It sounds cliché, but the world is changing rapidly. Careers that are now essential didn’t even exist when I was young. That makes it tough for parents and teachers to ensure kids are prepared for the future. This can be particularly challenging for homeschoolers or kids in rural areas who don’t have the resources often found in larger schools.

When my then-15-year-old daughter expressed interest in cyber security, we found a program called CyberPatriot, which is sponsored by the Air Force Association. Kids form teams, learn about cyber security, and work in online competitions to find and fix security flaws in virtual machines.

At first, I was intimidated by the prospect since I know very little about computers beyond using standard programs. My daughter solved this problem by contacting a computer science professor at a local college to see if he’d serve as a mentor. To my surprise, he immediately agreed. The mentor met with my daughter and her teammates and helped them understand the concepts involved in the competition. He showed the kids which training modules would be most important for the initial competition round.

CyberPatriot is very low-cost, and they offer fee waivers for teams that demonstrate need. The competitions are online, so there aren’t travel expenses involved. There’s also a lot of flexibility since the competition can be completed at your convenience within a 6‑hour window during the specified weekend. The website includes training materials for competitors, resources for coaches, and a list of potential mentors who can help guide teams. You can also reach out to local colleges, high schools, or businesses to find a mentor.

The program has grown significantly over the years and now includes a middle school competition as well as learning modules for elementary school students. There are also a number of no- or low-cost online and in-person summer camps offered by high schools, colleges, and other organizations.

The CyberPatriot program gave my daughter and her teammates useful skills that helped them understand the importance of securing their own devices. It also exposed them to potential careers that won’t be going away anytime soon. In addition, CyberPatriot helps connect students with scholarship and internship opportunities.

Registration is now open for the 2022–23 competition season. The next exhibition (practice) round starts July 20, so this is a great time to look into it. There are more practice rounds in the fall and the real competition starts mid-October.

The market for stablecoins, and cryptocurrencies in general, has grown increasingly competitive over recent years, but there’s one competitor that the market may not stand a chance against: the federal government. While Federal Reserve (Fed) officials seem to think the Fed is just another competitor, there are many reasons to doubt that proposition.

For instance, Fed Vice Chair Lael Brainard argued in a testimony before Congress that there could be a place for stablecoins alongside the Fed’s central bank digital currency (CBDC). In making the case, Brainard stressed the importance of ensuring “a level playing field for competition and innovation across the financial system.” Yet the Fed’s status as a competitor and a regulator means that it is able to play the game, write the rules, and act as the referee. Worse yet, the Fed is also a competitor that does not need to worry about earning a profit—that is, earning revenue above its costs—like its private-sector counterparts. Technically speaking, the Depository Institutions Deregulation and Monetary Control Act of 1980 restricts the Fed from going beyond its means, but the Fed is only required to cover its costs over some unspecified “long run.” Even then, the Fed has ways to circumvent those constraints. Combine those factors with the general condition that the Fed has the full backing of the U.S. government, and we are left with a competitor that does not have to worry about going out of business.

If the Fed is to directly compete with stablecoin issuers, it’s hard to imagine how the very playing field Brainard praised will not be immediately slanted in the Fed’s favor.

The Fed’s Privilege in Practice

Recent history has shown how the Fed’s privileged status can distort markets. For example, the 2019 announcement of FedNow resulted in a temporary halt of private-sector developments in faster payments services. The Fed’s entrance as a regulator of and a competitor to private-sector payments services sent a clear message to the financial industry: despite billions of dollars of investment, years of development, and a network near completion, the future of private-sector payments services would depend on the ability to compete with the Fed.

Now, on the cusp of FedNow going public, it seems that the Fed is readying for its next encroachment on the market with the potential launch of a CBDC.

Competition in Context

One might be tempted to argue that new entrants should be welcomed with open arms considering competition breeds success, and that is largely right. As George Selgin said in a testimony before the Senate in 2019, “As a rule, competition is an effective—if not the most effective—means for encouraging providers of services to price those services equitably, to produce them efficiently, and to improve their quality over time.” However, Selgin noted that there is a condition that comes with this rule: “these outcomes depend on the presence of a level playing field on which all providers compete—that is, they depend on the various providers having roughly equal legal privileges and obligations.”

While the Fed would indeed be a new competitor with the introduction of a CBDC, its legal privileges far exceed that of the private sector. At the same time as it would be competing with the private sector, the Fed would also be setting the rules that that competition takes place under and judging the actions of its competitors. In fact, it was recently made apparent how such a role in the market might go awry when Custodia (a cryptocurrency-focused bank) sued the Federal Reserve because of the 19-month delay over its application for a master account. Put simply, if the Fed is able to deny its competitors access to the fundamental tools of the financial system, it is not competing on a level playing field.

With all of that said, Congress can take steps to level the playing field for currency competition in the United States. To start, cryptocurrencies should be exempt from capital gains taxes, at the very least, where they are used for purchasing goods and services. Congress should also clarify the statute on legal tender so the public can better understand that the law does not force them to choose one currency over another. Both of these steps would help remove overbearing and unnecessary restrictions on the current market.

Yet these steps alone are not enough. If history is any indicator, it may be best to enact these reforms and still prohibit the Fed from issuing a CBDC. But if the Fed is going to move forward, Congress should tighten the constraints in the Monetary Control Act so that the statutes are both effective and credible. And before the Fed can move any further, the Fed should be required to clearly address what problem a CBDC is uniquely designed to solve that is not already being addressed by the private sector.

On July 5, 2022, members of the House introduced amendments to the 2023 National Defense Authorization Act (NDAA), which are now viewable online. Out of the 1,172 amendments, 25 deal with restricting U.S. weapons sales abroad. These amendments can be broken down in three ways: creation and enforcement of new reporting requirements; protection and implementation of human rights measures in the U.S. arms sales process; and reducing dispersion of weapons away from the intended recipient.

Reporting requirements are an easy way for Congress to start reform without needing to debate politically charged issues. For example, the 2022 NDAA introduced legislation to require audits of foreign security forces receiving U.S. assistance, force human rights reporting for security aid to Colombia, demand oversight reports on private security contractors receiving U.S. aid, and force reporting on U.S.-funding of United Nations peacekeepers. In essence, this type of legislation is easy to pass in the NDAA, generally enjoys bipartisan support, does not upset the leaders of political parties, and adds bureaucracy to institutions that do not normally affect Americans.

In the 2023 NDAA amendments, there is legislation that would force more reporting on the impact of U.S. arms exports and foreign operations on global human rights, review the Department of Defense’s strategy for deterring misuse of U.S. security assistance, require additional notifications for weapons transfers to Central America’s Northern Triangle and direct commercial sales to all nations, and oversee budget authorizations that the U.S. government uses to fight covert wars.

Overall, the reporting requirements related to arms transfers in the 2023 NDAA will certainly add work for the Departments of State, Defense, and Commerce, but in doing so, they could improve human rights practices in those countries.

In addition to improvements to reporting requirements, the 2023 NDAA includes amendments that restrict arms sales by evaluating the impact of U.S. weapons on global human rights and how to prevent continued abuses. Such amendments are historically difficult to pass because members of Congress receive money from U.S. weapons manufacturers, do not want to restrict President Joe Biden’s authority, or both. The amendments to the 2023 NDAA would restrict specific countries from receiving U.S. weapons, especially Saudi Arabia. Beyond that, other amendments restrict transfer of weapons to unsupervised recipients, require greater vetting on human rights violators and units that will receive U.S. weapons, improve training on proper use of security assistance, and force the U.S. government to assess the potential for war crimes and other human rights violations in the arms transfer process – from notification of sale to delivery of the weapons.

By placing the issue as an amendment in the NDAA, individual congresspersons are at least forcing a discussion on human rights issues in the weapons sales process. However, much of this legislation may not pass.

Finally, the 2023 NDAA proposed amendments would restrict weapons sales by helping the U.S government avoid dispersion of its transferred weapons to unwanted recipients in two ways. First, by authorizing additional funds of up to $20 million for fiscal year 2023 and each year after to improve end‐​use monitoring of weapons transfers. This means the U.S. government will continue to track weapons after they are delivered and make sure they are in the hands of the intended recipient. The second way is by removing the Trump‐​era rule that placed the Commerce Department in charge of some firearms sales assessments instead of the State Department. This rule led to weapons in Categories I‑III in the U.S. Munitions List being regulated by the Commerce Department instead of the State Department, including the sale of semi‐​automatic firearms, small‐​arms ammunition, shotguns, non‐​lethal grenades and projectiles, optical‐​sighting devices, firearm production equipment, and other small arms and light weapons. This leads these weapons to being subject to a less strict review process and increasing potential gun violence in Latin America, less rigorous end‐​use monitoring of U.S. weapons in Afghanistan, and rewarding governments that have dispersed weapons to U.S. adversaries. Thus, this amendment would move risk assessment of these firearms back into the State Department’s purview and reduce these negative consequences.

Below is a list of all of the restrictive arms sales legislation proposed by House members in the 2023 NDAA. While there are eleven less amendments restricting sales than last year, if passed, most of these amendments would have a small, but not insignificant impact on assessing risk in weapons sales.

Immigrant workers seeking a green card—which denotes legal permanent residence in the United States—now face more than a three-year wait to make it through the government’s regulatory morass. Paying a $2,500 fee could cut this wait to “only” 2 years and 5 months. The government has added nearly 16 months to the average green card process since 2016, with more than a year added in 2021 and 2022 alone. These processing delays come on top of the time to wait for a green card cap slot to become available under the annual limits (which can be many years). They also do not include the time spent to comply with regulations prior to the first filing step. This prefiling period can take months.

Total green card processing times

• • 2022 Regular Processing Time: 1,171 days, 39 months, 3.2 years
    • If paying the $2,500 premium processing fee: 862 days, 29 months, 2.4 years
  • 2016 Regular Processing Time: 705 days, 23 months, 1.9 years
    • If paying the $2,500 premium processing fee: 567 days, 19 months, 1.6 years

Most employer-sponsored immigrants pass through a six-part series of bureaucratic steps. Employers must initiate the process, but the employee must participate in each stage.

1. Prefiling stage: This stage requires the applicant and employer to gather the necessary documents to prove their eligibility for a green card. This includes proof of degrees, the employer’s ability to pay, and work experience letters. These letters must contain detailed information from the employee’s job duties and tenure, and there is no particular reason why a past employer would want to provide this information.
   • 2022 Time: The public has effectively no information about how long this stage will take. Attorneys say that it could take anywhere from a few weeks to several months.
2. Prevailing wage determination: The Department of Labor evaluates the job duties, skill requirements, and location of the job to assign a specific occupational classification, skill level, and area code. Based on these factors, DOL uses its Online Wage Library to issue a prevailing wage determination. The average wait for the prevailing wage has nearly tripled since 2016.
   • 2022 Time: 182 days, 6 months
   • 2016 Time: 76 days, 2.5 months

3. U.S. Worker Recruitment: Under DOL regulations, employers must also recruit U.S. workers through a specified process that involves multiple newspaper advertisements. They must conduct interviews of applicants if their resumés meet the “basic” criteria, even if they do not meet all the criteria.
   • 2022 Time: 149 days, 5 months (from the prevailing wage determination)
   • 2016 Time: 131 days, 4 months

4. Labor certification: Employers must then apply for a labor certification from the DOL, which will certify that no “minimally” qualified U.S. worker responded to the job advertisements and that the employer did the required steps.
   • 2022 Time: 213 days, 7 months
   • 2016 Time: 180 days, 6 months

5. Employer petition: Employers must then file a petition with the Department of Homeland Security (DHS). DHS will verify that the worker is qualified for sponsorship and confirm the employer’s ability to pay. This is one of the few procedures where employers can pay to skip the waiting. The regulations allow an employer to pay a $2,500 fee (compared to $700 normally) to receive a response in 15 days (unless the government wants additional information).
   • 2022 Time: 324 days, 11 months
     • 15 days, if eligible for and able to pay a $2,500 premium processing fee
   • 2016 Time: 180 days, 6 months
     • 15 days, if eligible for and able to pay a $2,500 premium processing fee

Here is where the employee would wait for a cap number to become available under the annual limits.

6. Green card application: The green card application (Form I‑485) is the request for the employee to adjust status (usually from a temporary work visa status) to legal permanent residence. The worker must undergo a background check, medical screening, and confirm that the original job offer still exists.
   • 2022 Time: 303 days, 10 months
   • 2016 Time: 165 days, 5.5 months

The process is leading to massive processing backlogs in the employer-sponsored immigration system. Again, these processing backlogs are in addition to the backlog of workers waiting for a cap spot to become available. We don’t know how many people are going through the recruitment stage, but the total employer-sponsored processing backlogs at the Department of Labor and the Department of Homeland Security have more than doubled since 2016.

With a process this long, it is no surprise that well over 90 percent of immigrants must already be in the United States to obtain employer sponsorship. These delays create a de facto requirement for employees to use an H‑1B or other temporary work visa before they can access a green card. In other words, the true government processing time is much longer when you factor in the time it takes to obtain a temporary work visa before an employer begins the green card process.

Sadly, the Department of Labor is gearing up to finalize a rule very soon that, among other problems, will take more resources away from processing prevailing wage applications. It is also planning to release another rule that will directly complicate prevailing wage determinations for green cards and H‑1B visas. This is the exact opposite of what the government should be doing to alleviate the processing delays in the employer-sponsored immigration system.

Indeed, all these procedures are wholly unnecessary. Employees with a green card can negotiate fairly for wages since they can leave to find another employer. There is no reason to require U.S. worker recruitment since immigrant workers create an equivalent demand for U.S. workers elsewhere in the economy. Employers can judge a worker’s qualifications better than a government entity. Requiring health screenings and background checks of workers who were already screened abroad and who are now living in the United States for years is just absurd.

America will lose the global competition for talent when other countries grant green cards in a matter of a few weeks or months, not years. It’s time for the U.S. government to radically streamline its immigration system and eliminate unnecessary burdensome procedures.

When the Food and Drug Administration granted Emergency Use Authorization to the antiviral drugs Paxlovid and monupiravir in the beginning of this year, I co-authored an oped in the New York Daily News, along with Josh Bloom of the American Council on Science and Health, complaining about, among other things, the FDA’s requirement that a patient who tests positive for COVID must get a prescription from a doctor, nurse practitioner, or physician assistant to obtain the drug. For the drugs to be effective they must be started within five days of the start of COVID symptoms. Not everyone has ready access—or the time—to get in to a busy medical office to get a prescription.

We also complained about the requirement that a patient get a positive test. In those days, self-administered at-home tests were not readily available, and results obtained from testing centers could take a few days to get back.

With at-home self-administered tests now plentiful, one obstacle to rapid and efficient antiviral treatment is gone. Yesterday the FDA removed a second obstacle: the agency added pharmacists to the list of health care practitioners who can prescribe Paxlovid.

I argued in a March 2022 blogpost that the “Test to Treat” program set up by the Biden Administration was a good idea. It allowed patients to get a quick test at a pharmacy and, if it is positive, get the treatment while still in the store. Unfortunately, the American Medical Association protested, claiming it was “unsafe” for anyone other than a physician to prescribe the antivirals. I stated in that blogpost:

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.

The Biden Administration engineered a compromise to the “Test to Treat” program, designed to assuage the physician lobby: only pharmacy-based clinics would be allowed to participate in the program. These are pharmacies that have a licensed physician, nurse practitioner, or physician assistant on the premises working in a clinic. An example is the CVS MinuteClinic. That severely restricted the number of locations where patients can take advantage of the new program. The revised policy should make rapid COVID diagnosis and treatment immensely more convenient.

Pharmacists are experts—often more knowledgeable than doctors—about drug side effects and drug-drug interactions. Many states are increasing their scope of practice to allow them to prescribe birth control pills, HIV pre- and post-exposure prophylaxis, and perform vaccinations. I have argued here that states should expand their scope even further. Pharmacists should be able to test and treat influenza (with antivirals) influenza and strep throat (with antibiotics) and uncomplicated urinary tract infections, among other things.

Because the COVID antivirals have only received Emergency Use Authorization, the FDA has the authority to permit pharmacists to prescribe them. Pfizer is seeking full approval for the drug. Once the drug receives full approval, the authority will revert to the states and their legislatures to determine the scope of practice of their licensed health professionals. Hopefully the FDA’s recent decision to allow pharmacists to prescribe this drug will set an example for state lawmakers to expand pharmacists’ scope of practice to the full extent of their training. That will help improve health care access and affordability.

On April 14, 2021, Representative Maxine Waters (D‑CA) introduced the “Federal Reserve Racial and Economic Equity Act” (H. R. 2543). One of the major purposes of her bill is “to modify the goals of the Federal Reserve System.” Section 201 would require the Fed, in its conduct of monetary policy, to “minimize and eliminate racial disparities.” A new clause (Section 2C) would be added to the Federal Reserve Act stating:

The Board of Governors of the Federal Reserve System and the Federal Open Market Committee shall exercise all duties and functions in a manner that fosters the elimination of disparities across racial and ethnic groups with respect to employment, income, wealth, and access to affordable credit.

The Financial Services Committee sent Waters’ bill to the House floor where it passed by a vote of 215 to 207 on June 15, 2022. The bill—now titled “Financial Services Racial Equity, Inclusion, and Economic Justice Act”—was referred to the Senate Committee on Banking, Housing, and Urban Affairs on June 21. President Biden supports the bill, but at this time the chance of it passing the Senate is slim (about 11 percent). Nevertheless, the bill deserves widespread attention.

Subjecting monetary policymakers to the task of eliminating economic disparities across racial and ethnic groups would further politicize the Fed, undermine its credibility, and clash with the ideal of equal treatment under the law. Having unelected policymakers at the Fed draw the line between what is just and unjust with regard to economic outcomes would risk undermining the market price and profit system, which has been the main engine for reducing poverty.

A Utopian Goal

Maxine Waters, Elizabeth Warren, Kirsten Gillibrand, Bernie Sanders, and others in Congress who support expanding the Fed’s mandate to eliminate disparities in employment, income, wealth, and access to affordable credit across racial and ethnic groups suffer from the illusion that the Fed, or any other agency, can actually do so. All individuals can be said to have certain unalienable rights and, in that sense, they are “created equal.” However, it is self-evident that individuals across and within all groups differ significantly in their abilities, interests, preferences, and knowledge. To think otherwise is to disregard reality.

Basing law on false presumptions and utopian goals is bound to undermine the natural rights of life, liberty, and property that each individual can share in without depriving others of their equal rights. Adam Smith, in his 1762 lecture “Of Jurisprudence,” called these “perfect rights”—because they are rights that all individuals “have a title to demand and if refused to compel another to perform.” In contrast, “imperfect rights” relate to “those duties which ought to be performed to us by others but which we have no title to compel them to perform.” Smith emphasized that only perfect rights are consistent with “commutative justice,” while imperfect rights, which he called “metaphorical” rights, are associated with “distributive justice” (see Dorn 2012).

From the perspective of jurisprudence, justice is best understood as the absence of injustice. As Frederic Bastiat clearly stated in his famous essay, “The Law” (1850):

When law and force confine a man within the bounds of justice, they do not impose anything on him but a mere negation. They impose on him only the obligation to refrain from injuring others. They do not infringe on his personality, or his liberty or his property. They merely safeguard the personality, the liberty, and the property of others. They stand on the defensive; they defend the equal right of all. They fulfill a mission whose harmlessness is evident, whose utility is palpable, and whose legitimacy is uncontested.

A law that would have the Fed attempt to eliminate all economic disparities across racial and ethnic groups, and promote “economic justice,” is inconsistent with a genuine rule of law, or what F.A. Hayek called “rules of just conduct.” It would be impossible to maintain the constitutional principle of equal treatment under the law if government officials (in this case monetary policymakers) could impose some subjective standard of economic justice on an emergent market order based on personal choices by millions of people in their everyday activities. Fed officials simply don’t have the information to do so. This is the Hayekian knowledge problem facing any central planner.

The Constitution gives Congress the power “to coin money” and “regulate the value thereof” (Article 1, Section 8). That power has been delegated to the Federal Reserve, which has the primary duty of safeguarding the long-run purchasing power of the dollar. Money that maintains its long-run value benefits everyone. In contrast, monetary policy aimed at attaining “economic justice” opens the door to all kinds of mischief—and blurs the line between fiscal and monetary policy. If Waters’ bill were to become law, the Fed would become subject to much stronger political pressure to satisfy special interests rather than serve the general interest by maintaining sound money and credit.

In volume 2 of Law, Legislation and Liberty ([1976] 2021), Hayek emphasizes the conflict between using the law to reduce economic disparities versus using the law to safeguard persons and property. His argument is straightforward:

Since people will differ in many attributes which government cannot alter, to secure for them the same material position would require that government treat them very differently. Indeed, to assure the same material position to people who differ greatly in strength, intelligence, skill, knowledge and perseverance as well as in their physical and social environment, government would clearly have to treat them very differently to compensate for those disadvantages and deficiencies.

That is the great problem the Fed would encounter if Congress were to expand the central bank’s mandate to include eliminating economic disparities across racial and ethnic groups.

Thomas Sowell’s Warning

In his landmark book, Knowledge and Decisions (1980), Thomas Sowell warned that “attempts to sum up disparate characteristics ignore the diversity of personal values which makes it impossible to have objectively recognized, fungible units in which to add up totals.” Moreover, he points out that, in Regents of the University of California v. Bakke (1978), the Supreme Court held “that the Fourteenth Amendment grants ‘equal rights’ to individuals—not group rights, and certainly not special rights to one group historically connected with the origin of the Amendment.”

Notably, Sowell argues that the Court itself is cognizant that:

Any group rankings by harm suffered and remedies available would be transient, requiring repeated incremental adjustment as the judicial remedies take effect, and the “variable sociological and political analysis” necessary for this “simply does not lie within the judicial competence—even if they otherwise were politically feasible and socially desirable.”

Likewise, one could argue that eliminating economic disparities across racial and ethnic groups does not lie within the Fed’s competence.

Politicization of Monetary Policy

If the Fed were made responsible for eliminating “disparities across racial and ethnic groups with respect to employment, income, wealth, and access to affordable credit,” monetary policy would become highly politicized, and the “menace of fiscal QE” that George Selgin has warned about would become a reality.

Politicians would see an opening to use the Fed, even more than they do now, as a way to circumvent the normal budgeting process and have the central bank engage in “backdoor” spending to satisfy demands for “economic justice.” The Fed’s credibility and independence would suffer as a result. The ideal of “equal treatment under the law,” which is realizable, would give way to the illusion that distributive justice can be attained without reducing individual freedom, wealth creation, and social harmony.

Moreover, insofar as the force of law is able to decrease inequality of income and wealth, there would be a corresponding increase in the inequality of power. As Peter Bauer explained in Equality, the Third World, and Economic Delusion (1981):

In an open and free society, political action which deliberately aimed to minimize, or even remove, economic differences (i.e., differences in income and wealth) would entail such extensive coercion that the society would cease to be open and free. The successful pursuit of the unholy grail of economic equality would exchange the promised reduction or removal of differences in income and wealth for much greater actual inequality of power between rulers and subjects.

Differences in income and wealth, and in unemployment rates, are due to many factors other than racial or ethnic discrimination. The Fed cannot impact real economic variables in the long run, but it can influence the path of total spending and the price level. Mandating the Fed to use monetary policy to eliminate economic disparities across racial and ethnic groups ignores the real causes of differences in income, wealth, and unemployment rates among individuals.

Real Causes of Disparities in Economic Outcomes

In his work on economic development, Bauer was primarily interested in expanding the range of choices open to people (see Dorn 2002). Like other classical liberals, he saw the expansion of free markets and limited government as essential for human progress. State interventions restricting trade—both in product and factor markets—may help certain individuals or groups but only at the expense of limiting freedom and overall development. Bauer provides numerous examples of how individuals lifted themselves and their families out of poverty once markets were allowed to operate and property and persons were protected under a just rule of law (see, e.g., The Development Frontier 1991).

The most important thing the Fed can do to help improve living standards for all people is to ensure that monetary policy is aimed at preventing monetary disturbances that cause inflation and severe recessions, both of which undermine markets and the price system’s ability to allocate resources efficiently. Meanwhile, Congress needs to rethink failed policies that restrict freedom of choice; it also should control spending, reduce onerous taxes, and respect the demarcation between fiscal and monetary policy (see Dorn 2020).

Conclusion

Adding a new mandate that requires the Fed to eliminate economic disparities across racial and ethnic groups—and achieve “economic justice”—is impractical, unconstitutional, and a threat to what Hayek calls the “central concept of liberalism,” namely:

That under the enforcement of universal rules of just conduct, protecting a recognizable private domain of individuals, a spontaneous order of human activities of much greater complexity will form itself than could ever be produced by deliberate arrangement, and that in consequence the coercive activities of government should be limited to the enforcement of such rules.

The first rule for setting goals for any institution is that they are realizable—and that applies to the Fed. As Charles Plosser, former president and CEO of the Federal Reserve Bank of Philadelphia, writes, “When establishing the longer-term goals and objectives for any organization, and particularly one that serves the public, it is important that the goals be achievable. Assigning unachievable goals to organizations is a recipe for failure.”

The Fed has never placed a precise number on its maximum employment goal because it is generally recognized that the Fed can only impact nominal variables and that nonmonetary factors play the key role in determining the natural (long-run equilibrium) rate of unemployment, which itself is not directly knowable. Thus, in its “Statement on Longer-Run Goals and Monetary Policy Strategy,” the Federal Open Market Committee declares:

The maximum level of employment is a broad-based and inclusive goal that is not directly measurable and changes over time owing largely to nonmonetary factors that affect the structure and dynamics of the labor market. Consequently, it would not be appropriate to specify a fixed goal for employment.

That leaves long-run price stability as the Fed’s primary goal, which is achievable.

Adding “economic justice,” which is an open-ended goal and not achievable in any meaningful sense, to the Fed’s mandate would greatly politicize the Fed, decrease its credibility and independence, and result in failure.

There will always be disparities in economic outcomes, whether across groups or within a given group. People differ in myriad ways. Trying to use the force of law to eliminate differences increases the power of some at the expense of others. Ignoring these evident facts in designing policy risks weakening the social and economic harmony that emerges when people are free to choose and their property rights are protected by law.

As Bauer, in his essay “Egalitarianism: A Delicate Dilemma,” points out:

If people’s circumstances and capacities, including economic aptitudes and motivations, were substantially the same, incomes would be largely equal in an open society. Thus the establishment of such a society would suffice for economic equality, without special taxation, let alone more drastic interference with voluntary arrangements. In fact, differences in circumstances, motivations, and aptitudes, including the ability to seize economic opportunities, ensure appreciable differences in incomes in an open society. Political action to reduce these differences or prevent their emergence requires an extension of state power incompatible with a free society.

The conflict between egalitarianism and freedom should be a focal point in where to draw the line between assigning the Fed a limited role of maintaining long-run price stability, and thereby helping to achieve maximum employment, and making racial equity a new mandate for the central bank.

Congress would have a better chance of promoting all-around prosperity if it focused more on eliminating barriers to engage in mutually beneficial, voluntary exchanges—rather than trying to impose new mandates on the Fed that cannot possibly be achieved.

Strengthening market institutions, so that all individuals are free to develop their abilities to the fullest, would offer an alternative that is consistent with equal treatment under the law. It also is more likely to lead to economic and social harmony than legislation aimed at the elusive goal of eliminating economic disparities across racial and ethnic groups.

At the end of a term with many high-profile and controversial decisions, the Supreme Court agreed to hear a case next term that could upend election law in the United States. In Moore v. Harper, the court agreed to hear an argument known as the independent state legislature (ISL) theory. This case has the potential to have a wide-ranging impact and many election law experts are sounding the alarm.



I have been critical of the ISL theory and mostly unpersuaded of its merits, at least in its more radical forms with regard to elections. Helen White of Protect Democracy offers a good explanation of why originalists should reject ISL, and how recent research has demonstrated it conflicts with the understanding of the Founders and historical practice dating all the way back to the ratification era. I largely agree with her analysis and the scholarship she cites.



However, the ISL theory’s potential effect on presidential elections is being misunderstood and overstated by some critics of the conservative majority on the Supreme Court. Even as somebody who mostly disagrees with the theory, I’d like to sound a note of caution. Popular progressive talk show host Thom Hartmann, for example, flatly endorsed the interpretation that ISL would enable the worst possible election subversion schemes, and that the Supreme Court is plotting to use it to steal the 2024 election for Republicans. This is wrong, and it’s important for even those who disagree with ISL doctrine to be able to explain why.

This confusion is partly because the real ISL theory, endorsed and advocated by serious legal scholars and founded in a credible (if still debatable) interpretation of the Constitution, is being conflated with arguments made by Trump and his acolytes in the 2020 election. These claims invoked the theory in name, but the interpretation claimed by people such as John Eastman and some Republican lawmakers (and rightly rejected by others) is frivolous and unsupported even on ISL’s own terms.



So what is the independent state legislature theory? It starts with the Constitution’s Elections Clause, which provides that “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof…” (emphasis added).



The point of contention is in that reference to “the Legislature thereof.” Does that mean only the elected body consisting of state representatives and state senators? Or does it refer to the state’s lawmaking process more broadly, however that might be organized by the state’s constitution, including things like possible gubernatorial vetoes and judicial review by state courts? It’s the former interpretation that would make state legislatures “independent” of any constraints under the state’s constitution, on the theory that any such limits on their power are overridden by the federal Constitution.



The practical implications of this question were made plain in a 2015 case concerning Arizona’s independent redistricting commission, which was created by voters through a ballot initiative. Members of the Arizona state legislature sued in federal court, arguing that this usurped a power the federal Constitution grants only to them. In Arizona State Legislature v. Arizona Independent Redistricting Commission, the Supreme Court rejected that argument in an opinion written by Justice Ginsburg and joined by the three other liberals together with Justice Kennedy.



Now a similar case will go before a changed court, with Kennedy and Ginsburg both replaced by more conservative justices who are presumed to be more sympathetic to the dissents in the Arizona case. In Moore, the North Carolina state courts struck down the congressional districts adopted by the state legislature, holding that they violated the state constitution due to excessive gerrymandering. Like happened in Arizona, North Carolina legislators filed a federal suit claiming that state constitutions and courts can not constrain their exercise of the power granted by the Elections Clause.



Observers widely expect the court to endorse the independent state legislature theory, though how far they will go with it is an open question. The consequences could be substantial, overturning popular reform moves in many states to limit partisan gerrymandering. That might include independent commissions and the use of referendums like in Arizona, state court rulings like the one at stake in North Carolina, and state executive actions such as many states controversially used to alter their election procedures in response to the pandemic. These would be big and consequential changes to how federal elections are run, and those concerned with election law and policy are right to say so.


Such a ruling could also have troubling practical consequences, splitting the process of setting rules for elections to state office from the rules for federal elections, even though both appear on the same ballots on the same day. Such a possibility was once so troubling that the Constitution was amended in record time to avoid it. 



So that’s what’s at stake for House and Senate elections. What about presidential elections? What does Moore potentially mean for Electoral Count Act reform and concerns about attempted subversion like we saw in the 2020 election?



The Constitution’s Electors Clause, governing how members of the Electoral College are chosen, contains similar language granting the decision over method of selection to each state’s “legislature.” In the 2020 election and after, advocates for Trump argued this amounts to a sweeping power for state legislators to overturn the results of the presidential election in their state. Even after a state’s voters chose Biden and thus his slate of electors, and after that result was duly confirmed by both state and federal courts, the claim was that Republican-majority legislatures could appoint Trump electors instead. In its most outlandish version, proponents argue legislators could revoke their state’s 2020 electoral votes right now, long after the election is over and the winner has taken office.



But this is not what independent state legislature theory would do on its own terms, and it is not what has been advocated by serious proponents. There has been no indication from the conservative justices, including in their dissents in Arizona and other recent cases, that they would condone such an action. That’s because it would contradict the plain text of the Constitution regardless of any theory about the powers of state legislatures.



In both congressional and presidential elections, Congress has a time-setting power to determine when the elections occur, even as the how is mostly left to the states. For presidential elections, that means state legislatures (however that term is construed) have broad power to decide what manner the state will use to choose its presidential electors. But they must implement the method chosen on the date set by federal law, which is Election Day. That’s the deadline. 



States could say they won’t hold a presidential election at all, and instead the legislature itself will pick who will cast the state’s electoral votes. This is a power every state already has, and they always have. But in practice, the use of popular elections for president is well-settled and heavily entrenched, such that no state is likely to abandon letting voters have their say. No state has used legislative selection since 1876. It is politically unthinkable to abolish presidential elections altogether, even in the most heavily Republican states.



The claim made by Trump supporters in 2020 goes beyond that and says that legislatures can hold an election to choose electors but then decide they don’t like the outcome and overturn the results. This is false and would render Congress’s time-setting power a nullity. You can’t decide how you’re going to do something (appoint electors) after the time set for doing it (Election Day) has already passed. Once the state has decided to hold an election to choose electors, and then actually done so on Election Day, that process is final and state legislators have no further say in the matter.



This is true regardless of how the court rules in Moore. There is no need for Electoral Count Act reform to address it, nor should the pending case be any obstacle to much-needed ECA reform. That’s because ECA reform is compatible with however the court might rule on the independent state legislature theory. A reformed ECA should clearly articulate the principle that Election Day constitutes a firm deadline for states to decide how they will choose their electors, but this is already current law and what the Constitution clearly requires.



Given the likelihood that the Supreme Court will endorse some version of the independent state legislature theory, it’s important for opponents of Trump-style election subversion to not overstate the effect it would have. No matter what the court rules in Moore, it will remain unlawful and unconstitutional for state legislatures to overturn presidential election results after the fact.