August 2024

Welcome to Cato Audio for August 2024. I'm Caleb Brown. In this month's offering, Clark Neely discusses the Second Amendment and armed self-defense in the wake of the Supreme Court's Rahimi decision. Marian Tupi discusses our unsung resource abundance. Joe Norbert explains why humility demands freedom in exchange. And in our Cato Audio exclusive, Cato's Eric Gomez walks us through U.S. interests as Russia develops new relationships. First up, this month's Cato Roundtable.

Several cases at the Supreme Court this term have pretty significant implications for tech. The obvious ones, of course, are what are known as the net choice cases and the Murthy decision, but lesser, very well-known cases, but the impact on tech is maybe less clear. The Loper Bright decision, ending Chevron deference. Talking about this are Jennifer Huddleston, a senior fellow in technology policy at the Cato Institute, and Tommy Berry, the editor of the Cato Institute's annual Supreme Court review. And we're going to do this nice and tight, Tommy, because I know you need to go back upstairs and hit the phones to yell at various.

legal scholars to get their articles in so that that important document that we produce here at the Cato Institute every year is out in time for Constitution Day. Absolutely. That's why they call me the enforcer. All right. So let's start with the net choice cases. If you don't mind, Jen, can you sort of characterize what the court was being asked to do here in dealing with these state laws? The court was facing a circuit split over two laws, one from Texas, one from Florida, that concerned social media content moderation.

Both of these laws were focused on what the state was dictating to private platforms. They were required to either leave up or not be allowed to take down, at least. There were some distinctions in the laws, both in terms of potentially the definitions they used of online platforms. In both cases, much broader than just your traditional social media players of Facebook and Twitter. But how far they went was a little bit distinct, as well as exactly how they applied. The Florida law was specifically focused on candidates for political office, whereas the Texas law was focused more broadly on ideological viewpoints.

emerged kind of after former President Donald Trump was removed from various social media platforms. The 11th Circuit had enjoined the Florida law on... The district court had enjoined the Florida law, and then it had been upheld by the 11th Circuit as likely violating the First Amendment. In the Texas case, the district court had enjoined the Texas law, but then the Fifth Circuit reversed before the Supreme Court stepped in and put that back, pumped the brakes again on that. So you had kind of two different decisions from two different circuits around the constitutionality and the First Amendment as it related to these laws. All right. And Tommy, I don't know if you and I have discussed this or if Jen and I discussed this on the Cater Daily Podcast, but...

The court seems to have dealt with fairly effectively, but maybe not for the last time, this notion of social media companies, big speech platforms as common carriers or something of that sort. Yeah, that was the big uncertainty was even if they were going to reverse it and basically say you need to go back and look at the full scope of this laws, would they give any more guidance? Would they just reverse it in a short opinion or would they get into more details about how to analyze its application, at least with respect to classic social media feeds? And I was gratified to see that five justices in an opinion by Justice Kagan did get a lot more specific. They repudiated the Fifth Circuit's analysis of the Facebook feed and the YouTube feed and said these are protected by the First Amendment, the choices that they make in terms of what goes on the feeds, what's taken out and in what order they appear. So they rejected the notion that just because they might be determined by algorithms.

or just because the number of people using these services is vastly larger than a traditional newspaper, that that somehow gets rid of the traditional First Amendment editorial rights for a publisher. All right. And so you said this opinion dealing with both cases? That's right. A single opinion dealing with both cases. And so Justice Kagan was writing for what sized majority here? Well, it varied by part. Part of it was six justices, Kagan, Roberts, Jackson, Kavanaugh, and Barrett.

and Sotomayor. But Jackson did not join part of it near the end that got more into the details about First Amendment as applied to Facebook and YouTube. So the core, most important substantive First Amendment analysis was just five. I think it's also important to point out, though, that the ultimate decision in the net choice cases was a 9-0 decision. And that decision was to...

send the case back to the circuit court level for further analysis on the First Amendment question. There were questions about this being a facial challenge and some of the other elements of this particular case. And part of why this is so important is while you'll at times hear it referred to as Alito's dissent, it's not actually a dissent, it's a concurrence, meaning that he still agreed that the court couldn't review the case as it is. And as Tommy mentioned, the instructions that a majority of the court sent back to the Fifth Circuit look very strong for the First Amendment, at least in this particular set of cases. Now, there are other cases pending in other circuits.

about slightly different types of online speech laws, the most notable one being the Bollock challenge to a New York state hate speech law. So we will likely continue to see the court grapple with different kinds of laws as it relates to content moderation in the coming couple of terms. And there's also going to be a question of, you know, how narrowly or broadly is what Kagan wrote going to be read? But I do think it is really exciting and important to recognize that. Technically, this was a unanimous decision in some ways. All right. So in terms of, you said there are cases still working their way through, what avenues does this leave for states or other governments to seek to restrict these big speech platforms or tech more broadly, trying to place these platforms either outside First Amendment protection or trying to characterize them some other way? Are there any avenues left?

I think that this shows that this court is highly skeptical of government restrictions on speech in the online context as well as the offline context. I think that what we saw in the net choice cases was a strong indication from the court that they understand that online speech is still speech and that they will not be looking at governments trying to restrict online speech differently than they would in a kind of more traditional offline context. Yeah, I agree completely. Going forward, a key distinction will be the speech versus conduct distinction. So that might distinguish, say, getting kicked off Uber or getting kicked off Etsy. These are a couple examples in oral arguments.

be more about access to a service as opposed to the company publishing a certain speech product and exercising editorial judgment over that speech product. And potentially, if these two particular laws are just too broad and too complicated to challenge a whole hog facially, as they put it, you could bring as-applied challenges, which is simply one single company saying, set aside, however this might apply to other companies, it's unconstitutional as it applies to us. So Facebook or YouTube, for example, clearly would have a good chance of winning an as-applied challenge if they chose to bring that. All right. So big win for speech online.

And a big win for all users of the internet as a result of that. Fantastic. All right. So Murthy v. Missouri, this was over a, this is two things really, right? This is online speech and this is trying to show, demonstrate jawboning.

Yeah, this is a new emerging issue that's getting increasing attention, which is instead of the government using what might be called hard power, explicit rules about what tech companies can and can't do, like we saw in the net choice cases, this is about soft power. Behind the scenes, suggestions, coercions, potentially threats, saying we would really like you to take down certain speech. And the question becomes, were those suggestions so coercive? Were they backed by government power such that they crossed the line from mere suggestion to unconstitutional coercion? And notably, not backed by some statutory authority of the government to make that kind of request.

That's right. Just pure behind the scenes communication. Various people have posited various threats that might have really been backed up. One of them would simply be taking away protections like Section 230 immunity. So there's a lot of things the government or antitrust investigations. There's certainly a lot of things the government can do to make tech companies' lives difficult. And this will continue to be an issue, right? During the COVID-19 pandemic, there were a lot of communications between the government and speech platforms and some pretty substantial criticism of the government trying perhaps to leverage its power to get...

speech platforms to do what they wanted as well. So in the Murthy case specifically, what was happening here? Well, the allegation was that, yes, during the COVID-19 pandemic, the Biden administration in particular, soon after it was inaugurated, was concerned about some of the speech being so-called misinformation about COVID, things about people raising concerns about the vaccine and that type of thing, and that they were sending increasingly sort of angry messages to platforms like Facebook and Twitter, as they were named at the time, basically saying, why aren't you cooperating with us? President Biden said publicly that these platforms are killing people with the speech they allow on. And so the allegation was that these...

a certain speech was taken down by the platforms because of these coercions and that therefore the people who had their speech taken down essentially had a First Amendment claim and that they were at a risk of it happening in the future. So that's what they asked for in the lawsuit was an injunction telling the government, stop communicating with these social media platforms because in doing so, you're restricting our speech as users. And so... And this will be incredibly important to what happened in the case. One of the key points here is these were the users who felt they were impacted and state governments that brought this case, not the platforms themselves or a trade association representing the platforms, which is distinct from what we were discussing in the net choice cases. Net choice is a trade association. So that case was effectively being brought by platforms regarding the impact on their First Amendment rights and not by users. And this the resolution of this case, at least at the Supreme Court this time around, maybe not super satisfying because it was tossed on standing based upon the.

quality of the assertions that had been made by the people who brought the case? Yeah. So standing is essentially a doctrine that says we're not going to ultimately decide the legal question here because we don't think doing so would make a concrete difference. So one element of standing is, can we redress your problem? And essentially, they found that first, there wasn't enough evidence that government...

communications had been the but-for cause of a particular speech being taken down. It was a little too messy. There was evidence that platforms had been taking down speech even before the government started communicating. So you couldn't be sure, was this because of policies they already had? And then also there was the future predicting aspect. So people might overlook the important aspect of what remedy were they asking for. They weren't asking for money to make up past injuries of having their speech suppressed. They were asking for an injunction to protect them from future injuries. And the Supreme Court Justice Barrett's opinion basically said, whatever evidence they had that this was happening in 2021 and 22, there's even less evidence that it's a serious risk in 2024 and 25.

All right. So what does that leave open then going forward? The court sort of gave some bare bones outline of what might constitute credible statements of harm. I think that a lot of people are very nervous about what this means going forward for the government's still ability to job-own. Is this just going to be a case where now you see government officials hiding the paper trail, where you're going to have even less transparency around what's happening? Because at the heart of this case, you had a pretty solid document. You had the information from things like the Twitter files, and that was found to be insufficient. So I think there is this question of kind of what is sufficient evidence and who would have to bring that evidence? Would it have to be one of the companies themselves claiming that this happened to them in order to bring one of these cases going forward? And my colleague, David and Sarah, as well.

as Brent Scorup on our legal team and then past work by Andrew Grossman and Kristen Shapiro in a Cato policy brief have talked about the potential use of government transparency to prevent some of this job owning or censorship by proxy as an alternative so that we're not seeing this kind of be hidden so that people aren't aware of what's going on. I guess, to be continued on a lot of the issues related to that case. And now, Jen, you get to convince me, and I suppose to a lesser extent, Tommy Berry, that the Loper Bright decision, which, you know, people who follow administrative law closely were very interested in learning about this case. Many administrative law professors have been apparently very upset that they'll have to rewrite a lot of their syllabi for their students going forward. But you say this also has some pretty significant implications for tech.

If you don't mind, Tommy, if you could just characterize what actually happened to the court in this case, because it's perpetually misunderstood. Sure. So the Chevron doctrine in 60 seconds is basically that all the time the government alleges that it has the power to do something. It looks at a statute and it says, oh, we interpret this language here to give us the power to do X, Y, and Z. In this particular case, it was not only forced fishermen to carry monitors on their boats to make sure they're not catching fish that are too big, but also forced the fishermen to pay the salaries of those monitors. The statute was silent as to whether they could. The Chevron doctrine essentially says if there's a clear statutory answer when someone sues and there's a case brought before court, then that's the end of the matter. That's pretty obvious. But that if it's so-called ambiguous, some people call it a tie or the statute runs.

out, then as long as the government's argument or theory is plausible, one of the theories, then the court has to defer to that. So essentially close calls go to the government automatically or the government wins all the close cases. This was a 1984 decision that set that doctrine. And basically it meant that over the last 40 years or so, the government had a very high winning percentage in disputes over its own authority because it had the benefit of the tie. What happened in Loper Bright, the court decided to overrule that doctrine in an opinion by Chief Justice John Roberts. He essentially said it makes no sense. It's incoherent to say a statute runs out or that it's ambiguous. There's always one best answer, even in really hard cases. And it's the court's job to decide what's the best answer, not the federal government's job. All right. So, Jen, what are the implications for?

environmental regulation, the implications for a whole lot of business regulation and agencies issuing rules. That seems obvious. What are the things that you are... I suppose, excited about with respect to tech and the end of this particular deference. So back in 2019, I wrote a working paper for the Center for the Study of the Administrative State called Disrupting Deference for Disruptive Technology about the impact that deference doctrines could have if various soft law elements primarily or various regulatory actions for what was then the leading emerging technologies were to be challenged in the court. One of the big things in tech policy is that we are increasingly seeing that tech policy and tech regulation isn't coming from Congress. There haven't been very many tech statutes, whether it's on AI or on data privacy.

or on any array of issues, but there have been a lot of agency actions. So think about it. Net neutrality, the back and forth debate we've had about that, it's all about FCC interpretations of its statutory authority. Something like Chevron is going to likely be relevant in that case. When we look at some of what's gone on at the FTC recently, whether it's the non-compete rulemaking or the data privacy advance notice of proposed rulemaking that's been ongoing, again, we're looking at things that are from broad statutes that are agencies interpreting their own authority and trying to claim authority over certain technologies. So this will be incredibly relevant to a number.

of tech policy issues we're seeing happen at administrative agencies. Now, it won't necessarily solve all those problems because there are other deference doctrines that may be in play. This is a huge win for those who have been concerned about the administrative state. And as Tommy mentioned, you know, if it ends in a tie, it kind of takes that bum off the scale, so to speak. It makes it at least a fair fight. That doesn't mean that the government will never win. That doesn't mean that the plaintiffs will always win now. It just makes it more of a fair fight in those cases. There are other cases that would involve other types of deference, particularly our and Skidmore deference that do sometimes come into play in a tech policy space that we could still see. Okay, our deference. And I've been meaning to...

ask you this, Tommy, for some time, with the end of Chevron deference, that is deference to agencies when they're interpreting statutory authority granted by Congress, and our deference, which is interpreting the grant of authority under the regulations themselves. Right. Interpreting regulations. Interpreting what the regulation actually means. Why isn't our deference just gone in the end of Chevron deference? I think it should be if someone challenges it. It's hard to draw a distinction because those are still legal questions. I think the key dividing line will be, are we talking about legal questions or are we talking about policy questions? So if it's a matter of a statute or regulation that just says you have the authority to do what's ever reasonable, that's more of a policy question. And Robert's opinion made clear that's still...

Essentially, a delegation of authority to an agency gives it several options to pick what it likes. But legal questions can arise either under statutes or under regulations. And the court's opinion was pretty clear that legal questions are to be decided by courts, not by the executive branch. So antitrust has been a big part of tech, the tech world in recent years. Are there any implications that you see for that with respect to the end of Chevron?

I think the more direct examples that we'll see are related to agency rulemakings as opposed to the kind of current antitrust enforcement. So, as I mentioned, I think particularly the data privacy rulemaking and some of the FCC actions around net neutrality are where we'll really see potential implications of Chevron deference, as well as, you know, I think there are questions of how will this play out in the context of AI, given that we are seeing a number of agencies start to interpret their own authority over AI. If we see the FTC, for example, suddenly claim that it is officially the AI regulator, is that something that will come into play? Constitution Day is September 17th, and the Cato Institute's annual Supreme Court review will be ready on that day. Isn't that right, Tommy? Absolutely. Guarantee it. Give us a sense of that day, because it's a big event at the Cato Institute. Lots of powerful thinkers talking about the most recent Supreme Court term and looking forward to the next term. So what are we likely to see on Constitution Day?

We're likely to hear about all the cases we've discussed and more. So just one example, Professor Eric Goldman will be discussing the net choice cases. He's someone who's been a leading scholar on these tech issues. So we're really excited to have him here. Essentially, we invite most of the authors, as many as we can fit in the conference, to come here and talk in sort of three themed panels, as much as we can find themes. I'm pretty confident there's going to be a tech themed panel, given how many tech cases we had this term. So you're going to hear him talking about that. You'll hear Derek Bambauer, professor from University of Florida Law School, talk about the Murthy cases. You're going to hear about other more under the radar cases. You're going to hear Sean McElroy talk about United States versus Moore, the case.

about taxation and retroactive taxation, treating income of a corporation as if it was your own income. So pretty much all of the big questions people were focusing on. Rahimi, the gun case that wasn't very interesting, 8 to 1. We're going to have George Moxery writing on that. And then we have a keynote. I'm not sure I can yet reveal who it is, but I can say that it is going to be a federal judge. And I think people are going to be excited about our keynote speaker this year. So stay tuned. And this will be live streamed. It will.

Typically, we start around 9 a.m., 9.30, bright and early, and go straight through until about 6 p.m. Three panels on the past term, one panel on the upcoming term, and then our keynote. Is there anything in particular that either of you are looking forward to in the next term? So I think the kind of... tech case to watch so far in the next term is Free Speech Coalition v. Paxton. This is a challenge to certain age verification requirements for accessing adult content online. And the Supreme Court has recently granted cert in that case. So of the ones we're currently aware of, that's probably the tech related one that has potentially come up. But as I mentioned, there are several other cases around more general age verification requirements for online access, working their way through various circuit courts and district courts right now. You have another round of net choice cases involving age appropriate design codes that are out in the

out in California that's at a circuit court level now. And as I mentioned, the Volokh case is at a, I believe, a circuit court level out of New York concerning a New York hate speech requirement for online content. Yeah, so far it's shaping up to not quite be as many blockbusters as last year, but we can't know. They'll continue adding cases a bunch in September and they'll continue adding straight through December. So sometimes they start sleepy and then become blockbusters. A lot of business cases on the docket so far, which can kind of fly under the radar because the questions can seem pretty dry, but be very consequential for the overall economy. Things about, you know, when cases can go to arbitration, that type of thing, which venues people can sue each other in. A lot of stuff that my colleague Walter Olson has been following closely. So if this case was kind of the big tech and First Amendment case year, next year might be shaping up as a big business and arbitration year.

One other tech-related case I will flag, if I may, is the TikTok divest or ban case is because of the way that law uniquely functions will start in the D.C. Circuit Court this fall. So I think, again, to Tommy's point about timelines, it's kind of unknown of is that something that we could see at the Supreme Court this next term or would it be, you know, even if it ends up at the Supreme Court another year or two before it ends up there. But that's, again, for those that are watching key cases on tech and online speech, that will be another one to watch. And the timing works out well because that's actually going to be argued here in D.C. on September 16th, the day before our conference. So our Looking Ahead panel will be able to react to how that argument goes.

There will be more discussions on Cato Audio in relation to Constitution Day before the event that is, again, September 17th, a Tuesday here in Washington, D.C. And if you can't watch it in person, you can definitely get to it online. Tommy Berry, editor of the Cato Institute's annual Supreme Court Review. Jennifer Huddleston, senior fellow in technology policy at the Cato Institute. Thank you both very much. And of course, you can follow all of their work at our website, cato.org. Big changes may be ahead for legal gun ownership in the United States. In this conversation from the Cato Daily Podcast, Cato's Clark Neely explains the potential implications following the Supreme Court's Rahimi decision.

So we're here, obviously, to talk about the Rahimi decision from the U.S. Supreme Court. But to set the table a little bit, the Supreme Court recently came out with what's known as the Bruin decision, which used a, I guess, a different set of ideas for attacking future restrictions on the private ownership of firearms. Can you describe that case and where it sort of left the court in terms of the framework that it is supposed to be using going forward to look at those kinds of restrictions? So this case Bruin came down two years ago, and it was a pretty easy case because it involved a New York law that gave local officials essentially unfettered discretion to decide who could get a permit to carry a gun outside their home. And there is no other constitutional right that gives government officials unfettered, unreviewable discretion about who gets to exercise a constitutional right. So on its face, a pretty easy case. But what was unusual about Bruin is that it took a very new approach to constructing an analytical framework that judges apply to decide how particular cases come out.

The standard framework is what we call tiered scrutiny. It's a kind of balancing test where the government essentially looks at the strength of the asserted right, how important is it, and the strength of the asserted government interests. In other words, what does the government credibly contend is at stake here? And then it essentially tries to do some kind of a rough balancing. That's how the court decides most cases involving constitutional rights and almost all constitutional decision-making involves some line drawings. So at a certain point, you've just got to decide in close cases what goes on one side of the line, what goes on the other. Bruin essentially tossed all that out and said, nope, we're not going to do that in the Second Amendment area. Instead, we're going to apply this framework that has been called

historical tradition, that's the actual term that Justice Thomas uses in his Bruin majority opinion, or text history and tradition, which is the more sort of common term that has been used. And what it essentially does is it says to the courts, if the conduct that is being restricted by the government falls within the literal four corners of the Second Amendment, so in other words, if it's restricting somebody's ability to keep and or bear arms, then it is presumptively unconstitutional unless the government can identify some relevant historical practice. And right off the bat, we're getting into, you know, sort of uncertain territory. What does relevant historical practice mean? But something fairly analogous.

from the past in terms of a regulation that's similar enough to the current regulation that's being challenged to essentially show that the amount of regulatory power that the government is trying to exercise today would have been an amount, and not just an amount, but a rationale and a scope that would have been acceptable at the relevant time period. And that's the text history and tradition framework. It's new. It applies only in Second Amendment cases so far. And that's what the court is now trying to work out. What exactly do we mean by that and how do we apply it? All right.

So I think that sufficiently brings us to Rahimi. Well, Rahimi, yeah, another easy case. The Supreme Court for the last couple of Second Amendment cases has gone from one easy case to another. This one is easy because it falls under this rubric that some people have taken to calling somewhat tongue-in-cheek, the bad man stays in jail principle, which is that if the person who's asserting the Second Amendment right is sufficiently bad, you already know the outcome, which is that they're not going to get to exercise the right. Or in this case, because it was actually a criminal prosecution of a guy named Zaki Rahimi down in Texas, you know he is going to be convicted, the conviction will not be overturned, and he will in fact go to prison, which is exactly what's going to happen. This guy's a bad dude. I mean, look, he...

seems to have had a habit of driving around North Texas, shooting at anybody who vexed him, including firing off shots in the air outside the drive-thru of a Whataburger hamburger stand after they declined his friend's credit card. But he also assaulted his ex-girlfriend, who is the mother of his child, in front of the child, and then shot at a bystander who tried to intervene. She then went and sought what's called a domestic violence restraining order in state court. And we're going to call that a DVRO. And interestingly, he agreed to it. So he showed up and did not take issue with it. And the court found that he was a threat to her and issued this.

order that said that he had to not basically intimidate or physically assault her. That then triggered a federal law that we're just going to call the DVRO law, but it's technically 28 U.S.C. 922 G.8. And it makes it illegal for anyone who is the subject of a DVRO, interestingly, except for police officers who get to retain their duty weapons. But everybody else, it is a crime for you to possess firearms if you are subject to a DVRO. The police showed up at Zaki Rahimi's apartment.

to serve an arrest warrant for some other conduct involving guns. These were state police. I'm sorry, they were local police, but they were not feds. And they caught him not only with several firearms he wasn't supposed to have, but he actually also had this DVRO that specifically disarmed him right there, and it advised him he shouldn't have the gun. So it's pretty much slam dunk. They turn the case over to the feds, the ATF. Federal prosecution ensues. He's convicted, but he preserves for appeal the question of whether that law, the federal law that makes it illegal for people who are subject to a DVRO to possess firearms, he preserves that issue for appeal.

It goes up. I'm going to omit some procedural history here, but essentially what happens is the Fifth Circuit looks at it in the wake of the Bruin case that we talked about and says, you know what? There is no really analogous historical law that we can point to, and therefore this law is unconstitutional. And at that point, the U.S. Supreme Court grants cert and takes up the case. So there's a couple of things in what you said that raised a couple of thoughts. One is that how important is it that he accepted?

in state court this restriction without some sort of challenge? I think it was probably pivotal, even though the majority opinion in Rahimi doesn't dwell on it very much. And the reason is because the procedures that are articulated in this federal law, 922 G8 or the DVRO law, are so threadbare and so problematic that what, in effect, it does is create a situation whereby a whole category of people will be disarmed. When that category includes some of the worst people, like Zaki Rahimi, who is a violent guy who does irresponsible and dangerous things with guns and absolutely should not be able to assert a Second Amendment right to own them at one end of the spectrum, to people who've never done anything wrong, who've never been threatening, who've never done anything sort of physically dangerous or abusive to a domestic partner, and essentially who just happen to have had a DVRO entered against them. Sometimes it's a kind of a tit-for-tat situation where judges will just say to both partners, hey, you know what, I'm issuing orders for both of you. And there's no question.

that that happens. We don't know how often, but we know to a certainty that some people have been dispossessed by DVROs despite the fact that they never did anything wrong and they're not a danger to anybody. And so the fact that Rahimi did not contest the proceeding, where he might have had some fairly powerful procedural due process arguments he could have made, he didn't make those arguments. He accepted the order, and that made it very easy for the Supreme Court to rule against him. The second issue is the degree to which a state court in this particular kind of proceeding, this wasn't a criminal trial. This was a state court, a proceeding, and it may be different from other kinds of proceedings, would then trigger a federal law. So the feds, in some sense, deferring to the judgment of a state court in asserting that this person does not have a Second Amendment right to own firearms. Yeah, it's a kind of a legal bank shot, and it is hugely problematic. And here's why.

You have a state court proceeding that is technically a civil proceeding. There are not very many protections for the person against whom the DVRO may be entered. And not only that, there are a number of pretty strong disincentives that would discourage many people from even resisting. And think about what the person seeking the domestic violence restraining order is asking for. They're asking for a court order that essentially says, hey, don't commit criminal or immoral behavior against your domestic partner. And a lot of people are going to say, well, OK, I wasn't going to do that anyway, so I'm not going to contest this thing.

There is no requirement that you be advised that if the DVRO is granted, you will then be dispossessed. You will be stripped of your Second Amendment rights by automatic application of federal law. You don't even have to be told that, but that will be the immediate consequence of that order being entered. And so people who might otherwise have had a very strong incentive to go in and fight it are presumably going to say, fine, get the order. I wasn't going to do anything anyway, not knowing that they would then be dispossessed of their otherwise lawfully owned firearms. Clark Neely is Senior Vice President for Legal Affairs at the Cato Institute. He appeared on the Cato Daily Podcast.

At the Cato Institute event The Rebirth of Liberty in Argentina and Beyond, Cato's Marion Tupi discussed extreme environmentalism and the reality of resource abundance. Caring about the environment is laudable, but extreme environmentalism is a threat to liberalism because of some of its defining features. Among them are techno-optimism, which sees new technology as a threat rather than as a potential help with problems that humanity faces, such as climate change. Hence the opposition of the extreme environmentalists to nuclear power, even though nuclear energy produces no CO2 in the atmosphere. Extreme environmentalists also tend to be anti-agentic. They deny individual autonomy and therefore our capacity to change our behavior, such as polluting the environment. That can lead to fatalism and apocalyptic thinking. But it can also lead to calls for centralization of control and collectivism, both of which aim to restrict individual choices and actions. By that logic, free enterprise and the high living standards which capitalism creates must be abolished.

Finally, extreme environmentalists evaluate human life solely in terms of its effect on the environment. A child, therefore, is not a source of happiness and potential, but a carbon footprint, which needs to be minimized. Now, as far as I can tell, extreme environmentalists are concerned about main two issues. One is climate change, that Bjorn will be talking about, and the second is resource scarcity, which I propose to talk about. In theory, resources are finite. Population growth increases the use of resources. As a result, the price of resources goes up, resources become scarcer.

And when resources become scarcer, standards of living must drop and famine must ensue. Now, this theory, it is claimed, works in two ways. First of all, it should work when population increases. When population increases, such as, for example, between 1800 and 2024, population of the world rose from 1 billion people to 8 billion people, so we should see greater scarcity. But the claim also works if the population flatlines or if the population starts to fall. Why? Because as people grow richer, they use more resources. So it doesn't matter where the population goes up, whether it flatlines or whether it decreases, we should continue to use more resources in the future. Question is, is the theory true? So, in our book...

We measure abundance with time prices. A time price basically asks you how long you have to work in order to earn enough money to buy something. If today you have to work an hour. in order to buy a pound of butter. But in five years' time, you have to work only 30 minutes to buy a pound of butter. That means you are twice as well off. Time prices are not measured in dollars and cents. They are measured in minutes and hours of work. In our book, we looked at 50 basic commodities, the most important and the most widely traded commodities between 1980 and 2018. What we found is that on average, the time price of these commodities fell by 72%. This is from a perspective of an average global worker, which means

that the abundance of resources relative to the wages of average global worker rose by about 250%. A different way to put it is, for example, pork. In terms of time prices, it fell by 85%, which means that our notional average global worker was 550% better off in 2018 than in 1980. We can look at the same data from a country perspective. Your typical Chinese worker...

saw time prices of the 50 basic commodities fall by 97.5%, which means that his or her abundance of commodities has risen by close to 4,000%. We have seen similar things happen around the world, although not as extensive. Chile, for obvious reasons, was the best performer over that time period in Latin America between 1980 and 2015. There, the time price fell by almost 70%, which is that a typical Chilean would be 228% better off. Even Argentina saw close to 200% increase in abundance. However,

In preparation for this conference, we have updated this data to 2023. Over the last five years since we had the last data, what has happened in the world? We had the COVID pandemic. We had a rise in protectionism. We had inflation and we had growing instability. Therefore, abundance of resources has fallen globally, but nowhere as much as in Argentina. According to our updated data, a typical Argentine at the end of 2023 was 13% poorer in terms of his access to resources than he or she was in 1980.

We have not seen negative abundance rates in any of our previous research. This is the first time that we have encountered one. And perhaps that is the reason why President Millet was elected at the end of 2023. Nonetheless, in spite of the last four years not being very good in terms of increasing abundance, the overall trend is toward increasing abundance. And it is therefore, I think, appropriate to look at some of the ways in which human beings can increase their resource base.

Well, the most obvious one is increased supply. When a commodity goes up in price, that gives us a signal that we should be looking for new reserves of commodities because that will produce profit, right? So people have a profit motive to go and search for new deposits. And that is why today we have more known reserves of oil than we did 100 years ago in spite of using oil for the last 100 years. The other way in which you can increase supply is through technological breakthroughs.

The usual methods of drilling for oil, for example, reached their limit. At some point, drilling for more oil became uneconomical. But then humans came along and figured out fracking. And fracking now allows us to get at oil and gas, which we previously couldn't get access to. Another way to increase our resource base is through increased efficiency. This can be done absolutely as well as relatively. Relatively, we are becoming more efficient per unit of output. A can of Coke used to weigh three ounces of aluminum. Today, it weighs only half an ounce of aluminum. But when an economy becomes super efficient, like, for example, the United States, we can decouple.

economic growth from resources, absolutely. So for the longest time, what we saw was resources and economic growth grow in parallel. But then Andrew McAfee from MIT noticed that about 15 years ago, there was a decoupling. The American economy continues to increase, continues to grow. But the absolute amount of stuff, the tonnage of zinc and copper and what have you, is actually decreasing. In fact, McAfee found that out of 72 commodities tracked by the United States Geological Survey, 66 were post-peak in the United States.

We can also increase value from a resource. When we first started melting sand in order to create glass, we used glass for beads. Then we realized that we could use glass in order to create glasses like this. Sometime later, we figured out that glass could be used for windows. And today, we melt sand to create glass that goes into fiber optic cables and microchips. So you can see that with every step of the way, the value from a grain of sand has increased. We can turn something that was useless into something that is useful. When we first started drilling for oil, we encountered a lot of natural gas.

But we didn't know what to do with it. So we burned it. We flared it. Now we can capture all that gas. We can sell it. And we use gas for heating of our homes or producing electricity, which then lights our homes. Substitution. We used to kill whales in order to get their oil with which to make light so that we can read. But today we use electricity produced by natural gas or maybe nuclear power. We don't actually care as a species how we get our light to read.

What we do care about is that we do get the light to read. And so it happens that due to fossil fuels, we no longer have to kill those majestic whales. Spreading the best ideas and combining the best ideas and technologies, that's what keeps us going. That's what keeps development going. Because sometimes we don't even know what our greatest contributions are. We can just put it out there and see what others prefer and what they do with it. Nobody knows our legacy.

You know, Kalashnikov, the guy with the AK-47 and the AK-74, he thought that he would really be remembered for his poetry. But that's not what happened because he produced something else that was of interest to people. Something interesting, sometimes destructive happens when you go out there and trade test your ideas, as my dear friend, the great Dieter McCloskey, always talks about. It doesn't happen by planning. It doesn't happen by committee. It happens when you trade test and combine ideas and put them out there. Well, for a long time, many governments denied their populations access to this great globalization machine, like Argentina.

for a very long time. However, in recent decades, more and more countries have opened up to the rest of the world. Liberalized markets liberated their people. After 1990, with the fall of dictatorships and the liberalization of markets, suddenly we got an era of globalization. Capitalism was suddenly free to lapse into its most savage form, as the Canadian socialist Naomi Klein puts it. Well, let's see what that savagery really meant in terms of indicators of human living standards. If we try to measure the wealth that mankind has attained by looking at GDP per capita, around half of all the wealth that we have ever produced was produced during these years since 1990. Extreme poverty was reduced from almost four out of ten people on the planet to less than one out of ten people today.

And it's not just about China. China liberalized markets started to compete on the international markets and did great progress until the recent backlash. But it's not just about China, which some people propose that someone's in wild. Even if we exclude China, extreme poverty was reduced by two-thirds around the world. The greatest and most impressive and fastest.

improvement of human living standards that the world has ever seen. Child mortality was reduced almost by two-thirds, which means that last year, eight million child deaths were avoided, and it happened the fastest in the places that opened up to the best ideas, technologies, goods, and services from other people. And remember, this is capitalism after it had lapsed into its most savage form. So thank you, savagery. Had this been accomplished by a government program?

Do you think they would ever have shut up about it? I think they would have written musicals about these achievements. I think they would have raked statues and national holidays with great marching bands talking about how they finally beat global poverty. But now it just happened because people wanted to improve their lives and got a little bit more freedom to do it. And therefore, we only hear about the complaints, about greed, about inequality. We rarely think about what made this possible and why it has never been possible before in human history.

There are many old complaints about globalization and free trade, but the one that has most potency right now is that, yes, it might buy us better living standards. It might make us all richer. It might reduce poverty. But at what cost? We are suddenly making ourselves dependent on fragile global supply chains, which might fracture. We saw that during the pandemic, how suddenly we didn't get access to important inputs and goods and services that we needed. And therefore, we have.

To start to repatriate more production, we have to have more French shoring. We should trade more with people who are good geopolitical friends rather than people who might not have our best interest at heart. This, I think, is a complete misreading of what happened during the pandemic. In fact, the opposite happened. And repatriation and the new protectionism that we're getting and French shoring that we're seeing will make us poorer, less productive. It would decrease specialization, but it will also make us less secure.

We know that because now when we're looking into what really happened during the pandemic, the great thing was that as a friend of mine who's a little bit of a prepper, who had his basement full of canned food and fresh water, he told me that the worst year in human history to be a prepper was in 2020 during the pandemic. Because he thought that now when the world is shutting down and more than half the world's population is under house arrest, finally, you will not mock me anymore for having all this canned food in my basement. But on the contrary, you will see, you will beg me for these resources. But he found out that in a matter of days, sometimes hours, all those goods were back on shelves. anywhere where we have relatively free markets and free trade. And who did best? Which businesses and countries did best? Counterintuitively, those with the most complex supply chains were fastest at putting goods back onto the shelves because they were used to looking for alternatives.

And they invested more in their trading partners. And they were used to constantly maneuvering to find new opportunities in other places. Whereas those who had short, simple supply chains, only one supplier, well, if that supplier happened to be in a place under lockdown or a natural disaster, then that's game over. Only the ones with more complex supply chains prospered in this situation. And we saw that again in 2022 with infant baby formula in the United States, one sector that had really been repatriated with regulations that made it impossible even to import infant formula from Europe and to tariffs that made it impossible to import it from the rest of the world. It felt safe. Everything was repatriated. It was close at hand, right? That's great.

If it weren't for the fact that then all it takes is problems in one production facility in the spring of 2022, and you end up with a national shortage. That's what happened with close, short supply chains. It sounds counterintuitive, but you've heard it before. That's why the old saying does not go, put all your eggs in one basket and protect it with regulations and tariffs. Because one basket of eggs is one single point of failure. If you fail there, it's game over. We shouldn't concentrate risks. We should diversify risks as much as possible. And that's what globalization and trade helps us do.

even diversifying it to some of our geopolitical rivals, and to have that opportunity. Anytime when people talk to me about French shoring, I think about what happened in Europe in early 2020. There were a few countries that tried to stop countries like Sweden, Spain, and Italy from getting face masks and getting access to personal protective equipment. And that was Germany and France, some of our best geopolitical allies and friends. We love them. But they imposed export bans, and more than that, France even confiscated protective equipment just going through France on the way to another country somewhere else.

The country that saved us was China, because they suddenly exported scaled up production to more than three times the global production in 2019 and exported it to the rest of the world. Not because Xi Jinping is a better friend of ours than France and Germany, but because we were already dependent on France and Germany. They're close to us. And most disasters, most problems are local and regional by nature. That's a single point of failure. We need the same stuff at the same time. So having diversified risks and being able to buy from factories that happens to be not under lockdown for that particular moment is a good geopolitical sentimentality.

There's a place for that, but not when it comes to trade. Then diversification is more important. So there we have it. I don't think the new arguments stand up against trade either. The case for this incredible machine of globalization is stronger than ever.

The opponents keep coming up with theoretical challenges, and that's why we do what we do. But as Borges put it, the world, unfortunately, is real. And you can't wish it away, and you can't wish the facts away. The track record is absolutely clear. Globalization is still the best hope for development and for mankind. But it's not predetermined. It's not automatic. It's a choice, a choice that we have to do.

After a long war in Ukraine, Russia's relationships are changing from closer ties to North Korea and China to economic sanctions laid down by the U.S. For this Kato Audio exclusive, I sat down with Eric Gomez about North Korea, Russia and China. What have been the biggest shifts in the relationships among North Korea? and Russia just over the last few years. So the Ukraine war has forced the two very closely together. When Russia gets cut off from a lot of international finance and sanctions from the US and other countries, it leaves them sort of on a similar page, right? Both Russia and North Korea are now heavily sanctioned. They have a difficult time getting access to anything sort of outside their borders. And so it's been encouraging them to get closer.

And we've seen a really massive deepening of that connection, where previously for decades, the Russians were trying to sort of keep North Korea and South Korea sort of equidistant or have somewhat equal relations between them after the collapse of the Soviet Union. And that's gone now. And Russia is really firmly in the North Korean camp. And so this, because it puts Russia on a relatively more similar footing as North Korea, that is, North Korea has been subject to sanctions for a very long time. What does that create opportunities for them to do that might not be in either U.S. interests or the broad interests of the globe? I think North Korean military capabilities across the board are going to get much better. The Russians haven't specified what cooperation will exist in terms of down to the system level, but they've essentially promised that they're going to do some kind of military technical cooperation with the North Koreans. So their missiles will improve, their fighter aircraft, all manner of things. And before, the U.S. and South Korea could rely on, well, the North Koreans have some nukes.

But at least all their conventional stuff sucks. They have a lot of it, but it's not very good. The prospect of Russian cooperation means they'll have a lot of military equipment that might not be as good as South Korean equipment, but better than it used to be. So that's certainly not something that, I don't know if it fundamentally changes the likelihood of conflict, but it definitely makes for a more potent North Korea. And that's a weird thing. If you're on the outside looking in and you look at what Russia has thrown at Ukraine over two years, frankly, a lot of it's not very impressive militarily.

No, it's not as good, I think, as a lot of people thought it would be. But coming from where the North Koreans already are, it's a step up. So there's a lot of technological advancement that North Korea gets to do. And this seems to fly in the face of at least the US strategy of isolating and containing North Korea. But by virtue of now Russia sort of joining this club, and they have been in this club for a long time, of suffering under sanctions and having fingers wagged in their faces for what they're doing in Ukraine, it sort of blows up in a sense that...

effort at isolating North Korea. Is that about right? That's right. An interesting part, too, of in June 2024, North Korea and Russia signed this treaty about cooperation. And one of the articles in it says that both sides affirm to not cooperate with other efforts that could harm or be against the interests of their partner. And in addition to all the stuff we've already talked about, this is a bad thing because in previous versions of US efforts to try and manage the North Korea nuclear problem via negotiations, trying to get the Russians on board, or at least not oppose, was something that the US was decently good at. And if this treaty is, you know, they follow through to their word on it, I think that this could reduce any kind of space that the Russians might have to get on board with some sort of...

sanctions regime or even general support for any diplomatic outreach to the North. So it closes, not only does it make all this military stuff worse, but it closes the door potentially on this one form of diplomatic option. What does Russia get out of this besides a lot of conventional weapons? I think that sends a strong political message about where the world is heading in terms of, it feels less on the scale, but similar in kind to the Cold War of camps and blocks of countries that may not have too much in common or as much in common as they used to, but have the common thread of, you know, we are in US crosshairs, right? And we are being pressured by the United States. So we'll work together. And, you know, Mike Flynn said, you know, many years ago that he talked about a new sort of axis of evil and he put Iran and North Korea and Russia and China in there. And at the time, that was a bit laughable. But over time, it's sort of becoming true. And it's not necessarily because these countries have all that much affinity for one another.

But it's that they're all on the receiving end of a lot of various forms of American pressure, and they're finding new ways to sort of circle the wagons. So for the U.S., wanting to continue to isolate North Korea, and that effort seems to be failing, continue to add pressure to Russia, which is more difficult in light of a partnership of sorts between Russia and North Korea, where did the U.S. turn? It's very difficult to see the way forward. I think the best option is you build a time machine and you go back to Hanoi in 2019. Okay, let's just say that we do not have that technology. Dang. I think what will likely happen is a strengthening of U.S. blocks against Russia and North Korea. And you will have a sort of long-term effort to try and counter and balance and sort of play tip for tat until some other conditions change that allow for appealing off. I think that happens if Biden wins the election. If Trump wins the election,

I don't know. It's very difficult to say because Trump might have enough of a sort of personal relationship with Kim Jong-un from their previous interactions and summits where maybe he could get in a room with him and have a discussion. But Trump also was the guy who almost brought us to the brink of war with North Korea in 2017. So who knows? So it's very hard to predict what will happen after November if Trump wins. If Biden wins, I think the thing is we'll see more of the same for a while. The good news is I don't think that's going to lead to an outright war, but it doesn't get you into any better place. What is the role of China here? Because during the Trump administration, the United States did a lot of things to, I guess, an attempt to bully China in some ways. The Biden administration has been...

I guess a little less than clear about how it would handle an invasion of Taiwan. But China and Russia, their relationship seems to be closer than it has been in quite some time. Yes, I think the key to China now is not giving it a reason to throw itself fully behind Russia. Yes, the China-Russia relationship has gotten better. However, I think China is still playing its moves somewhat cautiously. They are doing trade with the Russians, but they're not providing weapons to the Russians directly for the Ukraine fight. And I think China is sensitive to the risks of that, because especially they want to keep some modicum of good relations with us and with the Europeans, if anything, for trade, because their economy is slowing down.

I worry no matter who wins in November, U.S. hawkishness and a more belligerent U.S.-China relationship may be more likely because for both Democrats and Republicans, China is sort of an adversary they can agree on. And for domestic trade reasons, for security reasons, there's, I think, a lot of incentive to really beat up on China. And if we go too far down that path, I worry that they say, well, look, we've tried to moderate a little. We're still getting kind of the pressure treatment.

screw it, let's go all in. And I think that would be a terrible idea. But unfortunately, I'm not sure how we get off of that unless we can moderate some of the China pressure a bit and the pressure and the incentive to increase that pressure. So what is ringing in my ears is the TPP. The Trans-Pacific Partnership, a trading arrangement that the U.S. was to have participated in, and China famously was not a part of it. And that was strategic in the sense that if you want to exert pressure on China, being in the TPP is a good way to do that, affecting possibly their economic fortunes going forward. But Donald Trump took us out of the TPP. Yeah, I think the story of the 2010s in Asia is the story of what might have been in many respects. I mean, I think the U.S.-China relationship is bad now.

It didn't have to be that way. I think in a world, even if you have TPP where China isn't in it, it's still a better world for the United States and Asia generally, because maybe you can hold out the potential of them joining someday as an incentive for them to do things you want. I also think on North Korea, Trump, the summit diplomacy... If Hanoi had gone differently in February 2019, if Hanoi goes differently, we're in, I think, a much better place with the North Korea and U.S. relationship where even if Ukraine happens, they might feel some incentive, but it's probably they would risk spoiling something that could have been there. So I don't know. I think one big takeaway from this is when you're looking at options that are not great but are okay, there's an incentive or a tendency in American behavior in foreign policy to not go with okay, to aim for the best you can get.

It tends to not work and it tends to put you in a bad place down the line. And I think that's what we did in the 2010s across the board. And now we're dealing with the consequences. Eric Gomez is a senior fellow at the Cato Institute. For four decades, Regulation magazine published by the Cato Institute has carefully detailed the impacts of regulatory and economic policy. With contributions from the nation's top economists, policy analysts, and legal experts, regulation provides the deep, critical analysis you need to stay on top of regulatory and economic policy coming out of Washington, D.C. Catch up on the latest issue of regulation at cato.org slash regulation. That will do it for this edition of Cato Audio. I'm Caleb Brown. Talk to you again next month.