Category Archive: Immigration

  1. Bryan Caplan: Is immigration a basic human right?

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    Editors Note: On March 16th George Mason University Professor of Economics Bryan Caplan debated Washington University Professor of Philosophy Christopher Wellman on the topic, “Is Immigration a Basic Human Right?” Below is Professor Caplan’s opening statement.


    There are many complaints about governments, but the harshest is, “This government grossly violates human rights.”  The background assumption is that human beings have rights that everyone – including governments – is morally obliged to respect.  When looking at the grossest violators – Nazi Germany, the Soviet Union, Maoist China – almost no one denies the validity of the idea of human rights.  But then you have to wonder: Do the governments we know, accept, and even love have clean hands?  Or do they violate human rights, too?

    To answer, we normally apply a simple test: If an individual treated other people the same way the government does, would he clearly be a horrible criminal?  If an individual deliberately kills innocent people, he’s a murderer; if an individual imprisons innocent people, he’s a kidnapper.  A government that does the same violates basic human rights – and it can’t justify its actions by calling innocent people “criminals.”  If someone is peacefully living his life, he’s innocent – whatever the government says.

    What does this have to do with immigration?  Lots.  Since we’re in San Diego, we’ve seen illegal immigrants.  What are the vast majority of them doing?  Working for willing employers.  Renting apartments from willing landlords.  Buying stuff from willing merchants.  Sending money home to their families.  Maybe even sitting next to you in class.  They sure look innocent – even admirable.  But the U.S. government can and does forcibly arrest and exile them to the Third World. Why can’t they all just come legally?  Because exile is the default; they’re all exiled unless the U.S. government makes a rare exception.  This is far less bad than killing or imprisoning them, but it sure looks like a severe human rights violation.  If the U.S. government forbade you to live and work here, wouldn’t that be a severe violation of your human rights?

    You could reasonably object that human rights are not absolute.  While there’s a strong moral presumption against killing, imprisoning, or exiling innocent people, it’s okay to do so if the overall consequences of respecting human rights are clearly awful.  The main problem with this objection is that when social scientists measure the overall consequences of immigration, they’re not clearly awful.  In fact, the overall consequences look totally awesome.  Most notably, standard economic estimates say that letting all the world’s talent flow to wherever it’s most productive would roughly DOUBLE global prosperity.  That’s an extra $75 TRILLION of extra wealth per year.  How is this possible?  Because even the world’s lowest-skill workers produce far more in the First World than they do at home.  Even if all other fears about immigration were bulletproof – which they aren’t – they’re dwarfed by this gargantuan economic gain.  This isn’t trickle-down economics; it’s Niagara Falls economics.

    To effectively defend immigration restrictions, then, saying “Human rights are not absolute” is insufficient.  You need to flatly deny that immigration is a human right – to say that while the illegal immigrants you meet on the street may look innocent, they’re actually guilty as hell.  The most popular argument analogizes illegal immigrants to trespassers.  No one has any right to be here without government permission; it’s our country, so we set the rules.

    The obvious problem with this position is that it justifies a vast range of blatant human rights abuses.  If it’s our country and we set the rules, why can’t we exile citizens, too?  Why can’t we imprison people for saying the wrong thing, practicing the wrong religion, or having kids without government permission?  Saying, “That won’t happen,” dodges the question: If the U.S. government did this to you, would it be violating your human rights or not?

    Prof. Wellman offers a more sophisticated version of this story.  He defends immigration restrictions for “legitimate states” only, on the grounds that immigration restrictions are vital for “freedom of association.”  Unfortunately, we have two conflicting freedoms of association.  I want to be free to associate with foreigners; lots of foreigners want to associate with me.  Immigration restrictions deny us this freedom in the name of all the Americans who don’t want my associates breathing American air.

    Who should prevail?  In his work, Wellman concedes a crucial premise, freely admitting that the popular notion that we all consent to government is a “fiction,” and that “the coercion states invariably employ is nonconsensual and, as such, is extremely difficult to justify.”  We don’t really face a choice between two freedoms of association, but between freedom for real associations we choose to join and freedom for fictional “associations” we’re forced to join.  Unless the overall consequences are clearly awful, the fictional ones should lose.  Freedom of association is only for free associations.

    My critics often tease me, “Should everyone on Earth be free to immigrate into Bryan’s house?”  Their point: Treating immigration as a human right is utopian nonsense.  My reply: There are three competing moral positions on immigration.

    1. Foreigners should be free to live in my house even if I don’t consent – a view held by almost no one.
    2. Foreigners should be free to live in my house if I consent – my view.
    3. Foreigners shouldn’t be free to live in my house even if I do consent – the standard view I’m criticizing.

    Far from being utopian, saying “Immigration is a human right” is just the moderate, common-sense position that when natives and foreigners voluntarily interact, strangers are morally obliged to leave them alone unless the overall consequences are clearly awful.  Even if the stranger happens to be the government – and the government happens to be popular.

    This was originally published at Econlog.

  2. Supposed FBI investigations into refugees shouldn’t scare you

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    This past Monday, President Trump released a new executive order shutting down the refugee program for 120 days and banning immigration from six majority-Muslim countries for 90 days. President Trump attempted to justify these changes by stating in part that:

    The Attorney General has reported to me that more than 300 persons who entered the United States as refugees are currently the subjects of counterterrorism investigations by the Federal Bureau of Investigation.

    The government has refused to provide any additional details about these cases, but an investigation should not be seen as implying guilt. Almost all FBI terrorism investigations do not end with a terrorism conviction. Indeed, the numbers predict that of these 300 refugee investigations, only 1 will turn into a terrorism conviction and that conviction will not be for planning an attack against the United States. This claim about the FBI investigating refugees has turned out to be a groundless smear in the past, and history has shown that refugees have been less likely than others to commit acts of terrorism against the United States.

    These 300 represent less than 0.009 percent of all refugees admitted since 1975. As the Cato Institute’s recent report found, only 20 refugees from 1975 to 2015 have attempted, planned, or carried out a terrorist attack inside the United States. Only 3 carried out a deadly terrorist attack, and all of those were before 1980. During the 40 years from 1975 to 2015, the annual risk of death by a refugee terrorist to a U.S. resident was 1 in 3.64 billion. This makes them about 1,000 times less likely to kill a U.S. resident in a terrorist attack than other foreign-born people.

    Unfortunately, this type of baseless fearmongering about FBI investigations into refugees is not new. The FBI told ABC News in 2013 that it was investigating “dozens” of refugees as terrorists. In the 26 months after the FBI made the claim, the agency arrested and convicted 31 individuals for “terrorism-related” offenses. Of these, a majority were U.S.-born citizens. Another 4 convictions were not even for terrorism offenses. In the end, the Bureau only arrested and put away for terrorism offenses 9 foreign-born residents total after it claimed “dozens” of open cases against refugees specifically. None of these individuals were planning attacks inside the United States.

    So how often do FBI national security investigations actually turn into convictions?

    According to the New York Times in 2016, the Bureau has averaged “7,000 to 10,000 preliminary or full investigations involving international terrorism annually in recent years.” This appears to contrast with Reuters, which reported this week that the 300 refugee investigations were part of 1,000 “counterterrorism investigations” into persons tied to “Islamic State or individuals inspired by the militant group.” Similarly, FBI Director James Comey said in May 2016 that there were “north of a thousand cases” that they were investigating of U.S. residents radicalized by the Islamic State online.

    The best explanation that I see for this difference is that the Comey/Reuters number refers to a narrower subset of investigations involving the Islamic State and, more importantly, only reflects a snapshot in time. At any particular moment, there may be 1,000 or so investigations open, but there are between 7,000 and 10,000 investigations for the entire year.

    This means that very few FBI investigations end in a terrorism conviction. In the 5 years from 2010 to 2014, the entire United States government averaged just 27 terrorism convictions per year. Taking the middle of the 7,000 to 10,000 range for the number of new FBI investigations (8,500) would mean that only about 0.3 percent of all terrorism investigations end in terrorism convictions.*

    If these individuals are involved with terrorism, it is very unlikely that they are attempting to harm the United States as opposed to supporting terror groups abroad. Less than 5 people per year were convicted of terrorism offenses in which they were targeting the United States in the five years from 2010 to 2014. This appears to be true today as well. Director Comey said in May 2016 that his main concern was people seeking to join the Islamic State overseas. This means that only 0.05 percent of all investigations end in the conviction of a person who was attempting terrorism in the United States.

    Based on these percentages, we can predict that only 1 in 300 of these investigations will turn into a terrorism conviction and that it will not involve a domestic terror plot.

    The FBI should continue to investigate people who it has reason to believe are involved in terrorism, but it is incorrect to assume that an investigation means that the person is guilty of a crime or even likely to be guilty of a crime. It is even more incorrect to jump to the conclusion that they pose a threat to anyone in the United States. The fact remains that refugees are less likely than others to commit acts of terrorism, and these new investigations do not change that fact.

    *In the less likely scenario where the FBI opens only 1,000 terrorism investigations annually, 2.7 percent would end in terrorism convictions and 0.5 percent would end with convictions for an offense targeting the U.S. These numbers would predict that of these 300 refugees, only 8 will be convicted of a terrorism offense. Of these, only 1 will have planned an attack targeting people inside the United States.

    This piece was originally published at Cato at Liberty.

  3. The classical liberal case against nationalist immigration restrictions

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    If any part of liberalism needs revitalizing, it’s the case for liberalizing immigration.

    Nationalists on the left and right argue that easing immigration restrictions would make Americans worse off. During the Democratic primaries, Bernie Sanders criticized open borders as a “right-wing proposal” that would “make everybody in America poorer.” And of course Donald Trump is calling for “an impenetrable physical wall on the southern border” to protect “the jobs, wages and security of the American people.” He has even floated the idea of an “ideological screening test” to ensure that the U.S. only admits those “who share our values and respect our people.” His executive orders banning citizens of five Muslim-majority countries from even setting foot in the U.S. seems to reflect this idea, and have met judicial resistance on the ironic grounds that they violate the values of the American people embodied in the constitutional guarantee of religion liberty.

    Trump’s stance on immigration exemplifies a broader cultural and economic nationalism. His chief strategist, Steve Bannon, has argued that capitalism and “the underpinnings of the Judeo-Christian west” are in crisis. According to this worldview, we have to build a wall around the American economy and culture as a matter of self-preservation. Congressman Steve King expressed this view recently in a controversial tweet:

    Trump, Bannon, and conservatives like King are wrong. We have overwhelming economic and cultural reasons to move toward a more open country. Indeed, some of Trump’s and Bannon’s own (professed) principles push in that direction. For instance, both tout lean government and robust capitalism. Trump says that “people flourish under a minimum government burden.” Bannon claims that “We are strong capitalists. And we believe in the benefits of capitalism. And, particularly, the harder-nosed the capitalism, the better.

    Yet restrictive immigration controls empower the state to suppress market competition and dictate how people may spend their money and allocate their labor. This is the opposite of capitalism. Literally.

    Immigration Restrictions Are an Attack on Economic Liberty

    Small-government, hard-nosed capitalism is flatly inconsistent with outlawing the buying and selling of labor. It shouldn’t matter where the laborer is born.

    For example, I’m a fan of the Philadelphia 76ers (unfortunately) and I’m eager to buy tickets to watch their rookie Ben Simmons play. And I’m sure that Simmons is equally eager to take my money. This is as capitalist as it gets: voluntary exchange for mutual benefit. Sure, Simmons is Australian, but so what? The free exchange of goods and services doesn’t suddenly become a bad idea because the provider moved across a border. Simmons plays in Philadelphia because it makes him better off, and fans pay to watch Simmons in Philadelphia because it makes them better off. That Simmons flew across an ocean to get there changes nothing of ethical or economic significance.

    Restricting Immigration Hurts the Economy and Is a Bad Way to Help Poorer Workers

    Maybe this is an unfair example. Simmons competes for a job with other millionaires, whereas Trump’s stated concern is immigration’s impact on poorer American workers. When immigrants enter the United States, they increase the supply of low-skilled labor and thus drive down the wages of low-skilled American workers.

    I’ll note up front that the extent to which immigrants directly compete with American workers is probably oversold. Immigrants tend to have different skill sets and job preferences than native-born Americans;  as such, they tend to complement rather than displace domestic workers. For instance, low-skilled immigrants are overrepresented in construction and agricultural work and underrepresented in government, education, and social services. As you’d expect, immigrants are less familiar with local languages and customs than native-born workers, giving the latter a leg up in competitions for jobs that require these skills.  Recent studies suggest that immigration even results in a small long-term increase in the wages of native-born workers.

    Still, it’s important to acknowledge the possibility that increased immigration will be bad for certain native-born American workers. In particular, those lower-skilled workers who do directly compete with immigrant labor can expect to see their wages drop by roughly 5%. But restricting immigration is the wrong way to solve this problem.

    Liberal Immigration Saves Millions from Desperate Poverty

    First, the benefits of liberalized immigration to the global poor are so overwhelming that it is flatly unethical to withhold them. Second, restricting immigration is a comparatively inefficient method of benefiting low-wage American workers.

    Philosopher Peter Singer explains that the world’s poorest people suffer from a deprivation far graver than anything experienced by even poor Americans:

    In wealthy societies, most poverty is relative. People feel poor because many of the good things they see advertised on television are beyond their budget — but they do have a television. In the United States, 97 percent of those classified by the Census Bureau as poor own a color TV. Three quarters of them own a car. Three quarters of them have air conditioning. Three quarters of them have a VCR or DVD player. All have access to health care. I am not quoting these figures in order to deny that the poor in the United States face genuine difficulties. Nevertheless, for most, these difficulties are of a different order than those of the world’s poorest people. The 1.4 billion people living in extreme poverty are poor by an absolute standard tied to the most basic human needs. They are likely to be hungry for at least part of each year. Even if they can get enough food to fill their stomachs, they will probably be malnourished because their diet lacks essential nutrients. In children, malnutrition stunts growth and can cause permanent brain damage. The poor may not be able to afford to send their children to school. Even minimal health care services are usually beyond their means.

    Only one policy has been shown to effectively bring the global poor up to the living standards of the global rich: allow them to move across borders, toward economic opportunity.

    The economist Michael Clemens writes, “Migrants from developing countries to the United States typically raise their real living standards by hundreds of percent, and by over 1,000 percent for the poorest people from the poorest countries. No other development policy realized within developing countries is able to generate anything close to this degree of convergence [between the earnings of people born in poor countries and those born in rich countries].”

    If someone is too poor to afford enough food to avert brain damage, it is morally indefensible to deprive them of the opportunity to increase their income by over 1,000%, especially when the cost of doing so is making someone hundreds of times richer about 5% poorer. That’s like cutting in front of someone dying of thirst because you want that last bottle of Aquafina to brush your teeth.

    Safety Nets Are a Better Way to Help Poorer Americans

    In any case, there are better ways to protect the economic well-being of poorer Americans than restricting immigration. A free market solution to a drop in wages or employment isn’t heavy-handed regulation of the labor market. Instead, let firms compete to figure out the most efficient ways of doing business and then directly compensate those workers who are made worse off. The compensation could take the form of government safety nets like unemployment benefits or the earned income tax credit.

    Trump’s first pick for labor secretary, Andy Puzder, is a fast-food executive who favors automation to keep production costs down. When McDonald’s installs automated kiosks, it worsens the labor market position of low-skilled American workers. But it also lowers the costs of a Big Mac, leaving consumers with more money to spend on other goods and services produced by other workers. Immigration has a similar economic effect. Insofar as immigration drives down production costs, Americans will have more disposable income to spend at Starbucks, where they’ll probably be served by a native-born barista with knowledge of the local language and customs.

    What’s more, the economic gains from immigration can be taxed to fund the safety net for displaced workers.

    Immigration Doesn’t Threaten American Values. Cultural Tests Do.

    But what if liberalizing immigration kills the goose that lays the golden egg? As Bannon might put it, we have to compromise pure capitalist principles in order to save the “the underpinnings of the Judeo-Christian west” that, in his view, make capitalism possible.

    One reason to be skeptical of this position is that American culture has allegedly been under siege by immigrants for decades (if not centuries), and the worry never seems to pan out.

    In fact, despite Bannon’s talk of the “Judeo-Christian west,” Americans haven’t always been keen on Jewish immigration. For instance, a 1940 proposal to resettle Jewish refugees in Alaska met with resistance in Congress because of the familiar-sounding fear that “these foreigners cannot be assimilated in Alaska, and will constitute a threat to our American civilization.” And in the 19th century, “many native-born Americans regarded Catholic immigrants as an ideological and racial threat.”

    Those worries were clearly unfounded. And they’re equally unfounded today. Studies of today’s immigrants find that they too tend to adopt liberal political values.

    But suppose, for argument’s sake, that Bannon is right and the United States is facing a cultural crisis. There’s a bedrock moral issue at stake: how does a liberal society like the United States confront cultural and ideological challenges? Does it enlist the power of the state to forcibly exclude dissenting viewpoints or does it engage them?

    Historically at least, it’s been the latter. Dissent from liberal values needn’t come from across the border. We permit Nazis to march in Illinois and the Westboro Baptist Church to picket soldiers’ funerals. These are not groups “who share our values and respect our people.” Nevertheless, they’re free to speak, protest, and assemble within our borders. A command-and-control culture is as contrary to American values as a command-and-control economy.  It’s not the state’s job to regulate away bad ideas any more than it’s the state’s job to regulate away cassette tapes and Blockbuster videos. The American way is to defeat bad ideas in what Oliver Wendell Holmes called “the competition of the market.”

    Indeed, if the nationalist concern is to preserve “our values,” then I see no good reason to ignore homegrown cultural threats. If we’re going to start a program of ideological screening, why do it halfway? Let’s implement an ideological screening test for books to ensure that they contain only content that “shares our values and respects our people.” Parents influence their children’s values, so maybe you should be required to take the test before the state lets you become a parent. Presumably journalists, teachers, religious leaders, and voters will all need to be screened before they can get to work, too. After all, these people are at least as capable as immigrants of disrupting American culture.

    Yet we find the prospect of these ideological screening tests chilling. A liberal society worthy of the name refuses on principle to take illiberal means to liberal ends. And this means resisting the call to use armed guards, razor wire, and religious profiling to stop peaceful people from working toward a better life in our country.

    This piece was originally published at the Niskanen Center.

  4. The revised “travel ban” is much better legally

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    If this new executive order had been what was was signed initially—combined with the normal interagency process and briefing of border officials as to how to implement it—President Trump wouldn’t have provoked the type of political response he did or the legal quagmire he entered. This order is much more narrowly tailored, providing exemptions not just to those with green cards and other valid visas, but also people with significant contacts to United States, students, children, urgent medical cases, and other special circumstances—and Iraq is necessarily treated as a special case—as well as spelling out reasons for the remaining restrictions.

    As it stands now, the tweaks in the new executive order would normally put these actions firmly within the executive’s authority under the relevant immigration laws: presidents have broad discretion over refugee programs and to suspend entry of certain classes of foreigners on national security grounds. But, in large part due to the botched development and implementation of the previous order, this isn’t the normal case and courts will likely be less deferential to assertions of executive power here than they would otherwise be.

    And then there are the atmospherics of what so many people consider to be a “Muslim ban.” Just because a presidential candidate uses hyperbolic language during a campaign—or his surrogates use similarly inartful language on national TV—doesn’t mean that any policy in that area is constitutionally suspect, but some judges will surely see it that way.

    Finally, all that’s before getting into the wisdom of this policy. Refugees generally aren’t a security threat, for example, and it’s unclear whether vetting or visa-issuing procedures in the six remaining targeted countries represent the biggest weakness in our border defenses or ability to prevent terrorism on American soil.

    This piece was originally published at Cato at Liberty.

  5. Refugees, immigration, and the trolley problem

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    During the presidential campaign Donald Trump’s son, Eric Trump, tweeted a picture of a bowl of Skittles candies along with the caption: “If I had a bowl of skittles and I told you just three would kill you. Would you take handful? That’s our Syrian refugee problem.”

    Trump’s tweet generated backlash from many corners but the general logic of this vivid metaphor continues to resonate for many, despite research that demonstrates that the risk of an American dying in a terrorist attack carried out by refugees and immigrants in the United States is astonishingly low. For many Americans, the prospect of just one bad skittle overwhelms a more rational calculation embracing both immigration’s costs and benefits.

    But perhaps a different vivid mental picture can help people see the immigration question in a new light.

    The trolley problem is a famous thought experiment in ethics. The general form of the problem (quoted here from Wikipedia) is this:

    There is a runaway trolley barreling down the railway tracks. Ahead, on the tracks, there are five people tied up and unable to move. The trolley is headed straight for them. You are standing some distance off in the train yard, next to a lever. If you pull this lever, the trolley will switch to a different set of tracks. However, you notice that there is one person on the sidetrack. You have two options:

    1. Do nothing, and the trolley kills the five people on the main track.
    2. Pull the lever, diverting the trolley onto the sidetrack where it will kill one person.

    This is a tough scenario for sure. Do you believe that pulling the lever is the best option? What is your justification for that choice?

    Surveys have shown that around 90% would make the difficult decision to pull the lever to save the five people. The justification for most people is straightforward: saving five lives is better than saving one life. But studies also show that it matters a great deal who that one person is. For example, if the person happens to be the respondent’s relative or loved one, a respondent is far less likely to indicate he or she would pull the lever.

    When thinking about President Trump’s proposed crackdown on travel, immigration, and refugees, we might revise the standard version of the problem to read like this:

    There is a runaway trolley barreling down the railway tracks. Ahead, on the tracks, there are five refugees and immigrants tied up and unable to move. The trolley is headed straight for them. You are standing some distance off in the train yard, next to a lever. If you pull this lever, the trolley will switch to a different set of tracks. However, you notice that there is one American citizen on the sidetrack. You have two options:

    1. Do nothing, and the trolley kills the five refugees and immigrants on the main track.
    2. Pull the lever, diverting the trolley onto the sidetrack where it will kill one American citizen.

    Now how do you answer the trolley problem? Does your justification differ from the justification of your response to the original version of trolley problem?

    This second version is, of course, very similar to the refugee and immigration policy problem confronting the United States today, except that in this case pulling the lever (i.e. allowing refugees and immigrants into the U.S.) will help or save millions of people, not just five, for every American that might get hurt. In fact, according to a Cato study, despite the United States welcoming a million immigrants each year and over three million refugees since 1975, refugees and immigrants combined to kill just eleven Americans in terrorist acts between 1975 and 2015. That’s about 41 million immigrants and 3 million refugees “saved” against eleven Americans who died. In other words, the real life trolley problem has 11 million refugees and immigrants on one track and a single American on the other track.

    If you believe that the right answer in the first version is to pull the lever, then you either need to pull it in the second version or you need a new justification that privileges American lives over foreign lives in a very powerful way. Nationalists like President Trump do so by simply declaring “America First” and arguing that no Americans should die in order to save any number of foreign nationals.

    But that perspective is troubling to many others. The majority of Americans support sending troops to help prevent genocide or major humanitarian disasters. And despite the risks most Americans support sending help in cases of natural disasters like the 2010 earthquake in Haiti. Thus for most, though the risk to American lives is certainly a critical consideration, so is the opportunity – even the obligation – to save other people’s lives when possible.

    Few people are used to thinking about public policy in such blunt terms, but in the end Americans must decide whether or not they are willing to live with a very modest increase in risk to American lives in order to save and improve the lives of millions of refugees and immigrants. Most Americans, in the end, choose to save the lives of the five people when confronted with the trolley problem. Hopefully a majority will eventually apply the same thinking to the debate on refugees and immigration.

    This piece was published at Cato at Liberty.

  6. 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.

  7. 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.

  8. 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.

  9. 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.

  10. 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.

  11. 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.

  12. 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.