The Department of Homeland Security Is a Mess of Misconduct and Ineptitude

With bigger government now popular on both the nationalist right and the progressive left, it’s an appropriate moment to review what constitutes existing government. A recent inspector general’s report may offers some crucial insights. The report shows that the inner workings at the most recently created executive department—the Department of Homeland Security (DHS)—are a mess despite years of warnings about problems in its component agencies.

“The Department does not have sufficient policies and procedures to address employee misconduct,” notes the new report from the DHS Office of the Inspector General (OIG), dated June 17, 2019. “Specifically, the Department’s policy does not include procedures for reporting allegations of misconduct, clear and specific supervisor roles and expectations, or clearly defined key discipline terms used across the components.”

As examples of what constitutes misconduct among DHS employees, the report mentions “being absent without leave, improper use of a government-issued credit card, and sleeping on the job.” That sort of petty, but damaging, misbehavior probably represents the most common sort of misconduct. But bad behavior also includes much more serious issues, too.

Keeping a handle on that sort of misbehavior could potentially be a big job. “Although DHS has no department-wide misconduct allegation data, the Joint Intake Center for U.S. Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement (ICE) received more than 16,368 allegations of misconduct and other reportable information in fiscal year 2014 alone,” notes OIG.

Unfortunately, there’s nobody really in charge of making sure DHS employees don’t run amuck. The “Employee Relations office has limited staffing to perform these functions and staff do not believe they are responsible for managing the allegation process,” states the OIG report.

This is a pretty remarkable state of affairs 17 years after the Department of Homeland Security was established in the wake of the 9/11 terrorist attacks. The department is now massive and includes such familiar agencies as CBP, ICE, the Federal Emergency Management Agency (FEMA), the Secret Service, the Transportation Security Administration (TSA), and the Coast Guard.

Agencies do have their own internal disciplinary procedures, as illustrated by the CBP and ICE misconduct numbers. Yet there’s no DHS-wide standard for tracking or penalizing bad behavior by government employees. And the individual agencies can be very bad at policing themselves.

The Secret Service, for example, has a long and sordid record of scandals involving drinking on the job, abusing power, and simply dropping the ball. Employees also seem prone to looking for leverage over people who criticize that record. “A Secret Service database containing sensitive personally identifiable information (PII) pertaining to Congressman Jason Chaffetz, Chairman of the House Committee on Oversight and Government Reform, was accessed on approximately 60 occasions by Secret Service employees” after Chaffetz tangled with the Secret Service director during a hearing about agents’ misconduct, the inspector general noted in 2015.

The Coast Guard also has problems that would seem to require external oversight. A whistleblower at the scandal-beset Coast Guard Academy suffered retaliation from her superiors after she reported racial and sexual harassment. An “investigation substantiated Complainant’s claim that she was retaliated against on the basis of her complaints, in violation of the Military Whistleblower Protection Act,” the inspector general found.

The Coast Guard has also been remiss about “properly reporting service members who are prohibited from possessing a firearm”—a hot button issue at a time when politicians are constantly bloviating about the alleged evils of armed civilians.

Meanwhile, at CBP, data showed “that arrests for corruption of CBP personnel far exceed, on a per capita basis, such arrests at other federal law enforcement agencies,” according to one 2015 report by the Homeland Security Advisory Council. A subsequent report cited a “broken disciplinary process,” “endemic corruption,” and “unlawful and unconstitutional use of force” at CBP. It recommended changes including shifting CBP personnel to “excepted service” status to streamline crackdowns on serious misbehavior. But that didn’t happen, and the CBP remains beset by problems.

Across DHS agencies, a little adult supervision would seem to be in order. But it seems the department simply isn’t up to the job of providing such oversight. The problems at the component agencies of the DHS, and at the DHS itself, have been headline fodder for years.

Jeh Johnson, the Obama administration’s Secretary of Homeland Secretary, was openly frustrated with the hot mess over which he presided. But the most that came out of that frustration were committees acknowledging problems and recommending reforms which would fail to be implemented.

Nonetheless, there’s a growing fetish on the nationalist right and the progressive left for a more active federal government. Both the nationalists and the progressives want federal authorities to reshape the economy and our personal lives, and both want to regulate our speech.

All that molding, reshaping, and regulating is going to require a lot of new government employees. And there’s no reason to expect those employees would behave better than their colleagues in the various agencies under current executive departments.

Any new Departments of Telling You What to Do for Your Own Good are bound to produce instances of misconduct petty and great, just like the Department of Homeland Security does now. So, if you want to know what sort of fate the latest prophets of big government have in mind for us, peruse that inspector general’s report on disciplining misconduct at DHS and look through all the reports that came before. And then brace yourself for a rough ride.

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Jesus

… a very common name in Mexico, and I assume in many Spanish-speaking countries, as well as among Hispanics in the U.S. But my sense is that it’s very rare in most other Christian countries, and apparently even quite rare (from a cursory Internet search) in Portuguese-speaking countries.

Nor is it just a Catholic thing; there seem to be extremely few Irish and Polish Jesuses, and I think Italian ones as well. Isa (generally seen as the Arabic equivalent of Jesus) is apparently a not uncommon name in at least some Muslim countries; but my question here is focusing on Christian countries, since Jesus would presumably have a special role there.

(Note that the name “Joshua” is related to the name “Jesus”; Yeshua is apparently a variant of Yehoshua. But today, I think, Joshua isn’t really seen as that closely linked to Joshua, just as Jacob isn’t really seen as that closely linked to James, despite their historical link, except when we’re using historical references, such as the Jacobean period or the Jacobite rebellion.)

So what’s the scoop? Inquiring minds want to know.

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The Supreme Court’s Next Big Fourth Amendment Case

Assume the following: You are a licensed driver, age 17. You live with your father. His driver’s license has been suspended. He hands you the keys to his car and asks you to run an errand. While driving to do that errand you are stopped by the police and subjected to roadside questioning. You have not broken a single law. The only reason why the police stopped you is because they guessed that your father might be driving. Was the traffic stop lawful? Or did it violate the Fourth Amendment’s prohibition on unreasonable searches and seizures?

The above scenario is hypothetical but the questions it raises are genuine. In its October 2019 term, the U.S. Supreme Court will hear arguments in a case that asks whether the Fourth Amendment “always permits a police officer to seize a motorist when the only thing the police officer knows is that the motorist is driving a vehicle registered to someone whose license has been revoked.”

The case is Kansas v. Glover. In 2016, a patrolling sheriff’s deputy ran the plates on a Chevrolet pickup truck and learned that the truck’s owner, Charles Glover, had a revoked driver’s license. The deputy had no idea if Glover was actually behind the wheel. But the deputy still pulled the truck over on the assumption that Glover was driving. He was. Now Glover wants the Supreme Court to rule the stop unconstitutional under the Fourth Amendment.

“When a driver loses his license, he and his family must rely on other drivers (a spouse, a driving-age child, a child-care provider, a neighbor) to meet the family’s needs,” Glover and his lawyers point out in their brief to the Supreme Court. “Under Kansas’s proposed rule…any of those other drivers can be pulled to the side of the road at any moment merely for driving a lawfully registered and insured car in a completely lawful manner.” That rule, they argue, is an “unjustified intrusion on personal privacy” that violates the Fourth Amendment.

Kansas has a different take on what the Constitution allows. “The Fourth Amendment permits brief investigative stops—such as the traffic stop in this case,” the state argues in its principal brief, “when a law enforcement officer has a particularized and objective basis for suspecting” illegal activity. In the state’s view, it simply does not matter if innocent drivers happen to get stopped based on the false assumption that someone else is behind the wheel. “While it is certainly possible that the registered owner of a vehicle is not the driver, ‘it is reasonable for an officer to suspect that the owner is driving the vehicle, absent other circumstances that demonstrate the owner is not driving,'” the state maintains. “That is the very point of investigative stops—to confirm or dispel an officer’s suspicion.”

Oral arguments in Kansas v. Glover are scheduled for November 4.

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Another Multiracial Family Falsely Accused of Sex Trafficking While Flying

Lawsuit alleges profiling by Frontier Airlines. In what’s becoming a sadly regular occurrence, another multiracial family has been profiled by airline staff as being involved in human trafficking. In this case, 55-year-old Peter DelVecchia, a white man, was traveling with his adopted 12-year-old son, who is black. According to a lawsuit DelVecchia filed in federal court, Frontier Airlines staff accused him of sex trafficking his son and detained the boy in the back of the plane.

DelVecchia alleges that the only basis for this confrontation was the fact that he and his son don’t have the same skin color.

This wouldn’t be the first time that’s happened. A rash of recent incidents on flights and at airports feature false fears of human trafficking that seem to be based on nothing more than staff or onlookers—including Cindy McCain—finding children or women traveling with a man of a different race or ethnicity to be suspicious.

Small-minded people like this have surely always existed. But these specific bits of speculative bigotry—the fear that folks are using commercial airlines to smuggle kids into “sexual slavery”—are part of a paranoid scheme spread by the Department of Homeland Security (DHS) and other authorities as part of “see something, say something” efforts. And as part of this, flight attendants and airport staff now get trained to intervene in what federal officials (falsely) portray as an epidemic of airline-based sex trafficking which can be spotted by good Samaritans who know the “signs.”

These initiatives have been helped along by groups like the McCain Institute, where Cindy McCain heads an “anti-trafficking” arm and dubious viral stories about a “hero flight attendant” and others who trust their guts and save the day. But the only victims who seem to be unearthed in real life are the interracial couples and families who have been profiled and accused.

In DelVecchia’s case, reports The Charlotte Observer, flight attendants were “merely acting on training to recognize potential human trafficking victims, Frontier said.”

His son, called A.D. in the suit, was taken “against his will” to the back of the plane, according to DelVecchia’s lawsuit against five Frontier employees. It says the son “asked repeatedly to be allowed to return to the seat beside his father, but [Frontier staff] would not allow A.D. to leave the seat in which [they] had placed him” for several hours. “They refused to believe that Peter and A.D. are father and son, despite being told so by both Peter and A.D.”

In 2014, a whole plane was detained while police questioned an Asian woman and a Puerto Rican man who were traveling together. They were boyfriend and girlfriend, but police had decided the woman was likely being sex trafficked.

In 2017, “Brian Smith, from Arizona, was travelling back from a trip to Florida with his wife Renee and their three children, including Georgianna, 16, who the couple adopted from China,” when a Southwest Airlines staff member accused Smith of trafficking his adopted daughter.

Earlier this year, McCain said that she had reported a woman flying a toddler of a different race to airport police, who later confirmed the woman was sex trafficking the child—but police say this was not the case.



FREE MINDS

Truth not approved by the FDA. The U.S. Food and Drug Administration is going after popular e-cigarette maker Juul for saying it can help people quit regular cigarettes, since the agency has not officially approved this messaging.

“It may be obvious anecdotally that vaping is a good way to wean yourself off smoking,” notes TechCrunch. But because the FDA has not authorized such statements of reality, Juul may find itself in big trouble. In a recent letter, the FDA requested that the company “provide any and all scientific evidence and data, including consumer perception studies, if any, related to whether or not each statement and representation explicitly or implicitly conveys that JUUL products pose less risk, are less harmful, present reduced exposure, or are safer than other tobacco products.”


FREE MARKETS


QUICK HITS

  • Bill de Blasio’s proposed “robot tax” is completely unnecessary (just like his presidential candidacy), writes Reason‘s Eric Boehm.
  • A new true crime series looks at the murders of eight sex workers in Louisiana. The show, Murder in the Bayou, “casts intense doubt on the official version of events, and suspicion on [one local man] and his cop pals,” notes The Daily Beast.
  • Why are America’s three biggest cities shrinking?
  • Los Angeles moves to further criminalize homelessness:

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Our Own Nick Rosenkranz Running for Yale Trustee “to Protect Free Speech, Intellectual Diversity”

So reports The College Fix (Christopher Tremoglie): Nick, a leading constitutional law scholar at Georgetown, is also the cofounder of Heterodox Academy. I’ve known Nick for years, and think he will make an excellent trustee, though, alas, I’ve been cruelly disenfranchised from voting for him (since I’m not actually a Yale graduate). If you are a Yale graduate, though, submit your signature to get him on the final ballot, via Alumni for Excellence at Yale.

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Stossel: Let Charter Schools Teach

Many parents try to escape government-run schools for less-regulated “charter schools.”

Philadelphia mom Elaine Wells tells John Stossel that she wanted to get her boys into a charter because her local government-run school in inner-city Philadelphia was “horrible…there were fights after school every day.”

Her kids spent years losing lotteries that they hoped would get them into a charter.

“It’s heartbreaking,” Wells says.

In Philadelphia, thanks to government limits, only 7,000 kids get into charters. 29,000 apply.

But eventually, Wells got her kids into a new charter school: Boys’ Latin, founded by David Hardy.

Boys’ Latin does many unusual things. All kids learn Latin, wear uniforms, and stay longer hours—and it’s all-boys.

“The rules are there to set the stage for the students,” Hardy tells Stossel. “If the teacher can tell you to tuck in your shirt, they can tell you to be quiet in class…tell you to do your homework.”

Wells says that worked for her kids. “Before Boys Latin I would come home and say, ‘OK, I need you to read for an hour—read a book.’ And their response would be, ‘Why? What did we do?’ Like reading was a punishment! [After] Boys’ Latin…I would find books in the bathroom on the floor!”

Her son Ibrahim adds, “It came to the point where the teacher would tell our mom that I’d taken too many books.”

The school was better at hiring teachers who tried hard.

Wells recalls being shocked to find her sons talking to teachers at night: “He’s in his room and I hear him talking on the phone and it was 10 o’clock at night. I’m like, ‘Who are you on the phone with?’ and he was like, ‘Well, Mr. Bumbulsky told me to call him if I needed help with homework.'”

Stossel pushed back at some of David Hardy’s ideas, like making every student take four years of Latin. “It’s ridiculous. Nobody speaks Latin,” Stossel suggests to founder David Hardy.

“Well we picked Latin because it was hard,” Hardy replies.

“What’s the point of that?” Stossel asks.

“Because life is hard—to be prepared you have to work hard,” Hardy says. “We wanted to get that into the psyche of our students.”

Overall, Boys’ Latin gets somewhat better test scores than surrounding schools in most subjects.

“We deliver,” Hardy says. “Since the very first class we’ve sent more black boys to college than any high school in Pennsylvania.”

Despite that, government officials rejected his proposal to open a “Girls’ Latin” school. They’ve rejected a bunch of schools.

Opponents complain that charters “drain scarce resources” from government-run schools.

“You can’t tell me that,” Wells responds. “Every parent pays taxes…if I choose for my child to go to a charter school, then that’s where my taxes should go!”

In fact, Philadelphia and other cities don’t give charters the same amount of money they give to schools they control. Philadelphia gives them only 70 percent of that. So per student, Stossel notes, the government schools make money whenever a kid leaves for a charter. Over 13 years of schooling, Philadelphia saves $70,000 per kid.

Stossel asks Wells: What if those savings were passed onto the child?

“Absolutely! Give them the rest of the money!” Wells laughs.

But it won’t happen because, as Hardy notes, “It would also mean that there would be a whole lot less union jobs. The unions are not going to be for that.”

The views expressed in this video are solely those of John Stossel; his independent production company, Stossel Productions; and the people he interviews. The claims and opinions set forth in the video and accompanying text are not necessarily those of Reason.

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Shouting Down a Speaker Isn’t “Lawful Activity”

In Oransky v. Martin Marietta Materials, Inc., 2019 WL 4242670 (D. Colo. Sept. 6, 2019), Paula Oransky was fired by Martin Marietta Materials, Inc. She sued, claiming (among other things) that the firing violated a Colorado statute that barred firing employees for any “lawful [off-duty] activity”—in this case, her actions at a community meeting involving Anadarko Petroleum, an MMM customer. (For more on how state statutes limit employer retaliation for employee speech, see this article of mine.) The court held against her, partly because her actions weren’t lawful:

Ms. Oransky resides with her family in Erie, Colorado. On September 27, 2017, Anadarko hosted a “Community Forum” in Erie to discuss its plans for oil and gas development in the area. Ms. Oransky attended the forum, where she met and briefly chatted with an Anadarko official with whom she was acquainted through her work.

During the forum, Ms. Oransky—who is concerned about health and environmental consequences associated with oil and gas development—and others protested Anadarko’s activities. Ms. Oransky led protesters in a series of call-and-response chants to the effect of “We demand you [Anadarko] leave our community!” and “No drilling, no wells!,” among others. The protestors succeeded in causing the forum to be cancelled early. After the protest, Ms. Oransky bragged in an online message that she “helped shut down the meeting.” All of the protest activities, as well as the aftermath, were recorded on video and posted on the protestors’ public Facebook page … .

MMM’s motion first challenges whether Ms. Oransky can show that her protest activities at the forum were “lawful.” MMM argues that Ms. Oransky’s disruption of the forum constituted violations of Colorado state laws—e.g. Colo. Rev. Stat. § 18-9-108 (prohibiting persons from “disrupting lawful assembly” via “physical action, verbal utterance, or any other means”)—as well as provisions of the Erie, Colorado municipal code—e.g. Erie Mun. Code § 7-6-5(N) (prohibiting any “use or attempt to interfere with the use of any … space or facility within parks or recreation facilities … reserved for any other person or group by a permit”).

Ms. Oransky responds that no citations were issued by police as a result of the protest and that no one else was attempting to speak at the time when the protest occurred. [But a Colorado Supreme Court precedent interpreting the Colorado off-duty-lawful-activities statute] effectively disposes of Ms. Oransky’s contention that her conduct cannot be considered unlawful simply because she was not charged with a crime. In [that case], there was no suggestion that the employee [who had been fired for using marijuana off-duty] had been charged by federal authorities with possession of marijuana; indeed, the Supreme Court noted in a footnote that federal authorities had expressly indicated an unwillingness to enforce federal laws against persons like the employee who were otherwise complying with state medical marijuana laws.. Nevertheless, the Supreme Court concluded that the employee’s use of marijuana was unlawful because it was nominally prohibited by law, regardless of whether the law was actually being enforced against him. By the same reasoning, the question here is not whether a police officer actually cited Ms. Oransky with a state or local criminal violation, but whether an officer could have done so.

Colo. Rev. Stat. § 18-9-108 provides that “a person commits disrupting lawful assembly if, intending to prevent or disrupt any lawful meeting, procession, or gathering, he significantly obstructs or interferes with the meeting, procession, or gathering by physical action, verbal utterances, or other means.” [Another Colorado Supreme Court precedent] interprets that statute in two significant respects. First, it indicates that, in determining whether a person intended to disrupt a gathering, the factfinder must consider the nature of the meeting, the “implicit customs and usages or explicit rules germane to a given meeting”—i.e. that outdoor events tolerate more disruption than indoor ones, and that political conventions might expect “prolonged, raucous, boisterous demonstrations” whereas funeral services would not—and the extent to which the person “was aware that his conduct was inconsistent with the customs of the assembly and whether he thereby intended his conduct to disrupt the assembly significantly.” Second, it suggests that a “significant disruption” to the event must occur….

There is no dispute that the forum was a lawful meeting organized by Anadarko. It was held indoors, in a community room in the town’s Community Center, and scheduled to run from 5:00 p.m. to 7:00 p.m. In publicizing the forum, Anadarko explained that its purpose was to invite community members to “meet the Anadarko employees working on these planned activities, learn more about oil and natural gas development, and ask any questions you may have about our operations.” As such, the “implicit customs” of such meetings might encompass heated exchanges between individual residents and Anadarko representatives on a one-to-one basis, and perhaps protests and picketing outside the venue, but it would be unreasonable to conclude that such meetings are customarily expected to tolerate groups of 30 or more individuals holding up signs and chanting loudly so as to make other discussions between interested residents and Anadarko representatives impossible.

It is also undisputed that Ms. Oransky fully understood and expected that her conduct and that of the protesters acting in concert with her would disrupt the meeting. In an e-mail sent to protesters just hours before the meeting, Ms. Oransky laid out her plans and expectations. She intended that protesters initially enter the forum shortly before 6:00 p.m. and blend in with legitimate attendees: “Everyone should be looking at the displays, asking general questions to the Anadarko reps to kill time … Do not protest at this time.” Other protesters in an e-mail chain that included Ms. Oransky also stated that they would have to “sneak banners in” to the forum..Ms. Oransky’s e-mail indicated that at 6:00 p.m., she should give a signal to the protesters and they would begin chanting and displaying signs. Her e-mail makes clear that Ms. Oransky understood and expected that these actions would be disruptive enough that the protesters would be ejected from the forum: “Likely, … we will be asked to leave, which we will do.” These facts underscore that Ms. Oranksy knew that her actions and those of the group she was leading would be unwelcome at the forum and would have the effect of disrupting it.

The record is also undisputed that Ms. Oransky’s conduct did indeed significantly disrupt the forum. Approximately 2½ minutes after Ms. Oransky’s group began chanting—roughly at 6:02 p.m.—a representative of the Community Center announced that the facility was closing and that everyone had the leave the building. Ms. Oransky took credit for that announcement immediately telling a videographer “we closed it down!”

Ms. Oransky is more demure in her response brief, arguing that it is possible that the closure was not a result of her leading the chanting inside the forum room but rather a response to other protesters who were gathered in the hallway or outside the building. But the record is clear that Ms. Oransky was instrumental in the recruitment and instructing of those protesters as well. In a September 17 e-mail exchange, an individual named Theresa contacted Ms. Oransky and asked if she would like as many as 100 protesters from a Boulder-based organization to attend the September 27 forum and protest, and Ms. Oransky responded “I’d be all for that idea.” Another participant in the same e-mail chain later advised Theresa that “Paula”—Ms. Oransky—”is going to organize the Anadarko meeting it terms of any noise we need to make outside, etc. We are going to entrust Paula to take on this task.” In her e-mail on the day of the forum, Ms. Oransky gives specific instructions to both protesters who would be inside the forum room and “people outside” as well (whom she stated “we will use … as an important secondary event, almost a diversion”).

In this sense, when Ms. Oransky boasted that “we closed it down,” it is clear that she is referring to all of the protesters that she was directing, both inside and outside the venue. Thus, even if, as Ms. Oransky argues, the forum was cut short because of protesters in the hallway or outside the building, rather than as a result of Ms. Oransky personally leading the chanting inside the forum room, it remains undisputed that the entire protest operation was directed by Ms. Oransky and that the disruption of the forum was the result of her actions.

Under such circumstances, the Court finds that there is no genuine dispute of fact in the record and that, on the undisputed facts presented herein, Ms. Oransky’s conduct on September 27 could have been deemed to constitute a violation of Colo. Rev. Stat. § 18-9-108, such that she cannot establish that her activities were “lawful.” As a result, MMM is entitled to summary judgment on her statutory claim….

The court also concluded that, in any event, Oransky’s actions would have fit within two exceptions to the statute, for activities that “reasonably and rationally relate[] to the employment activities of a particular employee or particular group of employees” (rather than all of the employer’s employees), or activities where disciplinary action “is necessary to avoid a conflict of interest” with the employee’s liability to the employer. Oransky, the court stressed, wasn’t just an average MMM employee, but rather was responsible for maintaining relationships with customers, including Anadarko. These exceptions raise separate and complicated questions, I think, and ones that are peculiar to the particular Colorado law (though they may also be influential in North Dakota, which has a very similarly worded statute). But the point about shouting down not being “lawful activity” may be relevant to many other kinds of disputes as well.

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Justice Ginsburg Speaks Sensibly about Judicial Confirmations

Speaking at the University of Chicago, Justice Ruth Bader Ginsburg lamented the current politicized and polarized approach to judicial confirmations.

During the hourlong event, Ginsburg also lamented the increasingly partisan nature of Supreme Court confirmations, in which senators vote mostly along party lines.

She noted in particular the confirmations of Chief Justice John Roberts and Justices Sonia Sotomayor and Elena Kagan. Nominated by President George W. Bush in 2005, Roberts was confirmed with a 78-22 vote. Sotomayor and Kagan—nominated by President Barack Obama in 2009 and 2010, respectively—each received fewer than 70 affirmative votes.

“We really should get back to the way it was when people were examining qualifications of what it takes to be a judge, rather than trying to guess how they would vote on contentious cases,” said Ginsburg, who was confirmed in 1993 with a 96-3 vote, becoming the second woman to join the nation’s highest court.

The Chicago Sun-Times covered her remarks here.

Of note, when Justice Ginsburg was herself a judicial nominee, she articulated what has come to be known as the “Ginsburg Standard” of “no forecasts, no hints” on how a judge might rule from the bench:

“You are well aware that I came to this proceeding to be judged as a judge, not as an advocate. Because I am and hope to continue to be a judge, it would be wrong for me to say or preview in this legislative chamber how I would cast my vote on questions the Supreme Court may be called upon to decide. Were I to rehearse here what I would say and how I would reason on such questions, I would act injudiciously. Judges in our system are bound to decide concrete cases, not abstract issues; each case is based on particular facts and its decision should turn on those facts and the governing law, stated and explained in light of the particular arguments the parties or their representatives choose to present. A judge sworn to decide impartially can offer no forecasts, no hints, for that would show not only disregard for the specifics of the particular case, it would display disdain for the entire judicial process.”

Although subsequent judicial nominees have repeatedly sought to adopt this approach, Senators on the judiciary committee have been resistant, particularly with judicial nominees from the opposite side of the aisle.

Speaking of Justice Ginsburg, CNN reports on how she welcomed Justice Neil Gorsuch to the Court after his confirmation.

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Elizabeth Warren’s Plans Don’t Add Up

At the heart of Elizabeth Warren’s campaign for president—and of her entire career as a politician and public intellectual, really—are two simple ideas.

The first is that the economy is fundamentally broken. This downer of an idea was present in the speech that launched her presidential campaign on February 9, 2019, in which she declared that “millions and millions of American families are also struggling to survive in a system that has been rigged by the wealthy and the well-connected” and in which she insisted that the only response was to fight for “big structural change.”

It was present at the first Democratic primary debate, in which she inveighed against corporate profits and monopolistic businesses and corrupt lawmakers who have “made this country work much better for those who can make giant contributions, made it work better for those who hire armies of lobbyists and lawyers, and not made it work for the people,” and in which she scored the opening night’s standout moment by offering a full-throated argument for the elimination of private health insurance.

It was present in the 2007 essay that imagined what would eventually become the Consumer Financial Protection Bureau, a federal agency premised on the notion that American families were being “steered into overpriced credit products, risky subprime mortgages, and misleading insurance plans” and that many of these products needed to be regulated as pervasive dangers to the American family.

It was present in the very title of her breakout 2004 book, The Two-Income Trap: Why Middle-Class Mothers and Fathers Are Going Broke, which promoted a systemic view of America’s economic fragility, driven by data that Warren had compiled during her career as an academic bankruptcy researcher.

It was explicit in her campaign’s July broadside, “The Coming Economic Crash—And How to Stop It,” which cast Warren as a prophet of economic collapse and proposed an array of economic policies, from a $15 minimum wage to enforcing restrictions on certain bank loans, that she argued could stave off the crisis.

And it is present, in spirit if not in word, in each and every one of the slew of white papers and policy proposals that have poured forth from Warren’s campaign as if she were running a think tank rather than a presidential bid.

In the space of just a few months this year, Warren released plans for everything from ending drilling on public lands to breaking up Facebook and Amazon to imposing a new industrial policy of “economic patriotism.” She wants to spend $500 billion on affordable housing and trillions more to cancel most student debt, make public college tuition free, and offer subsidies for child care. And she has proposed paying for these costly programs with wealth taxes designed not only to offset the price tag of new government spending but to help reduce economic inequality by shrinking large stores of wealth.

This brings us to Elizabeth Warren’s second big idea: The economy is fundamentally fixable—but only if Elizabeth Warren is manipulating all the levers of power.

Warren’s penchant for wonky policy detail has defined her candidacy: “Elizabeth Warren has a plan for that” has become a rallying cry and a slogan, one her fans have plastered across an array of T-shirts and campaign signs. Warren has happily embraced this persona, joking with crowds that her focus on the details of federal agencies would turn them all into nerds.

Warren is running as a wonk populist, the sort of politician who could give a rousing speech at a picket line in the morning, then stroll into a conference room and offer detailed comments on a new regulatory scheme in the afternoon. Her campaign is an attempt to marry rabble-rousing economic grievance to high-class technocratic solutionism.

The Warren worldview is thus both bloodless and moralizing. It is also dangerous, combining self-righteous certainty about the perils of the economy with dubious data and an instinct for bureaucratic paternalism. Warren wants the federal government to be the American economy’s hall monitor, telling individuals and companies what they can and can’t sell or buy and making some of the nation’s most successful businesses answer to her demands.

It seems to be working. During the first six months of 2019, this strategy vaulted Warren into the top tier of Democratic primary contenders, helping her raise more than $19 million during the year’s second quarter and placing her among the top three or four candidates in the party’s crowded field. Focus groups and political reporting have consistently found that Democratic voters are warming not only to the substance of Warren’s ideas but to the very fact that she has them.

Yet Warren’s wonkery and her populist fury are both based on myths and misdirection, often perpetuated by Warren herself. Although she styles herself as a data-driven champion of the little guy, she has run a campaign based on a dismal representation of the U.S. economy that fails to account for factors that complicate her story. And although she has received kudos for the volume and specificity of her plans, Warren has a history of pushing misleading research and cherry-picked data designed to support politicized conclusions.

So, yes, it’s true that Elizabeth Warren has a lot of plans. The problem is that they don’t all add up.

To understand the deep roots of Elizabeth Warren’s economic pessimism, you have to know a little about her most well-known book, The Two-Income Trap. And to understand The Two-Income Trap, you have to understand Warren’s early work as a bankruptcy researcher.

Warren first rose to prominence as the co-author of a pioneering study of consumer bankruptcy, which was published in book form in 1989 under the title As We Forgive Our Debtors: Bankruptcy and Consumer Credit in America. Warren and her co-authors based the book on a trove of court data from about 1,500 bankruptcy cases in Pennsylvania, Illinois, and Texas during 1981.

The book made a splash, partly because of its reliance on real-world case studies and partly because of its stark language. “Bankrupt,” reads the book’s opening line. “The single word is a body blow, like ‘Dead.'” Warren was an academic, working with other academics to code and statistically analyze a trove of unique data. But she wasn’t just poring through variables and spreadsheet entries. She was telling a story in order to make an argument about politics and policy.

The story was that rapacious credit card companies, rather than consumer overspending, were primarily responsible for a run-up in consumer debt and the resulting sense that household budgets had grown more precarious. The book’s authors saw bankruptcy in broadly sympathetic terms, as a financial safety net for struggling families. In the years that followed, Warren would go on to become one of the nation’s most prominent advocates of making bankruptcy easier, more lenient, and more accessible.

But that story had some notable problems. Among others, it was based on cases from 1981, a recession year when consumers would have looked worse off than usual. It was released years later, after a significant reform to the bankruptcy code in 1984 rendered its picture of American bankruptcy somewhat out of date. And it wasn’t clear whether data from the three selected states could be generalized to the population as a whole.

Within the world of academic bankruptcy research, the book generated controversy. In the 1990–91 edition of the Rutgers Law Review, Rutgers law professor Philip Shuchman, a star of the field who had initially recommended a $110,000 grant to help fund Warren’s research, wrote a scathing and brutal assessment of the book, calling into question the authors’ methods, data, and scholarly ethics. Shuchman, who died in 2004, accused Warren et al. of making “serious errors” and refusing to produce raw data that would allow other scholars to check their conclusions. His review said the research exhibited an “anti-scientific bias” and accused the authors of engaging in “repeated instances of scientific misconduct.”

The scientific misconduct charge was investigated and dismissed by the National Science Foundation, which provided funding for the work. But the investigators noted that there remained “extreme differences” between the feuding researchers “regarding the interpretation of data.” Warren and her co-authors were given the opportunity to respond to Shuchman but never did.

In retrospect, it’s clear that this research played a significant role in the formation of Warren’s staunchly populist worldview and in her conclusion that the only solution was substantial policy reform. Bankruptcy was a system governed by legal rules, rules that in her view had been rigged to empower one group—financial elites—at the expense of others. The rules could be changed if politicians and bureaucrats were sufficiently committed. But convincing people that change was necessary meant telling a clear and simple story, one that captured the raw feeling of what was happening to ordinary people. That sometimes meant ignoring nuances and complications that made the story less compelling.

Earlier this year, Warren was questioned about the controversy surrounding Shuchman’s review by The Washington Post. She insisted that “the data are rock solid” but did not address specific criticisms: “There’s just nothing else to say.” She claimed she couldn’t remember why she never penned a response to Shuchman’s review. According to the Post, she had pushed aggressively for a retraction. The Rutgers Law Review never withdrew the article.

In the ensuing years, Warren not only stood by her story of predatory financiers exploiting sympathetic middle-class families; she amplified it—and sold it to an eager public.

The Two-Income Trap, which Warren co-authored with her daughter Amelia Warren Tyagi, a business consultant who has served as chair of the liberal think tank Demos, is largely an explication of the worldview underlying her bankruptcy research. Even more than As We Forgive Our Debtors, the book was targeted squarely at a popular audience, free of academic jargon and full of easy-to-digest stories about middle-class struggle.

By the time the book was published, Warren had risen through the academic ranks to become a Harvard law professor. She had also served as an adviser to the National Bankruptcy Review Commission.

Once again, Warren drew on her bankruptcy research to argue that the middle class had been given a raw deal. The number of households filing for bankruptcy had shot up dramatically, she said, and it wasn’t because they were spending too much. Instead, the increasingly high cost of housing, driven heavily by competition for access to good schools, and the pile-up of medical debt were driving families into dire straits.

These effects were compounded by the movement of women into the workforce. Where stay-at-home wives had once served as a safety net—the earners of last resort should a breadwinner husband lose his job—the rise of the working mother had increased financial risk for two-earner families. Using comparisons between a hypothetical 1970s single-earner household making about $39,000 in inflation-adjusted dollars and a hypothetical 2000s dual-earner household making about $68,000, she purported to show that middle-class families weren’t really any better off than they were when men were the primary earners. “Today’s dual income families have less discretionary income—and less money to put away for a rainy day—than the single-income family of a generation ago,” she wrote.

The book and its ideas served as a kind of manifesto for Warrenism in both substance and style. It was accessible, folksy, pessimistic, and wonky, and in the years since its publication it has, if anything, grown in influence, establishing Warren as a policy thinker ahead of her time. In many ways it does feel prescient, not only in its preview of a politics focused on middle-class malaise but in its warnings about the systemic economic risks posed by subprime mortgages granted to borrowers with limited ability to pay.

Yet as with her previous work, the book’s findings were marked by controversy and unanswered questions about the soundness of her methodology. In particular, Warren’s notion that housing prices have been pushed upward by school competition doesn’t fully stand up to scrutiny.

Although research has found that school quality does impact housing prices, the effect is fairly modest. A 2006 study in the Quarterly Journal of Economics found a 2.5 percent increase in home prices for every 5 percent increase in test scores. Additionally, Warren’s comparison budgets aren’t entirely realistic. She adds preschool, for example, to the list of expenses for the modern two-income family (thus detracting from the wages brought in by the second earner)—but that is a cost that is incurred for only a few years. Although the book notes that the price of food and clothing declined between the 1970s and the 2000s, the budget comparison lumps those purchases into a catchall category labeled “discretionary income.” This makes it difficult to see where the cost of living has gone down.

And then there’s the role of taxes. In the book’s hypothetical comparison budgets, Warren presents fixed dollar amounts for every type of expenditure—mortgage, health insurance, car payments, discretionary spending, etc.—except one: taxes. Instead, taxes are presented as a percentage of household income—24 percent in the 1970s, 33 percent in the 2000s—which the book describes as a 35 percent change.

Yet as George Mason University law professor and consumer finance scholar Todd Zywicki has noted, the choice to render taxes only as a percentage of income has the effect of masking the total dollar value. Using Warren’s own figures, Zywicki calculated that the tax increase—owing partly to the hypothetical family hitting a new tax bracket and partly to the imposition of additional state, local, and property taxes over time—was by far the largest factor affecting the modern family’s budget. Warren’s own numbers, in other words, showed that families had been strapped not by increased spending on homes or health insurance but by a bigger tax bill.

“The data is presented in a fashion that makes it very difficult for the reader to understand,” Zywicki says. “It almost seems to be designed to mislead.”

Zywicki is among Warren’s most outspoken critics, and he has made this case—that Warren’s own data do not show what she claims they do about the plight of the middle class—on multiple occasions over the span of more than a decade. Yet Warren has never responded directly to his arguments, he says, and Warren’s campaign did not agree to an interview request for this story.

Warren’s insistence on the prominent role of medical bills in bankruptcy cases has drawn even sharper criticism.

In The Two-Income Trap, Warren says that for families with children, the vast majority of bankruptcy filings are a result of just three factors: medical problems, job loss, and family breakup. The following year, Warren, still a Harvard professor, co-authored a Health Affairs study purporting to show that at least 46 percent of the nation’s bankruptcies were a result of medical bills, a figure she subsequently updated to 62 percent. Her research claimed that medically induced bankruptcies had increased a shocking 23-fold since 1981.

These figures garnered major media headlines and became talking points during the debate over the health care law that passed in 2010. President Barack Obama warned that sky-high medical costs had forced many Americans to “live every day just one accident or illness away from bankruptcy.”

But these numbers, too, relied on dubious methodology and misleadingly presented research. Warren broadly categorized bankruptcy filers as having a “major medical cause,” even if they did not list medical issues as the cause of their bankruptcy, so long as they had incurred $1,000 in personal medical expenses in the two years prior to filing. The alleged dramatic uptick relied on a comparison between this broadly defined group and people who had explicitly described themselves as filing for medical reasons, a much narrower category.

In early 2018, a group of health economists from the Massachusetts Institute of Technology, Northwestern University, and the University of California, Santa Cruz published a study in The New England Journal of Medicine directly countering Warren’s claims. In “Myth and Measurement—The Case of Medical Bankruptcies,” the authors argued that her research suffered from a “basic statistical fallacy.” Her paper’s methodology, they wrote, “assumes that whenever a person who reports having substantial medical bills experiences a bankruptcy, the bankruptcy was caused by the medical debt. The fact that, according to a 2014 report from the Consumer Financial Protection Bureau, about 20% of Americans have substantial medical debt, yet in a given year less than 1% of Americans file for personal bankruptcy, suggests that this assumption is problematic.” Using a more rigorous approach, they estimated that hospital bills cause only about 4 percent of bankruptcies—not nothing, but a far cry from the majority share that Warren’s paper had estimated.

This was not an ideologically motivated attack on Warren’s character or politics; it was an attempt by a group of widely respected health policy researchers to set the record straight on an important matter of fact. And it followed years of criticism of the initial study—criticism that had begun almost immediately with rebuttals in Health Affairs, the journal that published the initial work. Warren and her co-authors responded to early criticism with a letter defending themselves and noting that their critics had received funding from insurance industry sources who were opposed to universal coverage schemes, a tactic she has relied on more than once.

“In Elizabeth Warren’s worldview, there are no good-faith disagreements with Elizabeth Warren,” Zywicki says. “Anybody who doesn’t agree with her is a shill.”

The response by Warren and her co-authors was revealing. In one sense, they were engaged in a conventional academic dispute about interpreting bankruptcy data. But what they were really fighting about—what was really at stake—was public policy. Warren clearly believed that the value of her research was in the story it told and the way that story informed and influenced the real world of politics and public affairs.

Warren had already served as an adviser in the 1990s to the National Bankruptcy Review Commission, fighting a series of bankruptcy proposals that would eventually pass as the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005. But in the years after her bankruptcy study’s release, Warren would begin to explore more direct roles in the policymaking process.

In 2007, Warren wrote an essay for the influential liberal policy journal Democracy arguing that many consumer financial products, such as home loans, were dangerous. Titled “Unsafe at Any Rate”—a nod to Ralph Nader’s bestselling 1960s book accusing auto manufacturers of malfeasance—the essay made a case that many financial products posed an active threat to American consumers and should be regulated accordingly. Analogizing home loans to toasters that could burst into flames at any moment, Warren called for “a new regulatory regime, and even a new regulatory body, to protect consumers who use credit cards, home mortgages, car loans, and a host of other products.”

A few years later, Warren got her wish. In the aftermath of the 2007–08 financial crisis, Congress, then controlled by Democrats, passed the Dodd-Frank Wall Street Reform and Consumer Protection Act, which was billed as a direct response to the economic meltdown and an attempt to make sure it never happened again. A centerpiece of the bill was the creation of a new federal agency, the Consumer Financial Protection Bureau (CFPB), which was modeled on Warren’s original proposal.

It is often difficult to determine how presidential hopefuls would govern, especially when, like Warren, they have no executive experience and only a few years of lawmaking experience. But the CFPB offers a glimpse of what a Warren presidency might look like in practice.

The bureau, as imagined by Warren, was first and foremost a paternalistic enterprise. It was premised on the notion that consumers did not and in some cases could not understand the financial services they relied on, and that only an army of unusually powerful government bureaucrats could save them from blundering into the tricks and traps set by lenders.

Those bureaucrats, meanwhile, would be heavily insulated from both presidential and congressional oversight. Housed within the Federal Reserve, the CFPB has its own funding stream and is thus removed from the congressional appropriations process. And instead of a bipartisan board of commissioners like those that govern comparable independent federal agencies—the Federal Trade Commission, for example—the CFPB was designed with a single agency head who could only be removed by the president for cause, such as neglect of duties or malfeasance.

This design was not just unaccountable. It was, critics said, unconstitutional. Because it vested authority in a single director who was insulated from oversight, it created a law enforcement body outside of the constitutional hierarchy; it was an unchecked superagency with the power to make law. In a series of legal cases, multiple federal courts have agreed, although the issue remains under dispute.

The goal of the structure, supporters said, was to remove the CFPB from the significant pressures that large financial institutions could exert on the regulatory process. The bureau had been created as a check on such financial institutions, the “moneyed interests” that Warren and others argued caused the financial crisis; those interests could not be allowed to capture their regulators.

Yet Warren herself has not been entirely immune from the pressures of wealthy interests: As a U.S. senator, she has pushed for the elimination of a tax on medical device makers (which have a heavy presence in her home state of Massachusetts) using language that closely mirrors industry talking points. And in the 1990s, as a law professor, Warren worked as a legal consultant for a variety of large corporations, helping them navigate bankruptcy proceedings. Among those corporations was Dow Chemical, which was being sued by women who claimed they had been made ill by the company’s silicone breast implants. Warren’s role, according to The Washington Post, was to help a company trying to limit its payments to the women.

The CFPB’s mission, meanwhile, was far more expansive than its origin story might imply. From payday lenders to cash advance services, many of the financial products it was given power to regulate had little or nothing to do with the financial crisis. And while Warren pitched the agency as a purveyor of simple rules for a complex world, it would, in practice, end up specializing in inherently complex rules covering inherently complex products. Which is, itself, a central tenet of Warrenism: She believes every economic problem can be solved by changing the rules. Although she also favors new spending programs, her emphasis is on regulatory mechanisms, especially with regard to credit.

Yet by doing so, she “ends up defending America’s path down the road to a more credit-centric economy,” says Samuel Hammond, a policy analyst at the Niskanen Center, a Washington, D.C., think tank. “Instead of broad-based insurance programs, America did a lot of stuff through credit, making home mortgages artificially cheap.”

But focusing on credit rules, Hammond says, merely entrenches that system and enhances the systemic complexity Warren claims to reject. Her approach results in “much more micromanaging, much more complex interaction effects….For the CFPB, complexity is basically the first word.”

The Consumer Financial Protection Bureau is a powerful, roving agency, created under a flimsy pretense in the aftermath of an economic calamity, subject to minimal outside supervision, and dedicated to a mission that might best be described as unchecked Warrenism. In this sense, it is a reflection of Warren’s own character as both a politician and a public intellectual: self-certain, superior, uninterested in engaging critics. So it was hardly a surprise that the initial expectation was that its first director would be none other than its intellectual brood mother, Elizabeth Warren.

It quickly became apparent, however, that Republican opposition in the Senate would stymie Warren’s appointment. Instead, President Obama in 2010 made her assistant to the president and special advisor to the secretary of the treasury for the CFPB, tasking her with setting up the agency. In 2011, he made it clear that Warren still would not be nominated as director, and she stepped down from her White House role.

The CFPB was the culmination of decades of research and advocacy on Warren’s part. She had imagined it, fought for its creation, and then, from her perch in the administration, ushered it into being. Now she was being shut out.

What looked like a moment of triumph had become a significant personal defeat. Warren’s reputation as a liberal firebrand had rendered her so politically untenable, such a partisan lightning rod, that even Obama would not fight for her. By making herself anathema to the congressional GOP, she had lost the chance to carry out her agenda from a position of unusual power.

And yet there was a kind of victory as well, in the simple fact of the CFPB’s creation. Warren would not be its leader—that role would eventually go to former Ohio Attorney General Richard Cordroy, who was given a recess appointment that caused its own controversy—but she had willed it into being and would continue to provide spiritual guidance. She had not achieved her own political ambitions, but on the policy question, she had triumphed.

In the years that followed, something strange happened: Warren, the icon of progressivism whose political brand had proven too toxic to move through the CFPB nomination process, became the object of a strange new respect from the right.

There had always been an undercurrent of social conservatism to Warren’s politics. Although The Two-Income Trap was written from a position of nominal support for working women, it was, in some ways, a lament about mothers moving into the labor force and about the decline of the male breadwinner economic model. On occasion, Warren seemed alive to the deleterious effects of government subsidies, such as when she opposed government-funded day care, which she argued would “make financial life more difficult” for families with stay-at-home moms. And the book’s best piece of advice—don’t buy more house than you can afford—was fundamentally conservative. (It also conflicted somewhat with its thesis that consumer debt was not driven by irresponsible spending.)

Eventually conservatives, especially those whose focus tended toward family and culture, started to notice. In 2011, Christopher Caldwell published an essay in The Weekly Standard titled “Elizabeth Warren, Closet Conservative: The Most Misunderstood Woman in Washington,” praising the arguments in The Two-Income Trap. Warren had placed the economic stability of middle-class families at the center of her politics. She was a progressive, yes, but at heart she was a woman of the right.

Under President Donald Trump, that overlap has only grown. In July, The American Conservative, long a bastion of immigration-skeptical conservative nationalism, ran an essay extolling Warren’s economics, particularly her plans for a new bureaucracy dedicated to “defending good-paying American jobs,” and saying that in some respects, “Warren may be a bigger economic nationalist than even Trump himself.”

Nor is Warren’s popularity limited to small opinion journals. In June, Fox News’ Tucker Carlson, among the most-watched hosts on cable news and an influence on the Trump administration, opened his show with an extended monologue praising Warren’s domestic jobs plan and its elevation of “economic patriotism,” which calls for, in the senator’s words, “aggressive new government policies to support American workers.”

“Many of Warren’s policy prescriptions make obvious sense,” Carlson said. “She sounds like Donald Trump at his best.” Later, at a conference in July, he praised The Two-Income Trap as “one of the best books I’ve ever read on economics.”

It is hard to imagine the Republican Party ever embracing Elizabeth Warren. Trump frequently mocks her claims of Native American heritage, and the congressional GOP continues to view her with deep hostility. She’ll never be an ally to the party. But in some increasingly influential corners of the right, her ideas and her outlook are winning.

In 2012, Warren challenged Massachusetts Sen. Scott Brown, a Republican whose 2009 special election had caused headaches for supporters of Obamacare, and won. It was hard not to see the move as a steppingstone toward a run for president.

Despite the urging of many progressives, Warren sat out the 2016 race but watched as her fellow senator, Bernie Sanders (I–Vt.), ran a surprisingly strong primary campaign against frontrunner Hillary Clinton on a self-described democratic socialist agenda—one that mirrored Warren’s own in many ways. Given the energy of the Sanders campaign and the closeness of the general election vote, it’s easy to wonder whether Warren, had she run, would have captured the Democratic nomination and perhaps even defeated Donald Trump.

Now she has a second chance. In 2018, Warren soft-launched her 2020 effort with a series of policy proposals, and she has continued to roll out plans since her official announcement early this year. Each works from the themes of economic despair and disillusionment that she has dwelled on for decades, telling a dire-yet-evocative story of ever-more-powerful corporate interests preying on the middle class.

Yet in many ways, her plans still don’t add up.

Her signature policy is a 2 percent wealth tax on households worth over $50 million, with an additional surtax on households worth $1 billion or more. Her campaign claims the change would raise $2.75 trillion over a decade.

Most first-world countries that have implemented wealth taxes in recent decades have abandoned them, however. They’re expensive to enforce, and they encourage rich people to park their money—and the jobs that money might fund—elsewhere. As a result, these taxes rarely raise as much as hoped.

That helps explain the considerable academic skepticism about Warren’s revenue projections. Lawrence Summers, who served as a senior economic official in the Obama and Bill Clinton administrations, has argued that the estimates Warren relies on discount the likelihood that the wealthy would evade the new tax by strategically moving their money.

And in July, a trio of economists from the U.S. Treasury Department, Princeton, and the University of Chicago Booth School of Business presented a paper at the National Bureau of Economic Research finding that the rich simply have less wealth to tax than the estimates assume. This suggests that, even ignoring evasion, a wealth tax would raise only about half what Warren expects. In a survey of economic experts conducted by Chicago Booth, 73 percent said Warren’s wealth tax would be “much more difficult to enforce than existing federal taxes.” (Her campaign says the plan is structured to avoid these pitfalls, partly by imposing hefty fines on those who try to move their money elsewhere.)

Despite all this, Warren has outlined plans to spend the revenue aggressively. She has said her wealth tax could pay for a universal child care plan (which would cost about $700 billion, according to a Moody’s estimate) as well as her free college and student loan forgiveness plan (which would cost about $1.25 trillion). She has further suggested that the same tax could be used to cover a $7 billion plan for minority entrepreneurship, plus “down payments on a Green New Deal and Medicare for All”—an environmental policy that the center-right American Action Forum found could cost as much as $90 trillion (yes, trillion) and a single-payer health care plan that multiple estimates have found would cost more than $30 trillion. Given the likelihood that the wealth tax would not raise as much revenue as her campaign claims, it is probable that she would end up spending more money than she raises.

There are other problems as well. The cost estimate Warren points to for her child care plan relies on “dynamic scoring,” which assumes that the program will have a positive overall effect on the economy. But as Philip Klein of The Washington Examiner has noted, the revenue estimate for Warren’s wealth tax relies on what’s known as a “static” analysis. It counts no growth effects into its assumptions, presumably because taxing the sort of people who are likely to make large, economy-building investments would have a negative impact on growth. As with her early research, Warren has deployed her wealth tax in a slippery manner designed largely to further her policy goals.

It’s also quite possibly illegal, since the U.S. Constitution prohibits “direct taxes,” which probably means taxes that apply to a state of being—as in, the state of being wealthy—rather than an action. The Supreme Court has never offered a precise definition of the term, but there’s little question Warren’s effort would face a lengthy court challenge.

Her announcement speech in February, meanwhile, was peppered with dubious economic factoids such as the notion that “40 percent of Americans can’t find $400 to cover an emergency.” This commonly repeated statistic is based on a misreading of a government survey question about how people would choose to pay a $400 emergency expense: Forty percent said they would use a credit card, not that they couldn’t afford it at all. In fact, 86 percent of respondents said they would either pay with cash or use a credit card that they would pay in full at the end of the month.

Warren’s speech also included an outdated warning that “wages in America have barely budged” since the 1970s. It’s true that wages stagnated in the years after the 2008 recession, especially for workers at the bottom end of the income ladder. But in May, The New York Times reported that “wage growth, long stuck in neutral, has at last found a higher gear.” Furthermore, the article noted, “the recent gains are going to those who need it most. Over the past year, low-wage workers have experienced the fastest pay increases.”

In the midst of the longest economic expansion in American history—an expansion that has particularly benefited minorities and women—Warren’s campaign is structured as an extended argument that, actually, the economic outlook for most Americans is awful.  Yet under Warren, things could be even worse: Her economic micromanagement, her heavy-handed approach to regulation, her lack of interest in transparency, her willingness to pursue policies based on dubious and politically motivated data, and her unwillingness to respect the conventional checks and balances of multiparty democratic politics all foretell a presidency that would be dangerous for the economy writ large and potentially fatal for basic economic freedom. The current economy has serious risks and flaws. But the risks of Warrenism are even more severe.

To be sure, the economy could take a nosedive at any moment. Boom times always end eventually, and by the time the Democratic primaries are held next year—let alone the general election—the country could well be in a recession. The overhang of federal debt has added risk to the economy, as has Trump’s tariff-driven trade policy.

But Warren isn’t really arguing about federal debt, which she would almost certainly expand, or about the merits of Trump’s protectionist approach to trade, which her industrial policy would continue in spirit if not in precise detail. And she isn’t warning about the recurring cycle of economic ups and downs. Instead, she is making essentially the same argument she was making in 2004. She wants people to believe the American economy is rotten to the core—that it is irredeemable, at least without her at the helm.

Like so much of Warren’s worldview, it is a simple story, based in part on data that are either erroneous or presented in a misleading fashion. Yet her core conclusions about the struggles of middle-class families have become standard arguments in modern political dialogue on both the left and the right.

The Democratic primary field has adopted much of Warren’s agenda, and it has been forced to play catch-up to her high-volume approach to policy. In April, CNN held back-to-back town hall events with Warren’s rival candidates: Every single one was asked to answer a question about one of her plans.

Bernie Sanders’ success as a proponent of Nordic-style democratic socialism overlaps heavily with Elizabeth Warren’s economic doomsaying. New York Rep. Alexandria Ocasio-Cortez’s blend of personable social media chattiness, economic catastrophizing, and spare-no-expense policy proposals owes much to Warren’s pseudo-wonky populist brand.

Liberal think tanks, many of which were built to serve the Obama administration and the expectation of a Hillary Clinton presidency, have been unusually absent from the 2020 primary debate. But the Democratic Party doesn’t need a think tank to point the way. It has Elizabeth Warren.

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From the Archives: October 2019

15 Years Ago

October 2004

“In the beginning, supporters of No Child Left Behind argued that its problems were just a matter of districts’ adjusting to the new law. But as we begin the third school year in which kids are supposed to be able to escape failing schools, a lack of meaningful choice appears to be the norm.”
Lisa Snell
“No Way Out”

“Southern states, home to the nation’s poorest citizens yet full of dependable Democratic voters, received less New Deal spending than comparatively richer Western states, whose voters perhaps required additional persuasion to support Democratic candidates. Powell cites one study showing that states with a higher percentage of black residents and a lower per capita income received fewer New Deal dollars than richer, whiter states. Thus blacks were directly injured by New Deal policies, then ignored when it came time to dispense New Deal dollars.”
Damon Root
“Bad Deal”

30 Years Ago

October 1989

“Bush is not the first president to treat China as an exception when it comes to otherwise evenhandedly applied norms of human rights. Roberta Cohen, deputy assistant secretary of state for human rights in the Carter Administration, has recently documented how even gross Chinese violations of basic rights were glossed over or ignored by all four of Bush’s immediate predecessors. Like Bush, Presidents Nixon, Ford, Carter, and even Reagan exempted China from universally accepted norms because they had been led to place an extraordinarily high valuation on good relations with a stable Beijing regime.”
Steven W. Mosher
“The China Syndrome”

“Urban America, except for the favored few who can use The City as a small collection of protected environments—one’s well-guarded condominium, one’s spiffy, off-limits-to-hoi-polloi restaurants, one’s security-obsessed workplace—has become a terror. The City is increasingly expensive and decreasingly efficient. The promise of the melting pot has fizzled into accelerated racial polarization. The crime rate soars as the literacy rate declines. The portrait is depressing, demeaning, despairing—and can be well recognized by almost anybody who lives within urban America.”
David Brudnoy
“Unmasking Batman”

45 Years Ago

October 1974

“Is there any libertarian who would not agree that Ayn Rand’s The Fountainhead is a literary masterpiece? Probably not. But there are few libertarians who would agree that the film version of The Fountainhead represents an achievement of equal magnitude. Most people seem to judge the movie by the extent of its slavishness to the book. By criticizing all aspects of the film which do not correspond to the revered novel, they fall into the trap that Ms. Rand was intelligent enough to avoid in her screenplay: that is, assuming that in order to be as successful a work of art, the film must be the book.”
Charles Derry
The Fountainhead as Film”

50 Years Ago

October 1969

“Contrast with Raphael’s vision of the academy, the picture raised by the idea, ‘university,’ in most men’s minds today. That picture, too, includes a large number of bearded, long-haired, barefoot men, their clothes in disarray. But these figures do not sit—they sprawl, or stand—they slouch, or walk—they march. If they appear in a hall, it is to occupy the floor; if they appear engaged in debate, it is to shout down an opponent. One does not visualize them in small groups, nor does one picture some among them alone, writing or reading or thinking. One imagines them, rather, as a crowd—a disorderly mass joining together in a loud and angry chorus of shouts and jeers. Any resemblance between Raphael’s ideal, active scholars and contemporary student ‘activists’ is entirely superficial. The latter are ‘men of action—not of ideas.’ They ‘Act Now, Analyze Later.’ It is not Plato or Aristotle that one would choose to represent in a portrayal of the academy today, it is a rampaging New Leftist.”
Cheri Kent Litzenberger
“Philosophical Origins and Intellectual Heroes of the New Left”

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