Sacred Cow Chips
Initial Coin Offerings: Bits of Capital For Little Guys
Posted by pnuetz in Capital Markets, Technology, Transaction Costs
Andreas Antonopoulos, Bitcoin, Blockchain Technology, Crypto-Currency, Due Diligence, Ethereum, Exit Scams, ICO, Initial Coin Offering, Investment Banking, Jeffrey Tucker, Listing Requirements, Risk Preference, SEC, Self-Governance, Venture Capital
It's possible for relatively small ventures to raise significant sums of capital without meeting onerous government filing requirements or venture capitalist demands and controls. This is enabled by a sort of hybrid between an initial public stock offering (IPO) and the issuance of private crypto-currency (like Bitcoin). It's called an initial coin offering (ICO), and it is growing in importance as a funding source, primarily (but not exclusively) for applications leveraging blockchain technology. ICOs themselves are enabled by blockchain, through which a system of virtual, shared accounts is maintained in the cloud, essentially a ledger of who owns (and owes) what claims on whom (and to whom). Like stock or a venture capital investment, its value is tied to the success of the venture or project:
"When a cryptocurrency startup firm wants to raise money through an [ICO], it usually creates a plan on a white paper which states what the project is about, what need(s) the project will fulfill upon completion, how much money is needed to undertake the venture, how much of the virtual tokens the pioneers of the project will keep for themselves, what type of money is accepted, and how long the ICO campaign will run for. During the ICO campaign, enthusiasts and supporters of the firm's initiative buy some of the distributed cryptocoins with fiat or virtual currency. These coins are referred to as tokens and are similar to shares of a company sold to investors in an Initial Public Offering (IPO) transaction."
Scanning though a list of ICOs or "token sales" just might make your eyes glaze over. The descriptions of some of the ventures sound impossibly intangible (or ethereal… a major blockchain application platform is called Ethereum). A few relatively accessible examples: augmented reality platforms; crypto-payment mechanisms; gaming community services; software platforms for dentists and "gig" economy providers; "tokenized" real estate investment; and peer-to-peer property rental.
Crypto-currencies like Bitcoin are viewed as highly speculative by many investors; likewise, ICO tokens are very risky. In fact, the ICO "space" has been fertile ground for fraudulent activity, pyramid schemes, and "exit scams". Investor due diligence is often no better than guesswork, unless there is already an established product or service related to the project. The last link quotes a Bitcoin expert name Andreas Antonopoulos:
"The best way to learn which ICOs are worth it is to lose money. Waiting for the wash-out. When these people promise great riches, they usually mean for themselves. If you have a viable product… build it first and they will come. I do not treat these technologies as investments but learning opportunities."
Very comforting! Some guidance and a framework for ICO due diligence are offered here and here, respectively. More guidance is here. And here is an actual due diligence report on an ICO. Suffice it to say that ICOs are not a perfect match for my risk-return preferences!
Nevertheless, there is a lot to like about ICOs. Jeffrey Tucker writes enthusiastically about their disruptive and innovative nature. The heavily regulated world of investment banking tends to deny smaller firms access to capital, and venture capitalists have their own, frequently costly demands on start-ups. ICOs open a new, low-cost channel through which funds can be raised from investors with a greater appetite for risk. Here is Tucker:
"Why is this strategy for raising money for new ventures working so well? There is the most obvious consideration of low barriers to entry. Anyone can float them and anyone can buy them–from and to anyone in the world regardless of geography. There is a larger pool of investors that can bypass the impossiblycostly and complex national regulatory machines that have gummed up capital-raising methods in conventional finance.
It has been a long time since the financial markets have been free. That the market is mostly deregulated and decentralized, and thereby more active and effective, is itself interesting. No sector is more replete with the myths of 'consumer protection' than this one. …
And the solution is absolutely ingenious. It relies on decentralized markets that live on the Internet, combined with the invention of new tokens that have all the qualities of traditional money, depending entirely on supply and demand for their value, and also serve as asset titles to the protocol of the company itself."
Unfortunately, governments and large private players do not always wish to promote decentralized markets. Quite the contrary, and in the case of ICOs, governments and regulators are already "chomping at the bit", so to speak, to impose regulation. Warnings of ICO risks have been formally issued by the SEC, and China has placed a freeze on ICO activity pending inspections of exchanges, reports and the likely issuance of regulatory measures. Given this scrutiny, Tucker might be a bit too optimistic about the ongoing development of the ICO market. It will depend in large part on the success of efforts by participants at self-governance. That's something financial markets have traditionally done well, despite shrill claims to the contrary. Let the investor beware!
ICOs will tend to encourage the development of competitive forces in the broader economy. And while investment banks might view the funding objectives of many ICOs as table scraps, ICOs will create more competition for those banks if the volume and breadth of "coin" funding continues to grow. ICO's won't find their way into my portfolio any time soon, but they show great promise as an economic development.
Climate Change, Hurricanes and Noisy Statistics
Posted by pnuetz in Global Warming
AGW, Atlantic Multi-Decadal Oscillation, Climate Change, Cool the Past, East Anglia University, El Nino, Fabius Maximus, global warming, Hurricane Harvey, Hurricane Irma, Hurricane Maria, Michael Mann, NOAA, Roger Pielke Sr, Roy Spencer, Ryan Maue, Sea Surface Temperatures, Signal-to-Noise, Statistical Noise, Storm Intensity, Watt's Up With That?
The nasty spate of hurricanes this year has been a catch-up of sorts following a decade of subdued activity. In fact, global hurricane activity has been flat to declining in frequency since 1970. Until the recent increase, hurricane activity had been trending down in terms of 24-month cumulative energy since the 1990s, as the chart above shows. The historical data on the number of U.S. landfalls extends back to 1900, and it has had a negative trend as well. Nevertheless, we hear from climate alarmists that Hurricanes Harvey and Irma, which ended a drought of record length in U.S hurricane landfalls, and now presumably Maria, were a consequence of anthropomorphic global warming (AGW), er… climate change.
The implication is that increases in the atmospheric concentration of CO2 led to these hurricanes or their high intensity. Apparently, the paucity of hurricane activity over the previous ten years can be waved off as a fluke. A further implication of the alarmist view is that the longer negative trends in hurricane frequency and energy can be ignored in the context of any relation to CO2 concentration. But how so? One confounding factor I've seen mentioned blames El Nino warming in the Pacific, and a consequent increase in Atlantic wind shear, for the long lull in activity after 2005. That has a ring of plausibility, but a closer look reveals that actual El Nino activity during those years was hardly impressive, with the exception of 2015-16.
More historical data can be seen in the charts on the tropical cyclone page on the Watts Up With That? blog. (The charts in question start about two-thirds of the way down the page.) Hurricane expert Ryan Maue compiled a number of these charts, including the one above. He authored an editorial in the Wall Street Journal this week bemoaning the climate-change hype surrounding Harvey and Irma (if the link doesn't work, it is available at the WSJ's Opinion page on Facebook, posted on 9/17). Maue believes that both the climate science community and the media share in the blame for that hype. But he also says the following:
"Although a clear scientific consensus has emerged over the past decade that climate change influences hurricanes in the long run, its effect upon any individual storm is unclear."
Maue provides a link to this NOAA web site offering cautious support for the proposition that there is a link between global warming and hurricane intensity, though the data it cites ends about ten years ago, so it does not capture the recent lull. Also, some of the information it provides is based on modeled global temperatures and hurricane activity through 2100. As is well-known by now, or should be, long-term climate forecasts based on carbon forcings are notoriously inaccurate, and NOAA admits that the association between those predicted temperatures and future hurricanes is tenuous:
"It is premature to conclude that human activities–and particularly greenhouse gas emissions that cause global warming–have already had a detectable impact on Atlantic hurricane or global tropical cyclone activity."
Perhaps the idea that there is consensus regarding the relationship between climate change and hurricanes is more of a stretch than Maue and NOAA let on. Here is a summary of 30 peer-reviewed studies showing no connection to either hurricane frequency or intensity. Most of these studies are more recent than the end of the data record cited by NOAA. And in fact, many of these studies find support for a negative link between global temperatures and hurricane activity.
One of the prominent alarmists in the climate research community is Penn State's Michael Mann, who has famously claimed that hurricanes are more frequent now than at any time in the past 1,000 years. He based his conclusions on highly speculative hurricane "proxies" identified in layers of sediment. Mann's claims and research technique have been called into questioned by other climate scientists, who have arrived at contrary results in their own research. Lest anyone forget, Mann was implicated in a data manipulation fraud related to the East Anglia climate scandal. Though cleared by a group of tenured professors at his own university, there are a number of climate scientists who believe Mann violated scientific standards.
The claim that global warming will cause hurricanes to become increasingly intense relies on elevated sea surface temperatures. This year, temperatures in the Gulf of Mexico are elevated and are said to have had a role in strengthening Harvey as it approached the Gulf Coast. Texas, however, has experienced as many landfalls of major hurricanes with cooler Gulf waters as with warmer waters. And Irma strengthened in a part of the Atlantic without such warm temperatures. Instead, minimal wind shear was implicated as a factor contributing to Irma's strength.
In general, Atlantic temperatures have been relatively warm since the late 1990s, a fact that most scientists would at least partially attribute to the "Atlantic multi-decadal oscillation", a regular cycle in water temperatures that repeats with a period of multiple decades. Potentially adding to that temperature increase is a controversial change in NOAA's calibration of sea surface temperatures, as an increasing share of those readings are taken from buoys rather than ship-board measurement. There is some suspicion that NOAA's adjustments "cool the past" more than is justified, a suspicion that was heightened by allegations from one whistle-blowing NOAA scientist early this year. Then, there is the contention that the sea surface temperature makes little difference if it is matched by an increase in air temperature.
Overall, NOAA says the combination of frequency and intensity of tropical cyclones will increase by 2%-11% over the rest of this century. As Roy Spencer notes, that is not a terribly alarming figure given the risks people have always willingly accepted by living in coastal areas. In any case, the range is based on models of climate behavior that are of questionable reliability. And like past temperature predictions produced by carbon-forcing climate models, it is likely to be a gross overestimate. Here is Roger Pielke, Sr., who is quoted in this wide-ranging post on hurricanes and climate at the Fabius Maximus web site:
"Model projections of hurricane frequency and intensity are based on climate models. However, none have shown skill at predicting past (as hindcasts) variations in hurricane activity (or long term change in their behavior) over years, decades, and longer periods. Thus, their claim of how they will change in the future remains, at most, a hypothesis (i.e. speculation). When NOAA, IPCC and others communicate to the media and public, to be scientifically honest, they should mention this."
Despite the spike in activity this year, strong hurricanes are intermittent and fairly rare. Establishing reliable statistical connections with other forces is difficult with emergent events like hurricanes. Moreover, the degree of error in measuring global or regional temperature itself is much larger than is generally acknowledged, and the global warming "signal" is very weak. As we say in the statistical analysis business, noisy data are compatible with diverse hypotheses. The relationship between hurricanes and climate change is a prime example.
"Freedom of Representation" Is a Better Name Than "Right To Work"
Posted by pnuetz in Right to Work, Unions
Agency Fees, Compelled Riders, Competitive Enterprise Institute, David Boaz, David Henderson, Eric Greitens, Exclusive Representation, Free Riders, Gary Chartier, Holman Jenkins, Ivan Osorio, Joe Lehman, Mackinac Center for Public Policy, Missouri Right to Work, monopoly, Monopsony, National Labor Relations Board, Right to Work, Sheldon Richman, Taft-Hartley Act, Vinnie Vernuccio, Wagner Act
Missouri's Right-to-Work (RtW) legislation, signed into law by Governor Eric Greitens in February of 2016, essentially states that no employee or prospective employee, with certain exceptions, can be required to join a union or to pay union dues or agency fees. But before the RtW law's effective date on August 28th, well over 300,000 signatures were collected in opposition, which is believed to meet state requirements for a referendum on the issue. As a consequence, the law was put on hold, pending a vote in November.
A casual look at a variety of statistics by state "right-to-work" status shows an impressive advantage for RtW states, though that doesn't imply causality. One can certainly think of reasons why the causality might be operative, and I find some of them plausible, but that's not the line of argument I want to pursue here.
The Libertarian Divide
Libertarians are of divided opinion on the desirability of RtW laws. David Boaz wrote about this division back in 2012. On one side, it's clearly an abrogation of an individual workers' rights to require, as a condition of employment, entry into a third-party association against their will, or to coerce payment of dues or fees for collective bargaining and ongoing representation on a variety of job-related issues. Such a requirement would violate the constitutional protections on freedom of association, freedom of speech, and freedom of contract. Boaz quotes Vinnie Vernuccio and Joe Lehman of the Mackinac Center for Public Policy:
"Right to work does not change any aspect of collective bargaining other than preventing employees from getting fired for choosing not to join or remain in a union and pay union dues or agency fees, which may go toward political causes they don't support. Collective bargaining still exists in right-to-work states, and workers are of course free to organize."
This may overstate the consequences for workers who would rather not join a union. Non-union workers have so-called Beck rights, which allow them to opt out of "core membership" and pay reduced dues covering only representation. An appropriate accounting for that portion of dues might not be straightforward, however, and it is still likely to represent an involuntary payment. Moreover, awareness of Beck rights is far from universal, and asserting them might not be straightforward.
Libertarians who disagree with the perspective expressed in the quote above emphasize the employers' freedom of contract as though it takes primacy over worker autonomy in the shaping of voluntary and mutually beneficial employment relationships. The thinking is that an employer might actually prefer to host a union shop. There are presumed efficiencies of collective bargaining, standard and agreed-upon work rules, lower turnover, and perhaps even worker loyalty. Among this group of libertarians are Holman Jenkins, Sheldon Richman, and Gary Chartier:
"When a legislature interferes with voluntary employment contracts, it infringes people's freedom to bargain with their own labor and possessions. Treating this kind of interference as acceptable means licensing arbitrary interventions into the market by politicians, who are ill-equipped to second-guess the decisions made by the real people making work agreements with one another."
One could be forgiven for thinking that Chartier and the others view RtW as a form of government intervention in otherwise free labor markets. These critics acknowledge, however, that there is already intervention in labor relations via the Wagner Act (1935), which among other things prohibits any refusal "to bargain collectively with the representative of the employer's employees." Under the Act, the National Labor Relations Board (NLRB) is charged with:
"… overseeing the process by which employees decide whether to be represented by a labor organization and prosecuting violations. ... issue rules interpreting the labor legislation. This will generally be binding, unless a court deems it to have acted outside its authority. … prevent unfair labor practices, lead investigations, collect evidence, issue subpoenas, and require witnesses to give evidence."
So, the NLRB is empowered to force employers, if it so chooses, to bargain collectively and even to rule on whether a vote by employees was "fair". RtW laws are defended as a force to countervail against this federal power. The Wagner Act was later amended by the Taft-Hartley Act (1947) to curb union power and abuses. It created more balance in the relations between unions and employers and it offered some protection to non-union job seekers by prohibiting closed shops. It also allowed states to pass RtW laws to proscribe the forced payment of agency fees by non-union employees, if states so choose. Nevertheless, labor law continues to support monopoly union privileges and abusive tactics. Moreover, restrictions on unions' use of dues and agency fees for political activities are difficult to enforce in the absence greater requirements for union financial transparency. The response from libertarian critics of RtW laws is that there are avenues for additional reform at the federal level without adding additional interventions (RtW) at the state level.
One of the clearest rebuttals to the above arguments against RtW laws comes from Ivan Osorio of the Competitive Enterprise Institute, who first quotes Chartier on prospective legislation in Indiana:
"'If employers choose to conclude union-shop contracts with unions, what gives the Indiana legislature the right to interfere?'"
Here is Osorio's rejoinder:
"... there is no jurisdiction anywhere in the United States where there is no such interference at all. Simply replace "union shop" with "open shop," and the one-sidedness of Chartier's query … becomes clear. Why should the government forbid an employer from negotiating a voluntary membership agreement with a union?"
Exclusive Representation
Another side of the RtW debate is the contention that non-union workers receive the same benefits achieved via collective bargaining if they are employed by a firm having an otherwise unionized work force. Thus, the non-union workers are said to be "free riding" on the union's efforts. This framing is highly misleading, however. Under the Wagner Act, a firm's non-union workers are not entitled to pay for benefits negotiated by the union unless the union has opted for exclusive representation. In that case, those non-union workers are not so much free riders as "compelled riders", who may be forced to accept certain terms, working conditions and particular representation in grievances against their wishes. The union's exclusive power is thus flexed in two ways: as a monopoly seller of labor to the firm, and as a monopoly seller of agency services to the worker, extracting dues or agency fees in the process.
Balancing Rights
David Henderson's perspective on the RtW issue is appealing, as he accounts for the tradeoff between emphasizing the rights of workers and employers:
"It's true that [RtW] laws make it illegal for employers to do what some of them might want to do: namely hire only union workers, require everyone who works for them to join unions, or require everyone who works for them to pay dues to a union. But are there really likely to be many such employers? I don't think so. …
Now, I don't know that there are no such employers. Maybe there are some. If so, then it becomes a tradeoff. On the one hand, preserve the rights of many non-union workers, many union workers, and unionized employers but trample on the rights of those few unionized employers. On the other hand, trample on the rights of many union workers, non-union workers, and unionized employers but preserve the rights of those few unionized employers. I choose the first option because I think it tramples on way fewer people's rights. And, remember, that if you say right-to-work is wrong and you get your way just on that issue, the federal government will continue to trample on many people's rights. …
… the best solution is to abolish the law that gives government-enforced monopoly power to unions. Sheldon [Richman] and I agree on this. The issue here is whether we should just settle for saying that and pushing for that or do something else meanwhile."
Union representation can protect workers from an imbalance of power between a large employer and individual workers. But it is not all sweetness and light for unionized workers, not to mention consumers who pay for the influence of unions on prices in general. While unions played a critical role in establishing and defending workers' rights over the years, they have increasingly presented agency problems for their constituencies. They have also hastened declines in industries facing competitive pressures, which in turn have hastened the decline of union representation generally. (Public sector unions present a different set of problems involving conflicts of interest with taxpayers, but those are beyond the scope of this post.) In general, worker rights in the private sector are better served by allowing self-determination in the matter of union representation. To the extent that state RtW laws protect that autonomy, they are probably worthwhile at this point in the evolution of labor relations. However, if that is the primary effect, RtW is something of a misnomer.
Behold Our Riches! Quality, Prices, Income, and the Purchasing Power of Labor
Posted by pnuetz in Human Welfare, Markets
Affordability, Consumer Surplus, Don Boudreaux, Human Progress, Income Statistics, John D. Rockefeller, Marian Tupy, Martin Feldstein, Measures of Economic Welfare, Middle Class Stagnation, Non-Wage Benefits, Quality Adjustment, Wage Stagnation
A steady refrain among pundits is that the American middle class can't get ahead. The standard of living of average Americans has stagnated over the past 30 years, according to this view. It's bolstered by government measures of average wage growth relative to consumer prices. But Martin Feldstein describes the flaws in constructing these measures; he says they may have led to an understatement of real income growth of more than 2% per year! Here is a link to Feldstein's piece in the Wall Street Journal: "We're Richer Than We Realize". (If the link doesn't work, an ungated link can be found on the WSJ Facebook page, posted at 10:30 a.m. on Saturday, Sept. 9th.)
Here are some of Feldstein's observations:
"If there is no increase in the cost of production, the government concludes that there has been no increase in quality. And if the manufacturer reports an increase in the cost of production, the government assumes that the value of the product to consumers has increased in the same proportion.
That's a very narrow—and incorrect—way to measure quality change. In reality companies improve products in ways that don't cost more to produce and may even cost less. That's been true over the years for familiar products like television sets and audio speakers. The government therefore doesn't really measure the value to consumers of the improved product, only the cost of the increased inputs. The same approach, based on measuring the cost of inputs rather than the value of output, is also used for services.
The official estimates of quality change are therefore mislabeled and misinterpreted. When it comes to quality change, what is called the growth of real output is really the growth of real inputs. The result is a major underestimation of the increase in real output and in the growth of real incomes that occurs through quality improvements.
The other source of underestimation of growth is the failure to capture the benefit of new goods and services. Here's how the current procedure works: When a new product is developed and sold to the public, its market value enters into nominal gross domestic product. But there is no attempt to take into account the full value to consumers created by the new product per se."
It goes well beyond that, however, as great swaths of consumer value are completely ignored by government statistics:
"A basic government rule of GDP measurement is to count only goods and services that are sold in the market. Services like Google and Facebook are therefore excluded from GDP even though they are of substantial value to households. The increasing importance of such free services implies a further understatement of real income growth."
Some of these criticisms are unfair to the extent that income statistics correspond to what consumers can purchase in terms of market value. That is a fundamentally different concept than the total value consumers assign to goods and services (market value plus consumer surplus). Nevertheless, there are efforts to adjust for quality in these statistics, but they fall far short of their objective. Also, GDP and income statistics purport to be measures of economic welfare, though it's well known that they fall short of that ideal. It might be more fair to say that that official income statistics are reliable in tracking short-term changes in well being, but not so much over long periods of time.
The graphic at the top of this post is taken from Marian L. Tupy's "Cost of Living and Wage Stagnation in the United States, 1979-2015", on the CATO Institute's web site:
"… many, perhaps most, big-ticket items used by a typical American family on a daily basis have decreased in price. Over at Human Progress, we have been comparing the prices of common household items as advertised in the 1979 Sears catalog and prices of common household items as sold by Walmart in 2015.
We have divided the 1979 nominal prices by 1979 average nominal hourly wages and 2015 nominal prices by 2015 average nominal hourly wages, to calculate the "time cost" of common household items in each year (i.e., the number of hours the average American would have to work to earn enough money to purchase various household items at the nominal prices). Thus, the 'time cost' of a 13 Cu. Ft. refrigerator fell by 52 percent in terms of the hours of work required at the average hourly nominal wage, etc."
Tupy's post also covers the huge increases in non-wage benefits enjoyed by many workers over the past several decades, which are not captured in average wage statistics.
It's clear that standard measures of income growth are distorted by the failure to properly account for changes in the quality of goods and services at our disposal. The narrative of middle class stagnation is flawed in that respect. As Don Boudreaux has said, most ordinary Americans are richer today than John D. Rockefeller was a century ago. The availability and quality of goods and many services today, affordable to ordinary Americans, are vastly superior to what Rockefeller had then or could even imagine. And many of those advancements occurred since the 1970s.
An Immigration Reform Dream: What's Trump's Price?
Posted by pnuetz in Executive Authority, Immigration
Border Wall, DACA, David Harsanyi, Deferred Action on Childhood Arrivals, Deportation, Dream Act, Executive Overreach, Executive Power, Ilya Somin, Immigration Enforcement, Immigration reform, Michael Ramsey, Path to Citizenship, Prosecutorial Discretion, The Federalist, The Originalism Blog, The Volokh Conspiracy, Zachary Price
Two major issues weigh on critics and supporters of President Trump's rescission of DACA, President Obama's 2012 executive order establishing the Deferred Action on Childhood Arrivals program. First is the treatment of individuals who entered the U.S. illegally prior to mid-2007 at less than 16 years of age (and who were 30 or younger in 2012). Under Trump's new order, these individuals would be subject to deportation in March 2018 or later, depending on their remaining DACA eligibility and the status of any renewal application already filed by then.
As an isolated question, draconian treatment of so-called "Dreamers" (taken from the "Dream Act", which never made it through Congress) is difficult to justify. These individuals did not arrive here by choice or through any fault of their own, and the vast majority are now productive members of society. The problem, however, is the usual argument against amnesty: it creates an incentive for would-be immigrants to circumvent the legal immigration process in the hope of later forgiveness. If children of illegals are subject to lenient treatment once in the U.S., it probably magnifies that incentive. While some take a hard line with respect to deporting today's Dreamers, many critics of DACA are strongly sympathetic to their plight.
The second issue defines another basis for opposition to DACA: the questionable legality of Obama's original order. Obama issued another executive order in 2014 that essentially expanded DACA. That later order, already rescinded by Trump in June, was likely to be overturned by the Supreme Court. This article quotes from the majority opinion of the U.S. Fifth Circuit Court of Appeals:
"The administration's interpretation of the Immigration and Naturalization Act, [5th Circuit Judge] Smith wrote, would effectively vest the Secretary of Homeland Security with the power 'to grant lawful presence and work authorization to any illegal alien in the United States—an untenable position in light of the INA's intricate system of immigration classifications and employment eligibility.' In other words, Smith wrote, 'the INA flatly does not permit the reclassification of millions of illegal aliens as lawfully present and thereby make them newly eligible for a host of federal and state benefits, including work authorization.'"
The key here is the clause "making them newly eligible for a host of federal and state benefits" without proper legislative authorization. In other words, Obama exceeded his authority. The original DACA order suffers from the same defect as the extension, and it was likely to be challenged as well. However, Ilya Somin has defended DACA as a matter of "prosecutorial discretion", which was Obama's original rationale for not enforcing immigration law for Dreamers. (But there is suspicion that the likelihood of adding to Democrat voter rolls appealed to Obama.) Enforcement against the children of illegal immigrants, Somin contends, is simply bad policy of the sort routinely avoided by prosecutors. In 2013, Zachary Price addressed this defense of DACA, including the application of earlier statutes specifically allowing discretion in immigration enforcement (also see this post by Michael Ramsey):
"The immigration [DACA] policy, in contrast, provides a more definite and specific guarantee of non-enforcement to a broad category of undocumented immigrants who fall squarely within the scope of removal statutes. … It's worth noting (as some folks have helpfully pointed out to me) that the Obama Administration has maintained vigorous enforcement with respect to other groups of undocumented immigrants. But DACA goes beyond simply turning a blind eye to their unlawful presence in the country. It effectively grants a form of lawful status not contemplated by the applicable statutes through an exercise of prosecutorial discretion.
It's true that there is a history to the practice of deferred action. Although this form of relief originated in executive practice, it's now mentioned in several statutes, so to some degree at least Congress may have ratified it. … Yet the practice (as I understand it) originated as a form of case-by-case humanitarian relief. While immigration officials have used it categorically a few times in the past (for instance, to grant relief to immigrant students affected by Hurricane Katrina), I'm not aware of it ever being used for as broad and significant a group of immigrants as in the DACA program. So I think it's hard to claim that there's been even an implicit ratification of the practice sufficient to support the DACA program."
Legislative action — a new attempt at some kind of Dream Act — could resolve the dilemma faced by Dreamers and their defenders while avoiding the legal objections to unrestrained executive authority. It's likely that Trump is willing to exchange a continuation of the DACA regime, or even complete amnesty for Dreamers, to achieve other priorities, such as funding for his ballyhooed border wall. One could accuse Trump of using the Dreamers as pawns — why else would he have agreed to a grace period of six months? And why did he say, subsequently, that he would "revisit DACA" if Congress failed to act? That might give him some leverage with those who oppose DACA on the legal grounds discussed above, but it might undermine his ability to cut a deal for the wall or any other priority with Democrats.
David Harsanyi writes in The Federalist that "Rescinding DACA Is the Right Thing To Do":
"If there's one thing that exemplified Obama's administration, it was its embrace of executive unilateralism. No administration in memory was stopped more often by courts on this front—often by unanimous Supreme Court decisions. … The Constitution makes no allowance for the president to write law 'if Congress doesn't act.'"
Somin notes that rescinding DACA, and even passing a law in this case, will do nothing to prevent this and future presidents from exercising excessive authority. That's certainly true, but rectifying a case in which that authority was exceeded, along with recognition of the constitutional limits on executive authority, is worthwhile.
Congress should pass legislation offering relief to the Dreamers. In a best case scenario, new legislation would provide them with a clear path to citizenship, and it would also reform existing immigration law to allow for greater flows of immigrants through the legal process. Those provisions might come at the cost of building a wall, as well as funds for tougher immigration enforcement. And Trump has made merit-based criteria for issuing green cards and accepting immigrants a priority. That's fine as long as: 1) "merit" is defined partly by economic needs, such as low-skilled farm labor; and 2) there is some sort of navigable process for refugees.
While the prospect of allowing Dreamers to be used as political pawns might be repugnant, the end result could be worthwhile. And we shouldn't forget that some of those Dreamers, as children, were probably used as pawns by the very parents who brought them here.
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