This morning, the Supreme Court in Knick v. Township of Scott ruled 5–4 that a government violates the Fifth Amendment’s Takings Clause when it takes property without compensation, and a property owner may bring a claim to that effect in federal court at any time. This means an overruling of Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City (1985), which required property owners to seek state law remedies in state court before bringing a federal takings claim.

It’s gratifying that the Court finally overturned the anomalous Williamson County doctrine, which for 34 years denied property owners their day in federal court — forcing them to go through the courts (and often administrative agencies) of the very states they alleged were taking their property. With no other constitutional right do you have to go through state proceedings before you can get your day in federal court — and even then most federal courts would just dismiss the case as already adjudicated (res judicata). No more. With this quirky case involving a private cemetery, the Court has rightly interred the state-litigation requirement.

In his majority opinion, Chief Justice John Roberts methodically explains why property owners’ claims accrue when the alleged taking occurs and then spends several pages evaluating stare decisis (adherence to precedent) concerns — which here fall away because of sustained criticism of Williamson County, which has proven unworkable and fomented little reliance interests. This is one of the rare 5–4 cases this term that has split on “conventional” lines (Republican-appointed justices over Democrat-appointed justices), but I doubt it’ll provoke the kind of political reaction that most other important cases that split this way do. Except perhaps for the stare decisis point, where progressives are increasingly concerned about the new conservative majority sweeping away their preferred doctrines (leading ultimately to Roe v. Wade). Still, Knick will be cited as an example of that supposed trend, rather than a focal point like Janus or Citizens United.

In any event, Knick represents the culmination of many years of challenges to Williamson County, and years of effort to put property rights (and takings claims specifically) on the same procedural footing as other rights enumerated in the Bill of Rights. Congratulations to our friends at Pacific Legal Foundation for bringing this case and many others that led up to it. Cato has been delighted to support these efforts every step of the way. See here for more background and to read Cato’s brief.

President Trump’s last minute decision to abort a US military strike on Iran is a welcome sign that someone in the administration knows when to slam the breaks on the “maximum pressure” campaign. There is no national security interest at stake in the downing of a U.S. drone in the Persian Gulf that could come close to the costs and risks associated with bombing Iranian territory and military assets. Furthermore, contrary to those in the administration that tried to encourage a U.S. strike, it is likely such an attack would be escalatory, in contrast to Trump’s strikes on Syria in 2017 and 2018. Iran has the capability to respond to nearby U.S. assets in the region, and war games run by the Pentagon going back to the Obama administration have showed even a limited attack carries a high risk of unleashing a major conflict. More troublingly, there was almost no discussion about the actual political/​military objective in striking Iran: what would such an attack seek to achieve, and how were we to measure success? Wars that begin without clear answers to these questions are doomed to failure and miscalculation.

The fact that there was hardly any discussion at all about getting authorization from Congress before deciding to engage in new military action against yet another country in the Middle East remains one of the most troubling aspects of this saga. Some members of the Trump administration, most prominently Secretary of State Mike Pompeo, have been arguing that the 2001 Authorization for the Use of Military Force (AUMF), which granted the executive branch permission to use force against the perpetrators of 9/11, also empowers the president to take unilateral military action against Iran. For evidence, officials are cherry-picking bits of intelligence to falsely depict an operational relationship between Iran and al-Qaeda. Sound familiar? The truth is that Iran has spent years killing al-Qaeda-type militants on the battlefield. America’s close allies in the Arab Gulf states, like Saudi Arabia, actually have a much more problematic relationship with Sunni terrorist groups than Iran does.

Trump’s maximum pressure campaign against Iran is clearly not working. Backing out of the Iran nuclear deal and ratcheting up the pressure has only made Iran more risk acceptant and antagonistic. The Obama administration’s diplomacy with Iran got Iran to forfeit 98 percent of its stockpile of enriched uranium and significantly roll back all elements of their nuclear program while opening up their country to intrusive international inspections. This approach also opened up diplomatic channels with Iran that helped improve Iranian behavior with respect to U.S. interests, as exemplified by the incident in which U.S. sailors in the Persian Gulf accidentally went into Iranian waters and were consequently captured, but then promptly released because Secretary Kerry had a direct channel to Iranian Foreign Minister Javad Zarif and the problem was quickly resolved.

Trump’s maximum pressure campaign, by contrast, has got Iran to threaten to expand its nuclear program and, at least according to the White House, increase hostile and destabilizing behavior in the Persian Gulf by repeatedly attacking ships and tankers. Pompeo even inadvertently admitted this in an interview with CBS on Sunday: he said that the maximum pressure campaign is intended to make Iran behave like a “normal” friendly nation, but admitted that the reason Iran is disrupting oil shipments through the Gulf (allegedly) is because the U.S. sanctions regime has tried to zero-out Iranian oil exports. Our allies in Europe and Asia continue to oppose the White House’s policy, while China continues to purchase Iranian oil exports in spite of U.S. sanctions. This approach has borne no fruit. Ideally, President Trump would take this opportunity as an inflection point and shift to a posture that at least offers Iran an achievable and face-saving diplomatic off-ramp to this unrelenting pressure. 

What is the proper policy framework for promoting financial inclusion in a free society?

New financial tools are bringing more people into the modern financial world—changing how households save, borrow, pay for everyday needs, and invest in their futures. They’re also creating new opportunities for unbanked and underbanked Americans—and new ways to serve them.

At Cato’s 5th Annual Summit on Financial Regulation, participants asked: what innovations are making access to financial services easier, safer, and more affordable? How are regulators adapting to such rapid change—and in what new ways can regulators and free markets work together to provide greater opportunities for more people to achieve economic prosperity?

Below is a summary of the event, with links to videos of each segment—the full line up and podcast versions can be found here.

Keynote Address: Jelena McWilliams, Chairman, Federal Deposit Insurance Corporation

An immigrant from the socialist republic of Yugoslavia, Jelena McWilliams arrived in the U.S. at 18 with no job, no local relatives, and no more than $500 to her name. In her opening address, McWilliams—now the Chairman of the FDIC—framed her powerful first-person narrative around her current policy philosophy: that the job of agencies like her own is to “make sure that a system built on entrepreneurship, free enterprise, and innovation continues to flourish.”

McWilliams’ remarks highlighted a number of ways that the FDIC, under her chairmanship, can fulfill that objective. These include exempting community banks from one-size-fits all regulations like the Volcker Rule, streamlining regulatory compliance requirements, and encouraging innovation in the banking sector, especially from startups and new lenders who can “offer new products and fill current gaps in underserved markets.” She spoke at length about the FDIC’s efforts to facilitate startup activity as well as lift regulations on small-dollar credit products. These products, she said, are vital to helping consumers at the margins of society begin to build good credit histories—which, as she knew from personal experience, can be the gateway to society, community, and a sense of belonging.

“People who belong are by their very nature not disenfranchised,” McWilliams said. “Economic inclusion leads to economic prosperity. I know, because I was on both sides of that proverbial fence.”

The grass, she added, was much greener on this one.

Panel I: How Credit is Reaching Underserved Communities

Bloomberg Law’s Lydia Beyoud led a discussion about how financial innovation and regulatory reform can improve credit access for low- and moderate-income (LMI) and underbanked Americans. LendUp’s Jotaka Eaddy discussed how alternative financial firms like her own are developing transparent, easily-accessible credit products and financial literacy tools that not simply provide underbanked Americans a pathway to credit, but a roadmap for building and capitalizing on that credit over time. Barry Wides, the Office of the Comptroller (OCC) of the Currency’s Deputy Comptroller for Community Affairs, discussed the OCC’s efforts to encourage greater competition in the banking sector, especially from fintechs like LendUp and other nontraditional firms. Among these, he highlighted the OCC’s recent decision to accept national bank charter applications from fintech firms.

Tom Brown, a partner at the firm Paul Hastings, pointed out that alternative financial service providers and their LMI customers face a severe disadvantage when it comes to financial inclusion. “We have regulatory barriers that are designed to reinforce a publicly granted monopoly,” he said, referring to the banking sector. No company, he argued, can offer a financial services product today without either being part of, or partnering with, the banking industry. He called for greater innovation and collaboration between the government, banking, and non-banking financial service sectors.

Cato Senior Fellow Todd Zywicki noted that regulators could do quite a lot to facilitate financial inclusion—namely, by not standing in the way of the businesses attempting to provide it. As an example, he pointed to Walmart’s ill-fated attempt at acquiring a banking charter, which the government had blocked at the behest of several large banks. He also discussed how the Credit Card Act, Durbin Amendment, and other Dodd-Frank regulations have made it more difficult for young and LMI Americans to obtain credit cards, qualify for mortgages, and achieve financial independence. Many have come to rely on payday and auto title loans as their last recourse to credit, he said; now lawmakers threaten to place similar restrictions on these products. “Financial inclusion is a moral imperative,” Zywicki insisted, adding that it was time to stop treating lower-income Americans as “second-class citizens [simply] because they lack the tools to successfully navigate the regulatory system.”

Spotlight: When Regulation Works Against Financial Inclusion

Cato Institute Policy Analyst Diego Zuluaga briefed the audience about his research on the Community Reinvestment Act (CRA) and how it had affected access to credit for LMI households in the DC region. When lawmakers passed the CRA in 1977, they hoped the Act would encourage bank lending in predominately LMI and minority communities. The law requires federal agencies to assign banks a “compliance score” based on how much of their lending goes to borrowers in historically underserved areas, and to take CRA compliance into account when considering bank branching or acquisition requests. Zuluaga explained why the Act might have outlived its usefulness and proposed a unique revision to the Act—one that would make use of the fact that CRA-exempt firms tend to do a better job of satisfying the Act’s intentions than CRA-subject ones.

Zuluaga presented data on the types of borrowers who actually receive the majority of CRA-eligible loans today. According to his research, most CRA-subject banks are “skimming the top” of their community borrowing pools, with 66% of CRA lending in the DC-area apparently going to those whom Zuluaga called “gentrifiers”—higher-income inhabitants living in traditionally lower-income communities. Zuluaga was quick to note that this behavior was not the product of any regulatory or corporate malfeasance. Instead, it was a natural consequence of the law as written, which requires due consideration for bank “safety and soundness” in its lending activities. “Even though the CRA is meeting the letter of the law,” Zuluaga explained, “it isn’t meeting the spirit of the law.”

Zuluaga proposed a solution that would take advantage of another observable market phenomenon: today, several CRA-exempt lenders seem to be better at providing credit to LMI borrowers than CRA-regulated banks. Zuluaga suggested transitioning to a system of “tradable CRA obligations,” in which banks struggling to meet the needs of their LMI borrowers can pay LMI-oriented lenders to fulfill a portion of their CRA obligations. Tradable obligations, Zuluaga noted, can better serve the intentions of the CRA—and the interests of LMI communities—than the CRA as currently constructed.

Fireside Chat with Rodney Hood, Chairman, National Credit Union Administration

CMFA Managing Director Lydia Mashburn sat down with the NCUA’s Rodney Hood, who shared his regulatory agenda for encouraging credit unions to serve LMI, minority, and underbanked Americans—something that, according to Hood, credit unions are uniquely capable of doing. Yet cumbersome regulations and Congressional inactivity often dampen credit unions’ ability to reach these populations, according to Hood. He pointed to two specific ways that Congress could help the credit unions provide greater financial opportunities for underserved communities: first, lift the cap that restricts credit union business lending to 12.25% of credit unions’ net worth; second, allow credit unions to explicitly “adopt” LMI areas in their charters.

In terms of what the NCUA itself could do, Hood explained that his regulatory approach was “pretty simple… regulation needs to be effective, but not excessive.” He added that “burdensome regulations can sometimes prevent institutions from fulfilling their mission and using the resources that they would like to use for lending and product development—[instead] they end up being used to comply with burdensome regulations.”

Rather than increase regulations, Hood intends to enhance cybersecurity measures for consumers’ financial data, provide financial firms with incentives to design more small-dollar loan products and payday loan alternatives, and collaborate with private sector stakeholders to create products, services, and programs oriented toward LMI consumers’ needs. He also highlighted the innovative ways that credit unions are currently interacting with the fintech sector to achieve these goals—using resources ranging from remote deposit apps to a disaster recovery app, which a credit union in Houston had devised and shared with others in their network.

Spotlight: Bringing Faster Payments to People

CMFA Director George Selgin provided the audience a history lesson with his spotlight session, subtitled “A Tale of Two Payment Systems.” Selgin explored the private sector’s long-standing legacy of streamlining the two main elements of a fast payment system: payment initiation on the front end, and payment completion or fulfillment on the back end. He pointed to products and apps like Venmo, Apple Pay, and Paypal as modern examples of how private sector innovation can expedite the front end of retail payments. The private sector, he noted, is just as capable of bringing the same level of innovation to the back end—and even allowing both processes to be completed simultaneously. The only problem was keeping regulators from co-opting the competition.

Selgin used two examples to illustrate his point: the Suffolk Bank’s “clearing house system,” which established the first uniform payment system in the nation 200 years ago; and a modern-day consortium of banks working together through The Clearing House (or TCH for short) to develop their real-time payment (RTP) system that not only expedites the front and back end of the retail payment process, but unifies the two. Today, customers of TCH banks (or other banks with a TCH member acting as their agent) can use the inter-bank RTP system to initiate and redeem payments between one another on the same digital platform. The innovation holds incredible promise for consumers who lack access to traditional banking services, and even provides opportunities for alternative financial institutions and community banks to participate on the same platform as corporate banking titans. But there’s a hitch: the Fed is now mulling becoming a real-time payments provider itself, in direct competition with the RTP system. That move, Selgin cautioned, could easily be at odds with achieving faster payments sooner—and seems to overstep restrictions placed on the Fed by the Monetary Control Act of 1980.

Panel II: Uses Without Abuses of Consumer Data

The Washington Examiner’s Colin Wilhelm led the day’s final panel, whose speakers considered the merits and risks of using alternative data in providing financial services—particularly credit and financial literacy tools—to low-credit and “credit invisible” Americans. The panelists emphasized the importance of consumer security, transparency, and consent when it comes to the ways that financial institutions access and use alternative data. Steven Smith of Finicity provided examples of what these data are and how firms use them today, using as an example the UltraFICO score Finicity offers in partnership with Experian and FICO. With a consumer’s permission, the UltraFICO score uses additional information from his or her bank account—such as data on regular bill payments—to render a credit score for those with little or no formal credit data. The same information could also count towards, and hopefully improve, credit for those with sub-par credit scores.

The ABA’s Rob Morgan spoke about how the private sector should develop consistent, transparent rules and guidelines for the use of consumer information. Cato adjunct scholar Dan Quan agreed that private companies are the best barometer for gauging the most accurate and reliable types of alternative data, but added that many banks still lack the personnel and expertise necessary to use such data or protect it. This prompted a conversation about how financial firms can improve their own literacy with technologies like blockchain.

The panel also touched on machine learning, along with how, or whether, firms should use innovations like artificial intelligence when making lending decisions. On the one hand, artificial intelligence relies on highly precise, impartial algorithms that can predict credit risk with remarkable accuracy. But as Tracy Basinger of the San Francisco Federal Reserve pointed out, consumers need to understand how firms obtain their data and know what types of tools lenders use to evaluate their credit and approve or set terms for loans. As more firms begin to make financial decisions based on a greater variety of consumer information and new technology, she added, consumers need to understand how a greater range of financial transactions and behaviors affect their credit. They also need to learn how to use that knowledge to their advantage—developing a sense of good credit hygiene, so to speak.

Luncheon Address: Brian Johnson, Deputy Director, Consumer Financial Protection Bureau

Closing the conference was Deputy Director of the Consumer Financial Protection Bureau Brian Johnson, who explored the relationship between financial inclusion, consumer protection, and free-market innovation. Johnson defined financial inclusion as “the availability and equality of opportunity to access financial services,” as well as the absence of impediments to consumer choice—whether these impediments come from fraudulent businesses or from restrictive regulations.

Johnson identified three types of consumer protection regulations: transparency and disclosure regulations; consumer welfare regulations (which prevent businesses from misleading or excluding consumers); and regulatory restrictions on product development and access. The first two types, in Johnson’s view, are market-enhancing. On the other hand, regulations that block consumers’ abilities to access products or business’ abilities to design them are not market-enhancing but “market replacing.” Johnson referred to this restrictive approach as “a regulatory policy of conscious financial exclusion.”

Johnson emphasized that, “[i]n exercising its authority, the CFPB should, first and foremost, be guided by the principle of promoting consumer choice.” He closed by echoing what seemed to be the consensus of the day: that “the free market is the greatest engine for economic mobility and financial inclusion.”

You don’t need a weatherman to know which way the wind blows…

-Bob Dylan, a long time ago

The winds of illiberalism are blowing strongly here and abroad and in both major political parties. What had seemed to be gusts and squalls signifying little prior to 2015 now threatens a major storm. Sen. Josh Hawley’s Ending Support for Internet Censorship Act, introduced yesterday, seems to be the latest potential disaster of this hurricane season.

Sen. Hawley won election to the Senate decrying bias against conservatives by online platforms. He now proposes to act to “correct” this presumed bias. Forty years ago, his job would have been easier. The federal government claimed ownership of the airwaves and the power to license their use by broadcasters. The Federal Communications Commission (FCC) awarded licenses to broadcasters that promoted the public interest not least in the “fairness” of their political coverage. Government officials used the leverage created by licensing to harass and censor political speech.

The federal government does not own the internet, so a new FCC seems unlikely. In fact, Congress has favored the private over the government in regulating the internet. In 1996, Congress decided to immunize internet companies against the actions of their users and to empower them to remove content for various reasons, including it being “objectionable.” The platforms could remove such material without liability “whether or not it was constitutionally protected.” Congress, not the courts, decided the First Amendment did not apply to private forums for speech.

Sen. Hawley and his allies argue Section 230 subsidizes social media. They also say that the companies originally agreed to moderate their platforms in a politically neutral way in exchange for such subsides. In fact, Congress decided social media, unlike publishers, could not control ex ante the speech of their users. Holding platforms to a publishing standard could encourage too much moderation of speech to avoid liability, thereby restricting the growth of this new industry. Congress also empowered the companies to remove speech to fight obscenity on the new medium. Section 230 has nothing in common with Congress deciding to subsidize growing (or not growing) various crops.

However flawed, the subsidy argument does get Sen. Hawley to a licensing regime for social media. Subsidies should be granted in exchange for something, and why not the original “political neutrality” Sen. Hawley claims the companies promised and failed to deliver? The license this time is called an “immunity certification” granted by the Federal Trade Commission for two years to large internet content providers. This certification establishes that an internet company “does not moderate information provided by other information content providers in a manner that is biased against a political party, political candidate, or political viewpoint.”

The meaning of those terms may matter less than the process established by the bill to certify this “political neutrality.” The companies must convince four out of five members of the FTC that their content moderation is not politically biased. That fourth vote will decide whether companies operating social media platforms are granted Section 230 immunity.

Absent that certification, a social media company could continue in business. It might avoid the liability related to suppressing speech by letting everything on the platform. But the companies don’t do that now, primarily for business reasons: many users would be repelled by a platform permitting extremism. Another response to losing “immunity certification” would be moderating too much; content moderators might suppress any speech that could lead to liability and without protections, this suppression itself would lead to more lawsuits. The result would be at best a boring service hostile to speech and again, unattractive to users. In other words, losing certification might well do lasting damage to the economic value of a platform. To avoid such losses, a company would have to do whatever is necessary for to gain that fourth vote (and certification) at the FTC. We should not give that much power over business and speech to a federal agency.

Sen. Hawley’s bill seeks to undermine an older American conservatism. Not long ago, the Reagan legacy spoke powerfully to conservatives. Of course, the Reagan administration ended the Fairness Doctrine and in general, supported markets free of government regulation. Some now believe that times have changed and the ideals of 1980 no longer should guide conservative thinking. If that was “then,” Sen. Hawley is definitely “now.” But if conservatives are turning their backs on timeless ideals like free markets and free speech, what could conservatism mean beyond political necessity and the rage of transient majorities?

One final point. Sen. Hawley’s bill might lead to a good outcome: in invalidating the law, the Supreme Court might recognize clearly that social media curation deserves strong First Amendment protections. On the other hand, we also might end up with a Red Lion decision for the internet, that is, a decision supporting state oversight of speech and business on social media. Far better for Congress to take up its constitutional duties with this bill.

Other free speech advocates reject this licensing of social media for many good reasons (see Eric Goldman’s collection of links). This debate is just beginning. We can thank Sen. Hawley for making its stakes abundantly clear.

TRAC Immigration, a project of Syracuse University, published a report this week, showing that 81 percent of recently released families apprehended at the border showed up for all of their hearings. Some immigration court locations did much better than others in obtaining compliance from immigrant families. San Francisco’s court had almost zero no-shows, while two and five skipped out in Atlanta.

TRAC’s report hypothesized that it was possible that “the lowered appearance rates in some courts arose from particular deficiencies in the recording, scheduling or notification systems there.” While this could be, there is no way to test for such variation. Another strong hypothesis, suggested by Aaron Reichlin-Melnik of American Immigration Council, is that immigrants are much more likely to fail to appear in courts where they have a lower probability of receiving asylum.

Fortunately, TRAC also reports asylum grant rates by immigration court, allowing us to test this.

Figure 1 shows the relationship between asylum grant rates in FY 2019 and family appearance rates in the ten immigration courts that received the most family docket cases (in order of the courts with most cases). These ten court were initially designated to track “family unit” cases in November 2018, and while this practice has expanded to several other courts, 87 percent of the family cases tracked by the government are still in these ten courts.

The five courts with the highest appearance rates had asylum grant rates on average 55 percent higher than the five courts with the lowest appearance rates (37 percent to 23 percent). The five most successful courts had 89 percent of their immigrant families appear at all hearings compared to 75 percent at the other five courts.

The asylum grant rate in 2019 predicted a very significant portion of the variance in appearance rates between courts—42 percent to be precise—that year, and a 10 percentage point increase in the asylum grant rate in a court is associated with almost a 3 percentage point increase in the appearance rate for that court. There are other ways to measure the asylum grant rate. The immigration courts include asylum cases that were closed without a decision being made on the merits. But using that metric doesn’t change the association.

Higher failure to appear rates do not explain the higher denial rates, as just 1.4 percent of asylum denials are a result of a failure of the immigrant to appear. People who skip almost always do so before they officially file for asylum. It could be that immigrants who go to certain courts like Atlanta have worse asylum claims to begin with, but as TRAC notes, “there seems little reason for families with different strengths of asylum claims to migrate to some parts of the country and avoid others.”

Ultimately, the identity of the judge seems like the most important factor in winning asylum. The Government Accountability Office in 2016 found that even controlling for other relevant factors, “the defensive asylum grant would vary by 57 percentage points if different immigration judges heard the case of a representative applicant with the same average characteristics we measured.” It would be very useful if TRAC published data on the appearance rates by judge to determine if it’s the location or the judge that matters the most.

Obviously, because we only have data for a few courts in 1 year, it is impossible to nail down this relationship with certainty, but it appears that if every court had the same asylum grant rate as San Francisco (68 percent), the appearance rate for families would have increased to 90 percent. It may seem obvious that the likelihood of success in court makes people more likely to follow the legal process. But many people’s impression is that every asylum applicant has no case, so they have no reason to show up. That’s false, but unfortunately, some courts are turning this theory into a self-fulling prophecy.

This morning, the Supreme Court ruled in American Legion v. American Humanist Association that a 100-year-old cross WWI memorial in Bladensburg, Maryland, doesn’t “establish” religion. That’s the correct result (read Cato’s brief), but the mish-mash of opinions — it took a paragraph to explain which justice was joining which aspect of the decision — leaves Establishment Clause jurisprudence in the muddled state it’s been for decades.

That is, much like in the Ten Commandments cases in 2005, the cross here survived largely because it’s really, really old. Justice Alito’s majority opinion does well not to apply the much-ballyhooed Lemon test — looking to purpose and effects of government action, as well as “entanglement” with religion — but lost votes when he began to squeeze it. Still, with Justice Gorsuch (joined by Justice Thomas) saying that Lemon is now “shelved” and Justice Kavanaugh noting that “the Court no longer applies the old test articulated by Lemon,” it’s pretty clear that this nearly 50-year-old case is pretty much obsolete, at least in cases involving religious symbols (and probably in all Establishment Clause cases, as Justice Kavanaugh describes).

Then why not go further and scrap it explicitly? This area of law has long been plagued with judicial hand-waving at nebulous standards, producing results good for a particular case but without real guidance about the kinds of actions regarding religion that governments can take (or allow to be taken on government property). 

James Madison, arguably the most influential framer of the Constitution, strongly opposed state religion because colonial Virginia was teeming with religious persecution. Preachers were jailed for simply publishing their religious views, and the official state religion was integrated with many parts of the government. This had a profound effect on Madison. When he wrote his draft of the First Amendment, Madison envisioned the Establishment Clause as the culmination of his philosophy on religion and government, with liberty of conscience as the centerpiece. His purpose was to ensure that people could exercise their faith free from compulsion. The Establishment Clause, thus, was a shield to defend “individual liberty of conscience.”

As Justices Thomas and Gorsuch explain in their concurrences, the Court in future should return to the original public meaning of the Establishment Clause, which ensures liberty of conscience and protects people from truly “established” state religions that coerce belief and support. A non-coercive, harmless monument — a cross memorial, or a Star of David, or any other religious symbol — is not an establishment of religion. As seven justices correctly found here, tearing down an old war memorial instead establishes an anti-religious orthodoxy, with a mandate that religious symbols be eradicated from public life.

The Framers did not intend for that to happen, but maybe the fact that we’re fighting over things like this is a good indication that nobody in America is really trying to establish religion any more — compelling religious worship, on penalty of state law — that the danger to the freedom of conscience comes more from government mandates and regulations that infringe on the free exercise of systems of belief, religious and secular alike.

Customs and Border Protection (CBP) just announced that they have apprehended 787,161 people from the beginning of fiscal year (FY) 2019 through to the end of May 2019. CBP apprehended 144, 278 people in May alone, marking the third month in a row that more than 100,000 people have been apprehended. Relative to the end of May in FY2018, apprehensions this year are up 178 percent. Although the number of apprehensions is rising, the number of criminal aliens encountered by CBP is lower than in previous years.

CBP identifies criminal aliens as those who have been convicted of crimes here or abroad if the conviction is for conduct which is also criminal in the United States. From the beginning of FY 2015 through the end of May 2019, the absolute number and percent of criminal aliens encountered by CBP, which includes Border Patrol and the Office of Field Operations, have fallen in every year. In 2015, about 7.49 percent of all CBP apprehensions were criminal aliens or had warrants or wants out for their arrests (Figure 1). For FY 2019 through the end of May, only about 2 percent of people apprehended by CBP were criminal aliens or had warrants or wants out for their arrests. Some of those people arrested for warrants or wants are U.S. citizens, so these numbers exaggerate the extent of criminal arrests at the border.

The absolute number of criminal aliens apprehended is also dropping. If the number of criminal aliens apprehended continues to decline apace for FY 2019, the absolute number will be also about 25 percent below the total number apprehended in 2015.

From FY 2015 to FY 2019, the percentage of those apprehended by CBP who were non-criminals and without warrants or wants rose from 92.5 percent to 98 percent while the percentage who were convicted criminals fell from 5.9 percent to 1.5 percent (Figure 1). In absolute numbers, criminal aliens have also declined from 32,479 arrests in FY 2015 to 11,483 through the first eight months of FY 2019. If the trend of criminal alien apprehensions continues for the rest of FY2019, there will be about 15,272 by the end of FY2019 – well below the 20,486 recorded in FY2018.

One counter-argument against this finding is that Border Patrol agents are capturing fewer criminals. Those agents are now assigned to processing asylum claims, which means that fewer are patrolling the border and more criminal aliens are evading detection, which leads to the theory that the falling number of criminal aliens could arise from a lack of detection rather than the flow being less crime-prone. The number of single adults apprehended in recent years is evidence against that theory. They are most likely to be criminals or have warrants out for their arrests, but the number is roughly steady over the FY2015-FY2019 period even though the number of criminals encountered is falling. By the end of this fiscal year, their numbers should be at their highest level since FY2015 if the trends continue, but the criminal arrests will be far below the high in FY2015. This isn’t a slam dunk response but merely evidence against that theory.

The most consistent argument wielded in support of closing the border, harsher border security methods, or restricting asylum is that those being apprehended are criminals who pose a serious threat to Americans. Based on data supplied by CBP, the absolute number of criminal aliens or those with warrants or wants and their proportion of all apprehensions along the border are lower in FY 2019 than in previous years.