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Archive for the ‘Immigration policy’ Category

Following the defeat of his amendment that would give Congress the right to vote to verify border security as a condition of permitting the path to citizenship for illegal immigrants to go forward, Senator Rand Paul has decided to oppose the immigration reform bill.

While the immigration bill has many flaws, it is certainly a pro-liberty bill on balance (and I am not quite the open-borders absolutist that some libertarians are, but the current state of immigration control is deeply illiberal and contrary to the best American values). Moreover, the bill’s bad aspects are almost entirely the result of the demands of “border security hawks” like Paul and his fellow right-wingers. Even if Paul really is, deep down, a libertarian of sorts, it seems he is likely to stick with whatever the right wing of his party wants. That bodes poorly for any future Paul presidency. Presidents tend to adapt to the culture of the executive bureaucracy: witness Obama’s u-turns on civil liberties issues. Paul’s actions on the immigration bill suggest that he lacks the courage to buck his party even for a popular cause. As Will Wilkinson put it at economist.com,

The energetic ideological base of the Republican Party is a nationalist, identity-politics movement for relatively well-to-do older white Americans known as the “tea party”. The tea party is interested in bald eagles, American flags, the founding fathers, Jesus Christ, fighter jets, empty libertarian rhetoric, and other markers of “authentic” American identity and supremacy.

Does Rand Paul really want to go down in history as a standard-bearer for that ilk? It seems so.

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Last time I was here, I had a lot of fun teasing American libertarian readers, at least until the earthquake brought my guest blogging to an abrupt halt.

Support for liberty is a lot like support for GMO-free food. If you survey people, they’ll tell you how much they love it. They might even tell you it’s the most important thing in the world for them. But make them pay $0.50 extra to have it and they’ll choose the next product on the shelf. A few pay extra for the GMO-free tags, but if you’d probably be disappointed if you launched a GMO-free brand based on a survey of how much people claimed to hate genetically modified foods.

Jason Sorens and William Ruger have done great work in showing the substantial differences in experienced freedom across the 50 US States. A lot of libertarians live in New York; New York tends to come last in these surveys. Moving someplace that doesn’t keep trying to ban large sodas would mean giving up easy access to Broadway shows. It’s fine to be a pluralist and to weigh Broadway shows against personal liberties in some great personal utilitarian calculus, but it’s not exactly consistent with ‘Live Free or Die’ rhetoric.*

Absolute differences across American states are perhaps not large enough to make it worth moving. But if that’s the case, what are we to make of libertarian activism in the less-free states? It’s exceptionally unlikely that even the most effective activist in New York could move the state more than a point or two in the ordinal rankings, but that same person could take an oil job in North Dakota and move from worst to first while working there to help make North Dakota even better.

I’ve also argued, and often, that American libertarians should consider moving to New Zealand, which ranks first in the worldwide index weighing civil and economic freedoms. Why not choose to live free, or as free as is possible in the current world?

The Honours thesis I’m supervising this year will examine the price of liberty. The international ranking above gives a nice cross-sectional snapshot of differences in liberty across countries. Some of the measures can be extended backward in time. My student, Chris Read, is going to add these measures to international migration data to estimate the elasticity of migration flows to measured liberty and compare that elasticity to things like expected income differences across countries. Most people are messy pluralists; I’m really curious to see how things here pan out. Hopefully by the end of it, we’ll be able to say “A unit increase in civil liberties, all else equal, has about the same effect on inbound migration as a $X increase in median income.” That X will be close to a revealed preference measure of the price of freedom.

Later this week, I’ll post reassessing some of my Kiwi-enthusiasm in light of the post-earthquake policy experience. I’ve been pretty disappointed with how things here have panned out. We are not as far outside of the asylum as I had thought.

* I count myself as a messy pluralist of this sort too; I’m not trying to disparage it! Freedom matters, other stuff matters too.

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Judge Napolitano, an eloquent advocate of liberty, is in fine form here, in his discussion of the relevance of natural law theory to immigration. I was especially pleased with his observation that politicians are at most fair-weather friends of natural law: “This view of the natural law is sweet to the heart and pleasing to the ear when politicians praise it at patriotic events, but it is also a bane to them when it restrains their exercise of the coercive powers of the government.” This is correct- the idea of natural rights, moral rights that are not created by governments, is (for them) a convenient rhetorical device, to be discarded as soon as they perceive that it would be more popular to frame an issue in terms of “practical solutions,” “being realistic,” or “the compromises necessary in a democracy.” Politicians and pundits both left and right do this: on positions they favor, it’s wrong for the government to interfere with the exercise of natural rights, but when the subject is something they oppose, positivism rules. Judge Napolitano surprised a “conservative” talk show host recently by invoking natural rights as a trump against nativist sentiment. Specifically, he argues that “Our fundamental human rights are not conditioned or even conditionable on the laws or traditions of the place where our mothers were physically located when we were born. They are not attenuated because our mothers were not in the United States at the moment of our births. Stated differently, we all possess natural rights, no more and no less than any others. All humans have the full panoply of freedom of choice in areas of personal behavior protected from governmental interference by the natural law, no matter where they were born. Americans are not possessed of more natural rights than non-Americans….” He goes on to show why the government has no right to interfere with freedom of movement. (It furthermore has no right to prevent you or me from hiring whomever we want or selling/renting land to them.) Politicians and pundits on the right aren’t comfortable with the language of natural rights when it comes to issues like marriage or immigration. Their counterparts on the left aren’t comfortable with such language when it comes to issues like self-defense or trading. The Judge gets it. I wonder how the national discussion of rights would go if he had the audience of Paul Krugman, Rachel Maddow, Pat Buchanan.

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Several commentators have weighed in on President Obama’s decision to stop deporting certain immigrants under 30 who were brought illegally to the country when they were under 16. This morning, Andrew Napolitano and Ilya Somin have come down firmly on opposite sides of this issue.

Napolitano:

Along comes the president, and he has decided that he can fix some of our immigration woes by rewriting the laws to his liking. Never mind that the Constitution provides that his job is “to take care that the laws be faithfully executed,” and that “all legislative power” in the federal government has been granted to Congress. He has chosen to bypass Congress and disregard the Constitution. Can he do this?

There is a valid and constitutional argument to be made that the president may refrain from defending and enforcing laws that he believes are palpably and demonstrably unconstitutional. These arguments go back to Thomas Jefferson, who refused to defend or enforce the Alien and Sedition Acts because, by punishing speech, they directly contradicted the First Amendment. Jefferson argued that when a law contradicts the Constitution, the law must give way because the Constitution is the supreme law of the land and all other laws are inferior and must conform to it. This argument is itself now universally accepted jurisprudence — except by President Obama, who recently and inexplicably questioned the jurisdiction of the Supreme Court to invalidate the Affordable Health Care Act on the basis that it is unconstitutional.

Nevertheless, there is no intellectually honest argument to be made that the president can pick and choose which laws to enforce based on his personal preferences. And it is a profound violation of the Constitution for the president to engage in rewriting the laws. That’s what he has done here. He has rewritten federal law. (emphasis original)

Somin:

Some critics, such as John Yoo and Arnold Kling, attack the president’s decision not on the merits, but on the grounds that he lacks legal authority to choose not to enforce the law in this case.

This criticism runs afoul of the reality that the federal government already chooses not to enforce its laws against the vast majority of those who violate them. Current federal criminal law is so expansive that the majority of Americans are probably federal criminals. That includes whole categories of people who get away with violating federal law because the president and the Justice Department believe that going after them isn’t worth the effort, and possibly morally dubious. For example, the feds almost never go after the hundreds of thousands of college students who are guilty of using illegal drugs in their dorms. The last three presidents of the United States – all have reason to be grateful for this restraint.

Yoo contends that there is a difference between using “prosecutorial discretion” to “choose priorities and prosecute cases that are the most important” and “refusing to enforce laws because of disagreements over policy.” I don’t think the distinction holds water. Policy considerations are inevitably among the criteria by which presidents and prosecutors “choose priorities” and decide which cases are “the most important.” One reason why the federal government has not launched a crackdown on illegal drug use in college dorms is precisely because they think it would be bad policy, and probably unjust to boot. That, of course, is very similar to Obama’s decision here.

Finally,Yoo also argues that prosecutorial discretion does not allow the president to refuse to enforce an “entire law,” as opposed to merely doing so in specific cases. But Obama has not in fact refused to enforce the entire relevant law requiring deportation of illegal immigrants. He has simply chosen to do so with respect to people who fit certain specified criteria, that the vast majority of illegal immigrants do not meet. Even if the president did choose to forego enforcement of an entire law, it’s not clear to me that that is outside the scope of prosecutorial discretion. A president who uses his discretion to “choose priorities” could reasonably conclude that enforcement of federal laws A, B, and C is so much more valuable than enforcement of D that no resources should be devoted to the latter if they could possibly be used for the former.

This is a tough one. If you adopt the constitutional text as your guide, Obama’s actions seem clearly illegal. On the other hand, the constitutional text, interpreted literally, may demand something that is impossible: perfect enforcement. What say you, Pileus readers?

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The ACLU has just released a candidate report card on certain civil liberties issues. It includes all Republican candidates, Barack Obama, and Gary Johnson. It doesn’t provide an aggregate score, but it scores all candidates on the issue areas of “humane immigration policy,” “closing Guantanamo Bay and indefinite detention,” “gays and lesbians serving openly in the military,” “ending torture,” “ending a surveillance state,” “freedom to marry for gay couples,” and “reproductive choice.”

I have some issues with the scoring on some of these. For instance, opposing torture, including waterboarding, is apparently not enough to get you full marks on torture. More importantly, I would differ from their scoring of “reproductive choice.” My views are similar to Gary Johnson’s: Roe v. Wade was wrongly decided law and should be overturned, states should be able to make their own laws on abortion, but generally I favor legal abortion before viability and a strict ban with the only exception for the life of the mother after viability, as well as a ban on taxpayer funding for abortions.

Nevertheless, it may be a useful tool for Pileus readers in making judgments about whom to support in the primaries and beyond. In general, the only candidates the ACLU gives reasonably good marks on civil liberties are Johnson and Paul, with Huntsman and Obama clocking in at mediocre. The other Republicans are truly abysmal.

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So says my friend Scott Beaulier, an economist at Troy University:

Immigrants — both legal and illegal — are a force for good. They create jobs, they enrich culture and they make our state a more interesting and dynamic one in which to live. Alabama’s immigration law is a pathetic, backward attempt to play politics and protect Alabamians from the bogeyman of immigration.

Amen.

But reading the comments to the article is enough to make one depressed about one’s fellow Americans – or at least Alabamians.

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A few weeks ago I took my family from Tucson down to Tombstone. That’s a drive of a little over an hour (and well worth it, if you’re into kitschy Old West stuff, or just interested in the history of the American West). On the way back we ran into a permanent ICE (Immigration and Customs Enforcement) checkpoint. This was one fairly insignificant data point in how immigration is being managed (or, better, mismanaged) in America at this point, and the experience indicated problems at two levels.

First, I was initially appalled to see drivers of the cars queued up ahead of my handing papers through their windows to the ICE officer to check. I thought: “No way am I submitting papers to travel on a state highway in this country.” (The road crosses no state boundaries, let alone the border to Mexico. It runs roughly away from that border, which is about 40 miles south of Tombstone.) When we pulled up, however, the ICE officer didn’t ask for papers. He made some attempt at humor. I was not amused: I don’t think people with guns checking American citizens as they travel peacefully are amusing at all.

As we drove on (in my typical lead-foot style), it became apparent what had gone on. The cars queued up ahead of me were driven by people who looked as though they could have been illegal immigrants. We are lucky enough not to have that thought of us, so we were spared the indignity of having to prove that we were within the law; these people were not. And now, with the charged atmosphere on immigration here in Arizona, that probably is an experience they have fairly frequently.

That is a significant problem. Here are people who (if the ICE officer was doing his job properly) were conducting themselves perfectly lawfully and peacefully within the state of Arizona. But they have to prove their legality whenever (apparently) ICE decides they must. That is appalling. Of course the appalling nature of this situation will surprise nobody who has to put up with it routinely. But it was the first time I encountered it in this bald form.

That seems to me a serious problem for a nation that styles itself as “conceived in Liberty, and dedicated to the proposition that all men are created equal.” But, it seems to me, it is the lesser problem on display here. For the fact is that ICE exercises jurisdiction over the right to travel over not just those who might be illegal immigrants, but anybody traveling that road. Though they did not stop me, nor ask for papers, it is clear that they take themselves to have the prerogative to do so. In other words, not just those who might have immigrated illegally, but every person who wishes to travel that road, does so only with the permission of ICE.  The liberty to move about peacefully and lawfully is gone for all of us, not just immigrants, legal or otherwise.

How did that happen?  At one level, it’s obvious enough: people fed up with the problems they attribute to illegal immigrants provided the political muscle to implement policies like these. More worrying is that the cost to the liberty of everybody was never appreciated going in, and no doubt is rarely appreciated now. It is another of those tradeoffs of liberty for (perceived) security that Franklin warned us about. The more accustomed to such tradeoffs we get, the better his judgment fits what we have become.

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