Category Archive: Immigration

  1. Cutting legal immigration won’t help low-skilled American workers

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    Senators Tom Cotton (R-AR) and David Perdue (R-GA) recently introduced the Reforming American Immigration for Strong Employment (RAISE) Act.  If it were to become law, RAISE would cut legal immigration by 50 percent over the next ten years by reducing green cards for family members of U.S. citizens and lawful permanent residents, slashing refugees, and eliminating the diversity visa lottery.  These goals are in line with President Trump’s stated objective to cut legal immigration in most categories.

    The RAISE Act’s goal is to increase wages for lower-skilled Americans by reducing the supply of lower-skilled immigrants.  Their press release argues that the “generation-long influx of low-skilled labor has been a major factor in the downward pressure on the wages of working Americans, with the wages of recent immigrants hardest hit.”  Under such a worldview, only a drastic reduction in green cards and the supply or workers can raise American wages – and it’s not crazy.

    The National Academy of Sciences’ (NAS) exhaustive literature summary on the economic effects of immigration concluded that: “When measured over a period of 10 years or more, the impact of immigration on the wages of native-born workers overall is very small.  To the extent that negative impacts occur, they are most likely to be found for prior immigrants or native-born workers who have not completed high school—who are often the closest substitutes for immigrant workers with low skills.”  Although the effect is small, RAISE seeks to take advantage of the finding in the academic literature by inferring that if an increase in the supply of workers slightly lowers some wages then a decrease in that same supply will do the opposite.

    It might seem odd then that RAISE doesn’t target employment-based green cards but that category is for highly skilled workers while the categories this bill would cut are more likely to allow in lower-skilled workers who have fairly high labor force participation rates.  I’ve rebutted Senator Cotton’s poor economic arguments for immigration restrictions before but recent research is even more compelling.

    A recent paper by economists Michael Clemens, Ethan Lewis, and Hannah Postel seems tailor-made to test what would happen if a bill like the RAISE Act were to become law.  The paper studies the effectiveness of an immigration policy “designed to raise domestic wages and employment by reducing the total size of the workforce.”  The U.S. government’s 1964 termination of the Bracero program for Mexican farm workers provides a natural experiment for their paper which is comparable to what would happen if RAISE becomes law.  Senators Cotton and Perdue will be disappointed to discover that this new research found that ending lower-skilled migration for farm workers had little measurable effect on the labor market for Americans who worked in those occupations.

    Figure 1

    Figure 1 from their paper compares the quarterly average real farm wages by states where Braceros made up more than 20 percent of their seasonal agricultural labor (black line), states where Braceros were fewer than 20 percent of the workforce (gray line), and states where there were no Braceros at or very negligible numbers (dashed line).  Clemens et al write that “[t]he figure shows that pre- and post-exclusion trends in real farm wages are similar in high exposure states and low-exposure states.  It also shows that wages in both of those groups rose more slowly after bracero exclusion than wages in states with no exposure to exclusion.”

    How can that be the case, shouldn’t a leftward shift in labor supply increase wages?  Not necessarily as farmers had other options not usually contemplated by those who only think about the supply and demand for labor in isolation.  Instead of hiring more American workers or raising their wages, farmers turned to machines and altered the crops they planted to take account of the new dearth of workers.  Instead of planting crops that required labor-intensive harvesting or care, they planted other crops that required many fewer workers.  Farmers turned to machines like tomato pickers and changed methods for planting and harvesting other crops to take account of the newer wages they would have faced had they stuck with the Bracero-era farm techniques.

    The farmer’s actions in response to Bracero’s cancellation were economically inefficient and presumably raised the costs of production relative to their employment of legal workers under the Bracero program.  But since the Bracero program wasn’t available anymore, using more machines and changing techniques were still the cheapest options available.  Those options did not include hiring more Americans or raising their wages.  The detailed empirical work in this paper considers many other possibilities but convincingly answers them, such as pointing out that nearly all of the Braceros went home instead of staying on illegally and that the flow illegal Mexican farm workers did not pick up immediately.

    The similarities between the end of the Bracero program and the RAISE Act are enough to make this new research a compelling reason to reject the RAISE Act out of hand.  The Bracero program allowed in half a million workers a year before it was eliminated which is about the same number of green cards that RAISE would cut.  Bracero workers were lower-skilled and many of those that would be cut by RAISE are also low-skilled.  Braceros were concentrated in some states and not others just like the new immigrants who would not be allowed under RAISE.

    The ending of the Bracero program was a policy shift very similar to that proposed by the RAISE Act.  Ending Bracero didn’t raise wages for American farm workers and we shouldn’t expect the RAISE Act to do the same for other low-skilled Americans who are suffering for myriad reasons that have nothing to do with immigration.  Senators Cotton and Perdue may intend to raise the wages of lower-skilled Americans, but their bill is more likely to line the coffers of firms that manufacture machines that can substitute for them.

    This piece was originally published at Cato at Liberty.

  2. Why requiring Muslim visitors to register with Homeland Security is unjust

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    Throughout the presidential campaign, there was much talk of a Muslim registry. Fortunately, that seems to have fallen by the wayside since the election, and the Trump administration has been consistent, thus far, in denying it will pursue one. Still, we should remain vigilant about it because something similar is still on the table: a revived NSEERS program. And that program is unjust.

    Active between 2002 and 2011, the National Security Entry-Exit Registration System (NSEERS) required foreign visitors from 24 Muslim countries and North Korea, regardless of religious affiliation, to register with the Department of Homeland Security (DHS) when they entered the country. These visitors were also required to check in to a DHS facility on a yearly basis thereafter and to inform DHS if they moved or had a change in employment. Citizens, green card holders, and visitors from other countries (including other Muslim-majority countries) were not included.

    NSEERS could easily be revived and, given the anti-Muslim tenor of the new administration, a reinvigorated system might require temporary visitors from any Muslim country to register with DHS.

    What should we say, then, about an attempt to revive NSEERS? Consider a thought experiment:

    Imagine I invite you into my home. We sit, have a meal, talk, and enjoy each other’s company. You ask for the restroom, and I point you to it. You leave my eyesight to use the restroom and I relax, awaiting your return. I relax because I invited you in and trust that you will not be doing anything untoward.

    Now imagine that instead of relaxing and staying in my seat, I stand and follow you to the bathroom, listening at the door. In this scenario, something unacceptable is happening.

    Now imagine that you travelled far to visit and are spending the week with me. I give you the spare key so that you are not limited by my schedule, but I insist that you call me every two hours. In this case, too, something is unacceptable.

    In the second short visit, it would be reasonable for you to say, “I appreciate your hospitality, but following me to the bathroom is disturbing. I will leave now.” In the longer visit, it would be reasonable for you to say, “I appreciate your hospitality, but having to call you every two hours makes it less worthwhile. I will go to a hotel.” In both of these cases, we treat our visitors like they are criminals — which is to say, we treat them disrespectfully. We might do better to not invite them at all.

    The analogue here should be clear: if we are going to allow visitors in the US, we should not treat them with contempt. We should assume they are peaceful. If we have good reason to think they are not, we should not let them in at all. Accepting guests into one’s home, one’s place of business, or one’s country requires treating them with respect.

    If US citizens want to have foreigners in the country, those foreigners must be treated with respect — and requiring that they check in with DHS on regular intervals is not treating them with respect. There are things a legitimate government cannot do. It cannot imprison innocent people or those that it deems subversive because they disagree with its policies. It cannot bomb areas of the country where residents disapprove of its actions. In short, it must show proper respect for its citizens. And showing proper respect for its citizens requires showing proper respect for their visitors.  Plausibly, we do this with the US-VISIT program (now the Office of Biometric Identity Management Identification Services), which is also more efficient while inviting less descrimination. There is, thus, no reason to even consider the disrespectful behavior of a revived NSEERS.

    Of course, it is possible that limiting visits to the US to those from non-Muslim countries is needed to protect Americans. If that were the case, I suspect the majority of US citizens would be in favor of limiting those visits — not just continuing visits by some that are then disrespectfully monitored. But that is a different issue altogether — and one for which we have no evidence. Once we have determined that a visitor may safely cross the border into our country, we should treat them like we would treat a houseguest. With respect.

  3. The free society is an open society

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    He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither…” — Declaration of Independence

    “Mister Gorbachev, tear down this wall.” — Ronald Reagan, June 12, 1987


    In my previous essays between the election and the inauguration, I discussed how we got here, and how we didn’t, as well as what’s distinctively worrying about the new style of politics. In the first week of the new administration, it’s worth noting that we saw an outpouring of an identity-based politics of protest against rising illiberalism and misogyny, an extraordinary level of public untruth repeated by a spokesman who showed signs of not believing what he was saying but being forced into it, and the continued surrender of Republican elites to the new order.

    I’m going to return to those themes in future posts; but given that the new administration is now in power, and it’s time to interrupt analyses of how and why, with discussions of what it is doing.

    The populist authoritarianism that is rising across developed countries, the United States very much included, is characterized by a zeal to harden borders. Trade and migration are, between them, the great villains of the modern populist imagination, surpassing even domestic dissent. And, unsurprisingly, the first week of Donald Trump’s presidency included sharp blows against both the gradually liberalizing international trade order that the United States has led since World War II, and the freedom of human beings to move from place to place in the world. The chaos of the administration’s cruel and poorly-planned action against border-crossing by those born in seven Muslim countries is emerging as the defining act of these early days. For an earlier generation of conservatives, a militarized wall on an international boundary symbolized the evils of Communism and Soviet domination in eastern Europe. Now, such a wall will be the symbol of the Trump era as a whole. The administration is moving astonishingly quickly to make the United States a closed society.

    Walls work in both directions—they keep people in, as well as out. The administration’s decision to suspend reentry for lawful residents who were abroad at the time of the order tells non-citizens in the United States—permanent residents, long-since admitted refugees or those granted asylum, spouses and students and H1-B visa holders doing highly skilled work that the country needs—that they travel outside the United States at risk of not being allowed to return. Even the eventual decision to allow permanent residents to re-enter on a case-by-case basis was presented as an exercise of agency discretion, not a disavowal of the tactic. The word of the United States isn’t good anymore—“permanent” resident now means something much less than that, and refugee status once granted might be revoked with no notice. Henceforth, peaceful, law-abiding residents will be much more afraid to leave the country. The barriers to letting people in thus act as a kind of cage to keep people in. Caged people aren’t free.

    I wrote in Rationalism, Pluralism, and Freedom that “The core of liberal ideas includes religious toleration and freedom […], the rule of law, and especially the control by law of the executive’s security apparatus through habeas corpus, procedural rights, and prohibitions on torture and extrajudicial executions, imprisonment, or dispossession[…], and the desirability of commerce and international trade.” (p. 87)

    Not only have all three elements of this core come under assault in Trump’s first week in office—they have come under assault specifically in association with his war on migrants: religious discrimination in migration, extrajudicial detention being carried in airports as we speak, and the idea of a 20% tariff wall on goods to pay for the physical border wall.

    Notwithstanding some current talking points, the new immigration restrictions are religiously discriminatory in both intent and effect. Rudy Giuliani has openly acknowledged that this was the policy crafted in order to get as close as possible to the ban on Muslim immigration Trump called for on the campaign trail, while maybe being able to legally get away with it. And the combination of the identification of seven overwhelmingly-Muslim countries as the source of the supposed security threat (though zero nationals of those countries—zero—have killed anyone in an act of terrorism on U.S. soil) with special exemptions for Christians from those countries turns the new restrictions into exactly what Giuliani’s account leads us to expect: a religiously-exclusionary act with a veneer of a security excuse.

    As Dylan Matthews argues, the liberal political theorist Judith Shklar’s essay “The Liberalism of Fear” helps us to see the centrality of resisting cruelty and lawless state violence to the liberal vision of the free society. (My first book aimed to apply Shklar’s insights to the political treatment of ethnic and cultural minorities; its title was a direct reference to the essay.) Until the end-of-week Muslim ban and abandonment of refugees, I would have said that the great horror of Trump’s first week was the mooted possibility of reopening black site prisons and his enthusiasm about torture—an enthusiasm he says he’ll reluctantly hold in check in deference to the views of some of his top appointees, though it’s hard to imagine his “deference” to these subordinates lasting forever.

    But the developing war on immigrants puts us squarely into liberalism-of-fear terrain now. Coercive border control is an especially central location for those fearful rule-of-law concerns. It routinely involves indefinite detention without legal counsel or trial. While intelligence agencies all too often exercise state violence without legal oversight, for those charged with border control it is a constant. This weekend, legal residents of the United States were prevented from boarding their planes home, or on arrival in the U.S., were physically detained without counsel or legal process.

    While at this writing the situation remains unclear, there are reports that even after judicial rulings against aspects of the new policy, border patrol agents were refusing to recognize court orders. Trump advisor Stephen Miller seemed to adopt an especially strong attitude of disregard for judicial oversight, maintaining that a court order neither “impedes or prevents the implementation of the president’s executive order which remains in full, complete and total effect.” And even before the Muslim ban was announced, the new executive orders on border control significantly expanded the arbitrary authority of immigration control officers to decide whom to deport, and insisted on a huge increase in those undocumented migrants—including asylum-seekers—who would be kept in indefinite detention. (Dara Lind at Vox, author of that latter piece, has been providing especially important and valuable coverage of these issues.)

    For four months, all refugee admissions will be suspended, from everywhere in the world, abandoning many to the repression and war from which they are fleeing. The refugee suspension has perhaps gotten the least attention in the U.S., as it lacks some easily-understood and high-profile features of the Muslim ban: both the religious discrimination and the exclusion from reentry of people who have already lived here.

    But it is no less cruel. People whose claim for refuge has already been judged valid, people who have already been “vetted” as posing no security risk, people fleeing war zones and repression from anywhere in the world, now find themselves locked out. This keeps refugee camps that much fuller, leaving that much less space for new people also fleeing. It further encourages very dangerous alternatives, such as families entrusting themselves to smugglers or to risky self-help in boats or on foot. Locking refugees out is a violation of international law; more to the point, it is monstrous, and renders the U.S. a kind of jailer for people at risk, keeping them locked in where they are now.

    In treating peaceful civilian migration the way states treat invading armies, coercive border control always involves a deeply suspect kind of lawless violence. These aren’t permanent features of political life. The system of passports and visas as required for international movement and migration is surprisingly recent. Open, document-less borders within Europe were closed as an emergency measure during World War I; the generalized world system of passports wasn’t imposed until 1920. The passport as a document was much older, but mainly offered protection to local subjects traveling abroad. It could confirm one’s identity, but was not normally a requirement for crossing frontiers.

    The liberal understanding of free societies and politics grew in part out of life in commercial medieval European cities—cities whose walls were to keep out armies, not civilians (or goods, as the cities were entirely dependent on trade). In the famous legal principle that governed those cities, “city air makes you free;” one who lived in such a city for a year and a day gained the freedom of city life against the oppression of the feudal countryside. The cities were proud of this, and grew by it.

    After enjoying open borders for half of its history, the U.S. has had a deeply unhappy series of experiences with border control. The first federal regulation on entry was a racist restriction on Chinese migrants, the second a similar de facto regulation of those from Japan. There have been recurring restrictions on the grounds of political beliefs. During the middle decades of the 20th century when U.S. immigration was most severely limited, Franklin Roosevelt turned away Jewish refugees fleeing Hitler on the grounds that they might include German spies—an approach that is all but indistinguishable from the contemporary conflation of those fleeing war and persecution in majority-Muslim countries with radical Islamist terrorists. (Many of those turned away then died in the Holocaust; and many of those turned away now may die in their home countries’ civil wars or despotic regimes.) And the long effort to prevent migration across the southern border has seen a constant expansion of intrusive police power, and an extension of border control authority deep into the territory of the United States, putting a majority of the American population in regions where border agents wield extra-Constitutional powers.

    Many people have gradually come to acknowledge the failure of a drug war focused on militarized border interdiction, and the cost in subjecting Americans to a domestic militarized police force trying to suppress supply of drugs for which there is demand. Such policies finally turned much of northern Mexico into a near-war-zone, with wealthy and violent drug cartels enjoying the profits of U.S. prohibition. (This is, of course, not unrelated to many Mexicans’ attempt to flee into the U.S.)

    We should expect no different from a war on immigration. A wall can’t stop the operation of supply and demand, whether for labor or for safe refuge; it can only enrich the illegal smugglers who learn how to defeat it. And hunting migrants peacefully living inside the U.S. requires constant invasion of everyone’s privacy and liberty, not just that of the migrants themselves. Every relationship from the workplace to the classroom to marriage is subject to regulation and prohibition: you may not employ, or teach, or marry whom you wish. But they’re also all subject to policing: who are your students? Have you checked your employees’ papers? Are you really married to your spouse?

    Far too many people seem to believe that the system of walls, cages, and lawless state action can be safely aimed only outward—against strangers, against those with no claim on the United States—and that the shift toward populist authoritarian nationalism at the border can be cordoned off from domestic liberty. Even if it were right (which it’s absolutely not), to disregard the cost to those strangers’ liberty—to lock them in their countries of origin, however tyrannical, violent, or impoverished they may be—that’s not how it works. A society can’t close itself off and remain free.

    This piece was originally published at Niskanen Center.

  4. Trump’s proposed wall and tax are folly

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    As a professional teacher of economics, I wish to go on record about President Trump’s proposal to build a wall to keep people from Latin America out of the United States, and to charge a 20% tax on imports from Mexico to pay for it. The idea is wrongheaded on both counts: they would harm citizens of the US as well as those of Latin America.

    The wall would cause harm because human beings are “the ultimate resource,” as Julian Simon taught us in a book by that name. Human ingenuity and creativity are the most valuable and productive forces known. They are at the root of our technology and productive enterprise. As long as people are free to use their ingenuity and creativity, and held responsible for their actions, they produce more than they consume. They generate net wealth which they exchange with one another.

    This means that in a free country, the more people the better. Our policy should be open borders for all who wish to live here peaceably and work. The proposed wall would reduce standards of living in America (not to mention those of would-be immigrants seeking a better life).

    An aside on jobs: yes, immigrants do take some jobs that people born in America might otherwise hold. But that does not mean fewer jobs for the American born. Why not? Because as long as people have unsatisfied needs and wants – that is, forever – there is work to do. People, the ultimate resource, discover new ways to satisfy unsatisfied wants, and they put themselves and others to work in doing so. Immigration and trade don’t reduce the total number of jobs, they just change the kind of work done.

    As for the wall itself, have we no better use for the tons of concrete and steel, the miles of roadway and electrical wire, and the years of human time and effort it would take to build, maintain, and monitor it? We would be dumping precious resources in the desert in order to deny ourselves the ultimate resource. It’s stupefying.

    As for the proposed 20% tax on Mexican imports to the US, that would reduce trade between the two countries by making Mexican goods more expensive to Americans (is that good for us?) and thereby reducing Mexicans’ earnings of dollars with which to buy American goods. And nothing is more important to human flourishing than trade. People in modern society produce not for their own consumption but for others’. The world economy is a vast system of cooperation in which everyone seeks to create goods and services for others and trades them for what he or she wants. To obstruct that cooperation by a tax on imports is to weaken the bonds of society. Our policy should be unqualified free trade.

    Trump’s proposed wall and tax are folly.

    This piece was originally published at the Foundation for Economic Education.

  5. Trump is wrong: Muslim immigration is reducing radical Islamism

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    During his inaugural address, Donald Trump vowed to “completely eradicate” radical Islamic terrorism. Today, in its first moves intended to do that, the administration acknowledged its plans for a complete ban on immigrants and refugees from several majority Muslim countries, including Syria, Iraq, Iran, Libya, Somalia, Sudan and Yemen. Yet the new policy will work contrary to its goal. U.S. Muslim immigration is reducing radical Islamism and anti-Americanism around the world.

    For President Trump to fulfill his promise, America will need to do more than kill terrorists and arrest their collaborators. It will need to change the minds of many Muslims around the world about America and its institutions. Immigration is the best—perhaps the only—way that it can do this, and right now, U.S. Muslim immigration is reforming the religion, creating a new cohort of liberal Muslims able to combat Islamist arguments.

    For example, Pew Research Center polls reveal that an average of just 4 percent of Muslims in other countries consider homosexuality “morally acceptable,” compared to 45 percent among U.S. Muslims—81 percent of whom are either first or second generation immigrants. Only 20 percent of foreign Muslims believe that other religions can lead to eternal life, compared to 56 percent in the United States. Fully 55 percent of U.S. Muslims believe that the Quran should not be even a source among many for legislation, compared to just 15 percent elsewhere.

    This process of assimilation is actually accelerating as Muslim immigration to the United States has peaked. More immigration is not impeding integration. From 2007 to 2014, the share of U.S. Muslims who agree not just that homosexuality should be legal, but that it is “morally acceptable” rose from 27 percent to 45 percent. Pew also documents an 8 percent decline—from 50 percent to 42 percent—in the share of U.S. Muslims who believe that the Quran should be interpreted “literally.”

    These facts show that Americans as individuals are good at changing people’s minds. One Syrian refugee and her husband were resettled in Las Vegas—not really known as a haven for religious Muslims. “We had to Google it,” she told the Las Vegas Sun. “We read about its image as a sin city.” But even in the midst of the most extremely socially liberal environment in America, they were quickly won over. “When we came here, we liked it,” she said.

    America’s socially tolerant Muslims also reflect the fact that many Muslims who want to come to the United States are prone to accept our way of life from the start. “I immigrated to the U.S. and left my family and home because of my freedom,” one Syrian who escaped to Nashville said. “I also wanted to ensure such freedom is protected, not only for my children, but also for everyone else. I strongly believe in the U.S. Constitution and will fight to protect it, period! Everyone in my community felt the same way.”

    These warm feelings about the United States and religious freedom are being transmitted to families and friends around the world. “I want to keep painting the image to all of my family and friends about the goodness of the American people,” Marwan Batman told the Indy Star. “I wish other refugees would be able to come and experience the same things we have experienced … to find the same happiness we have found here.”

    This pattern is replicated repeatedly across the United States, where almost 20,000 Syrian refugees have come. “I didn’t know anything about Memphis,” one Syrian refugee told his local paper early last year. “The people have been excellent.” He wants everyone to know. “When I talk to my family they ask, ‘How is the treatment of Americans,’ and I say ‘it’s wonderful,’” he explained.

    America has changed a major world religion before. During the 19th and early 20th centuries, as Catholic immigrants poured in, its popes repeatedly condemned religious freedom as an anti-Catholic idea. Americans raised the alarm about this “invasion” of illiberal immigrants who operated their own schools and lived in separate neighborhoods.

    Yet it was this wave of immigration that changed the Church. Just after America elected its first Catholic president who vowed to fiercely defend the separation of Church and State, the Church evolved its view, pointing to liberal democracies as proof that freedom of conscience worked. American theologian John Courtney Murray even drafted its statement on religious liberty and convinced the Second Vatican Council to accept it in 1965.

    Something similar is already underway in a much smaller way among the 3 million U.S. Muslims. But for this movement to change Islam worldwide, there will need to be many more U.S. Muslims. Right now, they make up just 1 percent of the U.S. population, while Catholics represented a quarter in 1965.

    Rejecting Muslims from this part of the world will not make us safer. To “eradicate” radical Islamic terrorism completely, Trump will need more than just bombs and “extreme vetting.” He will need to convince many millions of people that freedom of religion and tolerance is better than jihad. He will need many more allies than he has now. Preventing potential allies from coming to the United States is no way to win this fight.

    This piece was originally published at Cato at Liberty.

  6. Obama’s cruel policy reversal on Cuban refugees

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    For some fifty years, the US has had a policy of welcoming refugees fleeing the brutal communist dictatorship in Cuba. In the 1990s, the policy was changed to “wetfoot, dryfoot,”under which Cubans who succeeded in reaching the United States would be allowed to stay, but those unfortunate enough to be caught at sea were barred. On Thursday, President Obama ended the wetfoot, dryfoot policy and made Cuban refugees “subject to removal,” like undocumented migrants from other countries. They might still gain official refugee or asylum status and be allowed to stay by proving that they have been personally targeted by the government on the basis of their political speech, religion or some other characteristics. But that is extremely difficult in most cases. For most Cubans, like other victims of communist governments, the main injustice they suffer is the everyday oppression meted out to all the regime’s subjects.

    There is absolutely no justification for Obama’s new policy. It is gratuitously cruel towards Cuban refugees, without creating any meaningful benefits. Despite some modest economic reforms, Cuba remains a repressive communist dictatorship whose people suffer massive oppression and poverty brought on by over fifty years of totalitarianism. Indeed, repression of dissent has actually increased since President Obama began to normalize relations with Cuba in December 2014.

    If anything, the United States would have done better to end the “wetfoot” portion of the policy and stop turning back Cuban refugees who have the misfortune to be caught at sea. Where a refugee happens to be found by US authorities is a morally arbitrary characteristic that in no way changes their status as victims of brutal tyranny.

    The main victims of Obama’s new policy will be Cubans denied the chance to seek freedom and opportunity. But native-born Americans will lose out as well. The hundreds of thousands of Cuban refugees who came to the US fleeing communism have made major contributions to our economy and society. As President Obama himself said just a few months ago: “In the United States, we have a clear monument to what the Cuban people can build: it’s called Miami.”

    President Obama and the US government are not responsible for the oppression that Cuban refugees are fleeing. But they are responsible for using force to compel refugees to return to a nation where further oppression is likely to be their lot. Such action makes the US government partially complicit in the injustice perpetrated by the Cuban regime.

    The main rationale for the policy change is that it is unfair to treat Cuban refugees differently from those fleeing other oppressive governments. As President Obama put it, we should treat them “the same way we treat migrants from other countries.” Ideally, we should welcome all who flee oppression, regardless of whether their oppressors are regimes of the left or the right, or radical Islamists.

    But the right way to remedy this inequality is not to treat Cuban refugees worse, but to treat other refugees better. And if the latter is not politically feasible, we should at least refrain from exacerbating the evil by facilitating the oppression of Cubans. It is better to protect Cuban refugees from the risk of deportation than none at all.

    If a police force disproportionately abuses blacks, it would be unjust to “fix” the inequality by inflicting similar abuse on whites or Asians. Inflicting abuse on other groups is both unjust in itself and unlikely to help blacks. Similarly, the injustice inflicted on refugees from other oppressive regimes cannot and should not by imposing similar injustices on Cubans.

    In his recent Farewell Address, President Obama rightly celebrated our history of welcoming “immigrants and refugees across oceans and the Rio Grande” and emphasized that “America wasn’t weakened by the presence of these newcomers; these newcomers embraced this nation’s creed, and this nation was strengthened.” Sadly, just two days later he himself violated the very principles he himself espoused.

    The president deserves credit for his previous efforts to protect undocumented migrants. But his legacy is tarnished by the gratuitous cruelty of what may well be his last major policy initiative.

    This piece was originally published at the Volokh Conspiracy at the Washington Post website.

  7. Trump’s order on sanctuary cities is dangerous and unconstitutional

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    Yesterday, President Donald Trump signed an executive order denying federal funding to sanctuary cities – jurisdictions that choose not to cooperate with federal efforts to deport undocumented immigrants. The order has serious constitutional problems. Unless interpreted very narrowly, it is both unconstitutional and a very dangerous precedent. Trump and future presidents could use it to seriously undermine constitutional federalism by forcing dissenting cities and states to obey presidential dictates, even without authorization from Congress. The circumvention of Congress makes the order a threat to separation of powers, as well.

    The order indicates that sanctuary cities “that fail to comply with applicable Federal law do not receive Federal funds, except as mandated by law.” More specifically, it mandates that “the Attorney General and the [Homeland Security] Secretary, 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 mandates 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.

    There are two serious constitutional problems with conditioning federal grants to sanctuary cities on compliance with Section 1373.

    First, longstanding Supreme Court precedent mandates that the federal government may not impose conditions on grants to states and localities unless the conditions are “unambiguously” stated in the text of the law “so that the States can knowingly decide whether or not to accept those funds.”

    Few if any federal grants to sanctuary cities are explicitly conditioned on compliance with Section 1373. Any such condition must be passed by Congress, and may only apply to new grants, not ones that have already been appropriated. The executive cannot simply make up new conditions on its own and impose them on state and local governments. Doing so undermines both separation of powers and federalism.

    Even aside from Trump’s dubious effort to tie it to federal grants, Section 1373 is itself unconstitutional. The Supreme Court has repeatedly ruled that the federal government may not “commandeer” state and local officials by compelling them to enforce federal law. Such policies violate the Tenth Amendment.

    Section 1373 attempts to circumvent this prohibition by forbidding higher-level state and local officials from mandating that lower-level ones refuse to help in enforcing federal policy. But the same principles that forbid direct commandeering also count against Section 1373. As the late conservative Justice Antonin Scalia explained in Printz v. United States, the purpose of the anti-commandeering doctrine is the “[p]reservation of the States as independent and autonomous political entities.”

    That independence and autonomy is massively undermined if the federal government can take away the states’ power to decide what state and local officials may do while on the job. As Scalia put it in the same opinion, federal law violates the Tenth Amendment if it “requires [state employees] to provide information that belongs to the State and is available to them only in their official capacity.” The same is true if, as in the case of Section 1373, the federal government tries to prevent states from controlling their employees’ use of information that “is available to them only in their official capacity.”

    Some defenders of Trump’s policy claim that the anti-commandeering rule does not apply to federal laws that mandate disclosure of information. I addressed that argument here. Quite simply, there is no information-disclosure exception to the Tenth Amendment, and it would be very dangerous for the courts to create one.

    The Trump administration might try to push a more expansive interpretation of Section 1373 that goes beyond information-sharing and extends to actual detention of undocumented immigrants targeted for deportation. That would only make the law more clearly unconstitutional than if it were limited to information. Pushing state officials to detain people is an even greater interference with state “independence and autonomy” than pressuring them to disclose information.

    Unlike the question raised by Trump’s attempt to impose grant conditions not authorized by Congress, the anti-commandeering issue raised by Section 1373 has not yet been directly addressed by the Supreme Court (though the law was upheld in a badly flawed lower court decision back in 1999). We cannot be certain what will happen when and if the justices take up this issue. But the principles underlying the Court’s anti-commandeering cases should lead it to strike down this law.

    The constitutional issues raised by Trump’s executive order are not mere technicalities. If the president can make up new conditions on federal grants to the states and impose them without specific, advance congressional authorization, he would have a powerful tool for bullying states and localities into submission on a wide range of issues. Such an executive power-grab also undermines separation of powers. Congress, not the president, has the constitutional authority to attach conditions to federal grants to state governments.

    Even if the power-grab is limited to withholding funds when states or localities violate other federal laws and regulations, it is still a grave menace. There are literally thousands of federal laws and regulations on the books. No jurisdiction can fully comply with all of them. If the president can withhold funds from any state or locality that violates any federal law, without needing specific authorization from Congress, he would have sweeping authority over state officials.

    Trump’s order is exactly the kind of high-handed federal coercion of states and undermining of separation of powers that outraged conservatives under Obama. In fact, Obama did not go as far as Trump seems to do here. Obama never claimed sweeping authority to impose new conditions on federal grants beyond those specifically imposed by Congress. Even those who sympathize Trump’s objectives in this case should pause to consider whether they want presidents to have this kind of power going forward. Trump’s use of it today could easily serve as a model for a liberal Democratic president tomorrow.

    I have my reservations about some aspects of the Supreme Court’s conditional spending precedents. The doctrine is far from ideal. But it is far preferable to letting the president make up conditions and impose them without congressional authorization.

    The administration could potentially avoid these constitutional problems if they interpret the order very narrowly. The text states that federal funds will only be withheld from sanctuary cities “to the extent consistent with law.”

    Taken literally, that might bar any withholding of funds not explicitly conditioned on compliance with Section 1373. After all, the Constitution is the law, and the Constitution does not allow the president to impose grant conditions not specifically authorized by Congress.

    But such a narrow interpretation would make the order largely superfluous. After all, the federal government is already required to withhold funds from jurisdictions that disobey conditions specifically imposed by Congress. Still, it is better that the order be redundant than that it mount an assault on federalism and separation of powers.

    If Trump does not withdraw this order or adopt a narrow interpretation of it, sanctuary cities should fight him in court. And all who care about constitutional federalism and separation of powers should support them.

    This post first appeared at the Volokh Conspiracy.

  8. President Trump’s 6 biggest threats to liberty

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    Donald Trump has been sworn in as the 45th President of the United States, and libertarians already have many reasons to be worried about his agenda. While it is difficult to pick from his various policy proposals that threaten liberty, here are the six biggest concerns for libertarians living under a Trump administration.

    1) The rule of law.

    The rule of law requires the president to follow the Constitution and the laws passed by Congress and to apply the law in a uniform manner, not to specifically punish or benefit certain people or businesses. President Donald Trump seems determined to erode both of these principles.

    He has stated his intention to force Ford Motor Co. to give up its expansion plan in Mexico. He wants to use the FCC to fine his critic, Rich Lowry, and to “open up libel laws” to punish critical news media. He successfully cowed Washington Post owner Jeff Bezos after threatening antitrust action against Amazon.com. By helping the manufacturer Carrier secure special subsidies in Indiana, he has shown a willingness to bestow favors on those he likes. Nominating major donors to positions of power in his administration and using his office to enrich his and his children’s businesses are also causes for concern.

    Trump already has his lawyers cooking up inane legal justifications for unilateral executive action on policies that Congress might not authorize. To justify seizing all remittances from undocumented immigrants, for example, his lawyers try to claim that “wire transfers” from Western Union are actually bank “accounts” under the Patriot Act.

    This type of phony legal gymnastics can only be stopped by Congress defunding the illegal action or by engaged federal courts. Congress seems unwilling to buck Trump so far, and even if they do — or if the Supreme Court rules against him — will President Trump listen? His past statements that he would force soldiers to carry out illegal orders does not instill much confidence in his respect for checks and balances, separation of powers, or the rule of law.

    2) Bigger government, more debt.

    Donald Trump wants to spend hundreds of billions more on the military, blow $1 trillion on infrastructure stimulus, and spend billions of dollars on a pointless and symbolic border “wall,” all while providing health insurance for “everyone” and not cutting Medicare or Social Security.

    The Republican-controlled Congress, which just passed a budget that will never balance, seems more than willing to oblige these bloated requests. The House Liberty Caucus called it “the worst budget ever seriously considered by Congress,” growing the debt by $9 trillion over ten years, “dwarfing debt increases proposed by even the most far-left budgets.”

    But not to worry — Trump has said that “you never have to default because you print the money.”

    3) Trade wars.

    Donald Trump has declared an all-out war on American consumers and businesses who want to buy products and materials from other countries. Sadly, it is also the one issue on which he was able to convince a large number of formerly free trade-supporting GOP voters.

    He has repeatedly vowed to end America’s free trade agreement with Mexico and Canada, and to impose massive new tariffs on foreign and U.S. companies selling products assembled overseas to U.S. consumers. He has even said that he “doesn’t mind trade wars,” meaning that he would apparently not back down even if other countries retaliated against American businesses by blocking stuff made in America from being sold abroad. He has nominated Wilbur Ross to be Commerce Secretary, despite (or because) of the fact that he is an Adam Smith-denier with very detailed views on how to ruin international trade.

    His other appointments point the same direction, and the GOP Congress is also preparing a huge new tax on imports.

    4) Attacks on legal immigration.

    Donald Trump’s attacks on unauthorized immigrants are well known — including his most recent pledge to deport more people than the Obama administration, in half the time — but the Trump administration is also likely to attack the legal immigration system.

    Trump’s own comments on legal immigration aren’t as consistently bad as they are often portrayed, but he has repeatedly vowed to ban immigration and refugees from the Middle East, with each iteration of his “Muslim ban” proposal becoming more expansive and less legal. Trump’s team has offered a very detailed plan about how to reduce legal immigration into the United States, and his close ties to other anti-legal immigration advisors seem to show that his anti-immigration tendencies are winning out.

    Trump’s pick for attorney general, Sen. Jeff Sessions, is also the most vociferously anti-immigrant member of Congress. Sessions believes that too many immigrants receive asylum in the United States, and, as the head of the immigration courts, he could require judges to interpret the asylum law more restrictively.

    As attorney general, Sessions will also be tasked with defending existing U.S. immigration laws and regulations in the courts; he could simply choose not to defend any immigrant-friendly regulations he disagrees with, torpedoing other agencies’ rules by proxy. Sessions also wants to investigate law-abiding businesses that hire legal foreign workers for supposed “discrimination” against U.S. citizens.

    5) Civil liberties.

    Trump said last year he would be “fine” with repealing the USA Freedom Act, which limited bulk data collection on U.S. citizens, and he has advocated “surveillance of certain mosques” and shutting down others entirely — an idea that he followed by proposing to “close up certain areas” of the Internet. “Somebody will say, ‘Oh freedom of speech, freedom of speech,’” Trump scoffed, “These are foolish people.”

    Both Sen. Jeff Sessions and Trump’s nominee for Director of the CIA, Rep. Mike Pompeo, are extremely hostile to the Fourth Amendment, and Pompeo has stated that “Congress should pass a law re-establishing collection of all metadata, and combining it with publicly available financial and lifestyle information into a comprehensive, searchable database.”

    Both Pompeo and Trump consider Edward Snowden a traitor and have advocated executing him for leaking information about the NSA’s mass surveillance programs.

    Sen. Sessions is also a zealous drug warrior who will not commit to maintaining the Obama administration’s approach for drug enforcement in states with legal marijuana. He has also said that he wants police to seize property from suspects who have never been convicted of a crime. He has promised to end the Justice Department’s practice of suing police departments with a pattern of violating civil rights.

    Trump appears to back this approach, repeatedly stating that he would give police “more authority” and advocating “stop and frisk” programs: detaining, searching, and interrogating people without probable cause. He said he would use “stop and frisk” as a tool to seize guns, and, lest you think the Second Amendment was safe, he also wants to use the secret no-fly list to deny Americans the right to buy firearms.

    6) War.

    Trump also thinks that the Obama administration is fighting a “politically correct war” that is too concerned about civilian casualties overseas. By contrast, Trump advocates “taking out the families” of terrorists, a position he has reiterated on several occasions.

    Even setting aside that explicit call for war crimes, criticizing President Obama for being too worried about killing civilians is particularly scary: Obama adopted such broad standards for his secret drone war that the CIA counts any “military-age” male death as a “combatant,” unless they are posthumously proven innocent. Obama also ordered an air strike that killed the 16-year-old child of at least one U.S. citizen. Apparently, this is all too “PC” — imagine the amount of care President Trump will take to protect innocent lives when he is “bombing the s**t” out of Syria.

    This list is by no means complete and doesn’t imply that these are the only issues to worry about, but it does suggest that a Trump presidency may pose new and unique threats to liberty in the United States. For defenders of liberty, these are six fronts worth special attention as we go into the next administration.

  9. Turning away Cuban refugees is a victory for Cuba’s dictatorship

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    President Obama is abandoning America’s five decade-old policy that guarantees Cubans asylum in the United States. The change comes at a time when more Cubans are arriving at U.S. borders than at any time since 1980, and it is a major win for the Cuban regime and opponents of immigration, who both want to stop Cuban immigration to the United States.

    But the sudden reversal is bad policy that will harm efforts to secure the border and aid the regime most hostile to human rights in the Western Hemisphere.

    Cuban Immigration Is a Win for America

    In 1966, Congress passed the Cuban Adjustment Act (CAA), granting lawful permanent residency to any Cuban national who has resided in the United States for at least two years (later lowered to one year). Each of the last eight administrations has interpreted the law to allow almost all Cubans who arrive at U.S. borders to apply for “parole” — a discretionary legal status that permits them to enter and wait a year to receive a green card to stay permanently.

    This system has served the United States extraordinarily well. Because Cubans who enter illegally cannot apply for a green card, border security is enhanced, since they never try to sneak past Border Patrol. Instead, they just line up and turn themselves in at a port of entry. They show their Cuban passports, receive background checks, and then are admitted. The United States has very few unauthorized immigrants from Cuba precisely because all Cuban immigrants who make it into the country are paroled and adjusted to legal permanent residency.

    America — and specifically Miami — has benefited enormously, both economically and culturally, from the presence of Cuban immigrants. After the 1980 Mariel boatlift brought about 125,000 Cuban refugees to Florida, Miami’s population has grown much faster than other cities. Despite often arriving destitute, Cuban-Americans have achieved the same median income as all Hispanics and actually have the highest rate of home ownership. The Kauffman Foundation ranked Miami in the top two cities in the country for entrepreneurship in 2016, driven in part by its large immigrant population. Miami also has the best ranking in the state for upward mobility.

    Most importantly, U.S. immigration policy has allowed 10 percent of all Cubans to escape the most tyrannical regime in the Western Hemisphere. This policy has been a constant threat to and check against a regime that survives by preying on its own people, and, for this reason, the island’s dictatorship has repeatedly condemned it.

    The Excellent Reason Cubans Are Treated Differently

    President Obama says that the United States will now treat “Cuban migrants the same way we treat migrants from other countries.” But Cuba is not like all other countries. It is the only dictatorship on America’s side of the world. As I wrote in the Miami Herald last year:

    The basic principle that people should not be treated differently based on national origin is valid, but Cubans receive special treatment not due to where they are from, but due to how they are treated where they are from. Cubans aren’t treated uniquely because they are Cubans, but because, according to Freedom House, Cuba is the only “unfree” country in the Western Hemisphere.

    The communist system has no electoral process, political dissent is a criminal offense, corruption is rampant, independent media is banned, and all forms of everyday activities are regulated, including internal movement. Cuba is the 12th most unfree country in the world. It is less free than Iran and South Sudan. Even communist China received a higher score.

    No other country in the Americas comes close. In 2015, the pretend socialists in Venezuela were still 50th and ranked “partly free.” Haiti and Honduras came in at 57th and 62nd respectively. This is why Cubans are singled out.

    Congress stated in 1996 that the law would end when “a democratically elected government in Cuba is in power.” As long as Cuba remains unfree, America will continue to welcome Cubans. Rather than repeal this principle, Congress should expand it to any country in our part of the world that is unfree.

    What Happens Next

    The fact remains, however, that President Obama cannot repeal the Cuban Adjustment Act itself, which guarantees permanent residency after one year to any Cuban who has legally entered the United States. This change could result in Cubans filing asylum claims under the normal asylum system, as Central Americans do, and waiting in line for a year before applying for a green card under the CAA, as they always have. Ultimately, this could dilute the impact of the policy shift.

    Nonetheless, the current asylum system, which is already massively backlogged, will only grow more so as a result. At a time when a record number of asylum seekers from Central America are coming to the border, the United States is going to throw the Cuban refugees in with the rest, making a broken system that much more dysfunctional. It will also increase illegal immigration, as Cubans will know that they can no longer be guaranteed entry to the U.S., and those who expect their asylum claims to be denied will seek illicit means of entry.

    Some people claim that the only reason so many Cubans are coming right now is that they feared the administration would do exactly what it has just done. But the reality is that the rise in Cuban arrivals in recent years started before President Obama announced any changes in Cuban policy. Its true causes are 1) the Cuban regime’s relentless assault on human rights, and 2) its decision to end restrictions on travelling abroad, which has led many oppressed Cubans to seize the chance to leave.

    Despite President Obama’s hopeful message after the death of Fidel Castro, the Cuban government continues its oppressive policies. Nearly 10,000 people were arbitrarily arrested in 2016 alone, and there was a particularly large surge of arrests after Castro’s death, demonstrating that his dying changed little.

    Donald Trump — whose statement condemning the Cuban dictator after his death had more moral clarity than any single statement that the president-elect has ever made — should immediately reverse this policy upon assuming office. The United States should honor its commitment to remain open to the Cuban people for as long as the electoral process in Cuba remains closed to them.

    A version of this article first appeared at Cato.org.

  10. Trump’s ban on immigration from certain countries is illegal

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    Angelo A. Paparelli contributed to this post. 

    This week last year, Donald Trump proposed prohibiting all Muslim immigration to the United States. He altered the proposal this year to specify “suspending immigration from nations tied to Islamic terror.” He told CNN that this was actually intended as an expansion of the Muslim ban. Last week, he said, “People are pouring in from regions of the Middle East,” but that he would “stop that dead, cold flat.” He has also made clear that this would be one of the actions that he takes as president during his first day in office. This promise implies that he has the power to do so under current law, but that is not the case. It is illegal to discriminate against immigrants based on their national origin.

    Even while delegating to the president broad powers to exclude immigrants, Congress also expressly forbade banning immigrants based on their race or national origin. President Trump will almost certainly run into legal difficulties if he attempts to carry out his promise.

    Text of the law bans discrimination based on national origin

    At first blush, it would seem that the president can ban people based on their nationality or country of residence. The Supreme Court has granted Congress extensive leeway under the plenary power doctrine to limit immigration based on criteria—such as race or national origin—that would be considered unconstitutional in other contexts, and proponents of Trump’s plan claim that Congress authorized such bans by pointing to a provision of section 212(f) of the Immigration and Nationality Act (INA), the law that controls most U.S. immigration policies:

    Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

    This seems to hand unequivocal authority to the executive branch to determine who it may admit to the United States. However, another section of the law clearly bans discrimination against certain classes. Section 202(a)(1)(A) of the INA states that except in cases specified by Congress in section 101(a)(27):

    …no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.

    While section 212 grants the president a general power to exclude certain immigrants, section 202 limits this power. Note that this section does not prevent discrimination based on religious affiliation, political belief, or ideology, but Trump’s new policy would run afoul of at least one if not all three of those last three restrictions—nationality, place of birth, or place of residence—depending on how it was applied. “Place” of birth is actually a broader restriction than nationality, meaning that even if Trump’s ban applied to subnational or regional levels, it would still be illegal.

    Section 202 does not protect all types of people who wish to come here from discrimination based on national origin. It is limited only to immigrants or so-called green card holders. Legally, immigrants are foreigners who enter on visas granting legal permanent residency in the United States as well as noncitizens whom the U.S. Citizenship and Immigration Services has adjusted their status to that of a permanent resident. The most common types of immigrants are immediate relatives of U.S. citizens—parents, spouses, and their minor children—who have no numerical limit. Other types include employees sponsored by U.S. businesses, adult children of U.S. citizens, their siblings, and immediate relatives of legal permanent residents. Refugees and asylees who have already entered the United States and held status for a year are eligible for immigrant visas, making discrimination against them at that stage also illegal.

    Refugees outside of the United States, however, could still be excluded based on nationality before they enter as they do not enter on an immigrant visa. Obviously all nonimmigrants—guest workers, tourists, and other temporary visitors—could conceivably be subject to this discriminatory policy. It could also apply to those who are claiming asylum in the United States, but at the same time, the law prohibits deporting people who face a likelihood of persecution in their home country, which could leave such people in limbo.

    Finally, because section 202 applies only to the issuance of the visa, it would not necessarily bar other types of discrimination, such as reporting or registration requirements. This type of discrimination was also upheld in a federal circuit court case involving Iranian nonimmigrant students in the United States who were required in 1979 to report to an immigration service office for interview and registration.

    Section 202 also does not prohibit discrimination based on religious affiliation, but recently Trump has been adamant that his proposed ban would apply to countries rather than religions. “I’m looking now at territory. People were so upset when I used the word Muslim,” he told NBC. “I’m okay with that because I’m talking about territory instead of Muslim.” If he maintains this position, he will clearly be in violation of the law.

    Trump’s plan is a more extreme overreach than anything President Obama tried

    Proponents of the Trump plan could argue that section 202 does not directly state that its restriction applies to section 212. But reading section 202 as having no impact on section 212 would mean that section 202 was intended as no restriction at all—something that the president could waive at any time for any reason. By contrast, section 212 would not be rendered pointless if section 202 limits its authority. The president could still bar certain classes of aliens from the United States. He just could not do so based on race, gender, nationality, or place of birth or residence. This interpretation makes sense of both laws in a way in which both serve a purpose.

    Any other reading would grant the president power to use his general section 212 authority even in situations in which Congress has said he cannot use it. In other words, it would write section 202 out of the law. To be sure, there is an interesting parallel here between the Trump plan and President Obama’s attempted executive action on immigration, which was criticized—including by the Cato Institute and by candidate Trump—as executive overreach.

    President Obama proposed using his general authority in section 274A(h)(3)(B), which recognizes his authority to issue employment authorization to whomever he wants, to grant work permits to unauthorized aliens with U.S. citizen children.  Since it was first enacted in 1986, Congress had enacted provisions limiting the use of or requiring the use of executive power to authorize employment of certain individuals, but none of these provisions applied specifically to the class of noncitizens to whom he wanted to grant employment authorization. President Obama argued that he could use his general authority to issue work permits to anyone so long as the law did not specifically prohibit him from doing so.

    Donald Trump’s plan by contrast is a much more extreme overreach. He would be forced to argue that not only could he use his general authority to ban immigrants in any way that he chooses, he could do so even in situations in which the law specifically prohibits him from doing so. This power grab is so much more far-reaching than President Obama’s that virtually any court will likely view it with great skepticism.

    It is out of the question to claim that section 202 prohibits discrimination only in the issuance of the physical visa document that allows foreigners to request admission as an immigrant. Sections 201, 202, and 203 of the INA, which are entirely devoted to limiting the number of visas for immigrants, are discussing actual persons who can come and live permanently as a result of receiving a visa, not just about limiting the issuance of the physical documents allowing people to travel to a port of entry and request entry. If it were only referencing visa documents, the president could grant immigrant status to an uncapped number of people without issuing visas to them—which is clearly unjustified.

    Legislative history supports a ban on discriminating by national origin

    The historical background for the enactment of section 202 supports the interpretation that it was intended to bar all national origin discrimination against immigrants. During the late 19th and early 20th centuries, Congress passed several laws barring the immigration of immigrants based on where they were born or resided. In 1882, it banned “the coming of Chinese laborers to this country.” In 1917, it “excluded from admission” all “persons who are natives… of any country… on the Continent of Asia” from India and eastward—the so-called Asiatic Bar Zone—and in 1924, it implemented the national origins quota system, which skewed the quotas to the benefit of immigrants from Western Europe.

    In 1952, Congress debated repealing this prejudicial system, but ultimately refused to do so. Instead, it passed a bill that contained only minor revisions. It was in this law that Congress introduced the section 212 authority to ban immigrants based on nationality. President Truman vetoed the bill, inveighing against it as a violation of the “great political doctrine of the Declaration Independence.” He specifically objected to “powers so sweeping” that they could be used to exclude or deport aliens based on such vague and potentially discriminatory grounds such as “public interest” (powers first included in a bill in 1950 that he had also vetoed). Congress overrode the veto and the legislation became the Immigration and Nationality Act of 1952.

    All of this history is important because section 202 was enacted as part of the Immigration Act of 1965, which was intended as a repudiation of the discriminatory system of 1952. The very first paragraph in section 202 (quoted above) banned any attempt to resurrect the old prejudicial system. The rest of section 202 details the new per-country limits, which provide that each country receives an equal share of the annual limits. Senator Ted Kennedy, the congressional architect of the 1965 law, said that it was intended to “eliminate the national-origins system, which was conceived in a period of bigotry and reaffirmed in the McCarthy era.” In other words, the law was intended to repudiate the 1952 act and all that came before it. The Judiciary Committee Report on the bill stated in its first line: “The principal purpose of the bill, as amended, is to repeal the national origin quota provisions of the Immigration and Nationality Act.”

    President Lyndon Johnson summed up the law best in his signing statement:

    This bill says simply that from this day forth those wishing to immigrate to America shall be admitted on the basis of their skills and their close relationship to those already here. … The fairness of this standard is so self-evident that we may well wonder that it has not always been applied. Yet the fact is that for over four decades the immigration policy of the United States has been twisted and has been distorted by the harsh injustice of the national origins quota system.

    Under that system the ability of new immigrants to come to America depended upon the country of their birth. Only 3 countries were allowed to supply 70 percent of all the immigrants. Families were kept apart because a husband or a wife or a child had been born in the wrong place. Men of needed skill and talent were denied entrance because they came from southern or eastern Europe or from one of the developing continents. This system violated the basic principle of American democracy—the principle that values and rewards each man on the basis of his merit as a man. Today, with my signature, this system is abolished.

    In other words, the explicit intent of the 1965 law was to “abolish” the very kind of discrimination that Donald Trump is proposing to create by executive fiat. On section 202 in particular, Senator James Easterland, an opponent of the bill, commented:

    the President said: ‘The principal reform called for is the elimination of the national origins quota system.’ … In an attempt to carry out the request of the President, we find that section 2 of the bill has amended section 202 of the Immigration and Nationality Act to provide as follows: (a) No person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of his race, sex, nationality, place of birth, or place of residence…

    The goals could not have been clearer to anyone—opponent or proponent—and there is simply no way to slip national origin discrimination back into the 1965 act with section 212 of the 1952 act. Senator Bobby Kennedy stated forcefully on the floor of the Senate that he believed that the law would “eliminate from the statute books a form of discrimination totally alien to the spirit of the Constitution.” In the congressional debate over the bill, senators constantly argued that the bill would end, as Senator Jacob Javitas put it, “the basic discrimination” of the 1952 act. To claim that in 1965 Congress did not in fact eliminate the discrimination of the 1952 act but instead continued to allow it under section 212 of that very act flies in the face of not only the explicit text of the law, but pages upon pages of the congressional record.

    Court precedent backs a ban on national origin discrimination

    The D.C. circuit court of appeals has also found that the president cannot discriminate against immigrants based on nationality. The case involved whether certain asylum seekers could apply for immigrant visas at U.S. consulates outside of their country of origin. The Department of State created new rules making it more difficult to do so only for Vietnamese asylum seekers in Hong Kong, and the asylum seekers sued. The government did not even attempt to argue that section 212 would allow discrimination, but rather that they had changed the rules for reasons unrelated to nationality.

    In Legal Assistance for Vietnamese Asylum Seekers v. Department of State, the D.C. circuit granted standing to a U.S. citizen who was attempting to sponsor his Vietnamese spouse in Hong Kong. The court found that discrimination had taken place under section 202. It stated that the policy drew “an explicit distinction between Vietnamese nationals and nationals of other countries.” It wrote:

    Where Congress has unambiguously expressed its intent, we need go no further. Here, Congress has unambiguously directed that no nationality-based discrimination shall occur. There is no room for the Service’s interpretation proffered by the Department.

    The court stated that the government’s “proffered statutory interpretation, leaving it fully possessed of all its constitutional power to make nationality-based distinctions, would render section 202(a) a virtual nullity.” The court also disregarded the administration’s argument that “it retains discretion under § 1152(a)(1) to discriminate on the basis of nationality so long as its policies are rationally related to U.S. foreign policy interests.” It stated:

    Congress could hardly have chosen more explicit language. While we need not decide in the case before us whether the State Department could never justify an exception under the provision, such a justification, if possible at all, must be most compelling—perhaps a national emergency. We cannot rewrite a statutory provision which by its own terms provides no exceptions or qualifications simply on a preferred “rational basis.”…

    The court also rejected the idea that the policy was not based on nationality because the administration was doing the same thing to Laotians detained in Thailand. The court also cited this passage from Haitian Refugee Center v. Civiletti, a district court case from Florida in 1980,that concluded:

    In 1965, Congress abandoned the national quota system of immigration and added a provision prohibiting discrimination in the granting of visas on the basis of “race, sex, nationality, place of birth, or place of residence.” This provision manifested Congressional recognition that the maturing attitudes of our nation made discrimination on these bases improper.

    Congress responded to the decision in the Vietnamese case by amending section 202 to state that the limit on discrimination should not apply to “procedures for the processing of immigrant visa applications or the locations where such applications will be processed.” When the Supreme Court remanded the case in light of this change, the appeals court reversed its earlier decision in 1997. Nonetheless, the amendment clearly shows that Congress did want this anti-discrimination provision to have some effect or it would have just deleted it entirely.

    Past presidential actions do not support the legality of Trump’s policy

    Proponents of the Trump plan can also point to specific cases in which presidents have used the authority in section 212 to ban certain classes of foreigners. But in almost all of the cases, these actions barred individuals based on their actions rather than their nationality. President George W. Bush, for example, barred the entry of participants in the Mugabe government in Zimbabwe, but not all Zimbabweans. President Obama has exercised the authority under section 212 several times, but has never imposed a ban against an entire nationality.  As a typical example, he prohibited the entry of anyone under a United Nations travel ban in 2011.

    No president has ever banned all immigrants from a certain country without any exceptions, as Trump is proposing, and in only a couple of instances out of dozens have presidents exercised the authority in section 212 against a particular nationality at all.

    In 1980, President Carter suspended issuances of visas to all Iranian citizens. From the text of his proclamation, it is unclear whether this applied to only nonimmigrant (temporary) visas—which would have been legal—or also to immigrant visas, but news reports imply that it applied only to temporary visitors. A Washington Post report from 1980 discussed the ban applying only to “students, tourists and businessmen”—the main categories of nonimmigrants—and multiple articles from the New York Times framed the issue as only impacting “foreign visitors.” Moreover, government statistics show that thousands of Iranians continued to receive immigrant visas in 1980.

    Either way, President Carter only took this action because Iranian rebels seized control of the U.S. embassy and began using the U.S. visa machine to print fraudulent visas, making it impossible to determine who had a bona fide visa. It is also unclear if the ban applied to Iranian nationals whose visas were not issued in Iran. For these reasons, the Carter case is a poor parallel for Trump’s blanket ban.

    In 1986, President Reagan suspended entry of all Cubans—immigrants and nonimmigrants—but this bar had a major exception for those who were immediate relatives of U.S. citizens, which is the main category of legal immigration. Cubans are also unlike other immigrants because Cuban immigration is partially governed under the Cuban Adjustment Act of 1966, which does in fact preference the issuance of visas to Cubans by granting visas to almost all Cubans who have been in the United States for a year. In any case, neither president’s actions were challenged in the courts, so their legality remains untested.

    The breadth of the Trump plan is unprecedented

    These past actions are particularly unconvincing when considering the breadth of the Trump plan. According to Trump, the immigration ban would apply to an entire region of the world. He has even refused to rule out banning immigration from France because “they have totally been” compromised by terrorism. CNN has estimated that a ban broad enough to include France would comprise at least 40 countries, but even the least broad restriction against immigration from countries with “terrorist safe havens” would eliminate all immigration from a dozen nations.

    President Obama’s attempted executive actions on immigration were partially struck down in part due to their breadth. The courts conceded the president’s power to authorize immigrants to work and to suspend deportations, but not when it amounted to a wholesale abandonment of the law. This point is even much clearer in this case.

    For almost a decade, Congress debated creating an immigration system free from discrimination by nationality, country of birth, or country of residence. President-elect Trump, however, now proposes to discriminate unlawfully against certain foreign nationals on the basis of the same protected grounds without any legislation from Congress.

    This piece was originally published at Cato at Liberty.

  11. Do American Muslims Believe In Religious Freedom?

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    Contrary to some political rhetoric you may have heard, American Muslims believe in religious freedom. In fact, American Muslims are even more strongly opposed to religion impacting govt than American Christians. Policy Analyst David Bier explains: