In my new policy analysis released today, I identify 65 vetting failures where the visa vetting system allowed a foreign-born person to enter the United States as an adult or older teenager when they had already radicalized—80 percent occurred before 9/11. Just 13 vetting failures have occurred since 9/11, and only one—the last one (Tashfeen Malik)—resulted in any deaths in the United States. That’s one vetting failure for every 29 million visa or status approvals, and one deadly failure for every 379 million visa or status approvals from 2002 to 2016.
As I note, 9/11 is reasonable point of analysis because after the attacks the United States invested heavily in new vetting procedures. I define vetting failure as broadly as possible to include even private thoughts that later became public and anyone who committed their offense within a decade of entry even without evidence that they radicalized before entry. The vast majority of terrorism offenders both before and after 9/11 were born in the United States, grew up here, or lived for lengthy periods before they committed an offense.
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Justice Gorsuch on Overcriminalization and Arbitrary Prosecution
“Vague laws invite arbitrary power.”
That’s the opening line and general theme of Justice Neil Gorsuch’s concurring opinion in Sessions v. Dimaya, announced today. In this case, Justice Gorsuch joined the Court’s four “liberals” in a 5–4 decision holding unconstitutional a provision of the Immigration and Nationality Act, which renders deportable any alien convicted of an “aggravated felony.” This statutory phrase is defined to include a “crime of violence,” which itself is defined to include both crimes where use or threat of force is an element, as well as “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” It was this last provision — the “residual clause” of the statute — that was at issue in the case. The majority held that this abstract definition was “impermissibly vague,” and thus a violation of the Fifth Amendment’s Due Process Clause.
In his separate opinion, Justice Gorsuch gave a detailed analysis of the history and legal foundations of the void-for-vagueness doctrine (largely in response to Justice Thomas, who questioned the propriety of this constitutional doctrine both here and in a similar prior case, Johnson v. United States). His concurrence argues that courts must review and strike down unconstitutionally vague statutes, not just to ensure fair notice to potential defendants, but also to enforce the separation of powers between the branches of government:
Read the rest of this post →Under the Constitution, the adoption of new laws restricting liberty is supposed to be a hard business, the product of an open and public debate among a large and diverse number of elected representatives. Allowing the legislature to hand off the job of lawmaking risks substituting this design for one where legislation is made easy, with a mere handful of unelected judges and prosecutors free to “condem[n] all that [they] personally disapprove and for no better reason than [they] disapprove it.”
Democrats and Republicans Should Both Oppose E‑Verify
Florida’s Constitution Revision Commission, a group that meets every 20 years to recommend changes to Florida’s state constitution, yesterday rejected a proposal to add mandatory E‑Verify to the ballot next November. The American Business Immigration Coalition and Immigration Partnership & Coalition Fund led the fight against the proposal (full disclosure: those groups used Cato’s research in their efforts to stop E‑Verify and I did have contact with them during the Florida debate). The most convincing arguments against E‑Verify were those that highlighted its inaccuracies, potential damage to the economy, and that it would not even effectively restrict illegal immigrant access to employment.
Just to recap, E‑Verify is a federal electronic eligibility for employment verification system whereby employers are supposed to check the identities of new hires against government databases to guarantee that they are legally eligible to work. Four states have mandated E‑Verify for all new hires, several other states have mandated it for some hires, and the federal government requires it for some occupations.
Democrats and Republicans have both embraced E‑Verify for different reasons in recent years. Republicans did so because they believe that it is a useful enforcement mechanism and Democrats because they believe that they can trade it for a more generous legalization or other reforms to the legal immigration system. Indeed, increasingly bitter partisan disagreements over immigration policy have not affected support for E‑Verify. Perhaps they should.
There are many good reasons for Democrats to oppose E‑Verify nationally and on the state level. The first is that E‑Verify is an immigration enforcement tool that disproportionately returns incorrect results for legal immigrants, Hispanic Americans, and those who have hyphenated last names (most likely to be women). An incorrect result can temporarily bar a worker from working or, if the proper legal procedures aren’t followed, push the worker afflicted into long-term unemployment. Democrats increasingly argue that they represent those three groups so they have political incentives to remove regulatory barriers that keep them from gaining employment.
IRS Refunds
Today you are supposed to settle up with the IRS on your 2017 taxes. One would think that Tax Day was a painful, hated day for Americans. But the IRS commissioner recently noted that about 80 percent of households receive refunds upon filing, rather than having to make a further payment.
The predominance of refunds is a problem. For one thing, Tax Day has become more like Christmas with the receipt of gifts from Uncle Sam, rather than a day of sober reflection about the costs of government. Those costs are obscured under the income tax by employer withholding and Tax Day refunds. (I discuss other ways that politicians hide costs here).
Another problem with widespread refunds is that they make the system more vulnerable to cyber criminals. With 112 million people a year receiving an average IRS refund of $2,900, the tax system is a juicy target for scammers. One growing problem is that criminals are hacking tax preparation firms to access client data, then submitting fake returns with large refunds, and then finally convincing victims to give them the cash.
Vast IRS data collection on just about every adult in the nation has created major privacy and cybercrime vulnerabilities. Michael Hatfield of the University of Washington has examined some of the risks, including extensive refunds.
The refund problem has been exacerbated by the growth in refundable tax credits—mainly the earned income tax credit and child tax credit—which provide more than $80 billion a year in subsidies to tens of millions of people. These programs are rife with abuse, and should be scaled back or eliminated.
Another reform would be for the IRS to change its guidance for employer withholding to reduce the amounts deducted from worker paychecks. If more filers had to pay additional taxes in April, the system would be less vulnerable to scams and more people would be reminded that government spending ultimately comes out of their wallets.
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Saying Thanks on Tax Day
Tomorrow is Tax Day, which is the deadline for you to mail or e‑file your 1040 to the IRS.
We should say thanks on Tax Day, but not to the federal politicians who impose $1.6 trillion of income taxes on us and spend that treasure on low-value, damaging, and pork-barrel programs.
Rather, we should thank the entrepreneurs and other high earners who work hard, create jobs, invent new industries, and make a lot of money doing so. Those folks bear most of the costs of all that federal spending.
The harder you work and more value you add, the more the government wallops you under the income tax. The more benefits you generate for society through the marketplace, the larger the share of your earnings the government confiscates.
The chart shows that the top-earning 1 percent of households paid 39 percent of all individual income taxes in 2015, while the top 10 percent paid 71 percent. The data is here. Those shares have risen over time, and the new tax law exacerbates the upward skew in burdens.
The data for 2015 also show that average federal income taxes paid as a share of income for the top 1 percent of households was 27 percent, while the average for the other 99 percent of households was 11 percent.
Some people call this “progressive,” but to me it is unproductive and discriminatory. It also weakens political responsibility when the costs of government are borne so narrowly.
So on Tax Day, we should ponder the huge cost of government, while also considering whether it is healthy for democracy when such a small group carries most of the load.
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The Beginning of the End for Cannabis Prohibition?
The Boston Globe reports Colorado Senator Cory Gardner is crafting a bill that would prevent the federal government from interfering with states that have voted to legalize cannabis for recreational or medicinal purposes. The Senator is busy recruiting several co-sponsors for the bill, and he has received assurances from President Trump that he would sign such a bill into law.
This would be a step in the right direction and would alleviate concerns in many states that the Department of Justice, under new guidance from Attorney General Sessions, might enforce federal marijuana prohibition.
Unfortunately, as long as the Drug Enforcement Administration continues to classify cannabis as a Schedule 1 drug, quality clinical research on the potential medical applications of cannabis will remain significantly inhibited. By definition, a Schedule 1 drug has “no currently accepted medical treatment use.” Recent studies have shown that chronic pain patients have been able to reduce their opioid dosage and consumption by adding cannabis to their pain management regimen. A study of Medicare Part D patients from the University of Georgia published in JAMA earlier this month demonstrated this effect in states where medicinal marijuana has been legal. Another study published the same week from the University of Kentucky showed this effect was even greater in states where marijuana is legal for recreational use. And another recent study from the Minnesota Department of Health earlier this year found 63 percent of patients taking medical marijuana for their chronic pain were able to reduce or eliminate their opioid use within 6 months.
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Democrats Ask Trump Administration to Block Consumer Protections
In a recent letter to the Trump administration, leading congressional Democrats ask the administration not to allow protections for enrollees in short-term health plans.
Yes, you read that right. Dated April 12, the letter comes from Sens. Patty Murray (WA) and Ron Wyden (OR), as well as Reps. Frank Pallone (NJ), Bobby Scott (VA), and Richard Neal (MA), each the top Democrat on a different congressional committee with jurisdiction over health care. They ask the administration to withdraw in its entirety a proposed rule that, if implemented, would offer significant protections to enrollees in so-called “short-term limited duration plans.”
The administration has proposed lengthening the maximum term for such plans from 3 months to 12 months, which had been the limit for nearly two decades before the Obama administration shortened it. The administration has also asked for public comments (due April 23) on whether it should allow insurers to offer short-term plans with “renewal guarantees”—a consumer protection that allows enrollees who develop expensive illnesses to continue paying low, healthy-person premiums.
The letter asks the administration to “withdraw the proposed rule in its entirety,” which would block those consumer protections. These Democrats literally want to prevent short-term plans from giving consumers the peace of mind from knowing they will be covered for an entire year. Worse, these Democrats want to prohibit short-term plans from offering a consumer protection that protects the sick from premium spikes.
The reason for this animosity toward short-term plans is rather clear: ObamaCare supporters don’t want the competition. Federal law exempts “short-term limited duration plans” from ObamaCare and other federal health-insurance regulations. Short-term plans free consumers to purchase only the coverage they want, rather than have ObamaCare force them to buy coverage they don’t want, including coverage for things they may find morally repugnant. ObamaCare supporters do not want consumers to have that freedom, because when consumers leave ObamaCare coverage for short-term plans, ObamaCare premiums will reflect more and more of the cost of that law.