night began a final push to fast‐​track $76 billion in new taxpayer subsidies for domestic semiconductor manufacturers. (The initial subsidy proposal was a mere $16 billion, but—unlike in the real world—inflation has always been a problem in Washington.) House Democratic leadership has also signaled their desire to quickly approve the subsidies, should the Senate send them a final package.

Politically, Democrats’ intense motivation to deliver these funds now makes perfect sense. According to various reports, the subsidies would not only provide a financial windfall for semiconductor companies in Schumer’s home state of New York (something he openly admits), but also reportedly constitute one of the few “political wins” that the Democrats can deliver to President Biden and candidates in key battleground states like Arizona and Ohio ahead of the midterm elections in November—“huge leverage” that chipmakers and other subsidy supporters are perfectly willing to exploit today. Meanwhile, several of the congressional Republicans who support the subsidies—smaller in number than Democratic supporters but essential to the subsidies’ legislative success—also host semiconductor companies or large semiconductor consumers in their states or districts.

As a policy matter, however, the already‐​weak economic case for the subsidies that we detailed last December has become even weaker. For starters, there has been even more chipmaking investment dedicated to the U.S. market, even as federal subsidies have languished. Construction is now underway at four major U.S. facilities and will continue with or without subsidies—something even Intel reluctantly acknowledged when it delayed the groundbreaking ceremony on its much‐​ballyhooed Ohio facility to protest congressional inaction. This is because, as numerous experts have explained over the last year, there are real economic and geopolitical reasons to invest in additional U.S. semiconductor production—no federal subsidies needed.

Meanwhile, multiple reports suggest that—just as we cautioned last year—the global semiconductor shortage is coming to an end and might even be replaced by a semiconductor glut, even before any new federal subsidies might further goose global chipmaking capacity. In particular, Taiwan’s TSMC, South Korea’s SK Hynix, and the United States’ Micron Technology have each reported that they are reconsidering capital expenditure plans for next year because of unexpectedly‐​softening demand and apparent hoarding by major semiconductor consumers (who are expected to work through their stockpiles before placing new orders).

In other words, just as Congress is gearing up to throw $70-plus billion at cash‐​rich semiconductor manufacturers, there are increasing signs of excess supply and lagging demand in the notoriously cyclical (boom‐​and‐​bust) global semiconductor market—a situation that those subsidies could exacerbate. (As discussed last year, a subsidy‐​induced semiconductor glut would not only cause financial pain for chipmakers and their investors, but also increase the potential for costly trade conflicts similar to those that erupted in the 1980s and 1990s following a similarly‐​misguided U.S. embrace of industrial subsidies and “strategic” planning.)

These two developments put subsidy advocates in quite the pickle: taxpayer dollars either will pay giant corporations to do what they already planned on (and are) doing or will finance additional and undisciplined domestic capacity expansions that could cause a painful global glut. Either way, American taxpayers lose.

Regardless, the current situation is already a classic example of one of U.S. industrial policies’ chief problems: because politics, not market fundamentals, drive industrial policy proposals, they are often implemented or continued long after their economic justifications have disappeared. (A problem dubbed the “Technology Pork Barrel” back in the 1990s.) In this case, Congress appears intent on subsidizing an industry making record profits, already building facilities here, and even facing a potential glut—not because doing so makes good economic sense but because the Democratic leadership and the White House need a “political win” and are under serious pressure from powerful domestic interest groups to deliver the cash. Indeed, even as the subsidies’ economic justifications dwindled, the subsidy amounts increased.

Only in Washington.

As previously explained, there are more productive, market‐​oriented ways for Congress to encourage semiconductor manufacturers to invest and expand production in the United States, while avoiding subsidies’ inevitable costs, distortions, and conflicts. But those policies don’t deliver the same political benefits—there are no ribbon‐​cutting ceremonies when Congress changes how capital expenditures are expensed, expands high‐​skilled immigration, or eliminates trade barriers—and in fact raise potential political costs. So we get billions in subsidies instead, papering over our real policy problems and likely causing new ones along the way.

Like we said: classic.

Fourteen million individuals were added to the Medicaid and Children’s Health Insurance Program (CHIP) rolls during the COVID-19 public health emergency, with total enrollment reaching 85 million by September 2021. Most will remain eligible when the Biden administration declares the public health emergency is over. But just because you have a plastic card in your pocket doesn’t mean you have access to health care.

A report by analysts at the Medicaid and CHIP Payment Access Commission (MACPAC) finds only about two-thirds of primary care physicians are accepting new Medicaid patients. And wait times for appointments can still be difficult even among providers who accept new Medicaid patients. Medicaid payment rates play a major role in providers’ decisions to accept new Medicaid patients. A new study suggests bureaucratic hassles obstructing prompt payment are also a factor. Sometimes those long waits for appointments might be due to providers stealthily placing quotas on the number of Medicaid patients they can afford to see per month.

A new proposal that might help mitigate the difficulties Medicaid and CHIP patients face when trying to get in to see a primary care practitioner seeks to incentivize Direct Primary Care (DPC) as well as conventional primary care practitioners render care to such patients pro bono. DPC providers rarely accept any form insurance, especially Medicaid or CHIP. They offer patients the full range of primary care services in return for a flat, recurring retainer fee.

Last May, Rep. Daniel Webster (R‑FL) introduced H.R. 7831, “Helping Everyone Access Long Term Healthcare” (HEALTH) Act. The proposal would allow DPC providers to deduct from their income taxes covered charity services they provide to patients enrolled in Medicaid or CHIP patients, provided that they don’t seek or expect to receive any payment from those programs based upon their published fees for such services. It would allow conventional primary care practitioners—who work on a fee-for-service basis—to deduct “the unreimbursed Medicare-based value of qualified charity care.”

The proposal is worth considering. As a surgeon who treats cancer patients, I often have a tough time getting prompt appointments with needed specialists for my postop patients who are on Medicaid. It might also be helpful to extend the tax deductibility beyond primary care, to the various specialties.

As the State Department finally reopens U.S. consulates for non-emergency visa interviews, wait times have grown significantly. Interviews for both immigrant and nonimmigrant (i.e. temporary) applicants are extraordinarily delayed. The latest data from U.S. consulates abroad show that some visa interviews can routinely take over a year, and a majority of consulates now take over six months to schedule a tourist or business traveler.

Figure 1 shows visa interview wait times since April 2021. At that time, 76 percent of consulates were fully or partially closed to nonemergency nonimmigrant visa appointments. In July 2022, student visa interviews are backlogged 49 days—five times the wait pre-pandemic. Temporary work visas are backed up 75 days—up from 12. But the wait times apocalypse has come for tourists and business travelers: 247 days—up from just 17 before March 2020. This is an astounding 8‑month wait to visit the United States for a period of at most just 90 days and usually much less than that.

Figure 2 shows that in July 2022, 52 percent of consulates were scheduling tourist and business traveler interviews 6 months or more out. 27 percent were scheduling a year or longer away. In Santiago, applicants can expect to wait 886 days, or 2.5 years. This should not be a huge surprise. The consulates simply refused to do their jobs for 2 years. Aside from the huge blow to tourism, business travelers cannot plan business meetings or investments if they have no way to get their personnel to visit key people or projects. This will further harm foreign investment.

The outcomes at each individual consulate vary dramatically. Table 1 shows the current wait times for an interview and then the number of visa issuances in 2022 through May and the same period in 2019. These visa issuances include visa renewals that mostly do not require an interview, but even still, they reveal massive variations between consulates. Monterrey, Mexico has nearly doubled its issuance rate from 2019 to 2022, while Ho Chi Minh City has declined by half.

The situation for immigrant visa applicants (i.e. those seeking to become permanent residents) may be even worse. As I’ve explained before, the State Department publishes no accessible data on immigrant visa appointment wait times for new legal permanent residents. But it currently has a backlog of 433,819. In May, it issued just 42,096 immigrant visas, implying an average wait of 10 months for an interview. But since consulates prioritize certain types of applicants over others (for instance, spouses of U.S. citizens), it is likely that many others will wait much longer than that.

These statistics also do not include what amounts to a shadow backlog of applicants seeking to renew their temporary visas. The State Department has waived the need to obtain an interview for most travelers who had previously held a visa in the last 4 years. But consulates are implementing this policy in very different ways. Some consulates simply allow renewal applicants to submit their paperwork via mail. Others require applicants to drop off in-person. Others often still require applicants to be interviewed regardless.

The last time visa wait times grew above a few months, then-President Obama ordered that 80 percent of all temporary visas be issued in less than 21 days. This executive order (and the knowledge that it was coming) promptly brought visa wait times down to a few days, but former President Trump rescinded the order, and President Biden has failed to re-issue it. There is no reason to wait for this crisis to worsen. Figure 4 shows the tourist and business traveler visa interview wait times in Brazil. They reached a high of 114 days in 2011, but were brought down to 2 days by mid-2012.

As I explained in my paper on the effects of 9/11 on the immigration system, the visa delays after 9/11 caused a major shift in foreign direct investment. The Commerce Department explained that the “presence or perception of delays in obtaining the necessary visas can give an international investor the impression that it may be difficult to finalize or oversee an investment in the United States.” Even delays of a few days can matter.

The State Department is failing to fulfill its responsibilities under immigration law. The huge wait times are distorting the U.S. economy, its labor market, and international investment. They are harming U.S. businesses who need consumers and workers. They are keeping Americans and immigrants from being able to visit with their families. It is an embarrassment to our country, and it is completely unacceptable. Congress should investigate this failing department and require it to process visas in accordance with the law.

The Constitution gives federal judges the right to serve “during good behaviour.” In practice, that means federal judges serve for life, choosing whether and when they retire. Studies have shown that judges are more likely to voluntarily retire under presidents of the same party that appointed them, most likely out of a preference to be replaced by judges of a similar ideology.

The tendency of judges to strategically time their retirements is a natural one. Justice Antonin Scalia once noted that he “would not like to be replaced by someone who immediately sets about undoing” what Scalia himself had tried to do during his judicial career. So long as judges have the power to choose when they are replaced, the practice of strategic retirement is likely to continue.

But recently, some judges have seemingly taken strategic retirements a step further. Last year Judge Robert King of the Fourth Circuit revoked his planned transition to senior status (a kind of semi-retirement that triggers a judicial vacancy), reportedly out of dissatisfaction with the particular person the Biden administration planned to choose as his replacement.

A similar story played out in 2018, when Judge Michael Kanne of the Seventh Circuit reversed course on a plan to take senior status. As Judge Kanne candidly admitted, his original decision to take senior status had been “on the consideration that [a former clerk] would be named” as his replacement. When that former clerk told Judge Kanne that he would be passed over for the nomination, Judge Kanne replied “If you’re not going to be named, then I’m not going to take senior status.”

In April of this year, Judge Johnnie Rawlinson of the Ninth Circuit publicly urged that a particular former clerk of hers be nominated as her successor, even though she had not yet decided whether to retire. With little subtlety, Judge Rawlinson told Reuters she could be “persuaded” to take senior status, in an interview in which she further boosted her preferred nominee.

And just this past month, strategic retirements were put back in the spotlight with the news that Judge Karen Caldwell of the Eastern District of Kentucky had made her intention to take senior status known to a select few political actors (including President Joe Biden and Senator Mitch McConnell) and that a deal had been struck to name a particular replacement before her decision became public. At least one report alleges that Judge Caldwell too conditioned her retirement on that particular choice of replacement. (It should be noted that the deal for her intended replacement has since fallen through, but there is no indication that Judge Caldwell intends to revoke her transition to senior status.)

Whatever the full story may be in any of these particular cases, the prospect of judges influencing the selection process for their successors raises serious concerns. When judges use their power of discretionary retirement to influence the political branches into picking a particular judicial nominee, they arguably cross the line into impermissible political activity. At the very least, it is not ideal for judges who must often sit in judgment of the other two branches to at the very same time be involved in negotiations with the political actors in those branches. As Professor Richard M. Re observes in a forthcoming law review article, “interbranch bargaining is ill-suited to the assertedly independent federal judiciary.”

Judicial influence over appointments also arguably warps the Constitution’s intended separation of powers, under which it is only the president and the Senate who have a role in nominating and confirming judges. As Laurie Lin and David Lat put it in a Wall Street Journal op-ed, “judicial seats aren’t property to be bequeathed.” Acceding to a judge’s demand for a particular replacement in the face of a threat to un-retire would, in Professor Josh Blackman’s words, “give judges a veto power over presidential nominations.” And Professor Re calls the idea of judges exerting such control “inimical to the role of federal courts and at odds with the constitutionally delineated process for selecting officials[.]”

If this emerging practice is indeed problematic, what can be done to stop it? Professor Re proposes making judicial retirement letters formally binding and irrevocable (either by court rule or by statute), so that judges cannot renege on a commitment to retire out of opposition to the choice of their successor. Lin and Lat propose that the Code of Conduct for U.S. Judges should be revised to make explicit that “judges putting conditions on their retirement, or entertaining offers from the White House regarding their successors, is unacceptable.” (This approach is also supported by Gabe Roth of Fix the Court.) And Professor Blackman urges the president, when faced with a judge’s threat to un-retire, to stick with his chosen nominee and “hold the line to avoid setting a precedent,” even if it means losing the opportunity to fill a particular seat.

These are all promising reform proposals, but there is an even more sweeping option that would prevent judges from engaging in any retirement-related gamesmanship in the future: entirely decoupling judicial appointments from judicial retirements.

Federal law currently defines the jurisdiction of the various district and circuit courts and assigns each of those courts a fixed number of seats. Thus, the timing for when a president may make an appointment to any particular court is dependent on when particular incumbent judges leave. Because the number of seats on each court is fixed, an appointment can only be made when a particular seat falls vacant.

But nothing in the Constitution requires that the size of the courts be defined by a fixed number of seats. Instead, federal law could define the size of each court by setting new appointments to occur at some regular, fixed interval. The shorter the interval for a particular court, the more frequent would be appointments to that court, and the more judges would sit on that court at any given time (on average). Under such a system, the exact total number of judges on each court at any given time would fluctuate a bit, because these appointments at regular intervals would be entirely unaffected by when any sitting judges choose to leave the court.

The advantage of such a system is that it would completely eliminate the leverage federal judges currently have over the political branches, by removing judges’ power to grant (or revoke) the boon of an appointment opportunity. And unlike judicial term limits (another proposal that would lead to appointments at regularly intervals), such a system would retain judicial life tenure and thus could unquestionably be attained merely by statute, without the need for a constitutional amendment.

For multiple reasons, decoupling appointments from retirements would be easiest to accomplish at the district court level. At the Supreme Court level, any fluctuation in the number of sitting justices at a given time could significantly alter the balance of power (and when the total number of justices is an even number, there is a much greater likelihood of tie votes). At the circuit court level, fluctuations in the total number of active judges could likewise shift balances of power in en banc proceedings and could lead to temporary circumstances where an en banc court becomes so large as to be unwieldy.

But none of these concerns are present at the district court level, which makes that level the natural place to experiment with such a reform. District court judges preside alone, and there is no such thing as an en banc proceeding at the district court level. This means that fluctuating total numbers of active judges in any particular district would in no way affect the proceedings in any particular case. True, shifting numbers of judges can affect the odds of being assigned a judge of any particular ideology in a given district. But shifts in the total number of judges already regularly occur whenever one district judge takes senior status and another judge joins the court, or whenever a senior status judge fully retires. Finally, district judges can be temporarily reassigned to other districts with relative ease, making temporary fluctuations in particular districts less problematic from a workload perspective.

In addition, it would be relatively straightforward to “translate” the current statutory size of each district court into an appointment interval that would sustain that same approximate size (on average). The only variable Congress would need to know is the average total tenure of active federal district judges, a statistic that would be simple to calculate. If we suppose for the sake of easy math that the average such tenure is currently 20 years (likely a reasonable estimate), then Congress could simply define the appointment interval for each district court as one appointment every 20/N years, where N is the number of seats assigned to that district under current law. So a 5‑judge court under current law would switch to a court with an appointment every four years, a 10-judge court would see an appointment every two years, and a 20-judge court would see an appointment every one year.

Such a change would certainly be more drastic than an amendment to the judicial ethics code, and other practical difficulties could make it a less attractive option. Keeping each court at a reasonable number of judges for its caseload might require temporary judicial reassignments that last for years (or short-term statutory adjustments). When the Senate and presidency are controlled by different parties, this might result in appointments not being made at their scheduled times. Judges may remain in active service for longer, on average, if unable to influence their successors, and this may lead to unintended consequences. I do not claim to have fully worked out every potential issue, nor do I speak for any of my colleagues in suggesting that this option should be considered.

Rather, my point is to emphasize that Congress shouldn’t keep any options off the table at this stage, no matter how out-of-the-box. If explicit influence over the judicial selection process continues to emerge as a norm accepted among some judges, then it may be necessary to significantly rethink the inherent political power that the current system gives to sitting judges. The only way to ensure that judges stay out of the appointments process entirely is to remove their power to trigger that process in the first place.

In a recent post, I discussed the Securities & Exchange Commission’s stunning admission of a breach in “internal separation,” which is basically a firewall between the agency’s prosecution and judging teams that practice before the SEC’s in-house courts. As I explain in the post, this breakdown is concerning because “internal separation” is the legislative solution for the constitutional problems caused by regulatory agencies running their own courts. Put differently, it’s an affront to the separation of powers when the prosecutor and judge are mixing it up behind the scenes.

In this post, I’ll discuss the inefficiency of the SEC’s in-house courts. This is important because the sine qua non of these agency adjudications is their putative efficiency. Indeed, we’ve long tolerated the constitutional oddness inherent to executive branch trials in large part due to their (supposed) comparative advantage over Article III courts when it comes to getting things done in a timely manner. On paper, at least, there is every reason to expect that the administrative process would be streamlined. Discovery is limited; there is no jury. And the SEC’s very structure—where prosecutors and judges work for the same agency—is designed for efficiency, if not fairness. In practice, however, the agency’s sluggishness belies any pretensions to efficiency.

Before we get to that, let’s start with a brief history of SEC enforcement, from my last post:

Over the years, Congress has significantly expanded the SEC’s authority to prosecute on its home turf. During its first three decades of existence, the SEC could bring administrative enforcement actions only against businesses that had to register with the agency as a condition of doing business; furthermore, in terms of penalties, the commission was limited to denying or revoking the wrongdoer’s registration. Today, by contrast, the agency can bring home‐​court prosecutions against any person, regardless of whether they’re registered with the agency, and the agency can seek a spectrum of penalties, including disgorgement, professional bars, and steep civil penalties.

As Judge Jed Rakoff noted in a 2014 speech, “a claim of greater efficiency” has been the “stated rationale” for the growth of SEC’s adjudicative functions since the agency’s inception.

Turning to the agency’s docket of cases, it bears noting at the outset that the SEC prefers to settle and achieves this result for almost 98% of its enforcement actions. Of those cases that don’t settle, the agency commonly secures default judgments against defendants that don’t bother to participate in the proceedings. Even among non-settling, non-default proceedings, most are “follow on” actions, where the agency seeks additional penalties based on facts that already had been established by a civil or criminal action in a state or federal court. The upshot is that only a small fraction of agency enforcement actions entails adversarial litigation over facts and law. 

Here’s how the administrative process works. After an investigation, the SEC begins a prosecution by filing an Order Instituting Proceedings, which formally sets forth the charges against the alleged violator. Like most other agencies, the SEC conducts its adjudications in a two-step process. The parties first litigate before an inferior officer, known as an “administrative law judge” (ALJ), who renders an “initial decision.” The losing party can then appeal the ALJ’s initial decision to a principal officer—in this case, the five-member Commission that heads the SEC, who collectively make the final decision.

Under the SEC’s rules of procedure, the ALJs have approximately sixteen months to try contested cases. At the next step, the Commission has ten months to perform its appellate role, but the clock does not start until briefing is completed and the Commission has heard oral arguments (if any). Putting it all together, the SEC has about twenty-six months to conduct an administrative proceeding, in addition to however long the Commission takes to conduct a hearing and full briefing. These are generous targets that the SEC has set for itself. Even if the agency aced its deadlines, its adjudications would be no more efficient—and likely less so—than judgments obtained through a federal court proceeding culminating in a jury verdict, which average 771 days, or just over twenty-five months, in duration.

Still, the SEC has failed to meet even these permissive timelines. To be sure, the lion’s share of blame does not rest with the agency’s ALJs, who, for the most part, either meet or come close to meeting their target deadlines. The bottleneck instead occurs with the Commission’s appellate role. Over the last five years, the SEC has issued only three opinions involving agency enforcement actions. Meanwhile, the agency’s backlog has grown to thirteen cases, and the average pending proceeding is more than six years old. (For all the relevant citations, see our recent brief in SEC v. Cochran).

There are two takeaways. First, the SEC conducts at most a handful of these complex administrative proceedings in any given year. Second, when the agency does try complex cases on its home court, the SEC is terrible at timeliness. Given that efficiency is a major reason why the SEC has in-house courts to begin with, I think it’s fair to wonder whether these proceedings are worth the constitutional hassle.