The Trinity Lutheran case, in which the Supreme Court ruled that a Missouri policy excluding church-run preschools from a particular grant program was unconstitutional, has always seemed like an easy one to me. After all, what happened here sounds awfully un-American: a church was denied a government benefit simply because it’s a church. I’m not sure why a state should subsidize private institutions’ playground resurfacing — the benefit at issue here — but if it does, it has to make such funds available to all on equal terms.One contentious issue that does loom on the horizon, however, is that of exemptions for religious businesses — the opposite of inclusions for churches — from public accommodations laws. Stay tuned next term, when the Court takes up the case of a bakery that declined on religious and free speech grounds to make a cake for a same-sex ceremony. Masterpiece Cakeshop will make Trinity Lutheran look like the justices’ kumbaya moment.Today’s decision makes clear that Trinity Lutheran’s playground improvement is no different than the government provision of police or fire protection to houses of worship and other religious institutions. And it’s quite unlike taxpayer funding of religious instruction or the parade of horribles raised by Trinity Lutheran’s opponents (which no longer include the State of Missouri, whose new administration changed its policy).
oday’s decision makes clear that Trinity Lutheran’s playground improvement is no different than the government provision of police or fire protection to houses of worship and other religious institutions.
And indeed, as I predicted after argument, seven justices made short work of the case, finding that the state violated the First Amendment’s Free Exercise Clause in taking its action based on purely religious status. Chief Justice John Roberts’ majority opinion is a mere 15 pages long and the three concurrences were two, three, and two pages, respectively. It’s telling that Justice Elena Kagan — not exactly a stalwart right-winger — joined the decision in full, and that Justice Breyer concurred in the judgment.Further, Chief Justice Roberts’ attempt, via a curious Footnote 3, to narrow the scope of his ruling to “express discrimination based on religious identity with respect to playground resurfacing,” didn’t command a majority. Justices Clarence Thomas and Neil Gorsuch took issue with the distinction between religious “status” and “use.” And Justice Breyer, always a pragmatist, seems to have been concerned with “a general program designed to secure or to improve the health and safety of children.”
The fate of Footnote 3 will thus turn on whether lower court judges like the Trinity Lutheran result or not. It’s an opportunity for mischief that the Court will have to resolve in future.
Meanwhile, Justice Sonia Sotomayor, joined in her dissenting opinion only by Justice Ruth Bader Ginsburg, seems to think that the ruling dissolves the separation of church and state altogether. One can only hope that her admonition that 31 other states’ restrictions against direct government funding of religion are now in jeopardy is true in the context of school choice. Coincidentally, even before the US Supreme Court released its Trinity Lutheran decision, the Georgia Supreme Court unanimously upheld that state’s tax credit scholarship program despite a provision in that state’s constitution that mirrors the Missouri one at issue.
The so-called Blaine amendments that have been used to stymie these programs were created in the late 19th century not simply to preserve church-state separation, but to harm religious minorities, especially Catholics. But the Supreme Court has rejected Establishment Clause challenges to both vouchers and tax credits; today’s ruling doesn’t change that.Ilya Shapiro is a contributor to the Washington Examiner’s Beltway Confidential blog.
On Sunday, a U.S. Navy fighter jet shot down one of Bashar al-Assad’s warplanes attacking U.S.-allied Syrian forces, drawing the United States deeper into that conflict. Raising tensions with Russia and potentially placing American troops in danger, this action was just another in a long line of tactical decisions which increase U.S. involvement in Syria without any viable long-term strategy for resolving or exiting the civil war.
Much of the criticism has focused on President Donald Trump’s impulsive and pugnacious personality. While Trump has accelerated this process, he is not wholly to blame for the slippery slope that the United States is now sliding down in Syria. The Obama administration resisted large-scale escalation, but their choices nonetheless contributed directly to today’s haphazard Syria strategy. The Trump administration needs to decide what it wants to achieve in Syria now, or the inevitable logic of mission creep may rob them of the ability to choose.
Obama’s Syrian Wars
A common narrative among hawks in Washington is that Barack Obama’s failure to escalate in Syria—most notably his decision not to follow through on his “red line” comments about chemical weapons—reduced U.S. credibility and worsened the conflict there. These criticisms are largely unjustified: the red line comment may have been foolish, but the Russian-brokered chemical weapons deal succeeded in preventing the further use of chemical weapons during Obama’s term, and was likely more effective than air strikes would have been.
The United States has no viable long-term strategy for resolving or exiting the civil war.
Obama does deserve some credit for his willingness to avoid large-scale escalation against the Assad regime in Syria in 2013 and again in response to Russia’s 2015 intervention. Whether he feared a repeat of the 2011 Libya intervention—where narrow humanitarian goals quickly and almost seamlessly transitioned into regime change—or he simply acknowledged the complexity of the Syrian conflict, the former president repeatedly resisted pressure to commit U.S. forces against Damascus.
Yet his administration did get involved in other ways, recognizing the Syrian opposition in 2012, and later supplying arms and training to anti-Assad rebels. Meanwhile, the campaign against ISIS was characterized by mission creep. Initially portrayed as air strikes in support of local forces, Operation Inherent Resolve quickly saw the deployment of troops in both Iraq and Syria: as early as May 2015, U.S. Special Forces were engaging in ground raids against ISIS, and by May 2016, they were fighting alongside Syrian rebels to take the town of al-Shaddadi.
To support these missions, the United States helped to seize and expand an airfield near Kobane in northern Syria, staffing it with civil engineers, intelligence and support personnel. By the time Obama left office, the United States had 500 Special Forces personnel on the ground in Syria in addition to support staff. This gradual escalation went largely unnoticed at the time, with U.S. forces often seemingly “plugged-in” to fill a temporary gap in local partner capacity.
Indeed, Obama never appeared to have a good strategy for the endgame. As long as the fighting in Syria’s civil war stayed geographically segregated from the campaign against ISIS, both could proceed without raising difficult questions about territorial control. Perhaps the biggest problem with the administration’s Syria policy was its failure to more aggressively pursue the diplomatic steps that could have begun the peace process. Rather than admitting America’s limited strategic interests in the Syrian conflict, ambivalence and gradual escalation ultimately laid the groundwork for Trump’s more impulsive escalations.
Trump Hits the Afterburner
If Obama’s involvement in Syria could be characterized as “creeping escalation,” Trump appears to be sprinting towards heavier involvement in the conflict. In his first months in office, the new president authorized substantial new deployments—almost doubling the number of Special Forces in Syria—and has begun to deploy conventional forces too, sending around 400 marines to establish fire bases in northern Syria.
Trump has also proved far less willing to draw a clear line of distinction between ISIS and militias associated with the Assad regime. In April, in response to a chemical-weapons attack, Trump authorized a tomahawk missile strike on a Syrian air base. Since that time, U.S. troops have struck Assad-linked militias several times, bombing convoys and drones that entered into the exclusion zone near the U.S. base at al-Tanf.
This increase in incidents inside Syria is the inevitable result of Trump’s choice to speed up the fight against ISIS. Since weaknesses in local partners can no longer be built-up slowly, U.S. forces are needed instead to provide required capacity (such as recently deployed marine artillery units) in key areas. This then produces new problems for force protection: recent strikes on regime-allied forces are largely aimed at protecting U.S. and allied forces. As U.S.-backed and regime-backed forces come into contact more frequently, these tensions will only grow.
Danger, Will Robinson
Worryingly, unlike the Obama administration, Trump’s approach to Syria does not appear to be driven by a coherent strategy. Though far from perfect, Obama’s slow-and-steady approach to the anti-ISIS campaign, coupled with a concerted international diplomatic effort, had the potential to yield a substantive rollback of ISIS and at least a managed ceasefire process in the rest of Syria. But in rushing the end of the campaign, substituting U.S. forces for local ones, and effectively ignoring diplomacy, the new administration is merely increasing the chaos in Syria.
Worse, the Trump administration is reportedly considering using its involvement in Syria to push back on Iran, a step that will increase the risks to U.S. troops in Syria and Iraq while producing no obvious policy benefits. Aside from ISIS, the United States has never had strong interests in the Syrian conflict; in contrast, Iran, Russia and the Assad regime are all heavily invested in the outcome of the conflict.
Indeed, the recent mission creep in Syria effectively refutes the long-running hawkish position on Syria which argued that targeted strikes would force other actors to take a more conciliatory approach to ending the conflict. Trump’s missile strikes have not stopped the Assad regime’s attacks on civilians, and militias continue to probe U.S.-associated forces on the ground—even after the recent strikes. The recent shootdown is of particular concern, as it highlights that the Trump administration is willing to retaliate for attacks on local partners, not just for direct attacks on U.S. forces.
With neither side willing to back down in Syria, the potential for further escalation is high. Trump is accelerating fast, but with no clear goal in sight. The White House needs a coherent Syria strategy soon, before events spiral even further out of its control.Emma Ashford is a research fellow in defense and foreign policy studies at the Cato Institute.
Senator Bernie Sanders has introduced a bill in Congress that would allow the importation of prescription drugs from Canadian pharmacies, subject to controls aimed at ensuring safety. The goal is to lower prices for Americans, because many drugs sell for far less in Canada.
The U.S. drug lobby, and many other groups, oppose this importation, claiming that consumer savings would be minor and that imported drugs would not meet the same safety standards as those sold in the United States. Furthermore, recent commentary suggests that legalizing Canadian importation would exacerbate the opioid crisis in the U.S. by expanding access and lowering the costs of prescription opioids.
These concerns are unjustified and in some cases just self-interested scare mongering. The crucial question about legalizing importation, implicit in the industry’s opposition, is its possible effect on drug innovation in the United States.
The safety concern is easy to dismiss. Innumerable goods flow across the U.S.-Canada border every day, with little evidence of unsafe imports. U.S. consumers and their doctors have ample incentive to order from reputable Canadian suppliers, who in turn have no incentive to kill off their paying customers. Canadian drugs already flow across the border to some degree, with minimal examples of adverse consequences.
Whether the cost savings from this importation would be large depends on multiple factors, such as how the Canadian government adjusts its price controls, and how U.S. drug makers change their distribution and pricing policies. If safety concerns are minimal, however, any cost savings are valuable even if modest.
The crucial question about legalizing importation, implicit in the industry’s opposition, is its possible effect on drug innovation in the United States.
The fear that importation will exacerbate the U.S. opioid crisis is also misplaced. Prescription opioids are already widely available and usually inexpensive; despite concern over the increasing opioid death rate in the U.S., many doctors still prescribe opioids routinely. And most of the increase in opioid-related deaths over the past six years has involved heroin and fentanyl rather than prescription opioids; these substances are already outlawed or tightly controlled, both in the U.S. and Canada.
Legalizing importation might, however, harm new drug innovation. Private investment in new drugs is potentially less than is socially desirable because, absent patent protection, innovators cannot easily capture a large financial return. Innovation is expensive, and once a company has invented a new drug, rival companies can often reverse engineer it and then offer a competing product.
The standard policy response is patent protection, which provides an innovating firm the exclusive right to sell the patented product for some period of time; this allows the innovator to recoup its research and development expenses by charging a price well above production costs. Some academic research suggests that patent protection does not necessarily increase innovation, but one industry where it appears to matter is drugs.
Importation, however, undercuts patent protection if other countries limit U.S. drug prices (as Canada does), since many consumers will then buy their drugs at low prices in Canada, robbing the innovator of the high-priced sales necessary to pay off their research and development investments. The option to buy at low prices is good for consumers with respect to existing drugs, but bad over the longer haul if lower profit potential discourages new drug innovation.
Determining the right combination of patent and importation policies is thus a messy and difficult empirical exercise; and given available evidence, reasonable people can disagree on whether importation will be beneficial or harmful on balance. But drug innovation is the crucial issue in this debate; not consumer safety or the opioid crisis.Jeffrey Miron is director of economic studies at the Cato Institute and the director of undergraduate studies in the Department of Economics at Harvard University.