The Most Cited Law Faculty, 2016-2020

Publication of the 2021 Sisk, et al., study of law faculty scholarly impact, Brian Leiter has been compiling lists of the most cited law faculty by subject areas for the period 2016-2020, as well as an overall list of the most cited law faculty.

Leiter’s tabulations are based upon the same data as the Sisk study, which looked at citation counts in articles contained in the Westlaw journals database (as of June of this year) for the 2016-2020 period. Search results were checked for over-counting and rounded.

Here are the lists of most cited faculty by subject area. Note that one reason to list citation counts by subject area is that there is a tremendous disparity in citation counts across fields, reflecting a variety of factors (including what law review editors like to publish). I will update this list as additional subject areas are posted.

In addition to the above posts on Brian Leiter’s Law School Reports blog, the Legal Planet environmental law blog has posted a list of the most cited Environmental and Energy Law scholars. Note that this list includes some folks (including myself) who work in multiple areas, which may affect citation counts.

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Biden’s Plan To Crack Down on Tax Cheating: Snooping on Everyone’s Bank Accounts


In order to make sure the rich are paying their fair share in taxes, President Joe Biden says the IRS just needs two bits of information: all the money that goes into your bank account, and all the money that comes out.

That’s how Biden pitched his plan for a more comprehensive financial surveillance state—all to catch those nasty tax-cheating rich folks, of course—during a speech from the White House on Thursday afternoon.

The plan “will give the IRS the resources it needs to keep up with the lawyers and accountants of the super-wealthy. It would ask just for two pieces of information from the banks of these folks: the amounts that come into their bank accounts and what amounts go out of their bank accounts,” Biden said. Right now, he added, “the IRS can’t see what they’re making, and can’t tell that they’re cheating.”

Thankfully, he stopped short of using the “If you’ve got nothing to hide…” cliché.

Still, Biden’s framing of this plan to beef up IRS enforcement with an additional $80 billion in funding is wildly off-kilter. As I wrote in April, giving the IRS more information about the inflow and outflow of bank accounts won’t automatically tell the IRS that someone is hiding unreported, taxable income. But it gives the federal tax cops another way to establish probable cause for a financial stop-and-frisk.

The details of Biden’s plan are far different from the innocuous-sounding description he used Thursday.

“The administration’s proposed ‘comprehensive financial account reporting regime’ would dramatically increase the types of financial institutions and transactions exposed to the feds’ prying eyes,” Reason‘s Matt Welch recently wrote. “The new domestic surveillance program, which requires congressional approval, is one prong of a tripartite strategy for transforming the entire global financial system into a harmonious, haven-free collection funnel to the IRS.”

Closing the so-called “tax gap” and making sure everyone pays what they owe is a crucial part of how Biden and congressional Democrats plan to pay for part of the budget-busting $3.5 trillion reconciliation bill curring being crafted by the House. The $700 billion that will supposedly come from stepped-up tax enforcement was the largest single funding source for Biden’s American Families Plan when he outlined it earlier this year (though Congress could make significant changes before the bill is finalized).

It is disingenuous to suggest, as Biden did Thursday, that letting the IRS peep at your bank records is about ensuring “that the wealthy can no longer hide what they’re making, and they can finally pay the fair share of what they owe.”

As the details of his proposal make clear, enhanced tax enforcement will mean hoovering up more data from crypto wallets, bank accounts, and third-party payment providers such as PayPal and Venmo. And that comes after Biden already ordered the IRS to give greater scrutiny to transactions in the so-called sharing economy.

Biden is pitching this plan as a way to go after the wealthy people who can afford tax lawyers and accountants. But as always, the people who can’t afford those things will probably bear the brunt of the new rules.

“I’m not out to punish anyone. I’m a capitalist,” Biden said Thursday. “All I’m asking is that you pay your fair share.”

All he’s really asking is the end of financial privacy for millions of Americans.

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SpaceX Sends First All-Civilian Crew to Big Boy Space


On Wednesday, SpaceX successfully completed the first launch of an all-civilian crew into Earth’s orbit, marking another milestone for both the company and the nascent private space industry.

At 8 p.m. yesterday evening, one of the company’s Falcon9 rockets took off from Florida’s Kennedy Space Center, carrying four amateur astronauts inside a Crew Dragon space capsule some 360 miles above Earth’s surface.

The crew of the “Inspriation4” mission includes billionaire Jared Issacman (who financed the launch), as well as geology professor Sian Proctor, physician assistant Hayley Arceneaux, and Chris Sembroski, an Air Force veteran who works at Lockheed Martin.

“Few have come before, and many are about to follow. The door’s open now, and it’s pretty incredible,” said Issacman during a livestream of the launch, per the Wall Street Journal.

The mission is scheduled to last three days, during which time the crew will circle the earth about once every 90 minutes. They’ll then splash down at one of several possible landing sites off the Florida coast, according to SpaceX’s website.

The launch is intended partly as a fundraiser—it’s supposed to raise $200 million for St. Jude’s Children’s Research Hospital—and to study the effect of the human body in space.

It’s also yet another proof-of-concept launch for the nascent private space tourism industry. Earlier this summer, billionaires Richard Branson and Jeff Bezos traveled into space aboard their respective space companies’ own vehicles.

Branson’s Virgin Galactic is already selling tickets for future space flights at the bargain price of $450,00 per seat.

Of the billionaire-backed space companies, SpaceX—founded by Elon Musk in 2002—is clearly ahead of the pack. Its Inspiration4 mission actually made it into orbit (i.e. big boy space). That’s almost 300 miles higher than either Branson and Bezos’, still impressive, but nonetheless, suborbital flights managed.

Last May, the company’s Crew Dragon capsule ferried two NASA astronauts to the International Space Station—the first time U.S. astronauts had been carried into space from U.S. soil since the Space Shuttle’s retirement in 2011.

SpaceX has been a boon to NASA’s space mission, developing new launch vehicles and performing missions for a fraction of the cost of some of the agency’s other programs.

Wednesday’s launch is even more exciting for wide-eyed libertarian futurists. No longer is SpaceX just helping the government save some tax dollars. It’s now sending private citizens into space on privately owned, privately financed spacecraft.

Provided everyone makes it back to Earth safely, the “Inspriation4” mission is proof that commercial spaceflight’s best days are ahead of it.

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How Immigration Clampdowns Create ‘Border Crises’


The Biden administration is on target to approach a historical fiscal-year record for apprehending migrants on the U.S./Mexico border. We are likely to have seen 1.64 million such apprehensions by this month’s end of fiscal 2021, even as opponents absurdly accuse the president of pursuing “open borders” policies.

Keep that in mind as you see scenes of a border crossing point being overwhelmed today by would-be migrants. Such moment are not happening despite the clampdown, but because of it.

As the New York Post reports, the “number of migrants waiting under a bridge in Texas has doubled overnight and now tops 8,000 people….Drone footage shot by Fox News shows the sea of migrants, the majority from Haiti, under the International Bridge in Del Rio, Texas, and sources tell the network the situation is ‘out of control’ and that Border Patrol agents are overwhelmed.” Big crowds at the border set off media storms frequently these days, generally for a national Fox audience that will never have their life impacted by migrants being allowed to live and work unimpeded on the same continental landmass.

The Biden administration has been enforcing Title 42 returns of migrants to Mexico, whether they are Mexican or not. (This is done in the name of public health, which is seen as allowing for immediate expulsion no matter what U.S. asylum law dictates.) Though sometimes it’s luck of which border agent you end up dealing with that defines whether you are permitted to go to friends in Florida or forced back to Mexico.

There is a simpler, better way that would avoid these disconcertingly large crowds awaiting the rough justice of U.S. border policies. Those huge crowds in those drone videos are only there because it isn’t conveniently legal for would-be migrants to buy a bus or plane ticket and go anywhere in the U.S. that they want to.

They could do this either with their own funds or with money from charitable groups that currently spend their resources dealing with the awful aftermath of crossings at illegal entrance points, or with the legal troubles that arise from trying to do so at legal entrance points. The migrants could thus rendezvous with friends or family, or with other groups that want to help them assimilate. Or they could just start looking for the work that they came here to do in the first place. All without gathering in one place and looking scary to people who will likely never meet them or be harmed by them in any way.

For those who can’t make the laissez-faire step toward just letting human beings roam unmonitored through these United States, there’s the option of instant work visas with a requirement to show up for a later asylum hearing.

Or we could—as Joe Biden is mostly doing, like Donald Trump before him—double down on a system of feckless jawboning to keep people from trying to better their lives, of family breakup and child detention, of policies that force people to stay in America when they might rather return to their families elsewhere, and of pointless deaths and misery at the border.

Most would-be migrants simply cannot navigate the near-impossible maze of U.S. immigration law via the legal “front door.” But entering America could be as simple as buying a bus ticket or driving a car, with no massed crowds necessary. Pointlessly punitive policies that harm innocents and likely cost trillions in lost national wealth create the very situations that make people think we need more of those policies.

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Nicki Minaj’s Vaccine Hesitancy Tweets Show Value of Persuasion Over Federal Mandates


Earlier this week, rapper Nicki Minaj tweeted a harrowing and improbable tale about her cousin’s friend’s COVID vaccine side effects. “My cousin in Trinidad won’t get the vaccine cuz his friend got it & became impotent. His testicles became swollen. His friend was weeks away from getting married, now the girl called off the wedding. So just pray on it & make sure you’re comfortable with ur decision, not bullied,” she wrote.

“They want you to get vaccinated for the Met. if I get vaccinated it won’t [sic] for the Met. It’ll be once I feel I’ve done enough research. I’m working on that now,” she added, later saying she was reluctant to travel for the Met Gala due to having a young child at home and that she’ll probably end up having to get vaccinated to go on tour:

Her tweets evoked a response from Trinidadian health authorities, who refuted the claim that vaccines could cause swollen balls; a response from the White House, which offered to call Minaj to discuss the safety of COVID-19 vaccines; and dual monologues from MSNBC’s Joy Reid and Fox’s Tucker Carlson expressing their respective disappointment and elation at her stance.

Though Minaj is all over the place with her objections to personally getting vaccinated and choosing not to attend the Met Gala, she’s right to emphasize the importance of allowing adults to make their own choices free from coercive, top-down government measures—and the importance of allowing people to make their own private medical decisions on their own timelines.

If Minaj does ultimately choose to get vaccinated, as she indicates is likely, it will be because the prospect of losing out on the money and joy reaped by touring is a price she’s decided she is not willing to pay. But she’s the one who can judge those trade-offs for herself, and the people she does business with are the ones who can decide how much risk of viral spread they’re willing to accept in venues, recording studios, and the like.

Though the White House obviously won’t offer to get on the phone with every American who has vaccine concerns—just those who have 157 million Instagram followers—their response to the testicle-deformation kerfuffle indicates that they still view persuasion as a useful tactic; perhaps they should’ve even tried persuasion for longer, staving off the impulse to impose federal mandates and incur the highly predictable backlash. For people whose vaccine hesitancy is rooted in distrust of the federal government, coercive measures may be effective in the short term, but are likely to squander trust in the long run (while incentivizing some audacious people to use fakes to skirt the rules).

People who have the administration’s ear, such as CNN medical analyst Leana Wen, have gone so far as to suggest that unvaccinated people should be barred from commercial air travel. In some cities, your pre-teen or teen could be required to get vaccinated in order to attend mandatory schooling; in others, restaurants, bars, movie theaters, art museums, and indoor sporting events are walled off from unvaccinated people by order of the government. A better strategy—one which would have recognized limits on executive authority—could have been to let private businesses decide for themselves which policies to enact for workers and customers, as many were already doing, and to let individuals like Minaj decide when or if the scale tips toward vaccination on their own.

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The California Recall Shows It’s Fine to Not Vote For Candidates You Don’t Support


Had this week’s California recall election succeeded, millions of Democrats would have inadvertently helped to get Republican radio host Larry Elder elected governor. How? By choosing to reject alternatives to Gov. Gavin Newsom. There’s a lesson here in how Democrats and Republicans treat third-party voters and others who reject the options the two big parties feed them.

The recall failed, and it failed badly. The vote totals are still incomplete, but with about 75 percent of the ballots tallied, 3.3 million Californians voted to recall Newsom and 5.8 million voted to keep him.

But that was just the first question on the ballot. All the voters, regardless of how they voted on the first question, had the opportunity to choose one of the 46 candidates running to replace Newsom. Those votes don’t really matter now, since the recall failed. But obviously, each individual voter would have no way of knowing the recall would fail until after the election.

So far, the state has counted 9.2 million ballots. Only 5.1 million of those voters chose a candidate to replace Newsom. A full 4 million voters ignored the second question—which, to be clear, was something the Democratic establishment was encouraging them to do.

Elder got by far the most votes among the replacement candidates, with 2.3 million. In second place was Kevin Paffrath, a real estate YouTuber running as a Democrat. He received a mere 500,000 votes.

For the sake of argument, let’s assume all the voters who ignored the second question were Newsom supporters and Democrats. (In reality, there no doubt were a number of people who voted for the recall but declined to choose a successor and a number of Republicans who rejected the recall.) If all those people had voted for Paffrath, he would have beaten Elder. But if the recall had succeeded with the current replacement votes, the governor’s office would have changed parties, because those Newsom backers didn’t vote on the second question. Millions of Democrats essentially threw their second votes away, something both the major parties often accuse third-party voters of doing.

This is a thought exercise, and admittedly, a bit of a stretch. In order for the recall to have succeeded, millions of those very same people would had to have voted for the recall, meaning they no longer supported Newsom. And presumably, had they done so, they probably would have selected a replacement. There were several Democrats on the ballot, though the state Democratic Party declined to support or endorse any of them, and no major names within the party ran.

The people who declined to choose a successor didn’t know for sure that the recall would fail. But they knew that they didn’t want anybody else. So rather than choosing the most palatable of the 46 alternatives, they opted out. They rejected the choice.

Were they wrong to do so? Absolutely not. Yes, there was a chance that it would have backfired in their faces. But there’s no moral problem with looking at the choices in front of you and deciding to reject them all, or to go with some “fringe” choice that best represents your positions. These voters decided that Newsom was their man, and they weren’t going to settle for some random Democrats even if that meant that Elder might become governor.

Good for them. Well, not for supporting Newsom: He’s a terrible governor. But he’s the terrible governor that they want.

You might think that, having had the experience of deciding that the most morally correct response to the recall was to refuse to vote for a replacement, Democrats would learn that people who vote for third-party candidates or don’t vote at all might have good reasons to do so. Rather than blaming them for, say, Hillary Clinton’s presidential defeat, they might ask how the party ends up with such unappealing candidates that they have to beg, plead, and ultimately shame people into voting for them.

Instead, the Democratic establishment has concluded that democracy itself is to blame. The big argument right now is that recalls are too easy and the rules need to change. In fact, petitions circulate virtually every year to try to recall California governors and other state politicians. Very few of them ever make it to the vote.

Meanwhile, California already has mechanisms in place to deprive voters of candidate choices. The state’s top-two run-off system leaves many folks stuck with two candidates from the same political party in November, with third-party candidates shoved out months earlier.

Newsom’s recall arguably happened not because there was too much democracy but because there wasn’t enough. Too many people felt they had no say in the lockdowns or in Newsom’s authoritarian emergency orders. That the recall ever gained any traction at all reflected resistance to harmful policies that, despite what Newsom might claim, were not “following the science” about preventing the spread of COVID-19. Other states’ lawmakers have pushed back when governors abuse their emergency powers in a pandemic. But not in California, leaving citizens without a lot of recourse.

This is also why ballot initiatives have become such a big deal in California. Democratic leaders in this one-party state habitually pass laws that serve the needs of entrenched interests, leaving direct democracy as the citizens’ line of defense. We saw that with A.B. 5, the terrible law that absolutely demolishes Californians’ right to work as freelancers. It took a ballot initiative to weaken it, and the unions are still fighting it (and unfortunately winning). Sometimes ballot initiatives are the only way to bypass an unresponsive state government.

California is in not in danger of having too much democracy. Citizens should slap down (metaphorically) any attempt by the Democratic Party to undermine the state’s recall systems, which progressives put in place to give citizens the ability to respond when politicians are so beholden to special interests that voters are just ignored.

Above all, the number of people who ignored the second question on their recall ballots should remind Democrats that not voting can be a moral rejection of bad choices. Neither Democrats nor Republicans are entitled to voter support just because they’ve managed to create a political environment where they’re only the options voters are given. That’s anti-democratic.

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Clearview AI, the First Amendment, and Facial Recognition

An interesting commentary by Clayton Kozinski (Lehotsky Keller LLP) on the lawsuit in which the Duke First Amendment Clinic, Jane Bambauer, and I filed an amicus brief (which unfortunately didn’t persuade the judge); here’s the opening:

The conversation about facial recognition technology typically centers around privacy. But an ongoing lawsuit in Illinois shows that it has just as much to do with free expression.

Clearview AI is the defendant in ACLU v. Clearview AI. It produces powerful facial recognition technology used by law enforcement across the country. Like all facial recognition software, Clearview’s is powered by faceprints.

The Illinois Superior Court recently rejected Clearview’s motion to dismiss argument that the Illinois Biometric Information Privacy Act (BIPA) impermissibly infringes its First Amendment rights. BIPA prohibits companies from collecting “faceprints” — geometric measurements of facial dimensions — without first obtaining individual consent….

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Taxing the Rich Isn’t Enough to Pay for Democrats’ Welfare State. They’ll Need To Soak the Middle Class Too.

Illustration_ Lex Villena, Lauren Roberts

Democrats are ready to raise taxes. They want more revenue, in part to fund an out-of-this-world amount of new spending. Some simply want to soak the rich, as Rep. Alexandria Ocasio-Cortez (D–N.Y.) plainly signaled at the Met Gala by wearing a white dress with “TAX THE RICH” scrawled across it in red paint. While the public may be more receptive to the idea because of concerns over high budget deficits, let’s not be naive—many voters believe that these tax hikes won’t hit them. There’s so much wrong about this assumption.

Writing for The Dispatch, the Manhattan Institute’s Brian Riedl documents President Joe Biden’s spending plan, which would expand federal government spending by $11 trillion over the next decade. This spending would help fund a cradle-to-grave new world in which government is omnipresent in our lives. The spending would increase family assistance by $550 billion. Another $700 billion would be wasted on counterproductive “Buy America” provisions. Expansion of the Affordable Care Act would cost another $1.4 trillion; some $2 trillion would go to a Green New Deal; K-12 schools would get more money. All of this is on top of the $6.6 trillion spent on COVID-19 relief.

Biden would partially pay for this $11 trillion with $3.6 trillion from higher taxes. As Riedl explains, “it would represent the largest permanent tax increase since World War II.” Even if the president got the revenue he hopes to collect with these tax hikes—which won’t happen once people start moving their capital around to avoid the oppressive tax burden—it would only cover a third of the new spending. Meanwhile, the House Democrats have their own $2.2 trillion tax plan, which covers even less of the new spending.

Many Americans may not care if they believe the spending could benefit them and other people will shoulder the tax bill, but that’s wishful thinking. They may not be the ones cutting a bigger check to the IRS, but many of them will shoulder some of the economic burden of the tax hikes through lower wages and higher prices.

Also, while many taxpayers may end up with more money in their pockets for a while, that won’t last. There simply aren’t enough rich people to pay for all the new spending. Collectively, the rich don’t even have enough wealth to pay for the kind of cradle-to-grave government that Democrats dream of. It’s only a matter of time before the politicians selling the dream of cost-free big government realize they need to raise taxes on ordinary Americans.

Just look at my native country of France for how it will be done. Pre-COVID-19, France’s revenue per GDP was 45.4 percent. It wasn’t simply raised on the backs of the rich. In fact, France raises most of its revenue through the Value Added Tax, social insurance, property tax, and payroll. Those taxes are regressive as they consume a larger share of low- and middle-income earners’ income and have fewer effects on high-income earners. Add to these some 214 taxes and duties, along with an extremely high gasoline tax, and you end up with an oppressively burdensome tax system for everyone, even the poor.

By contrast, and contrary to Ocasio-Cortez’s belief, the U.S. federal income tax is unusually progressive because it raises most of its revenue from the income tax, which some 61 percent of households don’t pay. In other words, the bulk of federal taxes is already paid by higher income taxpayers, leaving other income groups particularly vulnerable to future higher taxes.

Don’t think I’m saying that if the Democrats get it wrong, the Republicans must get it right. They don’t. GOPers say they prefer lower taxes, but they do nothing to restrain spending. I saw evidence of this during the presidencies of Donald Trump and George W. Bush. My colleague Matt Mitchell, along with our former colleague Andrea O’Sullivan, wrote a great paper documenting what’s wrong with this approach. They explain, “Cutting taxes allows policymakers to give voters something they want, while appearing to rein in the size of government. But this is a temporary illusion unless the tax cuts are combined with necessary reductions in spending—a far more difficult but also the more important task.”

With few exceptions, nobody seems ready to tell the American people how far taxes will have to rise to satisfy Washington’s gluttony for spending. Unfortunately, that’s a lesson they will learn the hard way, and perhaps sooner than later.


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The $700 Billion Gimmick at the Center of Biden’s Tax Plan


Central to President Joe Biden’s plan to hike federal spending by $3.5 trillion is a promise that middle-class Americans won’t face a tax increase.

That’s a claim that is looking less and less true with each passing day. The bill Congress is drafting to pay for all that new spending includes tax hikes on tobacco products, electronic cigarettes, and cryptocurrencies—taxes that will apply to the rich and poor alike. And while the bill does not raise income taxes on anyone earning less than $200,000 annually in the immediate future, Americans earning as little as $30,000 could face a tax hike by 2027 under Biden’s plan, according to an analysis published Tuesday by the Joint Committee on Taxation (JCT), a nonpartisan number-crunching agency housed inside Congress.

The culprit for that future tax increase is the expanded child tax credit, which the House tax plan would extend through 2025 (the JCT’s report only provides estimates for every other year, so 2027 is the first child tax credit–less year included in its analysis). More accurately, the culprit is Congress’ unwillingness to address the full cost of that tax credit in this bill. By promising to raise taxes later, Democrats are able to manufacture about $700 billion in “savings” that will likely never materialize.

Let’s back up a little. The new JCT report shows that taxpayers earning less than $200,000 annually would see a net tax cut in 2023 under the changes that the House Ways and Means Committee unveiled earlier this week. The House Democrats’ plan would shift the tax burden toward wealthier Americans next year, largely because of how Biden’s proposal relies on hiking income tax rates for high earners and raising the capital gains tax rate, which is applied to investment earnings.

Skip ahead to 2027, however, and things look quite a bit different. By then, the changes House Democrats are now proposing would result in higher taxes for nearly all taxpayers—even those making as little as $30,000 per year. Middle-class Americans earning between $50,000 and $100,000 would owe, on average, several hundred dollars in additional taxes, according to the National Taxpayers Union Foundation’s breakdown of the JCT’s analysis.

That sudden shift in the tax burden is caused by the expiration of the newly expanded child tax credit. As part of the COVID-19 relief bill passed in March, Congress approved a one-year increase in the child tax credit from $2,000 per child annually to $3,600 per child under the age of 6 and $3,000 for those ages 6 to 17—delivered as monthly payments of $300 per child under age 6 and $250 for older kids. In the reconciliation bill, Democrats are proposing to maintain the expanded tax credit through 2025.

Why 2025? Because the tax credit—which isn’t really a tax credit at all, but rather a direct subsidy since it is paid out even if recipients have no income and owe no federal taxes—is expensive. The Committee for a Responsible Federal Budget estimates that the child tax credit will cost about $110 billion annually, and extending the tax credit through 2025 will cost $450 billion. Making it permanent would cost $1.1 trillion over the next 10 years.

Those amounts could make a big difference in the ultimate fate of Biden’s plan. Democrats need to use the reconciliation process to bypass the filibuster in the Senate, but the rules governing the reconciliation process forbid legislation that expands the federal budget deficit over the next decade. That means every dollar of new spending has to be offset somehow. And $1.1 trillion is a lot more than $450 billion.

Most Democrats would probably love to extend the expanded child tax credit permanently. At least a few Republicans would probably agree to that too. But by setting the expanded tax credit to expire four years from now, Democrats are able to ignore roughly $700 billion in future costs that have to be offset in order to use the reconciliation process.

“Democrats have no intention of taking away the child credit expansion after 2025—it is both popular and central to their poverty-reduction strategy,” says Brian Riedl, a senior fellow at the Manhattan Institute, a conservative think tank, and former Senate Republican staffer. “But sunsetting the policy after 2025 in this bill provides $700 billion in fake savings over the decade, as future Congresses will surely extend the policy.”

In other words, it’s a gimmick. A gimmick that, yes, Republicans have also used when trying to route major tax policy changes through the reconciliation system, but a gimmick nonetheless.

As a result of that gimmick, the JCT’s estimates for fiscal year 2027 do not include the child tax credit. And that’s why it looks like taxes will go up for a lot of middle-income families a few years from now.

This sets up a clever game. Democrats will be able to wave away objections about those future tax increases because of course Congress will extend the child tax credit beyond 2025…eventually. But they don’t have to account for the future cost of that inevitable extension in the bill they want to pass within the next few weeks.

Compared to what experts say are the other likely long-term consequences of passing this $3.5 trillion reconciliation bill—including slower economic growth, more debt, and lower wages—the gimmickry involved in gaming the reconciliation process over the child tax credit is relatively small potatoes. But make no mistake: The child tax credit is adding to the future size of government, even if that amount doesn’t show up on a balance sheet past 2025 yet.

These cynical maneuvers are one of the main reasons why it is so hard for Congress to get its hands around America’s long-term debt problem. Lawmakers are quite literally crafting legislation not in pursuit of the best policy, but in order to avoid the very barriers that have been put in place, within the reconciliation process, to limit deficit spending.

Gaming the system is no way to produce the best outcomes—and that’s especially true for today’s kids, ostensibly the beneficiaries of this policy, who are going to have to pay for it in the long run.

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