Facebook has set out a draft charter for an “Oversight Board for Content Decisions.” This document represents the first concrete step yet toward the “Supreme Court” for content moderation suggested by Mark Zuckerberg. The draft charter outlines the board itself and poses several related questions for interested parties. I will offer thoughts on those questions in upcoming blog posts. I begin here not with a question posed by Facebook, but rather by discussing two values I think get too little attention in the charter: legitimacy and deliberation.

The draft charter mentions “legitimacy” once: “The public legitimacy of the board will grow from the transparent, independent decisions that the board makes.” Legitimacy is commonly defined as conforming to law or existing rules (see, for example, the American Heritage Dictionary). But Facebook is clearly thinking more broadly, and they are wise to do so. Those who remove content from Facebook (and the board that judges the propriety of those removals) have considerable power. The authors of banned content acquire at least a certain stigma and may incur a broader social censure. Facebook has every legal right to remove the content, but they also need public acceptance of this power to impose costs on others. Absent that acceptance, the oversight board might become just another site of irreconcilable political differences or worse, “the removed” will call in the government to make things right. The oversight board should achieve many goals, but its architects might think first about its legitimacy.

The term “deliberation” also gets one mention in the draft charter: “Members will commit themselves not to reveal private deliberations except as expressed in official board explanations and decisions.” So there will be deliberations, and they will not be public (more on this in later posts about transparency). The case for deliberation is strengthened by considering its absence.

The draft could have said “members will commit themselves not to reveal private voting.…” In a pure stakeholder model of the board, members would accurately represent the Facebook community (that is, they would be diverse). Members would consider the case before them and vote to advance the interests of those they represent. No deliberation would be necessary, though talk among members might be permitted. And, of course, such voting could be both transparent and independent. But the decision would be a mere weighing of interests rather than a consideration of reasons.

Why would those disappointed by the decision nonetheless consider it legitimate? Facebook could say to the disappointed: The board has final say on appeals of content moderation (after all, it’s in the terms of service you signed), and this is their decision. Logically that deduction might do the trick, but I think a somewhat different process might increase the legitimacy of the content moderation in the eyes of the disappointed. 

Consider a deliberative model for the board. A subset of the board meets and discusses the case before them. Arguments are offered, values probed, and conclusions reached. But the votes on the case would be informed by the prior deliberation. Members will represent the larger community in its many facets, but the path from representation to voting will include a collective giving and taking of reasons. That difference, I think, makes the deliberative model more likely to gain legitimacy. Simply losing a vote can seem like an expression of power. Losing an argument is more acceptable, and later the argument might be renewed with a different outcome.

The importance of deliberation implicates other values in the charter, especially independence. The draft places great weight on the independence of the board from Facebook. That emphasis is understandable. Critics have said Facebook will turn a blind eye to dangerous speech because it attracts attention and thereby, advertising dollars (Mark Zuckerberg has rebutted this criticism). The emphasis on independence from the business contains a truth: a board dedicated to maximizing Facebook’s quarterly returns might have a hard time gaining legitimacy. But the board’s deliberations should not be completely independent of Facebook. Facebook needs to make money to exist. Doing great harm to Facebook as a business cannot be part of the remit of the board. 

Here, as so often in life, James Madison has something valuable to add. In Federalist 10, Madison argues that political institutions should be designed to protect the rights of citizens and to advance “the permanent and aggregate interests of the community.” Facebook is a community. The Community Standards (and the board’s interpretation of them) should serve the permanent and aggregate interests of that community. The prosperity of the company (though perhaps not necessarily at every margin) is surely in the interest of the community. The interests represented on the board are a starting point for understanding the interests of that community, but in themselves they are not enough for that. Deliberation might be the bridge between those interests and the “permanent and aggregate interests of the community.” Looked at that way, most users would have a reason to believe in the legitimacy of a deliberative board as opposed to a board of stakeholders.

Facebook’s draft charter evinces hard work and thought. But it could benefit from more focus on the conditions for the legitimacy of the oversight board. Deliberation (rather than simple interest representation) is part of the answer to the legitimacy question. As deliberations go forward, perhaps the charter’s framers might give more attention to how institutional design can foster deliberation.

This morning I gave oral testimony to the Vermont Senate Economic Committee on their proposal to raise the state minimum wage to $15 an hour by 2024. As part of my written evidence, I explored in detail the rationale for minimum wage hikes from the “Fight for $15” campaigners and other think-tanks. Below is a slightly edited version of that section of my testimony, which has wider applicability.

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Theoretically, a minimum wage hike can improve the functioning of a labor market when employers are “monopsonistic.” When firms have significant labor market power over employees, raising a wage floor can increase both pay for workers and employment levels. Some economists have argued that most firms do have a slight degree of monopsony power over their employees. This suggests a modest minimum wage can, in some cases, actually improve economic efficiency, ending so-called “exploitative” low wage rates without reducing employment.

But those advocating minimum wage hikes across America today do not use this economic line of argument. Bureau of Labor Statistics data shows 84 percent of employees paid at or below the federal minimum wage work for businesses in retail, leisure and hospitality, and education and health services. These industries do not tend to be characterized by powerful companies which dominate local labor markets. The theoretical economic case for minimum wage hikes to solve “market failures” is therefore weak.

Instead, proponents of higher minimum wages assert that legislation should deliver some target level for minimum hourly wages to fulfill other objectives. Their rationale is really about giving minimum wage earners more money. And they use a host of metrics to show that, currently, minimum wage earners are just not being paid enough.

But what should determine where the minimum wage level is set? Ideas seemingly differ across $15 wage proponents. Some implicitly argue that minimum wages should be set to cover certain essential living costs. Democratic presidential primary candidate Elizabeth Warren, for example, suggested this when she claimed:

When I was a kid, a minimum wage job in America would support a family of three. It would pay a mortgage, keep the utilities on and put food on the table. Today, a minimum-wage job in America will not keep a mama and a baby out of poverty.

Others prefer different metrics. In testimony to this committee, David Cooper of the Economic Policy Institute documented extensively how current minimum wage rates had not “kept up” with average wages or economy-wide productivity levels, and did not provide incomes for full-time workers to cross certain poverty thresholds.

None of these claims are disputable as facts. But I want to suggest that those metrics are not appropriate for judging what the Vermont minimum wage should be. Devoid of broader context, they are misleading and might lead to damaging policy conclusions.

Cost of living: It’s important to remember that employers pay employees for the perceived value of the work undertaken, not to compensate workers for their rent, food, energy, transport, clothes or child-care bills (which will differ hugely by family and are beyond employers’ control).

High living costs are a very under-discussed cause of economic hardship. My own research has found typical poor American households face higher prices on essential goods and services due to misguided interventions and regulations that cost them between $800 and $3,500 in total per year.

Rather than tackle the causes of these high prices, minimum wage hike campaigners want businesses to bear the cost of compensating workers for their living expenses. This is not economically sensible. Putting the full burden of the cost of living on shareholders and customers of low wage employers, divorcing pay rates from the work employees undertake, market conditions, and firms’ ability to pay, could risk a significant diminution in low wage job opportunities.

Productivity: Economy-wide labor productivity has risen faster than minimum wage rates over the last fifty years. Given productivity changes should affect worker total compensation levels, $15 wage campaigners imply that minimum wage workers are being paid below what their productivity commands.

But comparing productivity gains of all workers to speculate what hourly wage rates should be for minimum wage workers alone is misguided. After all, different industries experience different productivity growth rates over time.

Sadly, a productivity growth series solely for minimum wage workers is not available. But long-term data for the food services industry might be a reasonable proxy. Bureau of Labor Statistics data show that from 1987 to 2017, labor productivity in the food service sector rose by an average of just 0.4 percent per year (with unit labor costs increasing by 3.2 percent per year). If the minimum wage had been pegged to this productivity measure, it would have increased by 13 percent in real terms – from $7.16 in 1987 (2017 dollars) to $8.06 in 2017.

The actual 2017 federal minimum was, of course, $7.25 in 2017 and the Vermont minimum wage was $10. Using this productivity series and start date then, the Vermont minimum wage is now higher than justified by food service productivity improvements since 1987.

This does not prove that Vermont minimum wage rate increases have exceeded the productivity growth of all minimum wage employees, nor does it tell us what the minimum wage level should be according to this measure (given the necessary arbitrary start date). But it does show the danger of making spurious comparisons between economy-wide productivity and minimum wage rates. Pegging minimum wage rates to aggregate productivity trends might lead us to deliver much higher wage floors than justified by the productivity of workers in certain sectors, causing significant job losses or other adjustments.

Poverty: A stated ambition of $15 minimum wage advocates is to lift households above poverty thresholds. Minimum wage hikes can achieve this by raising incomes for minimum wage earners. Yet poverty is measured at the household level. The very reason why minimum wages were not used as a primary tool to reduce poverty for households in recent decades is that they were not considered particularly well targeted or effective.

First, people who earn around the minimum wage are often not from poor households. In 2014, the economist Joseph Sabia estimated just 13 percent of workers on hourly rates between $7.25 and $10.10 lived in households below the poverty line. Many people earning around the current minimum wage rate are second earners (particularly part-time) or young people who live in households with parents not in poverty. Second, minimum wage hikes could have adverse consequences on employment prospects by raising business costs.

That’s why economists have long concluded that in-work income transfers to families with children through programs such as the earned income tax credit (EITC) are better targeted at reducing poverty. Many believe they are preferable to minimum wages as a poverty reduction policy, because they encourage work while boosting incomes of poor households, rather than discouraging employers from hiring (though they come with other problems).

Yet poverty thresholds themselves ignore the EITC and other transfers that have expanded in recent decades. Comparing the income for a full-time minimum wage earner to poverty thresholds is therefore very misleading on the living standards many households actually enjoy.

In short, the metrics that $15 minimum wage advocates use to make the case for substantial hikes are not economically sensible benchmarks. For all the noise and economics‑y language of their arguments, economists generally oppose manipulating prices to obtain social policy objectives.

Your focus in considering this policy proposal should center instead on traditional labor market economics.

Changing the legislated minimum wage affects both:

1) the incomes of minimum wage workers who maintain their jobs and hours

2) the number of jobs and hours of work employers demand, and broader working conditions, due to the change in business costs.

Standard economics tells us that, in most cases, raising the minimum wage will boost 1) and reduce 2). What becomes crucial then is considering the potential size of these two effects and judging their importance to achieving your objectives. The first requires drawing on economic evidence. The latter is more a question of philosophy.

One year ago Cato published my policy analysis, “Abuse-Deterrent Opioids and the Law of Unintended Consequences,” which provided strong evidence that reformulating opioids, so that they could not be crushed for snorting or dissolved for injecting by nonmedical users, only served to drive nonmedical users to more dangerous, readily available, and cheaper heroin provided by the efficient black market. 

The evidence included a RAND study that found “a substantial share of the dramatic increase in heroin deaths since 2010 can be attributed to the reformulation of OxyContin” which replaced regular OxyContin in 2010. It also included a study from researchers at Notre Dame and Boston Universities that found:

When we combine heroin and opioid deaths together, we find no evidence that total heroin and opioid deaths fell at all after the reformulation—there appears to have been one-for-one substitution of heroin deaths for opioid deaths.

Now comes a new RAND study that finds the abuse-deterrent reformulation of OxyContin led to an increase in cases of hepatitis C from IV drug use. As nonmedical users switched from OxyContin to injectable heroin, more became exposed to hepatitis C, transmitted by needle sharing.

The study compared states with above-median misuse rates of OxyContin to states with below-median misuse rates before and after the drug’s reformulation—from 2004 to 2015. Prior to the reformulation there was almost no difference in hepatitis C infection rates between the states. After the reformulation, states with above-median misuse rates saw a 222 percent increase in hepatitis C infections, while the below-median states saw a 75 percent increase during the same period. 

Add hepatitis C to the list of unintended consequences from abuse-deterrent reformulation of opioids.

Despite mounting evidence that abuse-deterrent reformulation of opioids has done nothing to reduce overdoses but may in fact be adding to them, the Food and Drug Administration continues to encourage pharmaceutical manufacturers to bring more abuse-deterrent formulations to market. As was the case with OxyContin, reformulation often results in extension of existing patents, reducing competition from generics and allowing patent holders to charge and profit more from their product. So opioid manufacturers are answering the FDA’s call for more abuse-deterrent reformulations.

Now that we have strong evidence that abuse-deterrent formulations spread disease as well as death, perhaps the FDA will reconsider this ill-advised policy.

Governor Andrew Cuomo announced yesterday “a dramatic drop in state income tax revenue of $2.8 billion.” More high earners appear to be leaving New York than expected in response to the 2017 federal tax reform. “Cuomo said the law’s cap on deductions for state and local taxes at $10,000 was to blame and suggested it is, anecdotally, triggering high-earners to leave New York.”

Data from both the Census Bureau and Internal Revenue Service have long shown that Americans are, on net, moving from higher-tax states such as New York to lower-tax states such as Florida. The issue now is whether the 2017 tax law has accelerated the trend.

Newsday notes, “Cuomo blames Trump and his 2017 tax cut legislation for prompting New York’s wealthiest taxpayers to change their legal address to another state to avoid a big federal tax hit. He said he bases this on anecdotal stories, not hard facts yet, but that the behavior of just a few thousand of these high-earners could have a significant impact on state revenues.”

One way to get a real-time glimpse of migration patterns is to see where real estate prices and purchases are rising and falling. The Wall Street Journal reports:

A growing list of public officials in high-tax states are expressing alarm that big earners are bolting to low-tax states as new data suggests some home buyers are moving in response to the year-old change in the federal tax law.

… Preliminary data show a jump in Florida home purchases by buyers from high-tax states. Home values in lower-tax areas have been rising faster than those in places where limiting the ability to deduct high state and local taxes eroded some of the savings from the federal tax reduction, according to an analysis by real estate and data firm Zillow.

One of the biggest winners from this shift has been Miami. The city is experiencing more activity than usual from buyers living in states like New York, New Jersey and Illinois. People are drawn to the city by mild weather—as always—and by deals on condos and lower taxes.

… While high-end condo prices in Miami have flattened out or even declined a bit in recent months as foreign buyers have pulled back, the market is holding up much better than New York City’s. Manhattan co-op and condo sales last year were down 12% from 2017 to their lowest level since 2009, a Wall Street Journal analysis found.

Other low-tax cities are also doing well. Las Vegas and Phoenix have slowed a bit recently but still have the fastest home-price growth among major metropolitan areas, according to the S&P CoreLogic Case-Shiller home-price indexes. Brokers credit Californians fleeing rising home prices and tax changes.

… Nelson Gonzalez, a senior vice president at EWM Realty International in Miami, said that in the past year most of the buyers for high-end listings that he encounters are from high-tax states in the U. S.—a big change from several years ago when he mostly saw foreigners. “Ninety percent of all the deals over $10 million were tax refugees,” he said.

… “A lot of rich people are trying to find a way out of New York,” said Barry Horowitz, an accountant who specializes in helping clients switch residency to lower-tax states. 

… Carney Shegerian, a 54-year-old lawyer from Los Angeles, recently bought a three-bedroom condo in the Aria on the Bay tower in Miami for about $1.5 million. He said he plans to move there permanently and open a new branch of his law practice. The unit “is a great value compared with what you’d get in Los Angeles,” Mr. Shegerian said. And the lack of income tax in Florida is “attractive to anyone,” he said.

These new moves have likely strengthened existing migration patterns, which are shown in the chart. Each blue dot is a state. The vertical axis shows the mid-2017 to mid-2018 Census net interstate migration figure as a percentage of state population. The horizontal axis shows state and local household taxes as a percentage of personal income. Household taxes include individual income, sales, and property taxes. The red line shows the fitted relationship between the two variables.

On the right, most of the high-tax states have net out-migration. The blue dot on the far right is New York with a tax burden of 13 percent and a net migration loss of nearly 1 percent (0.92) over the year.

On the left, nearly all the net in-migration states have tax loads of less than 8.5 percent. If policymakers want their states to be attractive, they should reduce their household tax burdens to 8.5 percent or less of personal income.

Governor Cuomo recognizes the out-migration problem, but what will he do about it? Newsday says that he is considering spending cuts to balance the state budget, which would be a good start.

The new federal tax law should be a wakeup call for out-migration states to improve their tax climates and trim their governments. High-tax states should aim to create simpler, lower-rate tax codes and improve the quality and efficiency of government services.

More here and here.

Everyone knows the government can’t ban political speech, but what about putting conditions on it? The Supreme Court has (for better or for worse) upheld noise ordinances and restrictions on the time, place, and manner of speech, but what if a state banned political speech with an exception for those who could successfully turn lead into gold? Would this be a complete ban? Or would the impossible alchemists’ exception mean it could somehow be squared with the First Amendment?

That hypothetical might sound absurd, but is effectively how California currently treats handguns. California’s Crime Gun Identification Act of 2007 was the first piece of legislation to require firearms in the United States to contain “microstamping” technology. It requires that any new semiautomatic handgun sold in California must stamp each fired casing in two locations with “a microscopic array of characters that identify the make, model, and serial number of the pistol.”

There are a number of problems with this law, but one stood out to us: the technology to do what California demands does not exist. While a patent exists and prototypes were tested, the concept remains “unreliable, easily defeated and simply impossible to implement.” Because of this, no gunmaker has been able to introduce a new firearm to California since 2013.

Ivan Pena, Roy Vargas, the Second Amendment Foundation, and others challenged the law in federal court. Pena had sought to buy a handgun that was previously legal in California, while Vargas, who was born without an arm below the right elbow, was unable to buy a new firearm with controls best suited to his needs. The district court found for the state and the Ninth Circuit affirmed, believing that the technology was perfectly feasible (despite a lack of evidence) but that gun companies simply didn’t want to comply.

The plaintiffs now seek Supreme Court review, hoping to have their right to arms vindicated. Because the law cannot require the impossible, especially in the context of fundamental rights, Cato has filed an amicus brief supporting their petition.

We provide a technical primer on the functionality of semi-automatic handguns, explaining why what California is asking for is impossible. As the Court made clear in D.C. v. Heller (2008), a “prohibition of an entire class of ‘arms’… overwhelmingly chosen by American society” for lawful purposes is unconstitutional. That’s precisely what California is attempting here: to slowly but surely ban the sale of new handguns—the weapons Americans overwhelmingly choose for self-defense—through the imposition of impossible conditions.

The Second Amendment was not written to reward lawmakers for using creative and confusing mechanisms to reach the same ends the Constitution forbids. Allowing this broad, unreasonable ban contravenes the Founding-era understanding that the Second Amendment protects the right of all American to buy and sell commonly used arms for lawful purposes nationwide.

We’ll learn later this winter whether the Supreme Court will take up Pena v. Horan.

As I describe alongside Ilya and Trevor in our recent filing, in Kisor v. Wilkie, the Supreme Court has agreed to revisit the Auer v. Robbins doctrine, which requires courts to give binding deference to an agency’s interpretation of its own regulations.

Setting aside the arguments for overturning Auer, the purpose of this post is to address a couple recent arguments in favor of retaining Auer. Every day last week, the invaluable SCOTUSblog published a post in a symposium about Kisor. For my part, I was struck by two points repeated by some or all of the proponents of Auer deference.

The first eye-catching claim is that Kisor is a bad vehicle for addressing many of the complaints raised against Auer deference. Explains Prof. Gillian Metzger:

Central to the attack on Auer are concerns that by deferring to agencies’ interpretations of their own rules, courts encourage agencies to adopt broad and vague regulations in order to maximize their interpretative freedom. Auer critics worry that agencies will exploit that freedom to change policy through informal issuances that avoid the rigors of notice-and-comment rulemaking. But these concerns are decidedly not present in Kisor itself. The regulatory interpretation at issue in Kisor was reached through formal adjudication, with ample process and two levels of well-justified administrative decisions.

And here’s Prof. Adrian Vermeule making this same point:

Petitioners in cases like Kisor typically want to focus not on (formal) adjudication but on interpretation through guidances, which they take to be the best case for their critique of Auer. It is thus extremely awkward for the petitioners in Kisor that, in their own case, the agency interpretation was instituted by means of a relatively formal adjudication, not a guidance. This means that the principle of agency procedural discretion over the choice between rulemaking and adjudication is at maximum force.

I highlighted the identical problem with their argument, which is their mischaracterization of the administrative process by which the agency issued its interpretation in Kisor. Both Metzger and Vermeule claim that the regulatory interpretation at issue in Kisor resulted from a formal adjudication, but that’s an incomplete description. The professors suggest that the regulatory interpretation resulted from a textbook-style adjudication under the Administrative Procedure Act. Under this process, a claims officer rules against the applicant on the basis of a regulatory interpretation; then the parties dispute the interpretation before the administrative tribunal; and, finally, the tribunal would resolve the interpretation in a final order.

Were this what actually happened in the Kisor controversy, then the professors would have a valid point. But that’s not what happened. Instead, the Department of Veterans Affairs issued its regulatory interpretation completely unprompted (not after an adversarial process). To be sure, the agency could have issued its regulatory interpretation when it last amended its rules, in 2006. But the agency chose to leave the regulation vague. And because the agency’s subsequent interpretation escaped any procedural safeguard whatsoever from the regulatory agency, Kisor is, in fact, an excellent vehicle for reexamining Auer.

The second striking commonality among Auer proponents at SCOTUSblog is their excessive speculation. Specifically, each scholar voiced the alarming possibility that overturning Auer would rock the foundations of administrative law. Per Vermeule, “overruling Auer would cause ramifying, unpredictable consequences throughout the structure of administrative law.” Metzger echoes the same point: “The radical import of these attacks is not limited to overturning Auer, but would call into question the core legal foundations of the administrative state.” For that matter, here’s Brianne Gorod, chief counsel at the Constitutional Accountability Center (with whom Cato joins on briefs in other areas of law), writing that “these attacks on Auer are part of a broader attack on the administrative state.”

On reading these claims, you might be having the same reaction that I had: How on earth did we go from Kisor to endangering “the core legal foundations of the administrative state”? Respectfully, I do not believe that these supposed ripple effects withstand scrutiny.

For example, Vermeule argues that Kisor threatens the venerable Chenery II doctrine (which stands for the principle that, unless Congress directs otherwise, a regulatory agency has the discretion to render policy either through legislative rules or formal adjudication):

For the Supreme Court to overrule Auer in this setting would raise grave questions about [Chenery II]. It is not at all difficult to imagine that lower courts, wishing to go much further than the court’s majority, would extrapolate the supposed principles of the decision to attempt to undermine Chenery II as well.

Vermeule’s thinking here is somewhat opaque, but I engaged him on Twitter, and he explained that his claim involves two inferences piled on top of one another. First, he posits that agencies, when faced with the Chenery II principle in a post-Auer world, would undertake more adjudications and fewer rulemakings. This is a fair point; one that was made in an excellent article by Prof. Aaron Nielson, which Vermeule directly referenced in our conversation on social media. But Vermeule goes one step further. He speculates that the agencies’ response to Kisor, in turn, would engender a response from the lower courts that would “undermine” Chenery II. The problem is that his argument is too attenuated. First, he infers how agencies would respond to the Supreme Court overturning the Auer doctrine in Kisor; then, based on this assumption, Vermeule further speculates how courts would respond to the hypothetical agency response. 

An equally improbable connection is drawn between rejecting the Auer doctrine in Kisor and upsetting judicial deference to an agency’s statutory interpretations, known as the Chevron doctrine. On this subject, Vermeule avers:

[T]his is largely uncharted territory, which implies uncertainty and risk for the Supreme Court. Any such exception to stare decisis would be ill-defined and highly susceptible to manipulation and expansion in later cases, with unpredictable consequences in a large and indefinite range of other areas. Surely the stare decisis force of Chevron would be equally affected, for similar reasons…”

On the same subject, here’s Metzger:

Efforts to challenge Auer deference on statutory grounds, as violating the APA’s instruction that “the reviewing court shall decide all relevant questions of law,” might at first seem less threatening. Even these statutory moves are not easily cabined, however, and would cast doubt on other deference doctrines.

The problem with this argument is that Auer and Chevron, notwithstanding similarities in form, are grounded in distinct legal rationales. As Prof. Jonathan Adler explains in his own SCOTUSblog post:

Some fear that eliminating Auer deference could lay the foundation for undoing much of contemporary administrative law … Such concerns are misplaced. Whatever the faults of Chevron or other administrative law doctrines, Auer can stand or fall on its own …

Chevron deference is grounded in a theory of delegation … As Chief Justice John Roberts explained in King v. Burwell, Chevron “is premised on the theory that a statute’s ambiguity constitutes an implicit delegation from Congress to the agency to fill in the statutory gaps.”…

Whereas Congress can be said to have delegated the interpretive authority that underlies Chevron deference, neither Auer nor Seminole Rock even purports to provide an equivalent foundation for a doctrine of deference to agency interpretations of their own regulations. Nor could they, as the interpretive authority at issue in Auer cases comes not from ambiguities left by Congress but from ambiguities left by the agencies themselves, and it is nonsensical to say that agencies have delegated interpretive authority to themselves.

The upshot is that Chevron is immune from Kisor, and the proponents of Auer have presented no plausible link between the fate of the two cases.

To be clear, I admire and respect the prodigious legal talents of Metzger, Vermeule, and Gorod. They are brilliant administrative law scholars and practitioners. But I think they’re reaching in their defense of the Auer doctrine in Kisor. As I digested these speculative arguments regarding Kisor’s putatively dire implications, I recalled Carl Sandburg’s famous quip: “If the facts are against you, argue the law. If the law is against you, argue the facts. If the law and the facts are against you, pound the table and yell like hell.”

American foreign policy sits at a crossroads. The War on Terror continues, but is increasingly unpopular, while the rise of Donald Trump has reignited debates over America’s role in the world. Policy-relevant academic research on key questions of international security and national security policy is more important than ever.

The Cato Institute will be hosting a paper workshop for graduate students on topics broadly related to international security and national security policy in Washington, D.C. in late October 2019. Topics may include a wide range of security issues, including but not limited to U.S. foreign policy, the causes and consequences of conflict, military effectiveness, grand strategy, civil-military relations, alliances and security institutions, terrorism, military intervention, diplomatic history, arms control and nuclear proliferation.

Participants will be expected to produce an original paper of journal-article length; the workshop will focus on paper presentations, discussion and suggestions for improvement, with the expectation that authors will go on to seek publication in external journals or to build upon this research as they move towards the dissertation phase of their studies.

Participants are particularly expected to highlight the policy relevance of their work. In keeping with the Cato Institute’s commitment  to moving U.S. foreign policy towards prudence and restraint, the policy implications of papers should be broadly compatible with a pragmatic realist approach to foreign policy.

The workshop will be held at Cato’s offices in Washington, D.C. Participants will receive a stipend of $500, and will have reasonable travel and accommodation costs for the workshop covered.

To apply, submit an abstract of around 500 words to juniorscholars@​cato.​org by no later than April 1, 2019. The abstract should detail your proposed research project, and be accompanied by a CV. Candidates should have a background in political science, history, public policy or a related field, and must have completed at least one year of graduate study in a PhD program by the time of the workshop. All candidates will be notified of the status of their application by May 6th, and draft papers will be due on October 7th.