Rhetoric plays an unfortunately large role in public policy debates. Generally, those who are particularly supportive of deporting illegal immigrants tend to call them “illegal aliens” while those who prefer legalization tend to use the term “undocumented immigrants.” As I’ve written before, these euphemisms are tiresome and don’t matter much so I use the term “illegal immigrants” because most people understand that.

However, one argument by immigration restrictionists in favor of using the term “illegal alien” is that it is the technical legal term. Hans von Spakovsky of the Heritage Foundation makes this point. Representative Julian Castro (D‑TX) introduced the Correcting Hurtful and Alienating Names in Government Expression (CHANGE) Act recently to amend U.S. immigration law to, among other things, replace the term “illegal alien” with “undocumented foreign national.” I don’t expect that bill to become law.

Regardless, most people seem to assume that “illegal alien” is the correct legal term. Recently, Judge Andrew Hanen addressed this rhetorical issue in his decision of Texas v. U.S. when he wrote:

The Court uses the phrases “illegal immigrant” and “illegal alien” interchangeably. The word ‘immigrant’ is not used in the manner in which it is defined in Title 8 of the United States Code unless it is so designated. The Court also understands that there is a certain segment of the population that finds the phrase “illegal alien” offensive. The Court uses this term because it is the term used by the Supreme Court in its latest pronouncement pertaining to this area of the law. See Arizona v. United States, 132 S. Ct. 2492, 2497 (2012).

However, U.S. immigration law, Congress, and government agencies use many different terms in place of “illegal aliens.” The most famous example is the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. Also, the Department of Homeland Security frequently used the term “unauthorized immigrant.” I searched immigration law (CTRL‑F) for every term I could think of to describe illegal immigrants. My searches included every combination of the first words illegal, unauthorized, undocumented, irregular, and infiltrator with the second word of immigrant, alien, migrant, person, entrant, or person. The term “foreign national” was not preceded by an adjective so I did not search for it.

Table 1 shows the different terms used to describe the concept of an illegal immigrant in Title 8 of the U.S. Code, the portion of the law that contains laws on citizenship, nationality, and immigration. Those combinations of words were mentioned 84 times. The term “illegal alien” was mentioned most of all – 33 times for 39 percent of total mentions. The second most common term was “unauthorized alien,” which appeared 21 times or about a quarter of the time. Interestingly enough, “undocumented alien” was the third most common with 18 uses. My preferred term of “illegal immigrant” was used only six times but the term “illegal immigration” was used 93 times, which I didn’t include in the table because it’s not a term that describes individuals.

It is clear that U.S. law doesn’t have an agreed-upon single legal term for “illegal immigrants.” The debate over rhetoric isn’t important and I prefer to use the term “illegal immigrant” because I think that is most commonly used and understood by Americans outside of law and policy. If only language were entirely about the ease of communication!

Arlene’s Flowers, run by Barronelle Stutzman in the southeastern Washington town of Richland, designs and sells floral arrangements for many occasions in Richland, Washington. Mrs. Stutzman, for religious reasons, believes that marriage is a spiritual union between a man and a woman and doesn’t create floral arrangements same-sex weddings. This case began when long-time clients Robert Ingersoll and Curt Freed asked Mrs. Stutzman to create the floral arrangements for their wedding. She respectfully declined and referred them to several nearby florists.

To be clear, Mrs. Stutzman serves everyone regardless of sexual orientation or any other category. For nearly a decade, Messrs. Ingersoll and Freed used Mrs. Stutzman for their anniversary and Valentine’s Day needs, for example. Nevertheless, Mrs. Stutzman’s conscience won’t allow her to provide flowers to celebrate a same-sex marriage, even for long-time friends and customers.

Mr. Freed’s Facebook posts expressing disappointment at the situation gained media attention, which caused the couple to receive enough free floral arrangement offers to have 20 weddings. Additionally, the Washington attorney general personally reached out to the couple. Both the couple and the state ended up suing Mrs. Stutzman for violating Washington’s antidiscrimination law.

The trial court ruled against Arlene’s Flowers and the state supreme court affirmed, holding that floral design did not constitute First Amendment-protected artistic expression. The U.S. Supreme Court remanded the case for reconsideration in the light of its 2018 ruling in a similar context (except a baker instead of a florist) in Masterpiece Cakeshop v. Colorado Civil Rights Commission that state officials displayed anti-religious animus and thus could not enforce their law. In the absence of similar anti-religious red flags, it’s probably not surprising that the state supreme court reinstated its previous opinion almost verbatim.

Yet Supreme Court precedent against compelled speech is strong. In West Virginia State Board of Education v. Barnette (1943), the Court ruled that school children could not be forced salute the flag and recite the pledge of allegiance. And in Wooley v. Maynard (1977), the Court found that New Hampshire could not require drivers to display the state motto (“live free or die”) on their license plates. (That case is why, if your jurisdiction has a default slogan—for example, “taxation without representation” in D.C.—it has to offer you an alternative if you ask.)

In a pair of 2018 cases, NIFLA v. Becerra, and Janus v. AFSCME, the Court found that states could not force a pro-life clinic to read a script advising patients on how to get an abortion, and that non-union members of a collective bargaining unit could not be forced to pay for union speech with which they disagree, respectively.

The Court had the opportunity to tackle the issue of whether states may force wedding vendors to create cakes for same-sex weddings in Masterpiece. But the Court didn’t reach the issue of whether the First Amendment—speech or religion clauses—protects a refusal to provide a product or service for a particular occasion, if so how to draw the line between professions that are and aren’t sufficiently expressive to gain that protection, or any other major controversy that continues to roil lower courts. Justice Clarence Thomas wrote a concurrence offering some guidance, but post-Masterpiece state and circuit courts have diverged.

As it has in previous stages of this litigation, Cato has filed an amicus brief supporting Arlene’s Flowers—again joined by Reason Foundation and Individual Rights Foundation—urging the Supreme Court to take up the case and settle these issues and ambiguities after all. Cato is the only organization in the country to have filed briefs in support of both Jim Obergefell (lead plaintiff in the Supreme Court’s same-sex marriage case) and Jack Phillips (owner of Masterpiece Cakeshop). It shouldn’t be so hard to see the difference between government action and individual conscience, to have official equality while letting a thousand flowers bloom.

Elizabeth Warren’s presidential campaign has a new Facebook ad claiming Mark Zuckerberg, the CEO of Facebook, has endorsed Donald Trump for re-election. That claim is false, and Warren admits as much in the ad. Warren is not trying to mislead people about Zuckerberg. She is trying to control what can be said on Facebook. That is much more dangerous than any lie appearing in a campaign ad.

Recently the Trump campaign ran an ad on Facebook saying former vice president Joe Biden had sought to fire a Ukrainian prosecutor investigating a company whose board included Biden’s son. Many on the left like Warren think this claim is a bald-faced lie. Trump’s supporters probably think it’s obvious something is rotten in the state of Ukraine. Many others, not all fans of the President, find the charges plausible. The Hill newspaper gingerly calls the Biden claims “unsubstantiated allegations.”

Facebook does refer some content to external fact-checkers. For example, this morning my Facebook feed had a story that House Speaker Pelosi was diverting Social Security funds to pay for the impeachment inquiry of President Trump. The post was followed by a link to a fact check organization that reported the story was false. Notice that Facebook did not suppress the story. In classic First Amendment style, they provided “more speech” and let the users of the platform make up their own minds.

Facebook has also recently decided to exempt speech from politicians from fact-checking for good reason. What politicians say (including falsehoods) provokes criticisms and “more speech.” Trump’s charges about Biden have been widely attacked and defended for some time. The Trump Facebook ad itself and the company’s policies have been widely reported and debated. Those who wish to make up their mind have much to read, hear, and ponder.

Why is that exemption good? Consider the alternative. Nick Clegg, a Facebook Vice President, has rightly noted, “Would it be acceptable to society at large to have a private company in effect become a self-appointed referee for everything that politicians say?…In open democracies, voters rightly believe that, as a general rule, they should be able to judge what politicians say themselves.” Facebook thus gives priority to freedom of speech on its platform.

But the problem goes deeper than simply denying voters the right of judgment. Elizabeth Warren is demanding that Facebook suppress speech she finds false. But that is not a desirable standard in our politically polarized times. Strident partisans believe everything the other side says is a lie. If Facebook were to adopt the Warren standard for acceptable speech, much valuable speech would be suppressed. And some of it would come from Elizabeth Warren. As a private company, Facebook does not have to obey the First Amendment. But following Warren here would greatly diminish democracy.

Ms. Warren is appealing to Democratic primary voters for whom Facebook is “too big” and the President is an inveterate liar. But we should consider the bigger picture. Ms. Warren may become president, an office with much discretionary power. Beyond her antitrust crusade, President Warren and her allies in Congress would have many ways to harm Facebook. Her current demands to control speech and advertising on Facebook pose a real risk to that company.

But all this involves more than a company’s fate. No one has First Amendment rights against Facebook. If Warren wins this fight, elected officials in the future can suppress the Facebook speech of their critics with impunity. Do Elizabeth Warren’s supporters really want to live in that world if President Trump is re-elected? Do any of us want to live in that world?

Many people complain about Facebook’s size and market dominance. In this case, the company’s importance enables Facebook to push back against Warren’s implicit threats. Politicians do indeed lie and wish to censor speech. Zuckerberg is unwilling to help them censor and trusts Americans to evaluate the lies. Make no mistake. If the angels favor free speech – and I think they do – Mark Zuckerberg is on their side.

This week California Governor Gavin Newsom signed into law a bill that allows people at risk for contracting HIV to obtain both pre-exposure prophylaxis (PreP) and post-exposure prophylaxis (PEP) directly from a pharmacist, avoiding the inconvenience and expense of having to visit the doctor for a prescription. Drugs that provide HIV prophylaxis are classified as prescription-only by the Food and Drug Administration. States get to determine the scope of practice of their licensed health care practitioners. Expanding the scope of practice of pharmacists to allow them to prescribe a prescription-only drug has been increasingly used by state legislatures to work around the federal prescription requirements in order to improve access (and decrease cost) to medications their residents want and need.

The legislation improving the availability and access to HIV prophylaxis is an excellent public health measure that was endorsed by the California Medical Association and received bipartisan support.

California also has a well-developed syringe services program, operating in the state since the 1980s, aimed at getting clean needles to, and reducing needle sharing among, intravenous drug users.

Both needle exchange programs and expanding access to HIV prophylaxis are two excellent public health measures that, in combination, should go a long way towards the goal of eliminating new cases of HIV, and can be enacted on the state level without requiring federal consent.

California’s move represents the latest example of states using work-arounds to reduce the costs and obstacles of getting prescription-only drugs to consumers. Ten states have allowed pharmacists to prescribe oral contraceptives, which the American College of Obstetrics and Gynecology has urged be made over-the-counter for years. And all 50 states and the District of Columbia have used work-arounds so that opioid users can get the overdose antidote naloxone directly from the pharmacist.

While these efforts by states are laudable, a better approach would be for the FDA to reclassify these drugs as over-the-counter. Past experience tells us that prices drop when a drug moves to OTC. But, more important from a public health standpoint, when drugs become available OTC they can be sold at outlets other than pharmacies—in hundreds of thousands of retail outlets—even in vending machines. This will help get these drugs to the many consumers who may not have a pharmacy close by, or are deterred from asking for a prescription from a pharmacist due to stigmas attached to the drugs they are requesting.

For this to happen, the FDA needs to be more aggressive and proactive in reclassifying drugs as over-the-counter.

For the last couple of years, the Cato Institute, along with other public interest groups, academics, and lower court judges from across the ideological spectrum, has been urging the Supreme Court to reconsider the doctrine of qualified immunity. This atextual, ahistorical doctrine — which shields public officials from liability, even when they break the law — was essentially invented out of whole cloth by the Supreme Court in 1967. And the modern version of the doctrine, in addition to being unjust and unlawful, has proven incapable of consistent, principled application in the lower courts. There is thus every reason for the Court to reconsider its precedent on this subject, as many of the Justices themselves have already suggested. And now, with several major qualified immunity cases on the horizon, it appears the Court may finally be preparing to take up the matter.

The main reason for my suspicion here has to do with recent developments in Baxter v. Bracey. This is the case where the Sixth Circuit granted qualified immunity to two officers who deployed a police dog against a suspect who had already surrendered and was sitting on the ground with his hands up. A prior case had held that it was unlawful to use a police dog without warning against an unarmed suspect laying on the ground with his hands at his sides. But despite the apparent similarity, the Sixth Circuit found this precedent insufficient to overcome qualified immunity because “Baxter does not point us to any case law suggesting that raising his hands, on its own, is enough to put [the defendant] on notice that a canine apprehension was unlawful in these circumstances” (emphasis added). In other words, prior case law holding unlawful the use of police dogs against non-threatening suspects who surrendered by laying on the ground did not clearly establish that it was unlawful to deploy police dogs against non-threatening suspects who surrendered by sitting on the ground with their hands up.

The ACLU filed a cert petition on behalf of Mr. Baxter, asking the Supreme Court to consider whether “the judge-made doctrine of qualified immunity” should “be narrowed or abolished.” The Cato Institute filed a brief in support of this petition, as did a vast, cross-ideological array of other public interest groups and leading scholars of qualified immunity. The petition was originally set to be considered at the Supreme Court’s long conference on October 1st — that is, the first conference of the term, where the Justices resolve a large number of petitions that were submitted over the summer recess. Emma Andersson (one of the ACLU attorneys on the case) and I wrote a joint op-ed discussing the case back in July, and Law360 recently ran a detailed story on Baxter, asking “Could A Dog Bite Bring An End To Qualified Immunity?” All of us were holding our breath as the Supreme Court prepared to start its new term…

But then, something curious happened. On September 23rd, just a week before the Baxter cert petition was set to go to conference, the Court rescheduled the case for the conference of October 11th. (“Rescheduling” means the petition will be considered at a later date, and that the Justices have yet to formally consider it — as opposed to “relisting,” which happens after a petition has already been considered at conference.) Then, on October 8th, the case was rescheduled again — no conference date is listed on the docket yet, but the next scheduled conference would be October 18th.

Why is the Court repeatedly rescheduling Baxter? It’s impossible to know for sure, of course, but I suspect the Court may be waiting to consider the case simultaneously with at least two other cert petitions which will also raise the question of whether qualified immunity should be reconsidered — specifically, those in Zadeh v. Robinson and Corbitt v. Vickers. Zadeh is the case where the Fifth Circuit granted qualified immunity to state investigators that entered a doctor’s office and, without notice and without a warrant, demanded to rifle through the medical records of 16 patients. Judge Don Willett dissented in Zadeh, arguing that the Fourth Amendment violation in this case was “clearly established,” but also discussing his “broader unease with the real-world functioning of modern immunity practice.” And Corbitt is the case I discussed in detail here, in which the Eleventh Circuit granted immunity to a deputy sheriff who shot a ten-year-old child lying on the ground, while repeatedly attempting to shoot a pet dog that wasn’t posing any threat.

Cert petitions have yet to be filed in Zadeh or Corbitt. However, the civil rights plaintiffs in these cases are now both represented by Paul Hughes — co-chair of the Supreme Court and Appellate Practice Group at McDermott Will & Emery — who has filed applications for extensions of time to file a cert petition in both cases. These applications explicitly state that the petitions will raise the question of “whether the doctrine of qualified immunity should be narrowed or revisited entirely,” which is essentially the exact same question in Baxter. And these applications were granted, respectively, on September 17th and September 20th — just days before the Baxter cert petition was rescheduled! Therefore, it seems quite likely to me that Court is planning to hold Baxter until around the time that the Zadeh and Corbitt cert petitions are also filed (which will likely be in mid-November), so that it can consider all three cases together. And that in turn suggests to me that the Justices are, at the very least, seriously considering the fundamental underlying question of whether qualified immunity should be considered.

Of course, this prediction is only speculation at this point, and even if the Justices are holding Baxter for something like the reasons I’ve sketched out above, that’s no guarantee that they’ll grant the petition. But this is, in my view, a promising development, especially in light of the Court’s disappointing denial of the cert petition in Doe v. Woodard (which also asked the Court to reconsider qualified immunity) at the end of the last term. Perhaps, for whatever reason, the Justices preferred Baxter et al. as the vehicle for taking up this question. Or perhaps they’ve realized that this issue is simply not going away. But by the end of this term, I suspect that we’ll have a much clearer sense, for better or worse, of whether the Supreme Court intends to correct the unlawful, unworkable, and unjust doctrine it has foisted upon us all.

Last night, at a CNN candidate forum on gay rights, CNN’s Don Lemon asked Democratic candidate Beto O’Rourke: “religious institutions like colleges, churches, charities. Should they lose their tax-exempt status if they oppose same-sex marriage?”

O’Rourke answered “Yes,” going on to say “There can be no reward, no benefit, no tax break for anyone … that denies the full human rights and the full civil rights of every single one of us.”

Aside from being grossly illiberal, anti-pluralist, and inflammatory, O’Rourke’s announced policy is also unconstitutional under current Supreme Court precedent.

As a long line of court opinions has made clear, to quote Eugene Volokh, “tax exemptions can’t be denied based on the viewpoint that a group communicates,” and the law “may treat groups differently based on their actions, but not based on the views they express” (emphasis added). “Support,” the term used in the question, makes clear that viewpoint and doctrine are at issue here.

Whether through tax leverage or other means, the Constitution also forbids government from reaching into many internal decision processes of churches. The Supreme Court rebuked the Obama administration on this in the 2012 Hosanna-Tabor case, 9–0. Every single liberal Justice joined in defense of church autonomy in that case.

To be sure, there are ways consistent with the Constitution to curtail the tax exemption of churches or religious organizations, but they might require curtailing that of pro-gay or progressive churches on the same neutral basis. Complicating matters, much of the tax exemption of religiously oriented colleges, hospitals, social service agencies, etc. amounts to the same tax treatment that would be accorded secular nonprofits that do the same things.

The one big anomaly in this field of law is the Burger-era Bob Jones University case of 1983, in which the Supreme Court upheld the IRS’s denial of exemption to a religious college that maintained rules against interracial dating. (Note that this denial was based on the college’s actions, as opposed to its doctrine or its failure to “support” a public orthodoxy.) Some at the time predicted that the next to fall under the same logic would be exemptions for colleges and church groups that discriminate on the basis of sex in student admission or the selection of clergy. Thirty-six years on, nothing of the sort has happened. Perhaps the best explanation is that race is sui generis in American law, and accepted by courts as grounds for interventions they would otherwise reject. 

The position on taxation of religious institutions to which O’Rourke assented Thursday evening is extremist and oppressive.

An article in the New York Times the other day was titled “The Rich Really Do Pay Lower Taxes Than You,” and one in Bloomberg was subtitled “The Wealthiest 400 Americans Have the Lowest Rates.”

It is not true.

Both articles were prompted by the release of figures from economists Emmanuel Saez and Gabriel Zucman, which in turn builds on work with their colleague Thomas Piketty. Despite garnering vast media coverage for their estimates of income, wealth, and tax distributions, this trio of economists (“PSZ”) have become known for publishing dubious data.

In a 2018 report, economist James K. Galbraith found that data on the trio’s “world inequality database” is “sparse, inconsistent, and unreliable” and “not very consistent with other reputable sources.” Furthermore, the data is based on assumptions that are “beyond heroic.”

Economist David Splinter has a new critique of the Saez and Zucman data behind the NYT and Bloomberg stories. He found that the authors made numerous flawed assumptions, which threw their estimates way off.

The figure below from Splinter shows estimates of average tax rates by income group for 2018, including federal, state, and local taxes. Average tax rates are taxes paid divided by income within each income group. The figure shows Splinter’s estimate with Gerald Auten (red line), the new Saez-Zucman estimate (purple line), and the PSZ estimate (blue line) on which it was partly based. The income groups along the horizontal axis are percentiles—for example, “P0-50” means the bottom 50 percent of taxpayers.

Auten and Splinter find that average U.S. tax rates are highly graduated, ranging from 12 percent for the bottom half of taxpayers to 50 percent for the top 0.01 percent of taxpayers. By contrast, Saez and Zucman claim that tax rates are similar across income groups at between 25 and 34 percent. In the figure, the red line is the accurate one in my opinion, while the blue and purple ones are not.

Splinter discusses the flaws in the Saez and Zucman data. One error is that they distribute the very large amount of income that is unreported on tax returns in a way that greatly inflates top-end income, which in turn substantially reduces estimated tax rates at the top. Splinter and Auten provide a detailed critique of PSZ estimation methods here.

The NYT got its headline from the Saez-Zucman tax rate estimate for the top 400 taxpayers, who are a subset of the top 0.01 percent. Without the 400, the NYT and Bloomberg would not have their incendiary headlines. Auten and Splinter do not estimate the top 400, but the Saez-Zucman tax rate for that group is still far above Auten and Splinter’s estimate for the bottom group.

Also, as Splinter notes, the estimates shown in the figure do not include the huge refundable portion of tax credits, which would further push down average tax rates at the bottom end.

In conclusion, reporters and columnists should be much more skeptical of Piketty, Saez, and Zucman data. Economists make many assumptions when preparing estimates, and the trio always seem to choose the assumptions that inflate their figures for income and wealth inequality while underestimating top-end tax rates.

A 2017 Cato book discusses Piketty’s data follies, and this recent study examines how PSZ inflate their U.S. wealth inequality estimates.

Further notes on the top 400 are here and here.