This piece makes a single argument, built from three worked examples. The argument is that you cannot future-proof the executive branch against an unscrupulous President by ordinary statute.

Not because the reformers are unserious—they are often the most serious people in the room—but because every statutory route to the goal runs into one of three walls: the President’s removal power, the Appointments Clause, or, in the newest and most audacious move, the executive’s asserted authority to declare the statute void and decline to enforce it. The three examples are Ervin’s failed 1973 bill, Senator Cory Booker’s 2025 MARSHALS Act, and Representative Jamie Raskin’s sprawling 2026 Protecting Our Democracy Act—read against the Office of Legal Counsel opinion, signed April 1, 2026, that declared the Presidential Records Act unconstitutional and unenforceable in its entirety.

Taken together they form a kind of natural experiment. Each reform attacks the problem of presidential lawlessness from a different angle—independence, relocation, transparency—and each is defeated by a different mechanism. The pattern that emerges is the point: the walls are not bugs in the drafting. They are features of Article II as the current Supreme Court reads it.

I. Ervin’s Quest

Begin with the man who saw it most clearly and still got it wrong. Sam Ervin understood, better than almost anyone of his generation, that the office of Attorney General is a creature of statute—created by the Judiciary Act of 1789, not by the Constitution—and that the Department of Justice itself did not exist until 1870. “All powers of the Attorney General and of the Department of Justice flow from acts of Congress,” he observed. “What Congress gives, Congress can take away.”²

From that premise, Ervin drew a structural conclusion and wrote it into S. 2803 (93rd Congress), introduced December 12, 1973. The bill would have lifted the Department out of the executive departments entirely, fixed the Attorney General’s term at six years, and protected the office from removal except “for neglect of duty or malfeasance in office.”

Ervin grounded the design on the independent-agency line of cases—Humphrey’s Executor v. United States (1935) and Wiener v. United States (1958)—and analogized the new DOJ to the Government Accountability Office and the regulatory commissions, agencies that “execute certain laws independently of the President.”³

It was an elegant bet. It was also, by the testimony of the sitting Attorney General, an impossible one.

When the Ervin Subcommittee on Separation of Powers held its 1974 hearings, Attorney General William Saxbe told the senators that genuine independence for the Department “could not be done without a constitutional amendment.”⁴

That single sentence is the hinge of this entire piece.

Saxbe was not making a policy objection. He was identifying a structural ceiling: a statute can rearrange the furniture of the executive branch, but it cannot evict the President from his constitutional authority to control the officers who execute federal law.

The fragility of Ervin’s design lay in its load-bearing element—a single removal-protection clause. The independence of the entire Department rested on the proposition that an Attorney General could be insulated from at-will presidential removal. In 1974 that proposition had the backing of Humphrey’s Executor. Today it is a doctrine in retreat.

In Seila Law LLC v. CFPB (2020), the Court held that Congress may not insulate the single head of an executive agency from presidential removal, narrowing Humphrey’s Executor to multimember bodies exercising no substantial executive power. A criminal prosecutor is the very archetype of an officer wielding core executive power. Ervin centered his proposal on the one clause the modern Court has spent two decades dismantling.

The deeper lesson of S. 2803 is not that it failed—it never reached a floor vote—but why it had to be built the way it was.

Ervin could not simply declare the Attorney General free of presidential control; the Take Care Clause and the Appointments Clause stood in the way. So he reached for the only tool a statute affords: a for-cause removal limitation, plus a fixed term, propped against a line of precedent. Every load the structure had to bear was transferred onto authorities the Constitution assigns the President, secured by a clause a later Congress could repeal and a later Court could read away. The bill was a fifty-year-old preview of the trap every successor would fall into.

II. Booker’s Angle: Protecting Judges

Fast-forward to May 22, 2025. With federal judges reporting threats and at least one warning that the President might order the U.S. Marshals to stop protecting the bench, Senator Cory Booker—joined by Senators Schumer, Padilla, Schiff, and Wyden, with a House companion led by Representatives Swalwell, Raskin, and Johnson—introduced the MARSHALS Act (S. 1873).⁵ Note the name in bold: the lead House sponsor of the bill we will reach in Part III was a cosponsor of the bill in Part II. The reformers are largely a single, coherent group attacking the same problem from successive angles—which is exactly what makes their collective failure instructive rather than accidental.

The MARSHALS Act tris to solve the judge-protection problem by physically relocating the Marshals Service. It would amend Title 28 to transfer the USMS out of the executive branch and establish it as a bureau within the judicial branch, with the Director and each district marshal appointed by the Chief Justice of the United States in consultation with a governing Board.⁶ Where Ervin tried to insulate an executive officer in place, Booker tried to move the officers across the street and hand the keys to the Chief Justice.

This is a more aggressive move than Ervin’s, and it fails at a different point: the Appointments Clause.

The Marshals are not clerks; they carry weapons, make arrests, and use force when required. They are quintessential “Officers of the United States” under Buckley v. Valeo (1976), and principal officers who execute the laws must, under Edmond v. United States (1997) and United States v. Arthrex (2021), sit in a chain of supervision that runs to the President. One of the current Court’s most recent Appointments Clause decision, Kennedy v. Braidwood Management, Inc. (2025), sharpened exactly that framing: the constitutional touchstone is whether the officer’s chain of command runs to the President.⁷ A statute that makes the Chief Justice the appointing authority for an armed federal law-enforcement service—and routes that service’s supervision into the Judicial Branch—collides head-on with that requirement.

Here is the part that makes the MARSHALS Act the cleanest example of the three. It is not merely vulnerable; it is unfixable by amendment within the statutory form.

Every plausible repair—making the Director Senate-confirmed, restoring presidential removal, vesting appointment in a department head—reattaches the Marshals to the executive chain of command and thereby restores the precise political control the bill exists to sever. The constitutional defect and the legislative purpose are the same object viewed from opposite sides. You cannot cure one without destroying the other. The bill is, in this sense, perfectly self-defeating: its unconstitutionality is load-bearing.

That property—a reform whose every viable redraft defeats its own purpose—is the tell that you have hit a constitutional ceiling rather than a drafting problem. A drafting problem has a better draft. A structural ceiling does not. The MARSHALS Act has no better draft, because the thing it wants to do—sever an executive force-wielding agency from presidential control—is the one thing Article II, as currently construed by federal courts, forbids a statute from doing.

III. Raskin’s Wall, and the Solvent the Executive Built to Dissolve It

We now come to the most sophisticated attempt of all—and to the most brutal demonstration of the thesis.

On May 14, 2026, Representative Jamie Raskin (D‑MD) reintroduced the Protecting Our Democracy Act (H.R. 8831), the descendant of the 2021 package the House once passed.⁸ It is enormous—thirty-eight titles across four divisions—and it is, crucially, built almost entirely to avoid the walls that stopped Ervin and Booker.

Raskin plainly learned the lesson of the first two examples. The bill does not try to relocate the Department of Justice or insulate the Attorney General from removal. It does not move an armed agency into the Judicial Branch. Instead it works around the Article II core: it compels disclosure, mandates reporting, tolls statutes of limitations, creates civil-enforcement hooks, and bans the presidential self-pardon. Where it touches prosecution at all—Title XIV’s “Investigative Integrity Protection,” which would force a sworn judicial inquiry when the government moves to dismiss a prosecution of the President—it routes the oversight through an Article III court rather than trying to detach the prosecutor. It is the work of people who studied the ceiling and tried to legislate just beneath it.

For a generation, that lower altitude—transparency rather than control—was assumed to be safe. Congress’s power to make the executive branch document and disclose what it does was the one tool no one seriously thought a President could escape. The reasoning was simple: even if you cannot tell the President whom to prosecute, you can surely require that the record of what he did survive him.

For a generation, transparency was assumed to be the safe ground. That assumption died on April Fools’ Day, 2026.

On that date, Assistant Attorney General T. Elliot Gaiser, head of the Office of Legal Counsel (OLC) at the Justice Department, issued a fifty-two-page opinion concluding that the Presidential Records Act—the post-Watergate statute that, for the first time in American history, made presidential records public property and required their preservation—is facially unconstitutional, inseverable, and void in its entirety, such that “the President need not further comply with its dictates.”⁹

The opinion’s reasoning is not confined to records. It is a general-purpose weapon, and it is aimed directly at proposal’s like Raskin’s.

Gaiser’s argument runs in two interlocking steps.

First, Gaiser contends that Congress’s power to compel information from the President is not enumerated; it is an implied auxiliary of the legislative power, and under Trump v. Mazars USA, LLP (2020), demands directed at the President must clear a heightened bar requiring a specific, articulated legislative purpose. A statute that compels disclosure prospectively and in perpetuity, untethered from any contemporaneous legislative need, fails that test by design—it is, in the opinion’s words, a “sledgehammer” where the Constitution permits only a “scalpel.”

Second, and more sweeping, Gaiser asserts that the Presidency is “a constitutional office that Congress did not create and that Congress cannot abolish,” and therefore cannot regulate the way it regulates the statutory agencies it builds. That logic, the opinion makes explicit, reaches not only the President but “the President’s immediate staff, or a unit or individual of the Executive Office of the President whose function is to advise or assist the President,” because those advisers “exist by operation of the Constitution, not by the grace of Congress.”¹⁰

Now lay that template over H.R. 8831 and watch the “safe” provisions disintegrate.

The bill’s tax-transparency title would compel every future President to file ten years of returns—a standing, perpetual disclosure mandate on the office itself. Its visitor-log provision would force a rolling public database of who enters the White House. Its disclosure-of-Presidential-Emergency-Action-Documents provision reaches the most sensitive internal contingency planning of the office. And, most strikingly, its BEACON Act title would install a statutory Inspector General inside the Executive Office of the President.

On that last provision the Gaiser opinion does not merely supply a theory by analogy; it cites OLC’s own 1996 conclusion that an EOP Inspector General “would be unconstitutional, even if the Inspector General would be subject to the authority, direction, and control of the President.”¹¹ And here the detail that ought to give Raskin and his supporters the longest pause: that 1996 opinion was written not by some predecessor of the current administration but by President Clinton’s Office of Legal Counsel, in a memorandum signed by Deputy Assistant Attorney General Randolph D. Moss—later OLC’s chief under Clinton, now a federal judge.

The view that Congress cannot plant an inspector general inside the President’s own office is not a partisan weapon forged for this fight; it is settled, cross-administration executive-branch doctrine, held by Democratic and Republican OLCs alike. The single most structurally ambitious transparency provision in Raskin’s bill is one the executive’s own legal canon—written by the reformers’ own side—had already declared dead, three decades before the bill was introduced.

And here the provenance matters more than it first appears.

That 1996 memo was not the product of a hostile or like-minded administration straining to expand presidential power for its own convenience. It was issued by President Clinton’s OLC, authored by Randolph Moss—a Democratic-administration lawyer who would later be appointed to the federal bench by President Obama, and who in 2000 wrote the companion OLC opinion concluding that a sitting President cannot be indicted.¹²

The proposition that Congress cannot plant an inspector general inside the President’s own office is therefore not a partisan invention of the current Justice Department. It is a bipartisan executive-branch consensus, resting on the same Article II premise—that Congress may not impede the President’s performance of his constitutional functions—that runs through both Moss’s work and Gaiser’s. When the sitting administration reaches for that memo, it is not manufacturing a theory; it is collecting a debt that the reformers’ own side helped underwrite.

The crucial move—the one that separates this example from the first two—is the remedy.

Ervin’s bill would have been tested in court; Booker’s would be tested in court. Gaiser’s opinion needs no court. It ends by invoking the President’s asserted authority to “decline to enforce statutes he views as unconstitutional.”¹³

The PRA was not struck down by a judge. It was nullified by a memorandum. And the same mechanism is available, the moment the ink is dry, against any provision of H.R. 8831 that compels the President or his office to disclose anything. The reformers’ last safe harbor turns out to be defended only by the executive’s willingness to respect it—which is precisely the willingness the reform was meant to stop relying on.

One must be precise here, because precision is what makes the argument durable.

Gaiser does not claim Congress can never obtain presidential information. The opinion carefully preserves the targeted, purpose-specific subpoena and the give-and-take of the accommodation process; its quarrel is with the standing, prospective, suspicionless mandate. That refinement does not rescue Raskin’s bill—it indicts it, because the disclosure titles that form the bill’s spine are precisely standing, prospective mandates on the office. The drafters chose the one form of transparency the opinion was built to defeat. But it does mean the honest version of the thesis is narrow and therefore strong: the claim is not that Congress is powerless, but that the standing structural reforms—the kind that actually future-proof against a future officeholder—are exactly the kind a statute cannot secure.

IV. Three Reform Efforts, Same Doomed Outcome

Step back and the architecture of the failure comes into view.

Ervin was stopped by the removal power. Booker was stopped by the Appointments Clause. Raskin is stopped—preemptively, without litigation—by the executive’s claimed power of constitutional self-help. Three different mechanisms, but a single underlying principle: under the unitary-executive jurisprudence the Court has built from Seila Law through Trump v. United States (2024), the President’s authority over the execution of federal law—and now over the very information that would document that execution—is treated as a constitutional core that ordinary legislation cannot reach.¹⁴

This is why the “future-proofing” ambition is the part that fails most reliably.

A statute aimed at a present abuse can sometimes work, because it can be specific: a targeted subpoena, a particular appropriations rider, a narrow disclosure tied to identified legislation. But future-proofing requires exactly what the doctrine forbids—a standing, prospective, suspicionless constraint that binds the office regardless of who holds it.

Ervin’s permanent independent DOJ, Booker’s permanent relocation of the Marshals, Raskin’s permanent disclosure regime: each is structural and forward-looking by necessity, and each is therefore maximally exposed. The more a reform tries to bind the office rather than the officer, the more squarely it lands in the zone the Supreme Court and the OLC have walled off.

There is a grim irony threaded through all three episodes. Sam Ervin invoked Watergate to argue that the Department must be made independent. The Gaiser opinion invokes Watergate from the other direction—treating the post-Nixon Presidential Records Act as the historical aberration to be undone, a “minor crack” that became a “major fissure.” The same scandal that launched the reform project is now cited as the reason to dismantle it. Watergate produced the statutes; the unitary-executive counter-revolution is unwinding them one by one.

The defect in every statutory reform is that it must be interpreted and enforced by an executive branch the reform is designed to constrain. Ervin’s independent Attorney General would still have been nominated by the President. Booker’s Marshals would still, in any constitutional redraft, answer up the executive chain. Raskin’s disclosure mandates are enforced—or declined—by a Department of Justice the President controls, under constitutional opinions written by an OLC the President controls. And the institutional convictions that doom provisions like the EOP inspector general do not change with the party in power: it was Clinton’s OLC, not Trump’s, that first declared such an office unconstitutional. A statute that depends on the good faith—or even the settled constitutional self-understanding—of the official it restrains has not restrained him; it has merely written down a request.

V. The Only Wall That Holds

The thing that distinguishes a constitutional amendment from every statute surveyed here is that it cannot be narrowed by Seila Law, evaded by the Appointments Clause, or declared void by an OLC opinion. It is not an implied auxiliary of some enumerated power that a court can cabin; it is the supreme law the courts are bound to apply. It does not depend on the President’s willingness to comply, because it is not the President’s to interpret away. The text changes, and the executive’s lawyers must work within it rather than around it.

This is not a counsel of despair about the reformers’ instincts—those instincts are sound, the people who’ve offered them were and are loyal to the constitutional Republic, and the threat they perceive is real and present. It is a counsel about the choice of instrument.

Saxbe said it to Ervin in 1974: it could not be done without a constitutional amendment. The MARSHALS Act proves it again in 2025, as it is unfixable in statutory form. And the Gaiser opinion proved it a third time in 2026, by showing that even the transparency fallback can be dissolved by memorandum. Three statute-based reform proposals three decades apart offered in the same spirit–all incapable of achieving their intended goal, primarily due to a defective constitutional design made worse by multiple Supreme Court decisions and the base desire for maximum power by successive American chief executives and those serving them.

The reformers keep building walls because the danger is real. The walls keep coming down because they are made of the wrong material. There is one material the executive cannot dissolve, because the executive does not own it: the text of the Constitution itself. If the Republic is to be future-proofed against another Nixon—or another Trump—that is the only quarry left to build from.

A page of history, Justice Holmes wrote, is worth a volume of logic. The Gaiser opinion quotes him to argue that two centuries of presidential control over records should defeat the modern statute. The same page of history, read forward instead of backward, teaches the opposite lesson: that for fifty years reformers have tried to bind the office by statute, and for fifty years the office has slipped the knot. The logic of that history points to the amendment as the knot that is unbreakable. In a future edition of The Sentinel, I’ll lay out the details of what such an amendment should like.

The U.S. financial regulatory regime failed catastrophically in 2008. The financial crisis was, at its heart, a classic bank run. Financial institutions lost some money on their assets. People ran to pull their deposits and other short-term investments, leading to a wave of failures. Only a $475 billion bailout from the Treasury Department kept the biggest banks from failing and avoided complete financial collapse.

In the wake of this disaster, leaders had the decency to admit that regulation failed and reforms were needed. But the resulting changes — the Dodd-Frank law and the Fed’s subsidiary regulation — simply piled on the previous approach that focused on managing asset riskiness.

The focus should instead have been on run-prone liabilities. Corporate assets such as data centers and rockets are far riskier than bank assets such as loans and debt securities. Why are the safer assets so much more heavily regulated? Because tech companies are financed by equity. When shareholders lose money, it is not a systemic crisis. Banks are financed with short-term debt (deposits) that can suffer contagious runs and invite government rescues.

The Dodd-Frank reforms were supposed to end bailouts. But in the turmoil of 2020, skeptics were proved right when the Fed and Treasury undertook a second bailout. The central bank intervened in Treasury markets, bailed out money market funds, lent directly to cities and states, and put a floor on corporate debt prices.

In 2023, Silicon Valley Bank collapsed, leading to another bailout. The bank issued large uninsured deposits and invested in long-term Treasurys. When interest rates rose, the value of those Treasurys fell and depositors ran. To stop the run, the Fed and Federal Deposit Insurance Corp. guaranteed uninsured deposits. That guarantee implicitly extends across the banking system — nearly $9 trillion.

Absent that support, many more banks might have gone under. The post-2008 supervisory apparatus — stress tests, liquidity rules, supervisory teams and model-based oversight — missed an elephant in the room: simple interest-rate risk matched to uninsured deposits. It has failed.

The SVB affair was fueled by earlier Fed errors. In the 2010s, banks tried to create segregated accounts and narrow banks. Both innovations back deposits entirely with reserves, eliminating runs and the need for deposit insurance and bailouts. By giving large depositors a risk-free place to park money, they would have forestalled the SVB fiasco. But the Fed has not allowed either innovation, in part to protect the profitable deposit franchise of big banks. Stablecoins — cryptocurrencies tied to tangible assets — are now entering to try to provide the same service, but so far are hobbled because they are not allowed to pay interest.

In the face of onerous regulation, banks retreated from making loans. Fintech companies and private credit stepped in. These unregulated non-banks voluntarily fund themselves with stable long-term financing and substantially more equity. Fintech companies quickly sell off their loans and hold little risk.

Instead of embracing these crisis-insulated institutions, the Fed is considering a reduction in already low bank capital requirements, to help banks recover lost market share. At the Fed, deregulation has come to mean less capital, not fewer rules.

The Fed cannot rewrite Dodd-Frank by itself — only Congress can do that. But the central bank can revise the subsidiary regulations and review its discretionary implementations. Periodically sunsetting and reviewing each rule would be a good start.

Warsh need not reform the big banks. He can instead allow new and innovative competitors to emerge that provide financial services without run-prone funding. He should focus on simple truths: A crisis is a run and only a run is a crisis. Somebody losing money on a risky investment is not a crisis.

Detailed plans to transition to a safe, deregulated and innovative financial system are sitting on the shelf. Risky investments should be funded by equity and long-term debt. Deposits and other runnable liabilities should be backed by safe, liquid assets or much larger capital cushions. Such plans can end private sector financial crises forever. They just need a visionary leader who is willing to put the plans into place.

There is something deeply unserious about how Washington talks about nicotine. Cigarettes, the most dangerous products in the category, remain widely available. Smoke-free alternatives, however, are often treated as if their very existence is beyond the pale. That disconnect has fueled a regulatory debate that is too often driven by moral panic over nicotine rather than by outcomes.

The debate has drifted far from outcome-based public health policy.

The FDA’s recent approval of several flavored smoke-free products has sparked outrage from familiar quarters, with critics arguing that any legal pathway for flavored alternatives is inherently reckless. Sen. Dick Durbin (D‑IL) posted on X that “these products addict children & expose them to harmful chemicals.”

An adult smoker standing at a convenience-store counter does not face an abstract policy debate. That person faces real choices: continue smoking cigarettes, buy an illicit product of uncertain origin, or try a legal alternative that has undergone review. Any regulatory system that ignores those real-world choices loses touch with reality.

The public health standard Congress created recognizes exactly that reality. The FDA is supposed to assess effects on the population as a whole, not pretend that adult smokers do not exist. That requires regulators to weigh risks to youth while also accounting for the possible benefits of moving adult smokers away from combustible cigarettes, which remain uniquely deadly.

Studies suggest that nicotine e‑cigarettes are the most effective tobacco cessation tools. Surveys of adult tobacco smokers reveal that they find it easier to quit with flavored vapes. Much of the evidence suggests that vaping has displaced rather than expanded youth tobacco use. Youth smoking rates fell dramatically during the rise of e‑cigarettes, and both youth smoking and youth vaping have declined in recent years, reaching an all-time low in 2025.

A credible regulatory system requires a legal, science-based pathway for the appropriate review of smoke-free products.

Without such a pathway, the market moves into the shadows. Unauthorized products continue to flood convenience stores, gas stations, and online sellers. Adults are left with fewer regulated options, and youth protections become harder to enforce. In this scenario, the government signals that legal compliance is for suckers, while the illicit market sets the terms.

Few would support allowing children access to nicotine products. That is why strict enforcement, age-verification measures, marketing restrictions, and retailer accountability all matter. But public policy for adults should not be built around standards designed for minors. Nor should the response be to erase all distinctions between legal and illegal products or between combustible cigarettes and smoke-free alternatives. Public health is not advanced by pretending those differences are meaningless.

Too much of this debate has devolved into performance and moral signaling. Support a lawful pathway for smoke-free alternatives, and you are accused of not caring about kids. Suggest that adults should have access to lower-risk options, and you are treated as if you have abandoned public health entirely. That framing may generate applause and outrage, but it is no substitute for serious policymaking.

Adults who smoke deserve a system that is honest, consistent, and grounded in evidence. They need a government that can distinguish between products that meet the legal standard and those that do not. And they need policymakers willing to admit that reducing smoking-related disease sometimes requires embracing imperfect solutions that are better than the status quo.

The FDA should be judged on whether it builds a system that protects youth, respects the law, and gives adult smokers a realistic pathway away from combustible cigarettes. That is what serious regulation looks like.

The country needs policymakers willing to confront the realities of nicotine use, consumer behavior, and illicit markets.

This year marks the 250^th anniversary of both the nation and a foundational book for America’s incredible free-market economy: Adam Smith’s The Wealth of Nations. Most people know it as an economics book—covering fundamental concepts like the “invisible hand,” comparative advantage, the gains from specialization, the perils of mercantilism, the trade balance, and much more. And those lessons, many of which we’ve covered here at The Dispatch, are certainly important. Yet as I skimmed through the book in preparation for my talk this week, I was repeatedly struck by how The Wealth of Nations is also a deeply, savagely political book, with practical insights into how commercial policy really gets made—insights that found a home in modern public choice theory and are evident across generations of U.S. trade politics.

Three quotes from the book capture some of Smith’s most salient political ideas—ones that show him not as an 18^th-century economist but as a keen political theorist and someone who could be describing Washington today, not Scotland 250 years ago.

‘A conspiracy against the publick.’

The first quote may be Smith’s most famous line about politics and policy, though it’s frequently misunderstood. In Book I of The Wealth of Nations, he wrote:

The oft-ignored second half of this quote makes clear that, contrary to many modern claims, Smith isn’t here calling for government antitrust cops to break up meetings among private businesses. Instead, he’s making a political economy point: Because industry naturally gravitates toward enriching itself at consumers’ expense (via higher prices), government policy shouldn’t facilitate or encourage such meetings.

Yet this is precisely what U.S. trade policy does—and has done for centuries now.

In the early days of the republic (back when government was really small), tariffs were the primary means of both raising revenue and doling out “rents” to businesses that organized and lobbied for them. The wonderfully named Tariff of Abominations (1828) was heavily influenced by Northern textile and iron producers. The post-Civil War decades were a golden age of tariff rent-seeking, with the U.S. iron, steel, wool, and sugar industries essentially writing U.S. tariff schedules. As I’ve documented at Cato and as Dartmouth economic historian Douglas Irwin thoroughly chronicles in his great book, Clashing Over Commerce, 19^th-century tariff lobbying was in many respects an incubator for the entire U.S. lobbying and interest-group machine that exists today. And it began because American trade policy was openly auctioned off to the highest bidder.

Offer the rents, and the rents get sought.

The pinnacle of 20^th-century congressional tariff cronyism is the infamous Smoot-Hawley Tariff Act of 1930. As economic historian Phillip Magness has documented, tariff-loving congressional Republicans gave industry lobbyists an opportunity for even more price-hiking import protection, and the latter descended on Congress en masse: “Special interests flooded committee rooms, exchanging cash under the table for favorable rates to insulate themselves from foreign competitors amid the unfolding [economic] downturn.” Almost everyone got his own tariff line item, and average tariff rates on dutiable imports hit almost 50 percent, triggering a retaliatory spiral that deepened the Great Depression.

The Reciprocal Trade Agreements Act of 1934 (RTAA) was Congress’ institutional attempt to restrain itself by delegating trade negotiations and tariff authority to the executive, and it was a move Adam Smith would likely have applauded. The idea was to reduce corporate rent-seeking in Congress by taking tariff rate-setting out of legislators’ hands and by getting U.S. exporters to balance protectionist interest groups by conditioning new market access abroad on continued openness to imports.

That reform worked—for a while. Legislated tariff rates declined, and 19^th-century tariff corruption abated. But America’s protectionist lobbying machine didn’t disappear; it adapted to match the new kinds of protectionism that the government was offering up. And in the 1960s it got a powerful legal backstop: the Noerr-Pennington doctrine. Established by a series of Supreme Court decisions, it held that joint corporate lobbying for policy—even explicitly anticompetitive (price-hiking) policy—is constitutionally protected First Amendment activity and thus immune from antitrust liability. The doctrine is certainly defensible on First Amendment grounds (and, arguably, Smith’s own sense of “liberty and justice”), but it effectively blessed companies’ organized “conspiracy against the publick”—as long they conspired in Washington instead of a corporate boardroom.

The modern trade lobbying complex that Noerr-Pennington enabled is vast and effective. As Cato’s Clark Packard and Alfredo Carrillo Obregon documented in a paper last year, “Big Steel”—through the American Iron and Steel Institute, union groups, and even certain industry-run “think tanks”—has probably won more protective measures than any other U.S. industry. And, far from satiating the industry, each tariff, subsidy, or mandate simply spawned Big Steel’s demands for more. Over the last decade, former steel executives and lawyers have populated numerous high-level offices across the U.S. government.

Then there’s “Big Sugar,” a textbook legal cartel enabled by government price supports and quotas. Everyone in Washington knows that the U.S. sugar program is a costly debacle, but sugar cane and beet growers are concentrated in a handful of electoral swing states, and they’ve organized with U.S. corn growers who benefit from the sugar alternative high-fructose corn syrup. As former House Speaker John Boehner thus memorably put it in his book, members of Congress quickly learn that sugar policy is terrible, but they also learn not to “f—k with” Big Sugar.

These groups certainly aren’t alone. Big Dairy has lobbied successfully for tariff-rate quotas and marketing orders that ring-fence the domestic market and helped cause the 2022 infant formula crisis. Big Ship—a coalition of unions, shippers, and shipbuilders—has prevented meaningful reform of the Jones Act for over a century, even as building vessels here costs four to five times world market prices and as U.S. refineries import crude from Saudi Arabia and Nigeria instead of Texas. Scratch almost any product protected by special import barriers today—textiles and apparel, shrimp, catfish, tomatoes, aluminum, lumber, kitchen cabinets, whatever—and you’ll find an organized interest group underneath, doing exactly what Smith observed in 1776.

And, far from hiding their “conspiracy against the publick,” the organizations openly flaunt it:

‘The most suspicious attention.’

The second Smith quote continues the theme of corporate influence but also considers the public’s reaction. It’s also from Book I:

Here, Smith is implicitly addressing the policy challenge of “rational ignorance”: Voters and consumers have little incentive to learn the details of complex commercial legislation because the per-person cost of any single policy is small, while the cost of becoming informed is high. Industry insiders (“dealers”), by contrast, know every comma of every relevant law and work actively to bury protectionism in legislation that nobody has time to read. Elected officials—interested in reelection instead of the “public interest”—are therefore highly likely to craft commercial legislation benefiting the latter and ignoring the former. Hence, the need for intense public skepticism and scrutiny, something politicians and cronies are keen to avoid.

History is again littered with examples of the problem Smith identified. Smoot-Hawley’s 20,000-plus tariff line items were adjusted largely in committee, most with industry input and without floor debate. Many of today’s tariff peaks—on apparel, footwear, and more—are direct descendants of Smoot-Hawley, surviving decades of U.S. trade policy reforms without notice or revision. Congress has repeatedly amended “trade remedy” rules and Buy American restrictions to help Big Steel and other industry groups. The Jones Act lobby has repeatedly narrowed the conditions for waiving the law. The Byrd Amendment—quietly slipped into a large omnibus appropriations bill in 2000—required that antidumping duties be paid directly to the companies that had filed the petitions for them (it’s protection plus a subsidy!). And don’t even get me started on the farm bill and congressional biofuels policy.

As the above quote indicates, this is precisely the type of protectionism we should expect to be stuffed into must-pass bills that nobody reads. Yet not even the cynical Adam Smith could fully anticipate the scope of the problem today. Smith imagined protectionism as requiring a visible legislative act: a British merchant seeking protection had to petition Parliament directly. And that’s basically how it worked in the United States before World War II, with interest groups lobbying Congress.

Today things are different, with the RTAA pushing almost all routine protectionism to the executive branch and a permanent bureaucracy that can impose, modify, and perpetuate import barriers through regulatory action, executive orders, emergency declarations, and agency guidance—often without a single congressional floor vote. Hundreds of trade remedy measures (mainly, antidumping duties and countervailing duties) are set at the Commerce Department and the International Trade Commission. Section 232 “national security” tariffs go through Commerce. Section 301 restrictions go through the Office of the U.S. Trade Representative. The Department of Agriculture manages agricultural “tariff rate quotas” and marketing orders. Maritime protectionism is administered through the Maritime Administration, and tariff classification and enforcement is managed by Customs and Border Protection.

Each legal regime, and others like them, gives industry groups an opaque and byzantine opportunity to lobby an agency for new protection from import competition—and to “capture” that agency through repeat interactions. Clueless outsiders don’t stand a chance.

The agencies themselves, meanwhile, are often hardwired to cater to the companies they supposedly regulate. USTR’s Industry Trade Advisory Committee system (ITACs) formally embeds industry representatives in U.S. trade negotiating positions. Steel and aluminum producers have dedicated contacts at Commerce’s Import Administration. Textile companies have their own office at USTR. USDA has special offices for dairy and other foods, managing price supports, marketing orders, supply controls, and import quotas. And, to the extent Congress is involved in any of this, it’s usually one of the dedicated industry caucuses—the Steel Caucus, the Textile Caucus, and so on— trying to make these laws even more protectionist.

President Donald Trump, of course, has turned this all up to 11, imposing a litany of new tariffs under various laws—some routine, some novel—and centralizing tariff-setting in the White House via an even more opaque and discretionary system. As of January 2026, more than half of all U.S. imports were subject to one or more special tariff measures implemented without Congress. Unsurprisingly, trade lobbying has skyrocketed as firms jockey for exemptions and new restrictions on foreign competition— just as Smith would expect:

Smith called on the public to devote “most suspicious attention” to tariffs and other commercial regulations—and for very good reason. Unfortunately, the administrative state and U.S. trade law make such scrutiny exceedingly difficult, if not impossible.

‘As absurd as to expect that Oceana or Utopia should ever be established.’

The third and final quote is Smith’s most pessimistic—and most prescient. This is from Book IV:

Contrary to the common characterization of Adam Smith as a naïve ideologue, we see here that he understood well the deep structural obstacles to free trade from both the public and, more importantly, from organized industry. The latter’s resistance is classic public choice: Protectionism’s concentrated benefits and diffuse costs mean that protected industries will fight like hell for trade protection—and against reforms. Companies and workers, as well as their communities, suppliers, and political representatives, also capitalize gains from tariffs as higher asset values, wages, and political capital—meaning that these groups all stand to lose real money if protection is removed (the so-called “transitional gains trap”).

Meanwhile, the benefits of trade liberalization—lower prices, more efficient resource allocation, dynamic gains, economic growth, etc.—are surely real and, in fact, much larger in the aggregate than those won by the protectionist groups. But these improvements are smaller per person, invisible, and unorganized. So, we don’t lift a finger.

This dynamic means that it’s extraordinarily hard to repeal protectionist policies, even ones that are universally acknowledged as costly and failed. And the U.S. record again bears this out. We still impose tariffs of almost 50 percent on cheap shoes even though the policy clearly harms American consumers (especially poor and large households) and the U.S. has essentially no cheap shoe industry. Big Steel has won a century of protective measures yet remains a global laggard while downstream manufacturers shrivel due to artificially high input costs. The Jones Act has presided over the long and slow degradation of U.S. commercial shipbuilding and the merchant marine, but even emergency waivers are hard to come by because of a notorious Big Ship blockade (get it?). Heck, even after it was clear that U.S. tariff and nontariff barriers helped cause the 2022 baby formula crisis, those barriers snapped right back into place once most people stopped paying attention—thanks in large part to the efforts of Big Dairy.

Studies repeatedly show that protection imposes large consumer costs while failing to produce a thriving industry, yet it persists in numerous forms because the beneficiaries fight to keep it while everyone else barely notices. Unfortunately, this same political economy will make it difficult to reform Trump’s new tariffs. Even with strong economic evidence of harm and terrible polling, it’s bound to be an uphill climb.

So, what now?

Adam Smith was a pragmatist, if not a pessimist, when it came to politics and free trade policy in practice. But he also spent hundreds of pages optimistically documenting why free trade and free markets were worth fighting for, and his political insights point toward some of the ways advocates can wage that fight.

First, there’s an unceasing need for education and transparency. Generating a “most suspicious attention” among the voting public requires shining light on U.S. protectionism and its hidden costs. Free market organizations do this every day. We at Cato, for example, just created the Jones Act waiver tracker (plug!) to show all the commerce—American trade of American goods—that President Trump’s recent waiver has unleashed (much to Big Ship’s chagrin). Our hope is that it’ll help people see some of the law’s very real harms, be increasingly skeptical of its purported benefits, and maybe even support future efforts to reform it. More of this kind of sunlight is surely needed.

But sunlight alone isn’t enough. The only long-term way to stop the lobbying machines from seeking protectionist rents is to stop offering them so freely. And that requires new institutional checks on the application of tariffs and other protectionist measures—legal provisions that make clear to interest groups that U.S. trade policy isn’t up for grabs. Laws must be amended to include automatic sunset provisions, mandatory cost-benefit analyses, meaningful procedural constraints, hard publication requirements, and genuine judicial review of executive-branch trade actions (instead of near-total deference). As public choice pioneer James Buchanan might remind us, the answer isn’t just better politicians and better arguments; it’s better rules.

This kind of root-and-branch reform isn’t easy to enact, but it’s what two and a half centuries of political economy demands.

Markets FTW

German soccer fan Freddy is in the United States for the World Cup, and he’s live-tweeting his daily adventures—and his amazement at American abundance (including Buc-ee’s).

DUDE LMAO THIS IS A GAS STATION😭😭😭 pic​.twit​ter​.com/​Y​Y​F​m​W​JiCQa

— Freddy🇩🇪 (@FreddyLA7) June 10, 2026

Chart(s) of the Week

U.S. tariff revenue went negative last month:

Shale gas consumer savings:

Small businesses are paying a lot in tariffs:

The Fifth Amendment’s takings clause stipulates that the government may not take “private property” for public use without “just compensation.” There is a long-standing debate over the extent to which regulations that constrain the use of property but don’t seize it outright qualify as takings. Virtually all jurists and legal scholars, however, agree that outright confiscation does.

Very limited uncompensated seizures of apartment buildings might be justified under the so-called police-power exception to takings liability, which permits the government to restrict uses that pose a serious threat to public health or safety. New York 7A program allows the city to take over the administration of dangerously unsafe rental properties. Yet that applies only to extreme cases — fewer than 30 properties as of fiscal 2024 — and generally doesn’t result in permanent confiscation. The mayor’s proposal is far more expansive.

If the government could expropriate property at will, it could pursue widespread seizure from anyone using property in ways the party in power disapproves of, or for purposes of transferring it to cronies and favored constituencies. Such abuses are common in authoritarian states, which is one reason the foudners inserted the clause into the Bill of Rights in 1791. James Madison and others supported it in part because of arbitrary confiscation by British authorities.

The mayor’s proposal doesn’t just violate the federal and state constitutions, which have nearly identical restrictions on takings. It would also make the city’s shortages worse. Faced with the prospect of potential expropriation, many owners would likely withdraw properties from the market or not list them in the first place. New York’s rent-stabilization laws have already induced owners to abandon thousands of apartments that can’t be profitably maintained or upgraded. The mayor seeks to make city policy more severe by “freezing” rents for hundreds of thousands of units, preventing even the modest increases permitted under current law.

As Jason Furman, formerman of President Barack Obama’s Council of Economic Advisers, told this paper in 2024: “Rent control has been about as disgraced as any economic policy in the tool kit.” That year a meta-analysis of studies in the Journal of Housing Economics found that rent control greatly reduces the quantity and quality of available housing by deterring owners from building units and putting them on the market.

The mayor often decries the city’s “systemic inequities” that have made living there more onerous. A great opportunity to make good on that rhetoric would be to target the real barriers to access: the exclusionary zoning rules that severely limit the amount and types of housing that can be built on most of the city’s residential land. Economists and land-use scholars across the political spectrum recognize that these restrictions are the main constraints on supply. Progressive legal scholar Joshua Braver and I have argued that such restrictions also violate the takings clause The right to property enshrined in the Fifth Amendment includes the right to use property, which severe limitations on construction abridge.

Mamdani has rightly praised cities like Austin, Minneapolis and Auckland, New Zealand, which have seen the virtue in empowering private owners to build new housing. Such YIMBY — or “yes in my backyard” — zoning deregulation reliably increases supply and reduces prices. The “Block by Block” plan includes a few steps in this direction, such as aiming to make it easier to build new near public transit. But the effect of such measures would be muted by expropriation and expanded rent control. The bulk of the plan involves increasing City Hall’s power, despite government-owned housing’s terrible record everywhere it has been tried.

The political right has its own snake-oil housing policies. Tariffs and mass deportation of immigrants make housing more expensive by increasing the price of building materials and the costs of construction, respectively. Some on both the right and left also advocate barring institutional investors from owning rental properties, even though that, too, is likely to reduce the availability of housing options.

But counterproductive right-wing policies don’t justify Mamdani’s. To alleviate the “deepening housing crisis,” stop digging a hole with more government control of the kind that caused it in the first place. The better course is to respect constitutional property rights and let landowners build housing as they wish.

The Callais decision has some flaws. And the conservative majority on the Supreme Court has made some serious errors in other cases, such as the Trump presidential immunity decision. But court-packing remains a dangerous idea that Americans across the political spectrum should reject. Callais is not without merit, and—at the very least—not as bad as its most strident critics claim. More generally, the Supreme Court is far from being a pure “MAGA” Court and has, in fact, constrained the Trump administration’s abuses on several important fronts, and has allowed lower courts to constrain it elsewhere. Court-packing would create a slippery slope to the destruction of judicial review, thereby benefiting power-grabbing presidents like Trump, and imperiling constitutional rights, particularly those of minority groups. To the extent Callais is a problem, it can be better addressed by steps such as banning gerrymandering. There are also better remedies for various other shortcomings of the Court, such as enacting term limits and imposing an ethics code.

Rights and Wrongs of Callais

Callais is certainly deserving of some criticism. But it is not the abomination many critics depict it as. Most obviously, it is not the death of the VRA or close to it. The act’s provisions barring states from depriving people of the right to vote based on their race remain fully in effect. The same goes for the use of facially neutral disenfranchisement tools historically utilized to remove Black voters from the rolls, such as literacy tests, which remain banned.

Callais does make it very difficult—perhaps almost impossible—to use the VRA to deliberately create majority-minority districts in response to “vote dilution,” which reduces the power of minority voters. Under previous Supreme Court precedent, such districts could be and were created in a wide range of circumstances in which minority influence might otherwise be diluted in the district line-drawing process, even in circumstances where there was no evidence of deliberate racial discrimination.

The VRA enforces the 15th Amendment, which mandates that “[t]he right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” The ban on racial discrimination with respect to voting is categorical, and does not make any exception for racial gerrymandering intended to increase minority representation, rather than reduce it.

Deliberate racial gerrymandering for purposes of creating majority-minority districts is at odds with this categorical anti-discrimination rule. At the very least, it should be considered presumptively unconstitutional. Callais was right to construe the VRA to accord with such a strong presumption; long-standing precedent requires courts to construe federal statutes in ways that avoid constitutional problems.

Nonetheless, there are entirely reasonable concerns about Callais. The Court’s neutering of long-standing VRA precedent goes against the equally strong presumption against reversing statutory precedent. The majority’s attempt to elide this by claiming they are not really reversing the precedents in question is far from persuasive. The timing of the decision is also problematic, coming just a few months before the 2026 midterm elections. It has set off a gerrymandering scramble by southern red states seeking to increase the number of Republican seats.

It is also reasonable to fear—as Justice Elena Kagan argues in her dissent—that Callais might open the door to anti-Black racial gerrymandering by state legislatures. Because most Black voters support Democrats, race can be used as a proxy for partisan alignment. Callais could end up making it easier for GOP state legislatures to use race in this way, despite the fact that the ruling indicates intentional racial discrimination in redistricting remains illegal. Just this week, in Allen v. Milligan III, the conservative majority in the Supreme Court blocked a trial court ruling against Alabama’s attempt at mid-decade gerrymandering. A three-judge federal district court panel—including two Republican Trump appointees—had ruled that Alabama “intentionally discriminated against Black voters based on race.”

Allen is a short “shadow docket” ruling, with relatively little explanation of its reasoning. Nonetheless, many election-law experts fear that it is a sign that the Supreme Court will interpret Callais in ways that will make it difficult to block state legislatures’ use of race as a proxy for partisan alignment.

The Supreme Court Is Not a MAGA Rubber-Stamp

In addition to citing Callais, advocates of court-packing also contend that the Court is generally a rubber-stamp for Trump and his MAGA agenda. Such claims are falsified by the reality that the Court has in fact ruled against Trump and the MAGA right on several key issues. In Learning Resources v. Trump (a case I helped litigate), the Court struck down Trump’s massive power grab attempting to use the International Emergency Economic Powers Act to impose the highest tariff schedule since that which notoriously exacerbated the Great Depression. The Court emphasized that the president does not have the authority to “impose tariffs on imports from any country, of any product, at any rate, for any amount of time,” thereby significantly constraining Trump’s power to impose the MAGA protectionist agenda.

In other cases, the Court blocked Trump’s effort to use the National Guard against blue states (leading him to abandon the effort), and twice it used the “shadow docket” to block deportations under the Alien Enemies Act of 1798 and signal that courts could review Trump’s invocation of that law (though without issuing a definitive ruling on whether that wartime statute can be used as a tool of peacetime mass deportation). If the oral argument held in April is any indication, the Court will likely invalidate Trump’s attempts to deny birthright citizenship to children of undocumented immigrants and temporary visa holders. These cases all involve major abuses of power by Trump, often on issues central to the MAGA agenda, such as nativist hostility to immigration and trade. The Court also ruled against Trump and MAGA in a number of key cases that arose during Trump’s first term and in the Biden years, most notably rejecting his efforts to overturn the results of the 2020 election.

Obviously, the Court’s conservative justices have also issued some flawed rulings supporting Trump’s positions. Notable examples include the Trump v. United States presidential immunity ruling (which, however, did not give the president categorical immunity from prosecution for all actions taken while in office); a seriously flawed ruling constraining universal injunctions; and Trump v. Hawaii, the awful 2018 anti-Muslim “travel ban” case. I do not claim that the Court always rules against Trump when it should, or otherwise gets every issue right. Far from it. But the justices have constrained Trump and the GOP on a number of key issues and cannot be considered mere rubber stamps for MAGA. Absent the Court’s intervention, Trump would have gotten away with several additional major unconstitutional actions and abuses of power.

Perils of Court-Packing

Whatever the shortcomings of the current Supreme Court, court-packing would make things worse. If the Democrats increase the size of the Court (current proposals call for four new justices in order to flip the current 6–3 conservative majority to a 7–6 progressive one), Republicans will surely respond in kind as soon as they get the chance. The end result is that both parties will pack the Court anytime they get simultaneous control of the White House and both houses of Congress. That, in turn, would largely destroy the institution of judicial review. The Supreme Court would no longer be able to strike down laws and regulations backed by the party that controls the White House and Congress. This would destroy the Court’s ability to protect constitutional rights and enforce limits on government power against dominant political majorities.

The damage is unlikely to be limited to the Supreme Court. If the norm against court-packing is undermined, dominant political majorities could similarly move to pack the lower courts—the institutions that hear the vast majority of federal cases. The modern debate over court-packing was, in fact, in large part kicked off by prominent conservative law Professor Steve Calabresi’s 2017 article (which I critiqued at the time) urging Republicans to pack the lower courts. Calabresi’s plan was widely criticized at the time, and congressional Republicans did not seriously pursue it. But such proposals are likely to attract much greater support in the aftermath of any successful packing of the Supreme Court. As legal scholar Steve Vladeck—a leading critic of the current Supreme Court majority—puts it, “Court expansion, whatever its short-term benefits, would touch off a race to the bottom that would serve only to undermine the ability of all federal courts to play their intended constitutional role in the long term.”

Even if the lower courts remain un-packed, for a time, a packed Supreme Court could severely undermine their ability to protect constitutional rights against the administration in power. Such a packed court could use the “shadow docket”—that is, emergency rulings—to block or summarily reverse lower-court rulings inimical to the administration in power, often without giving the cases any detailed consideration. Critics claim the current Court already protects Trump in this way. But, as Vladeck points out, the Court has in fact blocked or overturned only a small fraction of the many lower court rulings against Trump, thus enabling lower courts to significantly constrain the administration to a much greater extent than many appreciate. In immigration detention cases alone, for example, lower courts have ruled against the administration some 11,500 times, including many decisions issued by Republican-appointed judges. Vladeck notes that the administration has not even tried to seek Supreme Court intervention in the vast majority of these cases, likely because they know they would fail. A packed court would be much more aggressive in forestalling lower court rulings inimical to the party in power.

In addition to undermining protection for the constitutional rights of unpopular minorities, a packed judiciary would open the door to dangerous executive power grabs, such as Trump’s imposition of massive tariffs, and other abuses of emergency powers. It is difficult for Congress to prevent such efforts, as doing so requires a veto-proof two-thirds majority. A Congress controlled by the same party as the executive will usually not even try. Absent judicial constraints, such power grabs can seriously imperil the rule of law, by leaving major economic and social policy decisions increasingly subject to the whims of one person. It is no accident that court-packing is a standard tactic of illiberal would-be authoritarians such as Hungary’s Viktor Orban and Venezuela’s Hugo Chavez.

It would also imperil U.S. national security. Allowing one man to unilaterally break commitments to allies—through trade wars and other coercive measures—erodes the credibility that undergirds American power. Dismantling the rule of law carries severe economic consequences as well: investors, consumers, and businesses depend on stable, predictable rules to plan and operate, and without them, confidence is likely to falter and could even collapse. Economic weakness, in turn, compounds the damage to America’s standing in the world and leaves its national security further exposed.

Some Democrats argue that court-packing would simply be a proportional response to the GOP-controlled Senate’s actions in 2016 and 2020, refusing to consider a Democratic Supreme Court nominee in the former year, while rushing through future Justice Amy Coney Barrett in the latter. Democrats would be justified in responding to these actions in kind, by—for example—blocking a Trump Supreme Court nominee should they regain control of the Senate in the upcoming fall 2026 elections. But, as I have explained previously elsewhere, court-packing would be a major escalation over these sorts of actions.

Better Alternatives

A Democratic-controlled Congress and White House has many better options for addressing gerrymandering and various issues related to the Court. Most obviously, Congress could use its power under the Elections Clause of the Constitution to simply ban gerrymandering of congressional districts nationwide. The Supreme Court has noted that Congress has this power in its 2019 ruling in Rucho v. Common Cause, which held (wrongly, in my view) that—unlike racial gerrymandering—partisan gerrymandering is a “political question” not subject to judicial review. While Congress might have a tough time figuring out what standard to use in constraining state legislative redistricting, any of several options would be better than simply letting state governments do whatever they want. And any Congress with a majority willing to enact court-packing is likely to be able to enact a ban on gerrymandering.

Congress could also go further and simply impose either proportional representation or a system of multimember districts. These approaches would eliminate gerrymandering more thoroughly than any reform of the single-member districting process. But they might be harder to persuade Congress to enact, because they would imperil the seats of many more current members of the House of Representatives.

Congress could also potentially legislate to address various concerns about the Court. Elsewhere, I have explained that Congress has the power to enact an ethics code, thereby dealing with complaints about the justices taking too many gifts from various private parties. It could also begin the process of imposing 18-year term limits on Supreme Court justices, thereby addressing concerns about justices exercising power for many decades on end. And, unlike court-packing, term limits would not destroy the institution of judicial review.

Term limits would, however, require a constitutional amendment to enact, which is extremely difficult to do. But the idea enjoys broad supermajority support from both experts and the general public (a recent poll finds 67 percent support, including large majorities of Democrats, independents, and Republicans), thereby making an amendment potentially feasible.

Such reforms would admittedly not achieve the goal of swiftly replacing the current conservative majority on the Court with a left-wing one. But the whole point of judicial independence is to ensure that the current political majority cannot bend the judiciary to its will anytime it wants. And progressives who want a judiciary that will protect various types of minority rights cannot achieve that goal by destroying the entire institution of judicial review.

First, I want to elaborate on the allergy to reality I attribute to Humanities professors. More formally, this allergy derives from a bastardized form of “prefigurative politics” a form of activism that, according to political activist Jonathan Smucker, “seeks to demonstrate the ‘better world’ it envisions for the future in the actions it takes today.” According to scholars Paul Raekstad and Sofa Saio Gradin, prefigurative politics is geared toward “building a new society in the shell of the old” by making “a strategic commitment to developing revolutionary organizations that embody the structures of deliberation and decision-making that a post-capitalist society is to contain.” Hatred of American society aside, prefigurative politics does not seem that threatening; trying to model the world one wants to see is in itself, uncontroversial.

However, two developments have made prefigurative politics dangerous: the tendency to treat one’s prefigurative bubble as the real world itself, and the tendency to widen that bubble until it encompasses an entire department or the Humanities as a whole. Prefigurative politics done badly goes from a performative experience to a concretized ideological camp in which the righteous preside and dissenters are “canceled.” Those who disagree with, say, anti-capitalist sentiment, are relegated to the bubble’s margins (at best). This “bubble world,” is constituted by illiberal forms of DEI, the demonization of classical liberal values, the reprimand of critical inquiry and dissenting voices, and a significant dislike of the world.

I see the latest iteration of prefigurative politics in the article, “Humanities Chairs ‘Pessimistic’ About Their Future Departments,” which looks at a new study by the American Academy of Arts and Sciences that examines the outlook of several humanities department chairs in colleges across the country. The professors interviewed attribute the crisis in the humanities to political pressure, declining enrollments, administrative priorities, and skepticism about the value of a humanities education.

By the article’s end, a reader may get the impression that the humanities is a fine collective institution that is under threat from outside forces that do not understand the benefit they bring to students as they prepare for the real world.

But these chairs aren’t living in the real world.

The article blames the crises in the humanities on external pressures like neoliberal metrics, political attacks, STEM prioritization, and parental anxiety about their children’s job prospects. These are all causal elements for the humanities’ current crisis, but I would argue that academics, themselves, contribute most to this crisis. Ideological intolerance, overemphasis on social justice, and niche studies do little to prepare students for life after college. The fact that these things are not addressed at all in the article is indicative of the “make believe” condoned by prefigurative politics. If the chairs were serious, they would address or at least acknowledge the detriments of Critical Social Justice (e.g., wokeness) and its negative effects on free speech, critical inquiry, or anything that does not attribute society’s biggest problems to “whiteness.”

The chairs attempt to defend themselves also misaligns with reality. They insist that the humanities are uniquely capable of fostering self-reflection, civic development, and meaningful intellectual engagement. Perhaps they are, but this is not what the research bears out. According to organizations like SHRM, AAC & U, and Constructive Dialogue Institute, among businesses’ biggest complaint about new employees is their inability to communicate sufficiently in speaking, writing, critical thinking, and other soft skills thought to be the responsibility of the humanities. This can’t be blamed solely on professorial incompetence. It’s because the real world, a world in which employees have to be able to communicate effectively with themselves, clients, and others, is of little concern to them. After all, that is the world they are trying to change if not “tear down.” Preparing students for such a world becomes a conflict of interest.

If humanities professors are suffering from an allergy to reality, what would be the metaphorical Prilosec? Many in Federal and State legislations may look to ban certain behavior, but that presents its own problems. Perhaps we should let the market speak. If enrollment is declining and sufficient preparation for life is not being done, something has to change before institutions begin cutting their losses by cutting the humanities.

The Department of Health and Human Services (HHS) classifies advisories as public statements that call attention to an issue and provide recommendations. They are distinct from the surgeon general’s reports, which are comprehensive scientific reviews prepared by experts, and from calls to action, which are science-based summaries. The screen-use advisory states explicitly that its findings are not the product of a formal systematic review. By the issuing agency’s own standards, it is not a scientific document. But it frames the issue with an authority that makes moral panic sound like public health.

Almost everything we know about children and screens comes from cross-sectional research, examining correlations at a single snapshot in time. It is difficult to determine, without longitudinal data, let alone randomized control trials, what the directionality is of associations between screen time and mental health. Do screens cause worse mental health? Or do children with poor mental health spend more time on screens, seeking social support online?

The advisory is candid about this when it addresses the science directly. It acknowledges that most available evidence is correlational, that findings vary by age, content, and context, and that studies have reported positive, negative, mixed, and null effects. It also notes that causality cannot be proven.

But its summary guidelines suggest the exact opposite. The advisory claims that limiting screen time is necessary to protect children’s mental health. A finding that earlier smartphone ownership is “associated with” later depression becomes, in the surrounding paragraphs, evidence that the phone caused it.

Meanwhile, the largest synthesis of this research, a 2024 meta-analysis in JAMA Pediatrics covering 143 studies and more than 1 million adolescents worldwide, found that the associations between social media use and mental health were small, inconsistent across studies, and drawn almost entirely from non-clinical community samples. When researchers statistically control for the variables that predict both heavy social media use and poor outcomes, including neuroticism, poor emotional regulation, and weak social support, the effects disappear. Genetic research tells the same story: Shared genes influence both digital habits and mental health, suggesting that heavy screen use is a downstream expression of preexisting vulnerabilities rather than a cause of new ones.

Children who are already anxious, isolated, or unstable at home are most often the ones who retreat into a screen. Screen time can be a marker of mental distress without causally contributing to it. But across the smartphone era, American teenagers have committed less violent crime, smoked less, used fewer drugs, had fewer pregnancies, and dropped out of school at lower rates, according to the Centers for Disease Control and Prevention (CDC)‘s own Youth Risk Behavior Survey. If screens were broadly impairing a generation, the damage should show up more consistently than a selective worsening on the self-reported measures most sensitive to a culture that has grown more willing to label and report distress.

The advisory’s claims about attention and the developing brain fare no better. It is true that excess screen time has been shown to be associated with diminished attention span and poorer educational outcomes. In quasi-randomized control trials, comparing similar schools within the same district that do or do not have smartphone bans, those that ban screens tend to perform better on standardized testing. The report concludes from this evidence that screens are fundamentally harmful to children’s brain and cognitive development.

But children’s brains are extraordinarily plastic. They wire themselves to match the world they encounter, and that rewiring is the system working, not breaking down. The capacity for prolonged single-task focus, the attentional style that classrooms reward and that the advisory treats as a healthy baseline, is not the brain’s default. It is something the structured environment of industrial-era schooling trained into minds that evolved for a world of shifting stimuli and competing demands. A childhood spent navigating fast feeds and switching between applications will produce a different attentional profile than one raised on books and chalkboards. A different profile is not the same as a deficient one.

Habitual media multitaskers and heavy users of touchscreen devices do tend to perform worse on tasks requiring slow, sustained, narrowly channeled focus and the suppression of impulses. But they perform better at locating a target in a crowded visual field, tracking several objects in motion simultaneously, and reallocating attention on short notice. Action video gaming in particular sharpens visual selective attention, processing speed, and the spatial resolution of vision, and these gains transfer to novel tasks that the player was never trained on. Claims that screens impair children’s cognitive development almost always rest on measuring a single attentional style, the one that schooling prizes, and ignoring the capacities that strengthen on the other side.

Faced with such disputed claims, the advisory invokes the precautionary principle: action cannot wait for all the evidence. Health Secretary Robert F. Kennedy Jr. opens the report arguing that we must act to protect children from potential harm, even before the science is settled. The precautionary principle sounds responsible, but it can be used to justify any intervention in any direction, because evidence is never complete for anything. Strip away the precautionary language and much of what remains is moral instruction. The advisory urges the public to “scroll less and live best” and to put screens away so children can “live real life.” Many parents share those instincts. But a parenting aspiration is not a public health finding, and publishing it under a federal imprimatur does not convert one into the other.

The problem is not merely that the evidence is weak, though that would be problematic enough coming from our nation’s highest medical authority. The advisory also highlights how far the Office of the Surgeon General has strayed from its original purpose.

The office began in the 19th century as part of the Marine Hospital Service. Its mission was to help control infectious diseases and oversee the health of merchant seamen. Public health, in its original and defensible sense, addresses harms that one person imposes on others who did not consent: infectious disease, polluted water, contaminated air. Yet over time, the office increasingly expanded beyond those traditional public health concerns.

Recent surgeon general advisories have addressed loneliness, social media, parenting stress, firearm violence, and now screen use. Whatever one thinks about those issues, they illustrate how the office has drifted from its original mission. As a recent Cato Institute policy analysis documented, this expansion has unfolded over decades, turning the office into a platform for commentary on social and behavioral issues only tangentially related to public health.

A child’s screen time is not a negative externality. It is a question of family life and parental judgment, the kind of question government health officials are least equipped to answer. These are matters of personal health—not within the government’s purview.

The advisory’s practical suggestions to families may be perfectly sensible. But sensible parenting advice does not require a federal advisory, and a federal advisory implies a scientific foundation that this one lacks. The honest course would be to encourage the long-term research the field actually needs and leave questions about children’s screen use where they belong: with families.

Congress should dissolve the Office of the Surgeon General and reassign any remaining legitimate public health functions to existing agencies. The country would scarcely notice.

At 8 a.m. on June 3, the morning after its statewide primary, the New York Times estimated that California had tabulated 58 percent of the ballots in its gubernatorial primary.

Yesterday (June 4) afternoon, the state had yet to cross 60% according to the same poll tracker. 

This is completely consistent with previous California elections. It’s also a disaster in the making. Control of the U.S. House of Representatives after the November 3 midterm elections could hinge on a few competitive districts in California. We likely won’t know the winners of those contests until the Friday after election day at the earliest, and quite possibly many days later.

Many Americans will be confused about the delay and suspicious about its cause. In today’s nationalized politics, with a nationwide media focus, normal Americans don’t understand why most states know who won their races within hours of the polls closing, but not California. That’s not just an inconvenience for impatient people; it’s the origin of distrust in the electoral system. Political scientists have found that “longer-than-expected vote counting time induces a large, significant decrease in trust in the election.”

The concerns of normal Americans will of course be inflamed by liars, grifters, conflict merchants, and MAGA politicians who point to prolonged election results as evidence of cheating. Just a few months ago, Speaker of the House Mike Johnson held up California as an example of why some Republicans want to see more federal control of elections. “We had three House Republican candidates who were ahead on Election Day, in the last election cycle, and every time a new tranche of ballots came in they just magically whittled away until their leads were lost. … It looks on its face to be fraudulent,” he said. “Can I prove that? No, because it happened so far upstream.” 

Speaker Johnson should know better (and he likely does). California mails a ballot to every registered voter (it’s an “all mail” state). According to the California Voter Foundation, 25 percent of California’s vote arrives on election day, by mail or by drop off. Election officials can’t immediately count those ballots. They must first scan the ballot packet to ensure the voter hasn’t already voted in person; they must then examine the voter’s signature to confirm identity; they must check if the ballot is torn or otherwise damaged; they must adjudicate any stray or unclear pen marks; and they must document all those steps. Only then can results be reported. Kim Alexander, president of the California Voter Foundation, calls it the “pig-in-the-python” effect. It takes days for the python to digest the pig—in this case, millions of mail ballots. 

Added to this, California law allows mail ballots to arrive at county election offices up to seven days after an election day as long as they are postmarked on that election day. If Americans are complaining five days after the fact about results not yet being final in California, it’s possible that California election officials haven’t even yet received all the eligible ballots.

Eight years ago, delayed results would have just been a nuisance. In 2026, with election denialism still at a fever pitch, it could lead to violent outbursts or legal fights over whether or not to seat certain members of the new Congress.

Newsom knows the stakes. He also knows that California’s election practices are increasingly a black eye on the state and on his reputation. In February, the New York Times editorial board wrote, “California’s Slow Vote Counting Is a Gift to Republicans.” Political statistician Nate Silver said this week that California elections are “failed state s–t and should be much more stigmatized.” 

Newsom’s solution? Election officials should work harder and count faster. “We must do all that we can to tabulate votes quickly and accurately,” he wrote last month in a letter to county registrars. “Time is of the essence in preventing election lies from taking hold.”

That’s more than a bit rich coming from the governor. He’s never worked an election. He hasn’t signed laws that will materially speed up the count. And he hasn’t allocated new funds to fix the problem. 

What Newsom has done is sign three ceremonial bills that do nothing to address the issues. Assembly Bill 5, passed in 2025, reduced the period for completing California’s counting from 30 days to 13. But there are all sorts of exceptions. And it does nothing to help with the first 72 hours—the period in which Americans expect to learn who won an election. Assembly Bill 16 allows election officials to begin processing mail ballots as soon as they are received. Previously, election officials could begin counting 29 days before election day. Very few ballots arrive more than 29 days out from an election anyway, so AB16 is largely worthless. Finally, Assembly Bill 827 shortens the deadline by which voters are permitted to correct their ballot envelope signatures (a process known as “curing”) from an extremely absurd 26 days after election day to an only-slightly-less-absurd 22 days. 

Despite the lack of progress these bills represent, there are steps Newsom can still take to improve the situation in time for November 3. He should:

1. Allocate new funding for election administration. Laws and voter practices are at the heart of California’s slow counting. But by simply having more physical space and election workers, counties would be better equipped to handle the glut of mail ballots that arrive on election day. Los Angeles and Orange counties recently improved their tabulation speed by investing millions of county dollars in expanded spaces and staffing.
    
2. Expand in-person early voting. Right now, only 30 of the state’s 58 counties are “Voter Choice Act” counties, which allow 10-plus days of early voting. All counties should have at least 10 days of early in-person voting that includes at least some weekend days. This would encourage Californians to vote earlier and give election officials more time to process ballots.
    
3. Get rid of late-voting days. California currently allows seven days for mail ballots to arrive at election offices after an election day if they are postmarked on that day. This is silly. Mail ballots go out 29 days before election day—that’s plenty of time to return them by mail. The state should require that mail ballots be in the hands of election officials by election day.
    
4. Promote early ballot returns. As requested by Assembly member Gail Pellerin, California should fund a campaign to encourage voters to return their ballots early. Voters should know that if they’re holding onto mail ballots until the day of the election, they’re part of the problem.

Would these four steps totally solve the problem? No. But it will make the situation much better. And it’s a lot more productive than Newsom simply telling election officials they need to work harder.

Younger Americans Are Using Fewer Drugs

Another factor that may be contributing to the decline in overdose deaths is that younger Americans appear to be using many psychoactive substances less than previous generations. Federally funded surveys, such as the Monitoring the Future survey, have documented substantial long-term declines in adolescent cigarette smoking, alcohol use, and many illicit drugs, while CDC Youth Risk Behavior Survey data show major reductions in teen alcohol use and cigarette smoking over the past two decades. Even youth vaping rates have fallen from their 2019 peak, according to the FDA/CDC National Youth Tobacco Survey.

Researchers increasingly describe Gen Z as engaging in less risk-taking behavior overall than earlier cohorts, including less drinking, smoking, and drug use. While this trend alone probably does not fully explain the recent decline in overdose deaths, particularly since most fatal overdoses occur among adults in their 30s to 50s, it may reduce the number of younger people who progress into the highest-risk patterns of substance use associated with overdose mortality.

As pandemic-era supply chain and transportation disruptions eased, illicit drug markets also have become more diversified. During the pandemic, fentanyl largely displaced heroin in many regions of the country. More recently, some researchers and harm-reduction workers have reported signs that heroin availability has modestly rebounded in certain markets. Because heroin is less potent and generally longer-acting than fentanyl, some opioid users who developed tolerance to fentanyl may prefer heroin when it is available, potentially reducing exposure to the highly concentrated fentanyl products that drove record overdose deaths during the pandemic.

Smoking Instead of Injecting

Another possible contributor has received far less media attention: more drug users appear to be smoking drugs rather than injecting them.

There is a growing body of evidence suggesting that part of the recent decline in US overdose deaths may reflect a shift in routes of drug administration away from injection and toward smoking, particularly with fentanyl. Researchers and harm-reduction experts caution against overstating the effect, because smoking fentanyl can still be highly dangerous and potentially fatal. Yet several studies suggest smoking may carry a lower overdose risk than injection.

A CDC study found that by 2022, smoking had overtaken injection as the most commonly documented route of drug use in overdose deaths, while injection-related overdose deaths declined. A 2024 study published in the International Journal of Drug Policy reported that people who inject fentanyl face a higher risk of nonfatal overdose than people who primarily smoke it. Researchers studying users in San Francisco likewise found that many who transitioned from injecting heroin to smoking fentanyl described smoking as producing a more gradual effect rather than the rapid “bolus” effect associated with injection, potentially lowering overdose risk. Their findings were published in the journal Drug and Alcohol Dependence. A recent STAT News report noted that many experts view this transition from injecting to smoking as “a promising development that could help extend the decline in deaths.” Harm-reduction organizations similarly acknowledge that while smoking fentanyl remains dangerous, injecting “carries the highest risk for overdose.”

Evidence also suggests this shift toward smoking has become increasingly common nationwide. A 2024 study examining treatment admissions nationwide found that injection of heroin and synthetic opioids has declined while smoking has steadily increased, with Arizona among the states showing especially high smoking rates. That study appeared in the International Journal of Drug Policy. The director of an Arizona harm reduction organization described similar trends during my 2024 interview.

Europe’s Harm Reduction Advantage

Smoking heroin and other opioids has long been more common in the UK and much of Europe than in the US, where injection has become far more entrenched. The European Union Drugs Agency reports that injection has steadily declined across Europe for years, while smoking and inhalation have become increasingly common routes of administration. Some researchers believe this difference may partially explain why overdose death rates in many European countries historically have remained lower than in the US. The European Union Drugs Agency notes that facilities serving people who inhale drugs report fewer emergency incidents than those serving people who inject.

But the route of administration is only part of the story. European countries have also embraced harm-reduction strategies far more aggressively than the US for decades, including syringe services programs, heroin maintenance programs, supervised consumption sites (also called “overdose prevention centers”), and widespread methadone treatment. Those policies likely play a much larger role in explaining the longstanding overdose mortality gap between the US and many European countries.

In recent years, federal and state public health institutions have begun to embrace harm-reduction strategies as well. Many states have reformed their drug paraphernalia laws to permit the sale and distribution of fentanyl test strips. Some have authorized overdose prevention centers despite their federal prohibition. The Food and Drug Administration (FDA) has allowed pharmacies to sell the nasal-spray version of the overdose antidote naloxone over the counter, and harm reduction organizations have widely distributed it in both nasal-spray and injectable forms to a drug-using population that is far more aware of the presence and potency of powerful synthetic drugs than it was when fentanyl first began infiltrating the illicit drug supply roughly 15 years ago. While it is difficult to quantify their precise impact, these harm-reduction measures almost certainly contribute to the recent decline in overdose deaths.

What Isn’t Driving the Decline

None of the most plausible explanations for the decline in overdose deaths involves intensifying the drug war. If anything, the evidence points toward lower-risk patterns of drug use, harm reduction, naloxone access, and behavioral adaptation in response to an increasingly dangerous illicit market. One factor that clearly has not contributed to the decline in overdose deaths is the extrajudicial killing of people operating small speedboats off the coast of South America by US warplanes, begun last September, based on suspicions of cocaine trafficking.

Washington will almost certainly try to claim credit for the decline in overdose deaths. But nothing in the evidence suggests that bombing suspected traffickers, intensifying interdiction, or escalating prohibition deserves the credit. If bombing traffickers and escalating interdiction were meaningfully reducing supply, illicit drug prices should be rising. Instead, black markets continue to deliver cheaper, more potent, and more easily transported substances. After more than 50 years of failure, the drug war remains far better at generating black markets than saving lives.

When a vacancy occurs in a federal office that normally requires Senate confirmation, the president is authorized to temporarily fill the office with an acting officer, who can begin serving immediately without Senate confirmation. The rules for these acting officers are set by the Federal Vacancies Reform Act of 1998, which defines both who is eligible to serve and how long they may serve. In addition, roughly 40 federal offices have their own unique statutes setting various parameters for acting service, and the DNI is one of them. Like most of these officer-specific statutes, the DNI’s statute identifies the deputy to the position as the authorized acting officer (in this case, that would be Principal Deputy DNI Aaron Lukas).

The Vacancies Act states that it is “the exclusive means” for appointing an acting officer “unless” another “statutory provision expressly” authorizes and sets parameters for acting service in a particular office. Courts have consistently held that this language means the Vacancies Act remains an option for the president to use even when another officer-specific statute applies. As the U.S. Court of Appeals for the Ninth Circuit put it, neither statute in such a situation is the “exclusive means” of appointing an acting officer and the president is thus “permitted to elect between these two statutory alternatives.”

But two aspects of the DNI’s statute distinguish it from other officer-specific statutes and make it slightly less certain whether the Vacancies Act remains an option for Trump. Unlike many other offices with their own acting statutes, the DNI was established after the Vacancies Act was passed in 1998. That means that if there were an irresolvable conflict between the two statutes, the DNI statute would win out under the rule that the more recently enacted statute takes precedence. And unlike some other acting statutes that state the deputy to a position “may” serve as an acting, the DNI’s statute says the principal deputy DNI “shall” serve as acting DNI in the case of a vacancy.

These differences have led some scholars to conclude that the DNI statute supersedes the Vacancies Act and thus is the only option. Yet the Department of Justice’s Office of Legal Counsel has disagreed, advising in 2019 that the Vacancies Act could be used to fill a previous vacancy in the position when DNI Dan Coats resigned and was replaced by acting DNI Joseph Maguire (who himself was replaced by acting DNI Richard Grenell). And the U.S. District Court for the District of Columbia, in a case about the Consumer Financial Protection Bureau director (which was also created after 1998 and also uses “shall”), held that the two statutes can be read as alternatives rather than in conflict.

If the Vacancies Act is indeed available to appoint an acting DNI, Pulte’s appointment demonstrates that the statute’s eligibility rules are far too broad. Under the current rules, if the president does not wish for the deputy below an appointed position to serve as the acting officer, he can instead choose anyone from two categories. The first category includes all Senate-confirmed officials across the federal government. And the second category consists of all civil servants at the top of the government pay scale who served in the same department as the vacancy for at least 90 days. The category of Senate-confirmed officials could, in theory, encompass about 1,300 people. In practice, not every Senate-confirmed position is filled at any given time: More than 350 are currently filled.

When the Senate vets and confirms a nominee, it does so with a particular position in mind. So while a confirmed official can be presumed qualified for their own office, there is no reason to think they would also be qualified to serve, even temporarily, in an entirely separate department. The undersecretary for farm production and conservation in the Department of Agriculture should not serve as acting secretary of state, the assistant administrator for toxic substances in the Environmental Protection Agency should not serve as acting secretary of the treasury, and the director of the Federal Housing Finance Agency should not serve as acting DNI.

The solution is simple: Congress should amend the Vacancies Act to require that all acting officers, including those from the category of Senate-confirmed officials, must be from the same department or agency as the vacant office they temporarily fill. That is already the statutory rule when the president chooses a civil servant to serve as an acting officer; Congress need only extend this limitation to Senate-confirmed officers. Or in the case of relatively small agencies such as the Office of the Director of National Intelligence (ODNI)—which currently has four Senate-confirmed officials besides the DNI herself, who will remain in office through June 30—Congress could extend eligibility to officers from related intelligence agencies such as the CIA and the National Security Agency.

Preventing appointments such as Pulte’s is not just good policy; it also may be required by the Constitution. Officers with no supervisor except the president are “principal” officers, who must be confirmed by the Senate under the Constitution’s Appointments Clause. The DNI has no supervisor except the president and is thus a principal office. But the Vacancies Act allows acting officers to serve immediately, without Senate confirmation, which means there is an inherent tension with the Appointments Clause when the act is used to fill principal offices. The Supreme Court held in 1898 that acting officers who serve in principal offices are not themselves principal officers, and lower courts have considered themselves bound to follow that opinion. That is why the U.S. Court of Appeals for the Fourth Circuit rejected a challenge to the service of acting Attorney General Matthew Whitaker. But in my view, the Supreme Court’s 1898 opinion cannot be reconciled with a more recent opinion from 1997, which held that an officer’s principal status depends only on their level of supervision, not their length of service.

Under modern Supreme Court doctrine, the only officers who are plausibly eligible to temporarily act in principal roles are those who have already been confirmed by the Senate to a closely related position. The question is whether the Senate was on notice (when it confirmed the official) that the official might be called on to later serve as the acting officer for the position in question. The Senate can reasonably expect that officials confirmed to positions in the ODNI might go on to serve as acting DNI, but it would not reasonably expect the same for officials confirmed to positions in the Federal Housing Finance Agency. So limiting eligibility for acting service to positions in the same agency would also bring the Vacancies Act in harmony with the Constitution.

Finally, Pulte’s appointment demonstrates another problem with the Vacancies Act’s broad eligibility rules. By statute, anyone nominated for Senate confirmation as DNI must have “extensive national security expertise.” When a nominee is put before the Senate, the Senate can judge in good faith whether the nominee meets that criterion. But ironically, such statutory qualification requirements likely do not apply to acting officers, even though acting officers are not vetted by the Senate and thus even more prone to the risk of unqualified appointees.

As Anne Joseph O’Connell has explained, a statutory qualification requirement for a position would not apply to an acting officer in the position unless the statute explicitly mentions that it does so apply (and I am not aware of any that do). To fix this loophole, Congress could amend the Vacancies Act to clarify that all statutory qualification requirements also apply to acting officers in the same positions. But simply mandating that all acting officers must come from the same agency as the vacant position would go far toward achieving the same end. Acting officers are important to keep the vital offices of government functioning during periods of transition. But they are also dangerous because they avoid the Senate confirmation process that the framers designed as a check against presidential cronyism. Congress reformed the Vacancies Act in 1998 to rein in presidential abuses of the act; it is past time that Congress do so again.

In the United States, the administration of President Donald Trump has rightly condemned censorship by its predecessor, Joe Biden’s administration, and foreign governments. But then, it threatened the media through the Federal Communications Commission, pressured tech companies to remove apps and posts that frustrated immigration enforcement, arrested immigrants over pro-Palestinian speech, targeted universities, and more. Even as the First Amendment protects Americans from blatant censorship, they increasingly accept punishing speech they dislike, including even violence, left-wing cancel culture, or right-wing calls for cancellation after the murder of conservative commentator Charlie Kirk.

Abroad, the picture is worse. Hate speech laws have punished Finnish parliamentarians for past comments about homosexuality, threatened author J.K. Rowling and comedy writer Graham Linehan over posts about gender, and sent German police on pre-dawn raids over offensive memes. Blasphemy, sacrilege, and public-order laws silence nonviolent criticism of religion. The EU’s Digital Services Act pressures platforms to moderate lawful speech deemed disinformation or harmful. Australia has banned children under sixteen from social media, and other democracies are following suit with similar restrictions that threaten everyone’s privacy and expression.

Free expression is essential to self-government, individual rights, truth-seeking, pluralism, countering hate, and preventing violence. Democracies need stronger protections for speech—online and offline—if their citizens are to thrive.

Indeed, Iran proved what many had long suspected, that it could block the Strait of Hormuz and thereby hold its U.S.-backed neighbors and much of the industrialized world hostage. The president’s maximalist demands exceed his minimalist achievements, frustrating his attempt to negotiate an end to the conflict. Unhelpful is his choice of chief negotiators, Jared Kushner and Steve Witkoff, who are not only beholden to Israel, but also ignorant of Iran, nuclear issues, and diplomacy. Thus, despite Trump’s repeated claims that Tehran’s surrender is near, the conflict, and resulting economic damage, continue.

Yet rather than drop his demand that the new, more nationalistic and hardline Iranian leadership welcome him as a de facto conqueror, Trump has continued to issue maximalist demands, effectively sustaining the conflict. Last week he expanded his ambitions even further, suggesting that he would make peace only if a gaggle of Muslim states recognized Israel. “If they don’t sign to join Abraham Accords, I’m not sure we should make the deal,” he said. In addition to the Gulf kingdoms, which he had long pressured to legitimize Israeli Prime Minister Benjamin Netanyahu’s extremist government, he named Pakistan, Egypt, Jordan, and Turkey (even though the latter three already recognize Israel). Nothing was expected of Israel, which would continue to receive U.S. arms and money to occupy Palestinian lands and kill Palestinian and other Arab civilians.

His latest expostulations were not well received. He believes that “those countries owe it to us,” but they feel very differently. Jon Alterman of the Center for Strategic and International Studies argued that the Gulf states are disappointed in Washington and especially the administration: “While they’re careful not to say it explicitly, they feel the United States was very motivated to protect Israel and not very motivated to protect them.” Apparently, they only just noticed what has long been obvious. To some of them, Israel’s murderous campaign to dominate the region looks at least as dangerous as Iran’s ambitions.

In fact, the so-called Abraham Accords, long touted as a major achievement from Trump’s first term, are a pious fraud. Though depicted as a kind of peace deal, they have nothing to do with peace, since none of the participants—so far Bahrain, Kazakhstan, Morocco, and the United Arab Emirates (Sudan signed on but fell into civil war before ratifying the agreement)—have been at war with Israel.

Nor has the lack of Israeli embassies across the Persian Gulf and North Africa prevented any nation from engaging in back-channel security cooperation. To the contrary, fear of Iran proved to be a powerful glue, linking nations publicly at odds. Several Arab states, including Saudi Arabia, which has long been expected to join, have collaborated informally with Israel on the basis of a shared antagonism to the Islamic Republic. Kuwait and Qatar have also not been on the verge of conflict with Israel. Ironically, forcing relations into the open would likely increase domestic public opposition to Israeli ties within these Arab countries, given the Netanyahu government’s recent depredations.

Thus, Trump’s purposes were not peace, but something much more sinister. The first was to effectively force Arab states to drop their commitment to a Palestinian state. In 2002, members of the Arab League adopted the Arab Peace Initiative. Proposed by Riyadh, the measure offered recognition to Israel in exchange for Israeli withdrawal from the West Bank and Gaza. The Abraham Accords require the former while dropping the latter demand, leaving Palestinians akin to Helots in ancient Sparta.

Of course, professed concern by Arab elites over Palestinians living under a violent and brutal occupation is often pro forma. However, public opinion forces even the most cynical authoritarians in such nations to act as if they care about the victims of Israel’s increasingly repressive policy. For instance, Saudi Arabia’s Crown Prince Mohammed bin Salman, who not only murders but dismembers his critics, explained that 95 percent of his people opposed accepting Israel. Trump expects Riyadh and other states to abandon even the pretense that Palestinians are human beings who deserve the same respect as others.

Moreover, expanding the Abraham Accords would act as a Hail Mary political pass to Netanyahu, who faces a difficult reelection campaign. It would both offer a dramatic success to the Israeli prime minister and act as a de facto endorsement by the American president. Indeed, Trump appears to believe his ability to shift votes is as great in Israel as in U.S. primary contests.

Even Arab governments that were willing to covertly cooperate with Israel in the past are reluctant to do so today, let alone publicly embrace the radical and violent ethno-religious coalition that controls Israel. The Netanyahu government is ostentatiously seeking regional hegemony, devastating Gaza, the West Bank, and Lebanon, striking Hamas figures in Qatar, an American ally, and wrecking Iran. Joining the Abraham Accords would be seen as an endorsement of such activities or, even worse, submission to Israel.

The only good news is that Trump was bluffing. Despite his dictatorial tone, he apparently has moved on, presumably realizing that none of the governments will comply. They see little benefit in risking public unrest to fulfill Trump’s fantasies. Indeed, prolonging the war to pressure disparate Muslim states to embrace Israel could risk the survival of the Gulf states, which would almost certainly find their energy facilities and other civilian operations, such as desalination plants, under fire by Iran. Moreover, continued international instability and higher energy prices would fuel antagonism toward the administration. Despite his claim to be indifferent to the upcoming midterm elections, Trump presumably is more concerned about his future than that of Netanyahu.

Nevertheless, merely raising the issue increased uncertainty about his intentions, thereby undermining the administration’s efforts to end the war. His bizarre demand further erodes confidence in Washington, and especially the White House. Expanding the Abraham Accords provides no meaningful benefit to America. Instead of working to enhance Netanyahu’s prestige, Trump should focus on ending his disastrous war on Iran. Any America First policy should begin with disengaging politically and especially militarily from the Middle East.

Grade inflation has long been acknowledged as a severe problem in academia. Academic work that would have gotten a B a generation ago now gets an A. From 1990 to 2020, college grade point averages (GPAs) increased by 21.5 percent. At some colleges, such as Yale, As and A minuses account for 80 percent of grades.

Harvard’s brute-force strategy to fight grade inflation isn’t without precedent. It falls in a long line of attempts to curb the practice. The Trump administration, for example, included a proposal to combat grade inflation in its recent compact, but the federal government lacks the authority, capacity, or trust to lead such an effort.

The problem past efforts have run into isn’t a lack of awareness or even a lack of will. It’s that no single institution can act alone without putting itself at a competitive disadvantage. But in an insightful piece, David Eubanks identified the key player that could solve this coordination problem: accreditors. To see why accreditors are uniquely positioned to reverse the trend, we first need to understand what’s driving grade inflation and why previous efforts to combat it have failed.

What’s Driving Grade Inflation?

There is a significant incentive for all actors in academia to accept artificially boosted grades.

Students are the most willing to accept grade inflation. And who can blame them? The boss who offers more money for less work would have many takers among his employees. Students are no different and will, as a general rule, gladly accept higher grades and a lower workload.

Another contributing factor to student demands for higher grades is the consumer mindset. When students pay tens of thousands of dollars for their education, they feel they should get As, regardless of performance. Even students who prefer learning over grades can be swayed to play it safe. After all, it is far less risky to choose the easy‑A course than one taught by a tough grader who will ensure students learn the material but may award lower grades. Those lower grades can reduce a student’s chances of landing a job interview or gaining admission to graduate school.

The second group of people driving grade inflation is professors. As an old Soviet-era joke goes, “we pretend to work, and they pretend to pay us.” A similar dynamic is at play with grading. Professors give students high grades, and students reward the professors with high student evaluations. They also benefit from fewer grade disputes since few students with an A will dispute their grade.

The third group driving grade inflation is graduate school admissions committees. Undergraduate GPAs are one of the primary tools committees use to make their decisions. But this means that every college and professor who wants to see their students accepted into graduate school is better off inflating grades.

How to Reverse the Trend

There has been no shortage of initiatives to combat grade inflation. Princeton tried to cap A grades, as Harvard is doing now, from 2004 to 2014, before scrapping the plan. Harvey Mansfield famously started giving students two grades: their official grade for their transcript and the grade they would have gotten without grade inflation. None of these policies has solved the problem. In part, that failure owes to a misdiagnosis of what’s driving it.

Efforts that presume grade inflation is a failure at the individual level, which can simply be remedied with calls for stiffer spines, are doomed to failure. Grade inflation is structural and incentive-driven, and it is therefore futile for an individual professor, department, or even a college to try to fight it. That is why Harvard’s new plan will fail just like Princeton’s.

The key to stopping grade inflation is solving a coordination problem—a prisoner’s dilemma. If all professors stopped inflating grades, we’d all be better off. Yet no professor or college wants to be the only one to stop inflating grades. Thus, the key to stopping grade inflation is solving a coordination problem. And that’s where an accreditor’s ability to apply a policy to many colleges at once sets them apart.

For example, the largest accreditor, the Higher Learning Commission (HLC), accredits 950 colleges, nearly a quarter of all federal aid-eligible colleges in the country. If HLC adopted contextualized transcripts, or adopted the abandoned Princeton cap on As, or a new Harvard cap, a critical mass of colleges would be committed to ending grade inflation, allowing other colleges and accreditors to follow suit.

Harvard should be applauded for trying to fight against grade inflation, but its efforts are doomed to fail because it cannot solve the coordination problem on its own. Accreditors in general, and HLC in particular, have the best chance of ending the scourge of grade inflation because they are the only ones who can solve the coordination problem.

The first is the Billionaire Tax Act, a onetime, 5% levy on the accumulated net worth of the state’s richest residents.

Lesser known is the Retirement and Personal Savings Protection Act, which would draw constitutional lines around what Sacramento can and cannot tax, prohibiting new levies on retirement accounts, personal savings and individually owned assets and banning retroactive taxation.

Everyone with even just a little bit of money set aside — not just the California billionaires targeted by the wealth tax — should understand what these two measures represent.

Start with the Billionaire Tax Act.

The gap between what it promises and what it would deliver is stark.

Joshua Rauh of Stanford University has run the numbers with his Hoover Institution colleagues, and the results cast doubt on the prospect of any revenue gain whatsoever.
Proponents claim the tax would raise $100 billion.

Rauh’s team found that billionaires have already been voting with their feet: Larry Ellison left California in 2020, and six others, including Google cofounders Larry Page and Sergey Brin, departed between the proposal’s announcement and Dec. 31, 2025 — the day before the liability would take effect.

These departures alone reduce the measure’s supposed tax revenue by nearly 40% before a single dollar is collected. Once migration patterns uncovered in the academic literature are applied to quieter departures, expected revenue falls to only $40 billion.

Now, factor in the normal state taxes that will no longer be collected from departing billionaires. Rauh’s team calculates that by shrinking the existing tax base, the measure’s “net present value” is at least a $25 billion loss for California.

Then there is the retroactivity problem.

The proposal aims to tax billionaires based on residency and conduct that reaches back to Jan. 1, long before any vote was cast.

Individuals who believe they lawfully established residency elsewhere might have to fight California in court for years (at the expense of the remaining taxpayers), based on details as arbitrary as where these billionaires kept their pets or held club memberships.

The “onetime” framing of the tax deserves equal skepticism.

As Rauh points out, the measure includes a constitutional authorization to lift California’s cap on taxation of intangible personal property.

Once that legal infrastructure exists, future wealth taxes can be imposed at any rate, at any threshold, at any time. It is, in other words, a permanent new power for the state.

The Billionaire Tax Act is so erratic and its precedent so problematic that it practically begs Californians to pay attention to the second ballot measure.

All Americans’ savings should be safe from such confiscation based on three clear principles.

First, fairness: When a worker sets aside after-tax income to invest for retirement, the resulting balance is not untapped revenue.

To treat this savings as a fresh tax base is to tax the same dollar twice.

Second, stability: A tax system that reaches into asset values rather than income flows is inherently volatile.

A founder whose stock drops 40% in a downturn still owes wealth tax on last year’s greater valuation. An ordinary saver whose 401(k) is taxed would face the same absurdity.

Third, and most urgent, is California’s own track record. According to the state’s nonpartisan Legislative Analyst’s Office, state spending is poised to grow by nearly 70% between 2019 and the coming fiscal year, drastically outpacing a significant revenue hike over the period.

The result is a cumulative deficit exceeding $50 billion over the next two years, a hole entirely of Sacramento’s own making, unrelated to Washington.

Trusting politicians with that spending record to stop at taxing billionaires is reckless and naive. When the wealth tax inevitably fails to deliver, the state will look for the next available pool of assets.

Nonbillionaires who remain after California’s billionaires depart will be the likely targets, and their retirement savings could be the new tax base.

As Rauh wrote earlier this month in his ongoing exploration of the proposals, “While approximately 0.001% of California households are billionaires, approximately 62% have retirement accounts.”

If this prediction sounds farfetched due to federal protections — or if you think billionaires will always be treated differently than normal savers who fill retirement accounts over a lifetime — consider what California already does to health savings accounts.

Federal law treats HSA contributions and earnings as tax-exempt. But under California’s tax engineering, the interest, dividends and capital gains are treated as ordinary income, affecting roughly 4.5 million residents.

These people are not billionaires or millionaires.

Politicians simply decided this was revenue the state was entitled to tax.

Doing the same with 401(k)s and IRAs would not require new principles, just the same willingness.

A wealth tax on billionaires is the first step, and it puts the retirement savings of ordinary Californians at risk. The HSA precedent suggests that the threat is real.

The Retirement and Personal Savings Protection Act would erect constitutional barriers against exactly that kind of expansion.

The importance of judicial independence was recently on display in Learning Resources v. Trump, where two of the three justices appointed by President Trump voted to strike down his tariffs as not authorized under the International Emergency Economic Powers Act. Even though he had chosen the justices, he could not fire them. Two months later, when Trump attended oral arguments in the birthright citizenship case, it again starkly demonstrated the lack of power he (or anyone else) has over the Supreme Court. He could glare all he wanted, but the justices knew that he could neither shorten their tenure nor cut their salaries. That is because the Constitution guarantees that all federal judges “shall hold their Offices during good Behaviour” and that their salaries “shall not be diminished during their Continuance in Office.”

Life tenure and salary protection were granted to federal judges because the Constitution’s framers knew that judges would sometimes be called on to make unpopular decisions. In Federalist 78, Alexander Hamilton wrote that life tenure would contribute to an “independent spirit in the judges which must be essential to the faithful performance of so arduous a duty.” Life tenure was thus intended to be a “barrier to the encroachments and oppressions of the representative body.” If judges instead had to depend on periodic reappointment, there would be a “danger of an improper complaisance” to the appointing branch of government. Such a system would “be fatal” to judges’ “necessary independence.” And in Federalist 79, Hamilton similarly explained that with a guaranteed salary, a judge “may then be sure of the ground upon which he stands, and can never be deterred from his duty by the apprehension of being placed in a less eligible situation.”

But despite these important benefits, our system of life tenure on the Supreme Court has led to unintended and harmful consequences. As lifespans have increased, the typical tenure of a Supreme Court justice has lengthened. As the Brennan Center has noted, “On average, justices today sit on the bench for more than a decade longer than their predecessors did as recently as the 1960s.” That means vacancies on the high court now arise roughly every three years rather than every two. And as the ideological balance of power on the court has become more important to both parties, qualified potential nominees are now treated as disqualified if they are over 55 because they are not as likely to serve “long enough.” But perhaps most concerning, justices now unabashedly time their retirements for when the presidency and Senate are controlled by their preferred party. Partisans on both sides urge justices to retire not because of infirmity but because of the political moment, such as recent campaigns urging Justices Stephen Breyer and Samuel Alito to retire. (Breyer retired in 2022.)

As a result of this system, the ideological balance of power on the court shifts not predictably due to elections, but unpredictably due to the randomness of justices dying, such as Justice Ruth Bader Ginsburg, or being forced to retire due to health, such as Justice Thurgood Marshall. A system in which constitutional lawyers obsessively follow the justices’ medical updates and the justices likely follow Senate polling averages is not a healthy one.

The question is: Can a new system be designed that fixes the randomness and unseemliness of the current system while retaining the vital benefits of Supreme Court independence? The answer is yes. That system is one in which justices know on the day they are appointed they will serve for 18 years on the Supreme Court and also for life afterward on a federal court of appeals.

First, as many others have convincingly argued, a single 18-year term on the Supreme Court would have many significant benefits. It would ensure predictability of appointments, yielding two appointments per presidential term. It would end strategically timed retirements (and with them the politicized campaigns urging retirements). It would end the unpredictable seismic swings in the balance of the court caused by justices’ deaths and infirmities. And it would allow appointing presidents to be agnostic as to the age of nominees, knowing that all appointees will serve for the same amount of time whether they are 40 or 60.

If Supreme Court justices served for a single guaranteed term of 18 years and then left the judiciary entirely, ineligible for reappointment, they would still be protected from premature firing or salary diminishment. But that would not necessarily be enough to ensure their complete independence. Life tenure in the judiciary ensures that judges need not fear punishment or ostracization after their tenure as judges has concluded. If judges could not rely on guaranteed income and authority for life, they might legitimately fear that certain decisions could harm their future economic prospects or their future ability to attain positions of similarly fulfilling and consequential work.

Thus, life tenure in the judiciary is important, but that does not mean we must guarantee life tenure on the Supreme Court. The vast majority of Article III judges in American history have served and will serve on some court below the Supreme Court, and life tenure on those lower courts has proven sufficient to provide them security and independence. The ideal system is one in which those appointed to the Supreme Court serve 18 years at the pinnacle of our judicial system and then serve for as long as they wish just one level lower, still protected from political punishment and still using their talents to decide weighty and important cases for as long as they wish.

With 18-year Supreme Court terms combined with subsequent life tenure on a court of appeals, we can ensure regular, predictable turnover on the Supreme Court without sacrificing the high court’s vital independence.

It’s clear from their public statements that both men are motivated by a genuine concern over the inability of the Secret Service to consistently and effectively protect the current sitting president. But the historical record shows such failures are inevitable regardless of where the Secret Service has existed on the government’s organization chart.

During the century-plus the Secret Service resided within the Treasury Department, there were presidential deaths at the hands of assassins (McKinley and Kennedy) or near-death episodes (Reagan). There’s no reason to believe that moving the Secret Service somewhere else in the Executive Branch will deter future assassins from making an attempt on a president’s life, and even less reason to believe that an organizational shuffling will ensure improved Secret Service performance in presidential protection.

There is, however, ample reason to believe that if the Moskowitz-Fry proposal were to become law, it would usher in a new age of presidentially directed spying and political repression unlike any seen in the history of the Republic, but which has clear historical parallels reaching back to the Roman Empire and its Praetorian Guard.

The reason lies not in the bill’s surface rationale but in what its sponsors appear not to have considered: the Secret Service is not merely a presidential protection agency. Far from it.

Under 18 U.S.C. § 3056, the Secret Service has jurisdiction over counterfeiting, financial fraud, wire fraud, access device fraud, and computer crimes. The financial crimes mandate has been a core Secret Service function since the agency’s founding in 1865.

Move the Secret Service into the Executive Office of the President (EOP) and you move its financial crimes jurisdiction there with it. Under the current administration’s own legal framework, that distinction is not incidental — it is the ballgame.

In April, Trump’s Office of Legal Counsel (OLC) issued a 52-page opinion concluding that the Presidential Records Act is unconstitutional in its entirety, and that the president “need not further comply with its dictates.” The legal architecture underlying that opinion holds that the EOP is the president’s constitutionally protected domain, not a space subject to ordinary congressional regulation or oversight. Congress created the Department of Homeland Security; it can regulate DHS. The EOP is different in kind: it is where presidential authority is most plenary and congressional reach is most attenuated.

A future OLC opinion — and this OLC has demonstrated it will reach for maximal presidential authority claims — could argue that the Secret Service’s director, as an EOP officer, serves entirely at the president’s pleasure without Senate confirmation and that the president may direct Secret Service financial crimes investigative priorities as an exercise of inherent Article II supervisory authority that no statute can override. The bill, as drafted, doesn’t even require Senate confirmation for the Service’s director — making that argument easier, not harder, to sustain.

Consider what that means against the backdrop of where this administration already is.

In September, President Trump signed National Security Presidential Memorandum 7, directing federal law enforcement to investigate Americans based on ideological markers — “anti-Americanism,” “anti-capitalism,” “anti-Christianity” — that describe protected First Amendment activity, not criminal conduct.

The administration’s FY2027 budget request confirmed that a multi-agency NSPM‑7 Joint Mission Center is now operational, drawing personnel from 10 federal agencies, specifically tasked with integrating “intelligence, operational support, and financial analysis” against its designated targets. What’s more, the administration has already named specific organizations — the Open Society Foundations, the Southern Poverty Law Center, the Ford Foundation — for investigation and possible prosecution and has directed the Internal Revenue Service to treat their tax-exempt status as a live question.

That is the financial targeting apparatus already in motion. The Secret Service’s financial crimes jurisdiction is precisely the enforcement tool most relevant to it. Place the Secret Service inside the presidency under a theory of plenary presidential authority over that space, and the president gains direct, unmediated supervisory control over the agency best positioned to investigate the financial networks of his administration’s designated political enemies.

Congressman Moskowitz, to his credit, joined the April 2026 House Judiciary Democrats’ amicus brief arguing that Trump’s executive orders targeting law firms for their advocacy clients violate the First Amendment and separation of powers. He grasps, in that context, that an administration willing to weaponize executive authority against political opponents is one whose control over law enforcement cannot be expanded without consequence. Yet his proposed legislation does not reflect that same understanding.

The bill would also dramatically reduce congressional oversight that the Secret Service so plainly needs. EOP components routinely invoke executive privilege to resist congressional subpoenas and document demands. Moving an agency with documented accountability failures into the portion of the executive branch most resistant to scrutiny is not a reform — it is an immunity grant.

None of this impugns Moskowitz’s or Fry’s motives. Both men are responding to real operational Secret Service failures. But the test of institutional reform is not whether the sponsor’s intentions are honorable — it is whether the authority being transferred will be used honorably by every future occupant of the office receiving it.

Congress should not respond by moving a federal law enforcement agency with sweeping jurisdiction directly into the president’s institutional inner circle. Doing so would not solve the Secret Service’s operational problems. It would instead create the conditions for a future president to exercise direct political control over one of the federal government’s most powerful investigative tools while shielding that control from meaningful oversight.

It is a blueprint for presidential political policing.

Those goals were always unachievable without targeting legal immigrants, so the administration has undermined every option to come or stay legally. The latest evidence against the claim came late last week, when DHS said it would require most immigrants to leave the United States to attempt to obtain their green cards through immigrant visa processing abroad.

After much outcry from businesses, DHS attempted to downplay the memo’s importance, particularly for skilled foreign workers. Yet the department has not withdrawn or amended the memo in any way. All immigrants will still be expected to cite unusual circumstances that rebut the presumption that they must leave the country. This will set up denials, loss of status and arrests at green card appointments and interviews.

In 1952, Congress created a process for people who entered legally with a temporary status to adjust that status to legal permanent residence without leaving the country. Since the 1980s, most legal permanent residents have received their green cards in the U.S. A majority are spouses of U.S. citizens or skilled employees of U.S. businesses. DHS wants to end this adjustment of status process and either arrest anyone denied under the new policy or take credit for the self-deportations that result.

As brazen as this new policy is, it is nothing new. Since Day 1 of this administration, DHS has attempted to cut off legal paths and arrest people when they lose their status.

The department’s initial focus was to cut off ways for immigrants to avoid the deportation dragnet. Over the last year, DHS has stripped more than 2 million legal immigrants of their parole and temporary protected status. It effectively banned asylum — even for immigrants who entered legally — reducing grant rates to just 1 in 14 applicants.

But DHS soon realized that many immigrants were still evading arrest and deportation through the green card process. In response, DHS has cut approvals of green cards in half over the past year. This caused the expiration of many immigrants’ underlying temporary status — whether a visa, parole, TPS or otherwise — setting them up for arrest.

For humanitarian categories — asylees, refugees, trafficking and crime victims — the agency quit processing almost completely. DHS has also more than quadrupled arrests of Cuban immigrants since Trump took office, even though Cubans have a special law enabling them to receive green cards after one year in the U.S.

In December, after DHS shut down refugee green card processing, it sent agents to Minnesota to arrest refugees who entered legally from abroad and still had refugee status. The justification? Failing to receive a green card within one year of entry as the law requires — even though DHS was not processing refugee green cards.

This latest policy move goes after the nonhumanitarian categories — employer- and family-sponsored immigrants — that are not already totally suspended. With DHS apparently concerned about business groups’ opposition, the main targets will likely be close relatives of U.S. citizens who are adjusting their status.

DHS is still allowing immigrants to apply for green cards, but it is saying it will only grant them to those with exceptional cases. Then, as their temporary statuses expire, it may deny them and arrest them at the same time. DHS is already arresting green card applicants, but it has been forced to release them when it finds that they are eligible. That’s the “problem” it wants to fix.

DHS is telling people they can just apply from abroad. But in addition to the family separation and costs, leaving will often cause applicants to lose their chance to return. If an employer-sponsored immigrant has to leave their job for months, their employer may be forced to fire them, costing them a job and the right to stay. In another convoluted legal twist, if someone whose status expired more than 180 days before applying entered legally, they are eligible to get a green card inside the U.S. But if they leave the country, they are barred from a visa for 3 years. If the lapse in status was over a year, they are barred for 10 years.

DHS knows all this — and would treat every one of these outcomes as a win. As significantly, DHS knows that Trump has banned 40 nationalities from receiving immigrant visas, and the State Department has suspended processing for immigrants from 75 countries. Combining these two lists means that more than 90 nationalities — half of legal immigrants — cannot undergo the green card process abroad. Despite downplaying the memo’s effect, DHS’ press comments have specifically suggested these nationalities will be forced out.

The new wall of red tape for legal immigrants isn’t some anomalous departure for the Trump administration. Rather, the bureaucratic hoops are an essential component of mass deportation. DHS needs to “illegalize” people — that is, transform people from legal to illegal — to meet its impossible deportation goals. This is also one reason why the administration has sought to end birthright citizenship. It knows that citizenship for U.S.-born children of immigrants protects those children from deportation.

Mass deportation and draconian limits on legal immigration are two sides of the same coin. So many people are here illegally solely because historically the U.S. government has made legal immigration impossible. If we want to solve the illegal immigration problem, legal immigration is the solution. But clearly DHS wants the problem more than the solution.

The crackdown was national and brutal. According to Amnesty International: “Immediately after the military crackdown, the Chinese authorities began to hunt down those involved in the demonstrations. Thousands of people were detained, tortured, imprisoned, or executed after unfair trials charged with ‘counter-revolutionary’ crimes.” Millions of Chinese, anyone suspected of having liberal sensibilities, were purged from the CCP. The desire for liberty remained widespread but had to be disguised.

Of course, the terrible death toll, likely in the thousands, was actually modest for the PRC. The only good news of Tiananmen was that the new China is more repressive than murderous, as during the 27 years when Mao Zedong effectively ruled the country. His madcap tenure, highlighted by consolidation of power, revenge against opponents, various ideological campaigns (Anti-Rightist Movement, Anti-Deviation Right Struggle, and others), agricultural collectivization and backyard industrialization (Great Leap Forward), and combination political purge/​personal revenge/​civil war (Great Proletarian Cultural Revolution), cost tens of millions of lives, a staggering toll making him the most prolific mass murderer in history.

Unfortunately, Mao’s image and influence continue to beset China. Xi Jinping, general secretary of the Chinese Communist Party and president of the Chinese government, fears instability of the sort so characteristic of Maoism. However, in other ways, he is a devoted Maoist, having steadily reinforced the role of the CCP and his control over it. In almost every way, China has become less free since he took control in 2012. Political controls are much tighter today than in the years after Mao’s death.

There is no easy strategy for outsiders, including Uncle Sam, to force Beijing to treat its people with dignity and respect their liberties. Repression is essential to the CCP’s control. Few authoritarian governments have voluntarily dismantled themselves. The Eastern European states generally went peacefully, but only because they were unable to hang onto control. Even Mikhail Gorbachev, Ronald Reagan’s essential partner in ending the Cold War, hoped to reform, not end, communism.

Moreover, Washington has a plethora of contentious issues with the PRC. Controversies include trade and investment, technology and supply, maritime and allied security, international pressure and domestic meddling, and more. How to balance such competing concerns and manage contradictions among them remains contentious. President Donald Trump emphasizes economic and commercial concerns.

Although there is no easy response to Chinese repression, Americans should support the liberty and dignity of the Chinese people when confronting that country. Human rights are more than a political issue for America. It is vital for 1.4 billion Chinese, especially average folks who simply want a better life for themselves and their families and friends.

This reality was dramatically highlighted when 68-year-old Dong Guangping recently escaped the PRC to South Korea, making the 30-hour trip on an inflatable boat. Reported the New York Times, he “was found in an 11-foot-long, light gray rubber boat attached to a 9.9‑horsepower motor.” It was his fourth attempt to escape frequent detention and what otherwise amounted to an open-air prison for a quarter century. Detailed the Times:

Currently held by South Korea, he hopes to join his family in Canada, which, a decade ago, offered him asylum. Although his story is dramatic, he is not the first Chinese dissident to flee by sea. Three years ago, Kwon Pyong escaped the PRC by jet ski. Although barely half Dong’s age, he also suffered greatly for refusing to kowtow to the latest Red Emperor ensconced in Beijing. Reported the Times, after his escape, “Mr. Kwon, 36 and an ethnic Korean, had mocked China’s powerful leader and criticized how the ruling Communist Party was persecuting hundreds of pro-democracy activists at home and abroad. In response, he said, he faced an exit ban and years of detention, prison and surveillance.” (Such attempts at liberation are not as rare as one might imagine. Russian freedom-seekers have similarly sought freedom, seeking to reach America via water.)

Americans are suffering through contentious political times at home. We should never forget the liberties that we enjoy, which are routinely denied to so many people in so many other lands, such as China. Dong Guangping understands the value of freedom. So does Kyong Pyong. We should remember them and their oppressed countrymen as another anniversary of Tiananmen Square approaches.

But there are also multiple ways in which democracy can often threaten liberty and human welfare. These dangers include the tyranny of the majority and widespread voter ignorance. Democracy can also be a threat to its own perpetuation, by bringing to power authoritarian political movements. These are all longstanding problems. But recent events demonstrate their continuing—and in some cases growing—significance. Liberals need to acknowledge their gravity and more aggressively pursue various potential solutions. These include limiting and decentralizing government and possibly measures to make it more difficult for illiberal anti-democratic movements to take power.

Democratic Tyranny

It is tempting to dismiss the idea of democracy devolving into tyranny or injustice as a contradiction in terms. People often use “democratic” as a synonym for “good,” and “undemocratic” for “bad.” Whatever the linguistic merits of this usage, it is not analytically helpful. If anything good is by definition also compatible with unconstrained democracy, and anything democratic is by definition also good, then democracy ceases to be an analytically useful concept. Better to define democracy as a political system governed by majoritarian political processes. Such processes can make both good decisions and bad ones.

A slightly more sophisticated basis for dismissing the possibility that democracy can be bad is the idea—advanced by a few political theorists, such as Ian Shapiro—that there is no objective external basis for evaluating democratic decisions. If the voters and their representatives support a particular policy, who are we to say it’s wrong?

Such moral relativism has a range of well-known flaws. Here I will merely note that, if we have no objective basis for evaluating the justice of democratically enacted policies, we also have no basis for concluding that democracy is superior to dictatorship, oligarchy, or theocracy. If there are metrics—such as liberty, equality, and human welfare—by which we can conclude that democracy is superior to these other systems, then those very same standards can be used to evaluate democracy’s own output, and to conclude that democratic government may need to be constrained or amended in various ways.

Once we recognize that democratic governments are not inherently just or immune to critical evaluation, it becomes clear that they may be prone to systematic flaws. The most obvious is the “tyranny of the majority.” If democratic governments represent the will of a majority of the population, that majority might sometimes oppress minorities. There are many obvious historical examples from around the world, including the oppression of ethnic, racial, religious, and other groups. This danger is once again a serious menace in many democratic nations, thanks in part to the rise of ethno-nationalist movements—like Donald Trump’s MAGA movement and similar ones in various European countries—that seek to mobilize ethnic majorities in their respective countries by highlighting the supposed threat posed by minority groups and immigrants. Nationalists have a long history of persecuting and oppressing minority groups, and today’s nationalist movements are much like their predecessors in that regard.

The Problem of Political Ignorance

Voter ignorance is a second way in which democracy often menaces liberal values. As described in many studies, including my book Democracy and Political Ignorance: Why Smaller Government is Smarter, overwhelming evidence shows that most voters know little about government and public policy. Majorities are often ignorant even of such basics as the names of the three branches of government, how the national government spends its money (voters in many nations massively underestimate how much is spent on entitlement programs, while greatly overestimating foreign aid), and which government officials are responsible for which issues.

Such behavior is actually perfectly rational for most of the public. If your only reason for following politics is to be a better voter, that turns out to not be much of an incentive at all, because there is so little chance that your vote will make a difference to the outcome of an election (about 1 in 60 million in a U.S. presidential race, for example, though there are variations depending on the state). For most people, therefore, it is rational to devote very little time to learning about politics, and instead focus on other activities.

Of course there are people who learn political information for reasons other than becoming better voters. Just as there are sports fans who love to follow their favorite teams even though they cannot influence the outcomes of games, there are also “political fans” who enjoy following political issues, and cheering for their favorite candidates, parties, or ideologies.

There is nothing wrong with being a political fan. But if you are seeking out political information for the purpose of enhancing your fan experience, that objective is often inimical to the goal of seeking out the truth. Much like sports fans, political fans tend to evaluate new information in a highly biased way. They overvalue anything that supports their preexisting views, and undervalue or ignore new data that cuts against them, even to the extent of misinterpreting simple data that they could easily assess correctly in other contexts. Moreover, those most interested in political issues are also particularly prone to discuss politics only with others who agree with their views and to follow politics only through like-minded media. This problem may well be even worse today, in the age of social media and a fragmented internet, than in some previous eras.

Thus, we have a serious two-level problem of political ignorance. Most voters are rationally ignorant, knowing little about politics and government. The minority, who are much more knowledgeable, are mostly political fans—highly biased in their selection of information sources and their evaluation of what they learn. In combination, these problems predictably lead to the election of political leaders and parties that pursue a wide range of badly flawed policies, including many that threaten liberty and other liberal values.

Voter ignorance is exacerbated by the enormous size, scope, and complexity of modern government. In most advanced democracies, government spending accounts for a third or more of GDP, and the state regulates almost every form of human activity. Even relatively knowledgeable voters cannot effectively monitor more than a small fraction of these policies and their effects.

The harm caused by political ignorance also exacerbates the problem of tyranny of the majority. Much oppression of minorities is itself the result of ignorance and bias. For example, ethnic discrimination and xenophobic hostility to immigration are often rooted in the ignorant belief that the economy is a zero-sum game, in which gains for one group can only come at the expense of others—ignoring the reality of growth, innovation, and mutually beneficial gains from exchange.

When I first started writing about political ignorance over twenty-five years ago, many scholars argued that voter knowledge levels are not a significant problem, because voters who know very little about government and public policy can still do a good job thanks to information shortcuts, the “miracle of aggregation,” and other workarounds. Such optimism is far less prevalent today, thanks to the rise of Donald Trump and other similar right-wing populist leaders exploiting political ignorance to their advantage. But Trump and his ilk are just particularly egregious examples of a problem that long predated them.

As I and other critics have long argued, information shortcuts have serious shortcomings. Among other things, they often require preexisting knowledge to use effectively. For example, the most common information shortcut is “retrospective voting,” rewarding or punishing incumbent politicians based on whether things went well or badly during their terms. As explained in chapter four of Democracy and Political Ignorance, voters often reward or punish officeholders for things they didn’t cause (most notably short-term economic trends, but also things like droughts and even sports team victories), while ignoring some things that politicians are in fact responsible for.

The 2024 U.S. presidential election showed that shortcuts are even less effective than I previously thought. Key swing voters overlooked the dangerous—and obvious—menace to liberal democracy posed by Donald Trump’s efforts to use force and fraud to overturn his defeat in the 2020 election. Instead, they focused on punishing Democrats for the less severe problem of inflationary price increases. In the process, they failed to recognize that Trump’s own policies—most notably tariffs, mass deportation, and exclusion of immigrant workers—would predictably increase prices rather than lower them, as in fact went on to happen.

“Miracle of aggregation” theories hold that errors caused by voter ignorance matter little because ignorance-induced voter errors in one direction (e.g., in favor of Republicans) are offset by those in the other (e.g., in favor of Democrats), allowing more knowledgeable voters to determine the outcome. Alternatively, voters collectively might have greater knowledge than they do individually, and the electorate as a whole can make effective use of that aggregate wisdom. As discussed more fully in Democracy and Political Ignorance, this happy outcome can only occur if voter errors are randomly distributed or other highly improbable circumstances arise. In the real world, even a slight nonrandom ignorance-induced bias can make errors virtually certain.

Bringing Illiberal Authoritarians to Power

In worst-case but all-too-plausible scenarios, democracy can be the cause of its own demise by bringing to power illiberal authoritarians. This famously happened in the case of Nazi Germany. More recently, authoritarians have come to power by democratic means and then proceeded to subvert democracy in countries like Russia, Venezuela, Turkey, Nicaragua, and elsewhere. In Hungary, the authoritarian Viktor Orbán was elected by democratic means, used government power to suppress opposition, and stayed in power for sixteen years, until he was finally thrown out by an opposition landslide so great that it turned his rigged electoral map against him. Even in the United States—one of the world’s longest and most deeply established democracies—voters elected Donald Trump despite his visible authoritarian tendencies, and then reelected him in 2024, even after he incited violence to try to stay in power after losing the previous election.

Trump probably won’t be able to completely subvert America’s liberal institutions, which are better-entrenched than those of Hungary, Russia, or Venezuela. But the very fact that he twice got the opportunity to try highlights a serious weakness of democracy.

Possible Solutions

The traditional solution to the danger of tyranny of the majority is to impose constitutional limits on government power, and to ban various types of invidious discrimination. These approaches have great merit, and have achieved much, including the abolition of Jim Crow racial segregation in the United States. But they cannot always cope with the full range of majoritarian tyranny. Most obviously, current constitutional rules, as interpreted by U.S. courts and those in many other countries, often don’t do nearly enough to curb majoritarian oppression of immigrants. The enormous size and scope of the modern state also makes it very difficult to curb these dangers, as it multiplies opportunities for oppression and discrimination.

There is no easy way to “fix” political ignorance. Experience shows that we cannot rely on public education to increase voter knowledge significantly, as knowledge levels have stagnated even as education attainment greatly increased over the last several decades. I assess a range of other possible options in my 2023 article on “Top-Down and Bottom-Up Solutions to the Problem of Political Ignorance,” and in Democracy and Political Ignorance. 

I believe the best approach is to make fewer decisions at the ballot box and more by “voting with your feet,” where incentives to seek out information and use it wisely are better. People can vote with their feet by choosing which governments to live under, based on their policies, and by making decisions in the private sector. As I discuss in various works, such as Free to Move: Foot Voting, Migration, and Political Freedom, we can empower people to make more decisions through foot voting by limiting and decentralizing government power, and by breaking down barriers to both domestic and international migration. These measures can increase the range of options available to foot voters and reduce moving costs. Decentralizing power to lower levels of government and—in many cases—to the private sector can empower foot voters to choose between a wide range of options without having to move long distances. We can also reduce the information burden on rationally ignorant voters by cutting back on the scope and complexity of government functions, thereby making it easier for voters to keep track of them.

In “Top-Down and Bottom-Up Solutions,” I suggest we should give more consideration to the possibility of simply paying voters to increase their levels of political knowledge, thereby altering the structure of incentives that leads to rational ignorance. For example, philanthropists or nonprofit groups could create a “Voter Achievement Test” that tests basic political knowledge, make it available to anyone who wants to take it, and give monetary awards to anyone who scores above a certain level, awarding perhaps $500 or $1,000 each. But any effective approach will take time, and there may be no one fix that is sufficient by itself. We likely need a combination of several strategies.

Constitutional constraints on government power can also help contain would-be authoritarians. But, given the opportunity, they can sometimes break through the constraints. A common strategy for doing so is the abuse of emergency powers, utilized by Vladimir Putin in Russia, Hugo Chávez in Venezuela, Benito Mussolini in Italy, and others; and most famously by the Nazis, with the 1933 Enabling Act. Legislators would do well to strictly limit emergency powers, and courts should not defer to the executive’s claims that the emergency situation required to trigger their use actually exists; they should demand proof.

Liberals should also give more consideration to mechanisms by which illiberal authoritarians can be barred from power in the first place. Barring candidates and parties from running for office based on their illiberal ideologies alone is a dangerous tool, since it could be abused to suppress opposition parties more generally. On the other hand, there is less danger in barring officeholding by people with a demonstrated record of dangerous, illiberal, and anti-democratic actions. For example, several post-communist Eastern European nations enacted “lustration” laws barring from office some former officials of their communist dictatorships, particularly former agents of the secret police. These laws have helped prevent democratic backsliding, and they have not become a menace to democracy themselves. Had Russia enacted such a law, it might have avoided the horrific regime of ex-KGB Lieutenant Colonel Vladimir Putin.

The United States, for its part, would have done well to enforce Section 3 of the Fourteenth Amendment, which barred future officeholding by public officials who engaged in “insurrection” against the United States, a provision originally aimed at Confederate insurrectionists after the Civil War. Elsewhere, I have argued that the Supreme Court was wrong to rule that Section 3 cannot be applied to Donald Trump because it supposedly could not be enforced without additional congressional legislation. A future Congress would do well to enact such enforcement legislation.

The above is just a preliminary overview of possible tools for mitigating the danger that democracy often poses to liberal values and—in some cases—to its own perpetuation. There is room for disagreement over exactly which solutions are best, and the optimal approach for some nations may well differ from that which is best for others. But the beginning of wisdom is to recognize that these are serious dangers indeed. Liberalism cannot do without democracy. But it also cannot survive a democracy with too few constraints on its power.

There has been much outcry, but little progress, however, toward the administration’s goal of eliminating overregulation in general or of reining in the CFPB in particular. The president alone can’t scale back or eliminate the CFPB. Congress created this overpowered agency, and only lawmakers can fix it. Curbing the bureau’s frequent abuse of its subpoena power is one good place for them to start.

The CFPB issues subpoenas, known as civil investigative demands (CIDs), that require recipients to turn over documents, testimony and other evidence. The bureau has used CIDs with little justification, even when it has no reason to suspect a violation of the law. Not only does the bureau’s CID overreach violate Americans’ privacy rights, but it also makes financial services more expensive for everyone. The burden falls heaviest on small and mid-size firms, limiting growth and competition.

Problems with the bureau’s CIDs are well documented. The bureau has targeted disfavored businesses or used CIDs for market research. Investigations drag on for months without the bureau ever explaining what the target has done wrong. Responding to a CID can cost a small business thousands of hours of employee time and tens of thousands of dollars, and larger firms may bear more than a million dollars in costs. Too often, these burdens are way out of proportion to any benefit to consumers.

One small-dollar lender in Arizona, for example, endured a series of CFPB subpoenas over almost three years, ultimately closing about a third of its locations and letting workers go. The firm reported receiving few complaints from customers or state regulators, and the investigation found no violations. The company’s chief executive officer, it should be noted, had previously criticized a CFPB regulatory proposal.

The bureau’s defenders argue that complaints about the bureau’s CIDs should be discounted because people are bound to complain about being investigated. But it is more likely that the complaints are understated because regulated firms are reluctant to antagonize their regulator.

What encourages the bureau’s overreach? Lawmakers gave in to the tempting idea that an agency could be insulated from lobbyists’ influence and regulatory skepticism without losing accountability. The CFPB’s designers funded it from the Federal Reserve’s (the Fed’s) earnings instead of congressional appropriations, seeking to limit financial firms’ influence over the bureau. And the bureau is headed by a sole director rather than by a commission, meaning that the CFPB acts with less deliberation. The commission structure was rejected because it presumably might often “produce a majority that is consistently skeptical about regulation”.

The bureau’s subpoena powers also allow CID targets to petition the bureau for relief from a CID, but the petitions are decided by the bureau’s director, not a neutral third party. The CFPB’s governing statute lacks clear language limiting investigators’ discretion, so judges too often defer to the bureau in court.

Lawmakers have noticed the bureau’s dysfunction. In 2024 and again in 2025, legislators offered a bill, the Civil Investigative Demand Reform Act (CIDRA), to address these problems. The bill would require the bureau to set out the specific facts that justify issuing a subpoena. It would also give subpoena targets the right to petition for relief from burdensome or duplicative subpoenas.

The CIDRA enjoys bipartisan support: After all, that agencies can treat some Americans unfairly is out of step with our constitutional republic. And it could serve as a model for curbing investigative overreach by other agencies, such as the Federal Trade Commission (FTC), which has begun to use its broad CID authority to punish free speech.

Making agencies accountable for misusing their investigative powers is a crucial aspect of deregulation. For this, legal changes are essential. Can executive-branch measures, such as firing staff or reducing an agency’s physical footprint, help? Some reformers posit that an understaffed agency will focus on targeting real violations and concrete harm, reducing the agency’s effects on legitimate firms’ productive activities. Yet, there are no rewards in the public sector for precision. Overworked staff might also rebel, perhaps by cutting corners and focusing on easy wins, targeting smaller firms that cannot afford to fight back. And the president’s progress in cutting staff and budgets can easily be reversed by his successor.

The bureau’s abuse of its subpoena powers is real. Ironically, the agency that was created to ensure that banks and other financial services treat consumers fairly has abandoned fairness in its own investigations. And attempts to cut the CFPB down to size by slashing its budget and staff are probably futile, if not counterproductive, in the long run.

Evicting CFPB from its headquarters is a great headline grabber, but it’s not going to end the agency’s overreach. If elected officials are serious about that task, they should take a look at their own handiwork. They created the agency. They’ll have to tame it, too.

Lawmakers have also proposed, as a backdoor form of rent control, that the Legislature restrict the use of algorithmic pricing software that helps landlords determine what their properties are worth.

Rent control in any form would ultimately hurt the very people it intends to help.

The Massachusetts ballot measure would cap annual rent increases to either 5 percent or the annual increase in the consumer price index, whichever is lower. But this benchmark has historically failed to track the actual costs of maintaining older housing stock.

Between 2000 and 2024, rent inflation averaged about a full percentage point per year above headline CPI — 3.6 percent versus 2.6 percent — exceeding CPI in 18 of those 25 years, and growing by a cumulative 140 percent against CPI’s 88 percent. Landlord operating costs have grown faster still: the National Multifamily Housing Council reported that property insurance alone rose 26 percent in 2023. A cap pegged to the CPI or 5 percent, whichever is lower, would force rents to grow more slowly than historically — and more slowly than the costs they must cover.

A building whose rents cannot keep pace with rising costs is a building whose owner will defer repairs, skip renovations, and eventually convert the property to condominiums or other uses that escape the cap. The pattern is documented across rent-controlled cities from New York to San Francisco, where decades of regulation left a disproportionate share of the controlled stock in poor physical condition relative to comparable market-rate units.

Rent controls generate arbitrary redistribution of resources. The Massachusetts cap would apply regardless of tenant income or need: A high-earning Back Bay tenant would receive the same protection as a low-income family in Chelsea, and — in dollar terms — a larger benefit, because the cap is a percentage of a higher base rent. The transfer of resources would run from landlords to incumbent tenants — not from landlords to whomever is most in need.

The ballot measure would exempt new construction for its first 10 years, as well as owner-occupied buildings of four units or fewer. But for all other rental housing, there would be no vacancy decontrol: When a tenant moves out, the new tenant would inherit the old rent rather than paying market rate, offering landlords no relief from the unit’s artificially discounted price.

The costs of rent control would also spill beyond the controlled sector. Deteriorating rent-controlled buildings would impose costs on surrounding property, making the neighborhood less attractive and dragging down values for uncontrolled units in the area.

A study found that ending Cambridge’s rent control in 1995 added about $1.8 billion to the value of the city’s housing stock over the following decade — and that more than half of that gain consisted of spillover effects for never-controlled units. In other words, the majority of the cost of rent control had been borne by property owners that the regulation had never directly touched.

Supporters of the Massachusetts ballot measure argue that its 10-year new-construction exemption would preserve the incentive to build new rental housing. It would not. Multifamily developers underwrite buildings on horizons of 20 to 40 years. That is why Governor Maura Healey has reported that six developers lost their funding after the ballot question cleared its signature threshold to move forward, with thousands of potential units at stake.

If Massachusetts wants to lower rents, the most important policy question is how to build more housing, not how to ration the housing the state already has. The tools to accomplish this are familiar and well-studied: Loosen zoning restrictions, raise allowable floor-to-area ratios, end single-family-only districts, legalize accessory dwelling units, and shorten permitting. Healey’s housing agenda already points in this direction, and the experience of cities like Austin — where permissive zoning enabled a surge of new construction and a meaningful drop in rents — suggests that these policies work.

Massachusetts voters rejected rent control in 1994. They should reject it again.

The president’s tariffs now stand 0–5 in court. They should be 0–6 before summer is over. \

The president imposed this latest round of tariffs arguing that deficits in the U.S. trade balance — and the current account more broadly — amounted to “large and serious U.S. balance-of-payments deficits” under Section 122. These new tariffs were always a stopgap: by law, Section 122 tariffs are temporary (unless affirmed by Congress) and set to expire in late July.

Yet Congress designed Section 122 for a different purpose than the one the president claims they address, one directly related to the monetary system of fixed exchange rates that existed at the time of the statute’s creation.

Under that system, a “balance-of-payments deficit” — not to be confused, as the president appears to have done, with a “trade deficit” — referred to a situation in which foreign governments holding dollars sought to convert them to gold, leading to a decrease in U.S. reserves. Section 122 provided a temporary, tariff-based remedy for this problem.

The fixed-rate monetary system ceased to exist half a century ago, after it was abandoned by the United States and other major economies in 1973 and overhauled in 1976. Section 122 became an afterthought soon after it became law. Only in 1984 did the Senate Finance Committee suggest invoking the statute to deal with the growing U.S. trade deficit, yet the Reagan administration rejected this idea because foreign investment offset the deficit and, thus, the country did not need to spend reserves to finance it.

Not much has changed since. While the U.S. trade deficit is higher today than in prior decades, the U.S. investment surplus has also increased. Dollars held by foreigners are no longer used to redeem gold reserves but to invest in U.S. financial assets or U.S. businesses. There is also no evidence that the U.S. is failing to attract such investments — the U.S. financial account reached a record surplus in 2025 — or that it is using up its monetary reserves to manage the dollar’s exchange rate.

In short, there is no “balance-of-payments deficit” that justifies invoking Section 122.

At worst, the administration’s rationale for invoking Section 122 would transform the statute from a tool to address rare, specific circumstances to a mechanism for imposing across-the-board tariffs at any time. A president could, as Trump did in February, point to the nation’s trade deficit to impose tariffs while ignoring the nation’s surplus in investment. If courts validate this reading on appeal and Congress fails to reform the statute, the president would have the power to impose sweeping tariffs with very few constraints.

The Constitution is unambiguous: the power to impose tariffs and duties — as well as to regulate international commerce — belongs to Congress. For nearly 150 years, lawmakers exercised this power directly. After the disaster of the protectionist 1930 Smoot-Hawley tariffs, a slow, decadeslong abdication followed: statute by statute, Congress handed that authority to the executive branch, each delegation sold as a narrow measure. The Trump administration’s erratic and costly tariffs have exposed the danger of constitutional imbalance.

The courts have done their job to correct these failures — multiple times. But court victories only go so far. Judges can strike down specific tariffs, but they cannot fix the underlying laws that give presidents the tools to keep trying. As long as those statutes remain on the books — or without serious modifications, such as requiring congressional approval before tariffs can be implemented — the ever-protectionist Trump administration will simply reach for the next legal hook, which is exactly what it has done.

Americans are not fooled. Polling shows they disapprove of the administration’s tariff policies by a wide margin: 60% oppose them, including 39% who strongly disapprove. More than three-quarters say tariffs are bad for the cost of living, and 70% say they hurt Americans’ standard of living. U.S. businesses paid more than $8 billion in Section 122 tariffs in March alone.

Congress should be listening, especially during an election year. It wrote these laws, expanded them over decades, and only it can truly rein in Trump’s tariff abuses. For now, though, it seems content to leave this work to the courts.

And while the administration’s losing record in court is good for importers, it’s a mark of shame for Congress.

Arizona’s massive drop in SNAP numbers isn’t because the state is catching fraud. The numbers point to the changed payment error calculation.

Across the country, SNAP recipients declined by 9% between July 2025 and February 2026. Louisiana, the state with the second-largest decline, dropped 20%, less than half the percentage decrease of Arizona.

So, what happened?

It starts with the “One Big Beautiful Bill” (H.R. 1) that President Trump signed into law on July 4, 2025. The bill expanded SNAP work requirements, changed eligibility rules, shifted more administrative costs onto states and tied future state costs to payment error rates.

But every state faced the same law. Arizona still became the outlier.

Is fraud behind Arizona’s drop in SNAP benefits?

An easy hypothesis is fraud. State Sen. John Kavanagh claimed “our massive decrease is caused by the fact that we had massive fraud in the system.”

But the idea that Arizona suddenly uncovered fraud in one out of every two beneficiaries doesn’t pass the smell test. SNAP’s Arizona administrator, the Department of Economic Security (DES), isn’t claiming any massive uncovering of fraud.

DES Director Michael Wisehart offered another possibility: Arizona simply moved faster than other states in implementing the new federal rules. Wisehart claims that in the coming months, other states will see a similarly steep drop in SNAP beneficiaries.

Maybe.

How do payment errors affect SNAP payments?

A less discussed hypothesis is that H.R. 1 changed the financial incentives of states in a way that exposed Arizona’s historic underinvestment in SNAP administration.

Prior to H.R. 1, the federal government covered 100% of SNAP food benefits and 50% of SNAP administrative costs. H.R. 1 reduced the federal administrative contribution from 50% to 25%, and it put a strict 6% threshold for payment error rates.

Importantly, “payment errors” aren’t a measure of fraudulent applications. Payment error rates are overpayments and underpayments issued by the state. Administrative mistakes and paperwork errors all contribute to the calculation.

Who pays when the SNAP error rate is above 6%?

Under the new rules, if a state is above the 6% mistake ceiling, the financial burden shifts from the federal government to the state. If Arizona fails to meet this new standard, it could result in annual liabilities between $100 million and $300 million. Unfortunately, we’ve only been below 6% twice in the last 10 years (2018, 5.99% and 2019, 5.24%). DES currently estimates an error rate of 10.45% for fiscal year 2025.

That means we’re facing a financial cliff. And that in turn might explain the drop in SNAP benefits. To steer clear of a huge financial liability, the state must reduce its error rate. That means proceeding very cautiously. It means proceeding slowly. Very slowly.

Compounding the problem is Arizona’s lean SNAP administrative operation. That’s a challenge that has only become more challenging because between July 2024 and July 2025, DES ran out of specially allocated federal grant, and the number of DES employees reviewing SNAP applications fell from 1,370 to 880.

What other factors affect SNAP application processing?

The final result of a system with a reduced staff that proceeds slowly and cautiously? Fewer SNAP applications processed. In December 2025, DES reported 54,000 pending new and renewal applications, including 18,000 older than 30 days. The Arizona ombudsman’s office received more complaints in the last six months of 2025 than it did in all of 2024.

And that could be how we ended up with far fewer SNAP recipients.

One way to address this problem is to simply throw more state money at the system. Gov. Katie Hobbs’s proposed budget includes roughly $61 million new dollars to DES. That’s unlikely to be the endpoint. The state legislature’s budget purposes going the opposite way – a 5% cut. But even if Hobbs’s proposal is accepted, it largely just makes up for the federal government’s impending cut to its administration contribution and does little to fix any large problem.

Another option is to spend more now to save money in the future by avoiding federal penalties. Specifically, invest in improved DES technology to administer SNAP (and other state-administered security programs). Arizona’s SNAP payment system currently runs on 45-year-old technology. That seems… suboptimal. Neither of us were born 45 years ago.

How can AI improve SNAP error rates?

And now might be an especially ripe time to invest in a new technology given recent breakthrough in artificial intelligence technology. Gov. Hobbs recently announced a “first-of-its-kind” artificial intelligence program for the state’s Medicaid program. Perhaps SNAP is another good candidate for AI innovation.

This might sound like an overly simplistic fix – a “deus ex machina,” like pulling a rabbit out of a hat. But with federal requirements going up, and an already lean budget running flat, the only way we forestall the complete evisceration of the state’s SNAP system is through planning, innovation, and perhaps … a little magic.

Of course, none of this answers the bigger policy and moral questions: Are we OK with 12% of Arizonans receiving SNAP assistance? 6%? And are we OK as a state with the removal of 213,000 children from SNAP in a matter of months? For analysts, this is often a discussion of large numbers and administrative procedures. But behind every number, and behind every policy decision, there’s a real human being.

Governor Spanberger signed into law the Employee Childcare Assistance Program to provide state matching funds for employer contributions toward employees’ childcare costs. She then signed a separate bill creating a childcare access calculation to estimate the annual state funding needed to support the new system.

The problem with childcare is not a lack of state intervention. It is, if anything, too much. Childcare is one of the most regulated activities in modern American life. I’ve seen it up close.

At one point, the small in-home daycare that looked after one of my children was cited for failing to include a child’s last name on a milk bottle, writing only the first name. The child in question had a rare first name (imagine something along the lines of Xanthippe) that no other child in the daycare—or perhaps in all of Virginia—shared. In context, following the rule was less of a safeguard than an exercise in box-checking.

That’s the sort of hair-splitting regulation daycares are saddled with. But no lawmaker wants to be on record for “making daycares less safe.” Instead, they opt to merely throw taxpayer dollars at the problem of high childcare costs. Pumping in money without cutting regulations or barriers to entry risks higher childcare prices for working Virginia parents.

This, sadly, seems to be a popular approach these days. From Zohran Mamdani advancing taxpayer-funded “free” childcare in New York City to Alexandria Ocasio-Cortez advocating a Universal Childcare Bill, there is no shortage of enthusiasm for promoting tax dollars as the alleged solution to high childcare costs. Hillary Clinton’s recent New York Times essay on “how to fix affordability” exemplifies this mindset.

And it’s not just Democrats: several states, including red and purple ones, have rolled out “Tri-Share” childcare cost-sharing programs that, while certainly cheaper than universal childcare, still rely on public funds

The playbook goes like this: promise affordability, enact flashy but ultimately ineffective subsidies, and then hope the voters don’t notice that nothing has been achieved.

But voters aren’t blind. If Spanberger wants to improve her lackluster approval numbers and actually deliver on affordability, she would be well advised to look at other states’ track record in subsidizing childcare without attendant reform.

Consider Michigan. Five years into the state’s failing $3.4 million “Tri-Share” childcare program, the state’s legislators are considering yet more subsidies to “tackle Michigan’s childcare crisis.” Michigan’s program has sparked criticism for both failing to increase the supply of care and tying childcare benefits to one’s employer (just as Virginia’s new program would do). If you want to know how government meddling tying a particular service to employment works out, just look at how tying healthcare benefits to employment has contributed to soaring healthcare costs.

Subsidies don’t work. And even minor regulations can combine to create real consequences for affordability.

Such requirements, like the overly specific bottle-labeling rule, might individually sound reasonable. Collectively, they become a dense web of compliance obligations that providers must manage: death by a thousand cuts.

Some regulations are especially damaging. Zoning rules can restrict home-based daycares, staff-to-child ratios cap how many children each worker can supervise, and licensing and education requirements limit the number of available caregivers. Together, these policies constrain childcare supply, raising costs and making affordable care harder for parents to access. Research suggests that requiring lead teachers to have a high school diploma may increase infant childcare costs by as much as 46 percent.

Virginia ranks 24th among the states in terms of the burden of its childcare regulations. Its ranking is lowered by unusually onerous child-to-staff ratio rules and education requirements, areas in which the state ranks 38th and 36th, respectively. Idaho, which ranks first in childcare freedom, has much lower infant and under-five child mortality rates than Virginia, showing that a less restrictive regulatory approach can coexist with strong child safety outcomes. Childcare in Idaho is also significantly more affordable than childcare in Virginia: there, childcare consumes a much smaller share of median income for a single parent.

It’s further proof that real change isn’t going to come from piling on subsidies, but unleashing supply, and that it can be done without compromising children’s safety. If Abigail Spanberger and Virginia lawmakers are truly serious about making childcare affordable, they need to stop skirting what drives the problem and go straight at it: cut the red tape.