Harvard Law & Policy Review

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Assisting Personal Responsibility: Using Nudges to Reduce Sugar Consumption

By Steven J. Gonzalez[1]

I. Introduction

The prevalence of obesity and its related chronic illnesses has been increasing for decades and takes a heavy toll not only on individual households, but also on public health institutions. The over-consumption of sugar, especially through Sugar Sweetened Beverages (SSBs), is an important contributor to this epidemic. Curtailing Americans’ intake of sugar cannot be done effectively by only encouraging “personal responsibility,” because the food environment encompasses a powerful set of factors that create “defaults” for over-consumption. On the other hand, heavy handed policies that would ban or set legal limits on particular products are politically unpalatable. A better solution would use targeted applications of behavioral economics to correct the market-failures, nudging consumers into healthier choices, while preserving Americans’ freedom to consume sugar. This article details a variety of policies for lawmakers to examine that, to varying degrees, embody the behavioral approach to public health problems.

II. Increased Prevalence of Obesity and Related Chronic Diseases

Obesity prevalence has increased dramatically in recent years.[2] In 1990, the prevalence did not exceed 15 percent in any state.[3] By 2010, the prevalence of obesity did not fall below 20 percent in any state, and exceeded 30 percent in twelve states.[4] A wealth of studies demonstrate that “[o]besity harms virtually every aspect of health, from shortening life and contributing to chronic conditions such as diabetes and cardiovascular disease to interfering with sexual function, breathing, mood, and social interactions.”[5]

One of the most devastating chronic conditions related to obesity is type 2 diabetes. Although researchers continue to study the precise nature of the relationship between the two, obesity is undoubtedly a risk factor for developing the condition and weight management is a key treatment and prevention tool for those with or at risk of developing diabetes.[6] Between 1980 and 2014, the number of diagnosed cases of diabetes in the United States has increased fourfold (from 5.5 million to 22 million),[7] and diabetes is now the seventh-leading cause of death in the United States.[8] Ninety-five percent of those afflicted by the condition have type 2 diabetes, which is preventable in most cases.[9] Just as alarming, the CDC estimates an additional 86 million American adults have prediabetes, which, without intervention, will develop into type 2 diabetes in fifteen to thirty percent of cases.[10] While type 2 diabetes was formerly uncommon in children—even earning the moniker “adult-onset diabetes”—in has since been developing in children at alarming rates and as young as 10 years old.[11] If these trends continue, researchers estimate that up to one-third of the U.S. population will have diabetes by 2050 (up from fourteen percent in 2010).[12]

III. Sugar’s Impact on Weight and Health

A recent University of California literature review found that a substantial majority of the highest quality studies demonstrate a statistically significant link between sugar consumption and obesity.[13] During hearings about New York City’s then-proposed “Portion-Cap-Rule,”[14] an esteemed and extensive list of medical and nutritional professionals, academics, and organizations supported the regulation, noting that “soda . . . is the single most important contributor to weight gain.”[15] With every additional sugary beverage a child drinks daily, his or her odds of becoming obese increase by 60 percent.[16] In addition to contributing to weight gain and obesity, higher rates of SSBs consumption is associated with higher risks of chronic illnesses like metabolic syndrome and type 2 diabetes.[17] One meta-analysis estimates that 8.7% (1.8 million) of new type 2 diabetes diagnoses over the next 10 years will be solely attributable to SSB consumption.[18]

To reverse these trends, the World Health Organization, the Institute of Medicine, and the FDA have all recommended that people consume no more than 10% of their daily calories from added sugars.[19] At present, however, Americans consume an average of 16% of their total daily calories from added sugars[20]—an increase of 30% since 1977.[21] Reducing Americans’ consumption of SSBs and added sugars more generally is therefore critical to help combat the obesity and type 2 diabetes epidemics.

IV. Psychological Barriers to Individual Responsibility

If reducing sugar is the goal, an oversimplified policy solution might be to ban SSBs or put strict legal limits on added sugars in processed foods. But this approach would be politically untenable not only for the industry, but also to those consumers who wish to consume sweet foods or beverages in moderation. Conversely, the government could simply inform the public that sugar is bad for their health, and leave it up to individuals to act on that information. Americans are no stranger to this narrative and the logic that appears to underpin it—if we are the makers of our own fates, any negative outcome like obesity can only result from some personal failing like gluttony, laziness, or lack of discipline.[22] But this view ignores the reality that eating behaviors are not just the result of independent choices by rational actors; they are also influenced by powerful environmental factors.[23]

With regard to SSBs specifically, successful marketing, low product cost, increased portion sizes, and high availability contribute to high levels of consumption.[24] For decades, inflation has outpaced the price of SSBs, making them increasingly inexpensive for the average consumer.[25] Meanwhile, beverage companies spend $492 million annually on youth-directed marketing.[26] Additionally, sugar may also induce some of the same addictive effects on brain chemistry as drugs like cocaine.[27] Food producers exacerbate these chemical vulnerabilities with purposeful formulation of their recipes. As one food engineer integral to Dr. Pepper’s operations recounts, companies find a consumer’s “bliss point” where the product will “pique the taste buds enough to be alluring but [doesn’t] have a distinct, overriding single flavor that tells the brain to stop eating.”[28]

V. Enter: Nudges

If neither the laissez-faire approach of pure personal responsibility, nor the strong-handed approach of sugar limits is effective, what policy solutions might form an effective middle-ground? Here, the sugar crusade can borrow from “libertarian paternalism.” This umbrella of theories recognizes that truly “free choice” is illusory, because there is always some existing choice architecture influencing people’s decisions.[29] Given that reality, policy interventions that simply change the default options in that architecture can “nudge” people into more favorable outcomes, while preserving at least as much “free choice” as the original orientation.[30] Each of the policy tools that follow are, therefore, aimed at correcting some default aspect of the choice architecture for U.S. consumers to yield lower sugar consumption.

a. Taxes on SSBs

Most academic discussion on nudges tend to omit taxes because directly changing financial incentives is usually the line theorists draw between libertarian and full blown paternalism; but, they are worth mentioning here both for their emergent popularity in government attempts to curb SSB consumption and because they might still have powerful secondary effects on consumer behavior.[31] In this context, a government would place an excise tax on SSBs that is charged to manufacturers or producers, an expense that is often passed on to consumers.

A tax of this nature has three main benefits. First, it increases the currently low cost of SSBs—relative to non-sugary beverages like unsweetened teas or water—to the point that it influences consumer behavior.[32] Second, the tax leads consumers who still do purchase an SSB to internalize (through payment of the tax) the externalities (public health costs) of their consumption. Third, earmarked revenue from the tax can be put toward other efforts to reduce sugar consumption or improve health, like education campaigns or improved school meals.[33] Some argue these taxes are regressive—that they disproportionately impact low-income Americans—[34]but this account fails to recognize that obesity is regressive. If the tax succeeds in improving consumption habits, its cost would be offset by personal gains from reduced healthcare costs and increased productivity (fewer days of work missed)—not to mention the intangible benefits of increased quality of life and reduced pain and suffering. For example, in 2012, healthcare expenditures for a person with diabetes were on average 2.3 times higher than expenditures for individuals without diabetes,[35] and researchers estimated that reduced productivity from diabetes cost the U.S. $78 billion in 2014.[36] With the increased prevalence of high-deductible healthcare plans[37] and with many low-income workers stuck working part-time jobs without paid time off,[38] reducing these burdens of sugar consumption could directly benefit individuals. Additionally, the revenue earmarked for benefits can be specifically funneled into low-income communities.

We have extensive examples of excise taxes on goods at all levels of government, and some precedent for SSB taxes specifically. Some products for which the federal government imposes excise taxes include alcohol, tobacco, fuel, and vaccines.[39] All 50 states also impose their own excise tax on tobacco.[40] Even some cities have the authority to impose taxes of this kind. Berkeley, for example, successfully passed an initiative to tax sugary beverages at 1 cent-per-ounce.[41]

These taxes have proven effective not only in experimental studies,[42] but also in practice. In just the first 10 months of its tax, Berkeley saw a 21 percent reduction in SSB consumption and raised $1.2 million for its general fund, leading the city council to earmark $1.5 million for the year toward community nutrition and health efforts.[43] Mexico and France have seen similar reductions in consumption after imposing SSB taxes of their own.[44] Recent high profile SSB taxes were adopted in 2016 in Boulder, San Francisco, Oakland, Albany, Cook County, Philadelphia,[45] and the United Kingdom.[46] Public health experts can continue to examine consumption data from this diverse array of cities, counties, and countries to guide future policy efforts.

b. Size restrictions

The “Portion-Cap-Rule” in New York City, which would have banned most distributors in the city from selling sugary beverages in excess of 16 oz., would have mitigated the concerns about default options and portion sizes.[47] The regulation would have forced those considering more than 16 oz. to make a more conscious choice by making them purchase a second drink or get a refill.[48] New York’s Department of Health and Mental Hygiene produced a report citing numerous studies showing that consumers largely gravitate toward a default option.[49] Other cited studies further demonstrate that once someone has received a larger portion size, they not only consume more than if they had received a smaller portion, but also underestimate the calorie content of that portion.[50] In the existing choice architecture, most distributors either give options of 16, 24, or 32 oz. drinks, but price them so that the 32 oz. option is the best “value”, and typically default the consumer into a 24 oz. drink. The evidence cited by the DOHMH shows that the existing choice architecture has a strong impact over which size is “chosen,” how many calories of it are consumed, and how much the consumer will underestimate this calorie total. Although New York’s law was ultimately struck down in court, it was not for any substantive reason; it was invalidated only because the city inappropriately passed the law through their Department of Health, not the City Council.[51]

c. Warnings

A warning could be either graphic or textual. A graphic warning could provide some image that triggers the consumers’ attention that this product contains a high amount of sugar. A textual warning could also include language, like tobacco, that lists the risks of consuming a high-sugar product.

On August 20, 2014, the New York State Assembly introduced the Sugar-Sweetened Beverages Safety Warning Act, which would require a textual “safety warning labeling” on all SSBs, reading, “Drinking beverages with added sugar contributes to obesity, diabetes, and tooth decay.”[52] A nearly identical bill in the California Senate recently failed to make it out of committee.[53]

One model for a graphic warning is the New York City Board of Health’s recent Sodium (Salt) Warning rule, which requires chain restaurants to post a graphic image of a salt-shaker inside a “warning-triangle” next to food items on menus and menu boards if they contain more than the daily recommended limit of sodium, 2,300 mg.[54]

Graphic and text warnings trigger people’s scarce attention and counteract the natural human tendency toward unrealistic optimism.[55] Countering the optimism that consumers feel toward health outcomes of SSB consumption is especially important when industry actors tend to mitigate concerns over the beverages by stressing “moderation in . . . consumption habits balancing calorie intake from all food and beverage sources, and the importance of exercise.”[56] Preliminary research suggests textual warnings can cause fewer parents to choose SSBs for their children and increase reported belief that SSBs were less healthy for their children.[57]

d. Front of Package Information

In 2010 and 2011 the Institute of Medicine (IOM), at the direction of the FDA, produced two separate reports examining which types of Front of Package (FOP) labeling models would best enable consumers to make healthier choices.[58] The IOM found that the best scheme would feature “negative” nutrient information: calories, saturated and trans fat, sodium, and sugars. Further, the report noted the information should be presented in a manner that was: simple – easy to understand; interpretive – put judgments in context; and scaled – indicate good, better, and best.[59] This theory could be operationalized by noting under individual nutrients whether they are “low” or “high” in a given serving. This is similar to “traffic light” schemes that have been shown effective in studies where products display the nutrient in either green or red.[60] The United Kingdom implemented a similar scheme in 2013.[61]

However, seeing that the IOM and the FDA were showing interest in overhauling FOP labeling, the Grocery Manufacturers Association released its own “Facts up front” scheme that included not only the IOM-recommended “negative” nutrients, but also “positive” information like vitamins, minerals, and fiber content.[62] Their model also omitted any visual judgments about “low” or “high” amounts of nutrients in a product.

By ignoring the IOM recommendations, this model is more complicated and serves more as a marketing tool than a public health policy. The U.S. Government has thus far avoided moving forward with the Front of Package scheme in the IOM report, but if they choose to preempt “Facts up front” by making their own scheme mandatory, they could see a drop in consumption of sugar, among other nutrients.

VI. Conclusion

Each of the above policy tools seeks to change existing defaults in our food system that currently—whether intentionally or by accident—drive overconsumption of sugar. By changing these defaults, the government would empower people to make these decisions for themselves, but in an environment that would more likely yield a favorable result. Although many of the experimental and observational results of these policies are still preliminary, they point to substantial reductions in American sugar consumption. Given the gravity of the obesity epidemic, policymakers may find it helpful to assess whether any of these options makes sense for their particular constituency by using existing models for comparison.

 

[1] J.D. Candidate, Harvard Law School, 2017; B.A., U.C. Santa Barbara. I owe thanks to the Harvard Law & Policy Review Online team for their excellent edits and comments on the article, as well as to Emilie Aguirre for her helpful feedback on the substance of the article.

[2] Ctrs. for Disease Control & Prevention, Obesity Prevalence Maps, http://www.cdc.gov/obesity/data/prevalence-maps.html (last updated September 11, 2015).

[3] Id.

[4] Id.

[5] Harvard School of Public Health, Health Risks: Weight Problems Take a Hefty Toll on Body and Mind, http://www.hsph.harvard.edu/obesity-prevention-source/obesity-consequences/health-effects/.

[6] Robert H. Eckel et al., Obesity and Type 2 Diabetes: What Can Be Unified and What Needs to be Individualized?, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3206399/.

[7] Number (in Millions) of Civilian, Noninstitutionalized Persons with Diagnosed Diabetes, United States, 1980– 2014, Ctrs. for Disease Control & Prevention (Dec. 1, 2015), https://www.cdc.gov/diabetes/statistics/prev/national/figpersons.htm.

[8] National Diabetes Statistics Report, 2014, Ctrs. for Disease Control & Prevention 7 (2016), https://www.cdc.gov/diabetes/pubs/statsreport14/national-diabetes-report-web.pdf.

[9] Id. at 9.

[10] About Prediabetes & Type 2 Diabetes, Ctrs. for Disease Control & Prevention (July 19, 2016), https://www.cdc.gov/diabetes/prevention/prediabetes-type2/index.html.

[11] National Diabetes Education Program, Overview of Diabetes in Children and Adolescents 3 (2014), http://ndep.nih.gov/media/Overview-of-Diabetes-Children-508_2014.pdf.

[12] James P. Boyle et al., Projection of the year 2050 burden of diabetes in the US adult population, Population Health Metrics (2010), https://pophealthmetrics.biomedcentral.com/articles/10.1186/1478-7954-8-29.

[13] Dept. of Health and Mental Hygiene Board of Health, Summary and Response to Public Hearing and Comments Received Regarding Amendment of Article 81 of the New York City Health Code 3–4 (2012), http://www.nyc.gov/html/doh/downloads/pdf/boh/article81-response-to-comments.pdf.

[14] Also known colloquially as the “Soda Ban.”

[15] Id.

[16] Dept. of Health and Mental Hygiene Board of Health, Notice of Adoption of an Amendment (81.53) to Article 81 of the New York City Health Code (2012).

[17] Malik et al., Sugar Sweetened Beverages and Risk of Metabolic Syndrome and Type 2 Diabetes: a Meta-Analysis (2010), http://www.ncbi.nlm.nih.gov/pubmed/20693348.

[18] Fumiaki Imamura et al., Consumption of sugar sweetened beverages, artificially sweetened beverages, and fruit juice, and incidence of type 2 diabetes: systematic review, meta-analysis, and estimation of population attributable fraction (2015), http://www.bmj.com/content/351/bmj.h3576.

[19] Food and Drug Administration, Factsheet on the New Proposed Nutrition Facts Label (2015), http://www.fda.gov/Food/GuidanceRegulation/GuidanceDocumentsRegulatoryInformation/LabelingNutrition/ucm387533.htm; Health.gov, Dietary Guidelines for Americans: Figure 2-9 (2015), http://health.gov/dietaryguidelines/2015/guidelines/chapter-2/a-closer-look-at-current-intakes-and-recommended-shifts/#figure-2-9.

[20] Id.

[21] Obesity.org, U.S. Adult Consumption of Added Sugars Increased by More than 30% over Three Decades (Nov. 3, 2014), http://www.obesity.org/news/press-releases/us-adult.

[22] Puhl et al., The Stigma of Obesity: A Review and Update 941–64, Obesity, Vol. 17(5) (2009).

[23] Koplan & Dietz, Caloric Imbalance and Public Health Policy 683–85, JAMA, Vol. 282(16) (1999).

[24] Woodward-Lopez et al., To what Extent have Sweetened Beverages Contributed to the Obesity Epidemic? 1–11, Public Health Nutrition, Vol. 23 (2010).

[25] Brownell & Frieden, Ounces of prevention – The public policy case for taxes on sugared beverages 1805–1808, New England Journal of Medicine, Vol. 360(18) (2009).

[26] Federal Trade Commission, Marketing Food to Children and Adolescent (2008), http://www.ftc.gov/os/2008/08/P064504foodmktingreport.pdf.

[27] Serge Ahmed et al., Sugar Addiction: pushing the drug-sugar analogy to the limit, Current Opinion in Clinical Nutrition and Metabolic Care, available at http://www.ncbi.nlm.nih.gov/pubmed/23719144 (July 2013); see also Masroor Shariff, Neuronal Nicotinic Acetylcholine Receptor Modulators Reduce Sugar Intake, PLOS One, http://journals.plos.org/plosone/article?id=10.1371/journal.pone.0150270 (Mar. 2016).

[28] Michael Moss, The Extraordinary Science of Addictive Junk Food, The New York Times (Feb. 2013), http://www.nytimes.com/2013/02/24/magazine/the-extraordinary-science-of-junk-food.html?_r=0.

[29] Cass Sunstein, Nudging: A Very Short Guide, 37 J. Consumer Pol’y 2 (2014)

[30] Id.

[31] Matteo Gallizi and George Loewenstein, The Soda Tax as a Measure for Sustained Change in Consumption, Voxeu.org (June 14, 2016), http://voxeu.org/article/beyond-nudging-case-uk-soda-tax.

[32] Yale Rudd Center, Rudd Report: Sugar-Sweetened Beverage Taxes 3 (Oct. 2012), http://www.uconnruddcenter.org/files/Pdfs/Rudd_Policy_Brief_Sugar_Sweetened_Beverage_Taxes(1).pdf (“experiments show that when healthier foods are less expensive than unhealthy foods, people are more likely to purchase the healthy items”).

[33] Id. (Noting that sales of SSBs decreased an additional 18% when a tax was coupled with an educational campaign about the positive health impacts of reducing consumption).

[34] See, e.g., Bernie Sanders, A Soda Tax Would Hurt Philly’s Low-Income Families, PhillyMag (Apr. 24, 2016), http://www.phillymag.com/citified/2016/04/24/bernie-sanders-soda-tax-op-ed/.

[35] Am. Diabetes Ass’n, Economic Costs of Diabetes in the U.S. in 2012, Diabetes Care, vol. 36, 1033, 1040 (Apr. 2013).

[36] Timothy M. Dall et al., The Economic Burden of Elevated Blood Glucose Levels in 2012: Diagnosed and Undiagnosed Diabetes, Gestational Diabetes Mellitus, and Prediabetes, Diabetes Care, vol. 37, 3172, 3172 (Dec. 2014).

[37] Tracy Seipel, While Obamacare Premiums Rise, Employer-Based Health Plans Shift to Higher Deductibles, The Mercury News (Oct. 23, 2016), http://www.mercurynews.com/2016/10/23/while-obamacare-premiums-rise-employer-based-health-plans-shift-to-higher-deductibles/.

[38] Michael Madowitz et al., The State of the U.S. Labor Market: Pre-January 2017 Jobs Release, Ctr. for American Progress (Jan. 5, 2017), https://www.americanprogress.org/issues/economy/news/2017/01/05/295945/the-state-of-the-u-s-labor-market-pre-january-2017-jobs-release/.

[39] D. Becker, U.S. Master Excise Tax Guide Sixth Edition “Introduction”, CCH Editorial Staff Publication (2008).

[40] American Cancer Society, State Cigarette Excise Tax Rates, http://www.acscan.org/tobacco/taxes/#map.

[41] Mike Esterl, Berkeley Voters Approve Tax on Sugary Drinks, The Wall St. J. (Nov. 2014), http://www.wsj.com/articles/berkeley-voters-approve-tax-on-sugary-drinks-san-francisco-ban-falls-short-1415189224.

[42] Allison Aubrey, Could a 6-Cent Tax Sour Us On Soda and Sugary Drinks?, NPR (June 3, 2014), http://www.npr.org/sections/thesalt/2014/06/03/318223640/could-a-six-cents-tax-sour-us-on-soda-and-sugary-drinks (suggesting that a tax as low as $0.04 per-ounce could lead to a reduction in SSB consumption).

[43] Emilie Raguso, Council Approves $1.5M to Fight Soda Consumption, Berkeley Side (Jan. 2016), http://www.berkeleyside.com/2016/01/20/berkeley-council-approves-1-5m-to-fight-soda-consumption/.

[44] Id.

[45] Bruce Y. Lee, 5 More Locations Pass Soda Taxes: What’s Next for Big Soda?, Forbes (Nov. 14, 2016), http://www.forbes.com/sites/brucelee/2016/11/14/5-more-locations-pass-soda-taxes-whats-next-for-big-soda/#4af41bf8193f.

[46] Nick Triggle, Sugar Tax: How Will it Work?, BBC News (Mar. 16 2016), http://www.bbc.com/news/health-35824071.

[47] Article 81 of the New York City Health Code, available at http://www.nyc.gov/html/doh/downloads/pdf/about/healthcode/health-code-article81.pdf.

[48] Dept. of Health and Mental Hygiene Board of Health, Summary and Response to Public Hearing and Comments Received Regarding Amendment of Article 81 of the New York City Health Code 7–8 (2012), http://www.nyc.gov/html/doh/downloads/pdf/boh/article81-response-to-comments.pdf.

[49] Id. at 6.

[50] Id. at 5.

[51] Matter of New York Statewide Coalition of Hispanic Chambers of Commerce v. New York City Dept. of Health & Mental Hygiene, 23 N.Y.3d 681 (N.Y. 2014).

[52] New York State Assembly, Bill A2320B, Sugar-Sweetened Beverages Safety Warning Act, available at https://www.nysenate.gov/legislation/bills/2015/a2320/amendment/b (in committee).

[53] California State Senate, SB-203, Sugar-Sweetened Beverages: Safety Warnings, available at https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201520160SB203.

[54] Dept. of Health and Mental Hygiene Board of Health, Notice of Adoption of an Amendment (81.53) to Article 81 of the New York City Health Code (2012).

[55] Sunstein, supra note 29, at 5.

[56] American Beverage Association, Comments in response to the 7th Meeting of the DGAC (Dec. 2014).

[57] Christina Roberto et al., The Influence of Sugar-Sweetened Beverage Health Warning Labels on Parents’ Choices, Pediatrics (Jan. 2016), http://pediatrics.aappublications.org/content/early/2016/01/13/peds.2015-3185.

[58] Ellen Wartella et al., Front-of-Package Nutrition Rating Systems and Symbols: Promoting Healthier Choices, National Academies of Sciences (2012), http://www.nap.edu/catalog/13221/front-of-package-nutrition-rating-systems-and-symbols-promoting-healthier.

[59] Id.

[60] Anne Thorndike et al., A 2-Phase Labeling and Choice Architecture Intervention to Improve Healthy Food and Beverage Choices (July 2011), http://ajph.aphapublications.org/doi/abs/10.2105/AJPH.2011.300391.

[61] National Health Service, Food Labels, http://www.nhs.uk/Livewell/Goodfood/Pages/food-labelling.aspx.

[62] Facts up Front, Grocery Manufacturers Association and Food Marketing Institute, http://www.factsupfront.org/.

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The Travel Ban is Just for Show—The Real Threat is from Individual Officials Who Can Act on its Discriminatory Message

By Angela D. Morrison*

The administration’s revised travel ban represents only the most visible part of the administration’s discriminatory immigration policy.

The U.S. immigration system has a sexist and racist history. The travel ban, along with many of the administration’s other immigration policies, builds on that legacy. Because the administration has been so apparent in its discriminatory motives for the travel ban, lawyers challenging the ban have an unusual opportunity. Advocates can now challenge a category of actions—the consular processing of visas and inadmissibility decisions at the border—that historically has been unreviewable.

But even if immigrant rights advocates win this battle, the administration’s racist and anti-Muslim message to individual immigration officials remains. If courts enjoin the revised ban, individual officials will still be able to operationalize the administration’s message.

 

The Travel Ban

The Executive Order purports to protect the United States from “terrorist activities by foreign nationals admitted to the United States.” There are two main components to the travel ban portion of the Executive Order—a 90-day suspension on the admission of nationals from designated countries and a 120-day suspension of the refugee admissions program.

First, the ban suspends the “unrestricted” entry of nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen for at least 90 days. The ban applies only to nationals of the six countries who do not have a visa and are outside of the United States on March 16, 2017—the effective date of the order. Further, it entitles anyone whose visa the government marked as revoked or canceled because of the January 27 travel ban to a new travel document and prohibits that as a basis for an inadmissibility finding.

It also excepts several categories of noncitizens from the ban, including: lawful permanent residents; parolees; dual nationals traveling on a passport used by a non-designated country; individuals traveling on diplomatic or other related visas; individuals who have been granted asylum; admitted refugees; and individuals who have received protection pursuant to various International treaties.

The order also allows consular and Customs and Border Protection (CBP) officers to issue a visa to and admit nationals of the designated countries on a case-by-case basis. Officers can grant a waiver to individuals who have previously worked or studied in the United States; who have significant ties to the United States through family, work, or study; who are infants, young children, adoptees, or individuals needing urgent medical care; and who belong to other categories related to U.S. international obligations.

Second, the ban suspends refugee admissions for 120-days. The suspension does not apply to refugees whom the State Department already scheduled for transit. DHS and the State Department may admit refugees on a case-by-case basis during the ban. The agencies must determine that the refugee does not pose a threat to national security or welfare, and that (1) the refugee’s admission lets the United States meet its international obligations or (2) the denial of admission would result in undue hardship.

 

The Legal Challenges to the Ban

As others have written, the administration’s actions and all available evidence call into question the purported justification for the ban. The administration’s delayed implementation of the ban, the exceptions to the ban, and the lack of evidence that nationals of the listed countries have engaged in terroristic activities, highlight that the administration’s justification is a pretext.

Moreover, the administration has provided plenty of evidence that the ban was motivated by anti-Muslim sentiment. Hawai‘i is the first party to challenge the revised travel ban, primarily on that basis.

 

Lurking Below the Surface – the Discriminatory Exercise of Discretion

The Supreme Court’s unwillingness to review individual immigration officials’ decisions means that there are few remedies for noncitizens denied visas or entry at the border. As a result, officials who are emboldened by the travel ban’s message and are better able to hide their discriminatory motives will succeed where the administration’s travel ban has failed.

When the Court has been willing to review State Department and CBP officials’ discretionary decisions, the Court has done little beyond determining whether the noncitizen received the process required by Congress. In Kerry v. Din and Kleindienst v. Mandel, the Court refused to look beyond whether the immigration official cited a facially legitimate reason for denial or exclusion. In Din, the Court determined the State Department official only needed to provide a citation to the statute that stated the ground of inadmissibility and did not have to provide any other explanation or support for the decision.

If all officials must do is cite to the statutory provision, officials can easily hide their discriminatory motive. Unfortunately, it will prove difficult, if not impossible, for noncitizens denied visas or entry to show that it was for an impermissible reason. That means officials who take the administration’s message to heart are the threat lurking below the surface.

 

*Angela D. Morrison is an associate professor at Texas A&M University School of Law. She researches in the areas of employment and immigration law. Professor Morrison formerly taught at UNLV School of Law as a visiting assistant professor. Her previous positions include the Legal Director of the Nevada Immigrant Resource Project, a trial attorney for the U.S. Equal Employment Opportunity Commission, and a law clerk for the Honorable Philip M. Pro (retired), U.S District Court for the District of Nevada.

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The ACA is working – and there is no replacement

By Jonathan Gruber, MIT*

One of the most contentious public policy issues of the early days of the Trump Administration is the future of the Affordable Care Act (ACA). President Trump and congressional Republicans decry the law as a failure and say that it must be repealed and replaced with something better. This line of argument is problematic in two different ways. First, the claim that the ACA is a failure is wrong. Second, there is no replacement that does not significantly worsen the U.S. health care system.

The ACA has accomplished the three main goals it set out to achieve. First, the law has significantly reduced the number of uninsured Americans (by about 20 million, according to latest estimates). Second, the law has stabilized a broken individual insurance market. Before the ACA, individuals without insurance from their employer or the government were subject to a discriminatory market where they could be denied insurance based on their health, or charged more based on their health or gender. The ACA ended this discrimination, bringing millions of uninsured into the new market. Third, the ACA has contributed to the most dramatic health care cost slowdown in measured U.S. history.

Such a positive assessment may strike some as odd given rhetoric to the opposite effect, but such rhetoric is subject to an important fallacy. Republican criticism compares the ACA to a perfect world, not to the world that it replaced. Consider, for example, premiums in the ACA health insurance exchanges. Much attention has focused on the fact that last year these premiums rose by 22 percent, on average. But there has been little focus on the fact that premiums were far below expectations when the law went into place, so that on net premiums are below where they would have been on average without the law. Relative to a world without the ACA, we are now a nation with higher insurance coverage and more stable and lower cost insurance markets.

That’s not to say that the ACA is perfect – far from it – but it is important to note that the ACA represents an improvement over the world that preceded it. And, more importantly, it is much better than current alternatives posed by Republicans.

While there are a number of alternative “replace” plans, all share three features. First, they significantly weaken the insurance market anti-discrimination protections of the ACA. Millions of individuals who now have access to insurance at prices independent of their health will suddenly see their coverage become unavailable or unaffordable. Second, these plans make insurance much less affordable for low-income Americans. Most proposals remove the Medicaid expansions that made insurance accessible for the first time to millions of low-income Americans, and all proposals replace the income-based tax subsidies of the ACA with universal flat tax credits that don’t vary with income. This means that low-income families will have to pay enormous shares of their income to afford insurance, while rich families get a flat tax credit that they don’t need. Finally, the plans repeal the tax increases on the wealthy that were used in part to finance the ACA.

The bottom line is that Republican alternatives make insurance unavailable and unaffordable for the lowest income and sickest Americans, while providing new benefits and tax breaks to the richest Americans. The result will be a dramatic reduction in insurance coverage in the U.S. among our most vulnerable citizens. This is not a “replacement”. This is a catastrophe.

*Prof. Jonathan Gruber is a professor of Economics at the Massachusetts Institute of Technology as well as the director of the Health Care Program at the National Bureau of Economic Research. Prof. Gruber was a key architect of both the 2006 Massachusetts health care reform and the 2010 Patient Protection and Affordable Care Act.

 

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President Trump Overstepped his Authority on Sanctuary Cities

 

By Eddie Nasser*

In Executive Order No. 13768 issued January 25th, President Trump attempted to follow through on a major campaign promise to cut all federal funding from so-called “sanctuary cities.” Not only is the order bad policy, it also seems unlikely to withstand a challenge in court.

Section 9(a) of the order mandates that jurisdictions “that fail to comply with applicable Federal law do not receive Federal funds, except as mandated by law.” It directs that “the Attorney General and the [Secretary of Homeland Security], in their discretion and to the extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary.” Section 1373 states that “a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.”

Within a week of the order’s signing, the City of San Francisco sued the administration in the Northern District of California. San Francisco stated three causes of action. First, it sought a declaration that the order complied with § 1373. Second, it asserted that § 1373 violated the Tenth Amendment and asked the court to invalidate the statute or enjoin the administration from its enforcement. Finally, San Francisco alleged that Section 9(a)’s conditioning of federal funds on compliance with § 1373 violated the Tenth Amendment. After the suit in California, the Lawyers’ Committee for Civil Rights and Economic Justice, a nonprofit advocacy group based in Boston, filed a similar suit in the District of Massachusetts on behalf of Massachusetts sanctuary cities Chelsea and Lawrence.

These suits promise to give the administration trouble. Both are wise to question the constitutionality of § 1373. In Printz v. United States, the Supreme Court held that the federal government could not compel state and local law enforcement officers to conduct background checks on gun purchasers as part of the implementation of the Brady gun control law. 521 U.S. 898, 925 (1997). The Court declared that “the Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.” Id. at 935. Plaintiffs here allege that § 1373 requires exactly the kind of compelled implementation of a federal regulatory scheme that Printz prohibits.

If § 1373 runs afoul of Printz, the only legal basis for the Executive Order would be federal power under the Spending Clause. U.S. Const. art. I, § 8. When the Supreme Court ruled in 2012 that states could opt out of expanding Medicare under the Affordable Care Act, it issued clear guidance on what would be required for the withdrawal of existing federal funding. Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2574 (2012). The Court outlined a three-part test. The federal government must give notice of the conditions of funding so that states and localities can choose to comply; there must be a connection between the funding in question and the conditions attached; and finally, even if such a connection exists, the conditions cannot be applied to funds that have been relied on for so long that the state or locality has no choice but to submit going forward. Id. Here, the order fails on all three prongs. The administration clearly did not give sufficient notice to the localities, the order does not indicate any specific constraints on which funding can or will be ceased, and the localities can show a sufficient a reliance interest such that compliance will be all but mandated.

Executive Order No. 13768 perfectly encapsulates the administration’s first month. The policy itself runs counter to strong evidence that granting sanctuary status promotes both public safety and health. Section 9(a) as drafted seems unlikely to withstand legal scrutiny, like another poorly executed and high profile mishap, and begs the question of why the administration insists on governing through unilateral action instead of the legislative process. President Trump’s sloppily drafted and hastily issued policies may already be alienating members of his own party, and his legal headaches are just beginning.

*Eddie is a 2L at HLS and an Online Editor for HLPR.

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How elites profit from the myth of American bankruptcy

By Harry Stein*

After years of hysterical warnings about a “looming fiscal crisis” from deficits under President Barack Obama, Republican leaders in Congress are suddenly willing to increase deficits for President Donald Trump. This deficit flip-flop is certainly hypocritical, but it also obscures the true nature of the threat posed by Trump.

Trump is taking office at a time when America’s fiscal system is extremely strong. The primary threat is not that America will go broke; it is that America’s fiscal strength will be wasted and abused. Trump and his allies in Congress are poised to privatize America’s fiscal strength to further enrich a wealthy few and give corporations more power over ordinary Americans.

Markets understand America’s fiscal strength, even though politicians whip up fears of a debt crisis to justify unpopular cuts to successful federal programs — a dynamic I call “fiscal hysteria” in a new article for the Harvard Law and Policy Review.

Interest rates on the Treasury bonds that finance the national debt have been falling for decades and are currently extremely low, which would not be the case if investors doubted whether the United States could pay back its loans. Furthermore, economists at Moody’s Analytics report that the United States has substantial capacity to incur more debt should it be necessary.

This means that Trump has inherited a federal budget that gives him tremendous power. Based on the tax plans from both Trump and House Republicans, the largest application of this fiscal power will be tax cuts for the wealthy and corporations. Rather than using these revenues to finance programs that benefit all Americans, these tax cuts concentrate even more wealth among the elite few.

Corporations would be further empowered by several of Trump’s fiscal policies. Private companies are already jockeying for contracts to build Trump’s border wall — a project that will likely to use eminent domain to seize land from its current owners. According to the conservative Daily Caller, “defense contractors couldn’t be happier” about potential profits from Trump’s military buildup. And privatization is also at the core of the infrastructure plans touted by Trump and some in Congress.

House Speaker Paul Ryan, a Wisconsin Republican, refuses to commit to preventing deficit increases from these costly policies, so progressives may be tempted to adopt the same fiscal hysteria that Ryan used so effectively to attack Obama. But this will only play into the hands of Trump and his allies in Congress.

Economist Jared Bernstein warns that, “Deficit hysteria — often promulgated by those who are happy to cut taxes without making up the revenue loss — has become a stalking horse for shrinking government under the guise of fiscal rectitude.”

This antigovernment agenda is another way Trump can use the fiscal system to give corporations more power. Budget cuts that undermine agencies responsible for financial supervision and environmental enforcement would empower Wall Street and big polluters. Rolling back federal health-care programs would increase the power of insurance companies over American families.

These cuts are extremely unpopular, which is why their advocates invoke the specter of a fiscal crisis to claim that the American people have no choice but to accept this agenda. Fear of a debt crisis is less effective to stop tax cuts, since nobody wants to give more money to a government that appears hopelessly broke.

The myth that America is somehow bankrupt may be the most pernicious political barrier blocking ambitious progressive policies that would make a real difference in the lives of the American people, such as making child care affordable or preventing lead poisoning from contaminated paint, soil, or water.

Congressional leaders used the myth of American bankruptcy as an excuse for inaction under Obama, and may now use the same myth to enact their agenda under Trump.

Good fiscal policy should expand opportunity by responding to changes in the economy. Progressives should not emulate the way that Ryan has shifted his posture on budget deficits now that a new political climate creates opportunities to empower a privileged few.

Progressives should also insist on fiscal sanity, which is more important than ever in an era of “alternative facts.” This means using honest numbers that provide a realistic look at the federal budget and the cost of new proposals. New long-term commitments — whether they are in the form of spending programs or tax cuts — should include a realistic plan to finance the costs.

Instead of falling into the trap of fiscal hysteria, progressives must focus on how Trump is squandering and privatizing America’s fiscal strength. The fiscal system should be a powerful tool to make the economy work better for all Americans. Trump is using it to enrich the wealthy and empower corporations.

*Harry Stein is the director of fiscal policy at the Center for American Progress.

This essay was originally published on MarketWatch.

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Executive Order 9066: #NeverForget

By Jessica Huey*

It was the worst day of his life. That was all he would ever say about it.

Looking at black and white photos of my great-grandfather, the stoicism etched in his expression is impossible to ignore. But to understand his story—that of a quiet, Japanese merchant who came to America with his wife to start a new life in the early 1900s—it becomes clear the extent to which living in America, filled with its golden grain and promises, also took its toll on him.

Like millions of America’s immigrants then and now, my great-grandfather chose a life that he could not anticipate. Silently, he stepped off the boat onto the soil of the Pacific Northwest with only the possessions he could carry. Together with my great-grandmother who would come later, they forged new lives with each step and encountered a future littered with seemingly endless pathways into the unknown.

America has long flirted with its immigrants, promising a life full of opportunity—of fairness under the law. Over the course of history, however, her temperamental outbursts have been indiscriminate; from the early Irish and Chinese immigrants to the Latino and Muslim immigrants of today, America has chosen when to define immigrants as “one of us” or “other.”

Not too long after many immigrants realize that the lottery to which they have a ticket is actually the beginning of a marathon race to the finish, they turn to what is within their power to contribute. Often led to believe that hard work is the missing link to making them “more American,” these immigrants soon discover that being paid under the table is just another way of separating them with invisible barriers from the rest. As they catch the last millisecond of strangers’ sideways glances, they begin to realize that something about them—the way they look, the way they eat, the way they greet others—doesn’t quite fit in. The culminating disappointment of these realizations juxtaposed to their dogged efforts to make America their new home creates an undeniable tension that begins to define the immigrant experience: what exactly does it mean to call America home?

My great-grandfather would get his answer the day the FBI came to his house late one evening to take him away from his family.

The anxiety had been growing for months. It hadn’t been long after Pearl Harbor when an icy veil of suspicion had descended on the Japanese American community in California. It started gradually with the absence of the friendly greetings on the street—invisible cues foreshadowing distance. Then came the signs; “Go home, Japs” they read. The hurt was easier to digest coming from strangers but impossible to mask when it came from neighbors. And then, straight from the mouth of President Roosevelt with Executive Order 9066, my great-grandfather and his family were to become prisoners of their home.

Over the more than thirty years he had lived in America, my great-grandfather had quietly become a leader in his community of Japanese Americans. In Stockton, California, he owned a small trucking company. His work was simple but he kept an eye on the others to make sure everyone was cared for. People gauged his silence for meaning, for direction.

It was one of his many friends that alerted him—the FBI would be coming after him within the next twenty-four hours.

The rest would be a blur. The FBI came for my great-grandfather with orders to take any prominent persons of Japanese descent to be questioned at the local jail. My great-grandfather would not be reunited with his family for months. In the meantime, his wife would be without a husband, and his three American citizen daughters in their twenties would be without a father, but their time would come too. Packing little more than what they had been able to bring to America, they were shipped to the swamps of Rohwer, Arkansas—a prison of another sort. Their careers, their possessions, their lives and American dreams uprooted in one fell swoop.

The suspicions intensified in the camps. The barbed wire that separated 120,000 people of Japanese descent, over two thirds of whom were the American-born children of Japanese immigrants like my great-grandparents, reminded them that America was still not truly their home. Their America was a different one: an America that asked its young sons if they would faithfully serve the country that had just put them and their families behind barbed wire.

By the end of the war, the only crime these 120,000 Japanese Americans were charged with was looking like the enemy. Backed by the government, America had decided that one group above all others warranted increased surveillance.

Raymond Tomikichi Ito—my great-grandfather—passed away long ago. I never had the chance to meet him, but I keep his story close. While the physical prisons have yet to surround another group of immigrants or American citizens since the Japanese internment camps of World War II, America’s hysteria with the “other” is something that should never be normalized. The harm of Executive Orders that promote discriminatory agendas has already been experienced. Let us not forget.

 

*Jessica Huey works as a social sector capacity builder in the Bay Area with FMA, a firm that supports nonprofit organizations strengthen their fiscal management practices. She received her Master’s in Public Policy from Harvard’s Kennedy School of Government and her B.A. from Brown University. Jessica is a fourth generation Japanese-American (Yonsei) on her mother’s side, and fourth generation Chinese-American on her father’s side.