Tag: Immigration

The Steinle Verdict

Yesterday, a jury acquitted Jose Inez Garcia Zarate of both murder and manslaughter charges in the death of Kate Steinle, while convicting him of a gun charge. Zarate was a seven-time felon who had been deported five times from the United States. ICE asked San Francisco to detain him but San Francisco is a sanctuary city. As he was neither facing a violent felony charge nor had violent felony convictions, he was released. While in the Embarcadero district, he picked up a gun and either fired it or had it accidentally go off. The bullet ricocheted and hit Steinle in the chest, severing her aorta and killing her. She was 32.

Naturally, there has been a lot of anger at the verdict, led by the Baby in Chief. But there are two very separate issues here.

First, I believe that the jury delivered the correct verdict. The death of Steinle, while horrifying, appears to have been an accident (or at least could not be proven one beyond a reasonable doubt). Zarate didn’t deliberately shoot her. And under California law, a voluntary manslaughter charge requires a deliberate act.

Second, there is the debate over sanctuary cities, multiple re-entry illegals, the wall and “Kate’s Law”. To me, this debate should be going on independent of the verdict of juries. We need to be thinking about the future, not trying to prevent the past. I’m mixed on a lot of this. I’m not happy with sanctuary cities which defy federal law for political reasons but many of the proposed solutions to his problem cross me as unconstitutional. Kate’s Law — which would impose mandatory minimum’s — strikes me as a potential disaster:

I’ve never seen any credible evidence that more prosecutions or higher sentences deter aliens from returning after deportation. Certainly an alien with a criminal record who is sitting in federal prison is not, at that moment, returning after another deportation and committing more crimes, but the system lacks the resources to make a statistically significant impact through such incarcerations, unless you’d like to pay a lot more in taxes, which you would not. And while you are incapacitating criminal aliens through mandatory-minimum incarceration you are not using those prosecutors, judges, or jail cells to incapacitate other criminals, including domestic criminals who offend at a higher rate.

Mandatory minimums, if applied rigorously, would therefore dramatically reduce federal immigration prosecutions. Of course, they wouldn’t be applied rigorously; they almost never are. Instead, the likely outcome is this: Congress would pass mandatory minimum laws covering some illegal reentries. Federal prosecutors would retain discretion of whether to charge aliens under those new statues or under existing statutes without mandatory minimums. Federal prosecutors would use that discretion the way they usually do — to coerce cooperation and guilty pleas. So the length of sentences for aliens returning after deportation wouldn’t increase; there would just be more prosecutorial power and discretion and somewhat quicker pleas. The impact of the law would be the opposite of how it is sold to the public.

Ultimately, what we need is comprehensive immigration reform. Streamline the immigration process for legal immigrants while improving enforcement of those laws. We’ve known this and needed this for 15 years. But every time it comes up, Republicans scream “amnesty”, Democrats scream “racism” and a compromise becomes impossible.

This is a bit personal for me. Many years ago, a close relative — who I’ll call Liz — was T-boned at an intersection by a truck full of illegal immigrants who blew through a red light. Her car careened into a telephone poll. She was not wearing her seat belt. The accident broke one of her high cervical vertebra. Fortunately, her spine was not severed or she would have died on the spot or been quadriplegic. But the injury has dogged her and will dog her for the rest of her life. The illegal immigrants vanished, leaving her insurance to cover the cost.

You can talk all day about how immigrants are less likely to commit crimes than American citizens or that they’re just here to work, etc. But those words mean nothing to someone who has had a loved one injured or, God forbid, killed by a person who should not have been in this country in the first place. Their anger and frustration over that is not racism. It’s not bigotry. It’s not white supremacy. It’s a normal reaction to tragedy that could have been avoided.

People are saying Kate would still be alive if we’d had a wall or if Obama had not been “weak” on immigration (this about the President who set records in deportations). Maybe. But I would rather think about the future and what we can do to prevent other tragedies. A wall by itself will only stimulate the Mexican ladder industry. But a comprehensive approach would allow law-abiding people to come here, would allow us to know where they are and what they’re up to and free up resources to keep people like Zarate out of the country.

Unfortunately, I see no chance this will happen. Our Congress is useless, our President is clueless and our media are chasing their own tails.

DACA in Danger

So this happened:

The Trump administration on Tuesday formally announced the end of DACA — a program that had protected nearly 800,000 young undocumented immigrants brought to the US as children from deportation.

The Department of Homeland Security will stop processing any new applications for the program as of Tuesday and rescinded the Obama administration policy, Deferred Action for Childhood Arrivals.
“I am here today to announce that the program known as DACA that was effectuated under the Obama administration is being rescinded,” Attorney General Jeff Sessions said Tuesday at the Justice Department.

Trump has given the program six months to live and challenged Congress to replace it. He has, however, undermined that a bit by saying he might “revisit” the issue if Congress fails to act. DACA originally passed the House but fell five votes short of breaking a Senate filibuster. So Obama enacted it by Executive Order.

First of all, I think this demonstrates yet again how dangerous rule by Executive Order is. Thanks to DACA, about 800,000 individuals came forward to gain status under it. They provided the government with tons of documentation on their location, how they came into this country illegally and so on. But because DACA was passed with the stroke of a pen, it can now be undone with one. And so now these people are more vulnerable deportation because they tried to do the right thing.

And that brings to the second point, which is how cruel and pointless this policy is. DACA isn’t an amnesty. It grants legal work permits to people who came into this country as minors, have not broken the law and are either in school, have graduated school or are in the armed forces. On balance, they add to our economy. Cutting them out of the workforce would impose billions in compliance costs, estimated to be along the impact of a few dozen new regulations. These are the kind of immigrants — working, law-abiding, serving — that we want. And now they are in danger of being sent to countries they have never lived in so that can Trump can pander to the nativists.

The gripping hand however is that … Trump is right in one respect. DACA is something that Congress should do, not the President. They’ve been screwing around with this legislation for 16 years. I don’t know that this kind of deadline will make them do their damned job (although the fiscal cliff and debt ceiling games of chicken worked). But they need to stop playing around. It’s time to make DACA permanent. And it’s time to do it through the proper legislative process.

Political News Round-Up

So many stories, so little time.

  • My criticisms of Trump are only reasonable if I praise him when he does something right. Privatizing air traffic control is something right. Many countries have already gone that route, including Canada. This is something conservatives and libertarians have wanted for 20 years. I’m glad to see it proposed and I hope they can get it done.
  • The FBI has already arrested the person who leaked secret NSA documents to the Intercept indicating Russia tried to hack election officials and databases in 2016. People are jumping and down but this is absolutely normal. Obama prosecuted leakers; Bush prosecuted leakers and this leaker left an easy trail to herself.
  • Trump went on a Twitter tirade the other day about the travel ban, undermining the DOJ’s case before SCOTUS as the Courts have used Trump’s speeches to justify striking down the ban. I’ll be honest: I’m very dubious about using Trump’s speeches and tweets to divine his “real” motivation for the ban. That’s creeping into some very dangerous territory where the Courts essentially try to mind-read the politicians’ intentions rather than read the words written on the page. I would prefer executive orders be evaluated based on, you know, the actual executive order. While I oppose the travel ban, I’ve been persuaded that it’s constitutional. As Scalia used to say, “Stupid but Constitutional”. Trump can tweet until the cows come home and that won’t change what’s in the EO.

More to come.

Ninth Circuit Rules Against Trump

The Ninth Circuit issued a ruling on Trump’ immigration EO, maintaining a nationwide suspension of the order.

While I think that Trump’s ban was poorly reasoned and executed with the skill of a brass band falling down a flight of stairs, I’m a bit bothered by this decision for reasons David French gets into here:

Finally, and crucially, the court made a statement near the end of its opinion that is deeply, deeply troubling. In discussing the evidence before the court, the panel says this:

The Government has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States.

Putting aside, for the moment, the administration’s inexplicable failure to include in the executive order or the record the extensive documentation and evidence demonstrating the threat of jihad from the seven identified countries (including terror attacks in the U.S., plots in the U.S., and a record of plots and attacks abroad), whether an attack has been completed in this country is not the standard for implementing heightened security measures. The president doesn’t have to wait for completed attacks to protect the U.S. from dangerous immigrants. He can see the deteriorating security situation on the ground, evaluate the intentions and capabilities of the enemy, and then act before the enemy can strike. Indeed, that’s the goal of national defense — to prevent attacks, not respond after the carnage.

I’ve been hearing versions of this argument over and over again. “No refugee has launched a terror attack against the US!” “No one from those seven countries has attacked the US soil!” “Since 9/11, more people have been killed by Right Wing terrorism than Jihadists!” For a while, I was swayed by these arguments. But I’ve come to realize that they are complete horse manure.

First, as French notes, the job of the federal government is to prevent attacks, not close the barn door after the horse has been stolen. If they have credible intelligence of an attack or a danger, they are supposed to act (within Constitutional limits).

Second, terrorist attacks are, by their very nature, stochastic. They are thankfully few and when you try to do any analysis of them, you are immediately swallowed by small number statistics. This is obvious when you think about it. Any sentence that starts with, “well, excluding 9/11 …” is just silly. 9/11 was the biggest terrorist attack in American history. It completely dominates the discussion. Our entire anti-terrorism policy is designed around preventing another 9/11. You simply can not exclude it from consideration and act like you’re clever for doing so.

It would take only one successful Jihadist attack to upset those numbers (indeed, the numbers changed dramatically after San Bernardino and Orlando). It would take only one attack by a refugee from, say, Somalia, to make those arguments completely moot. When your argument can be rendered useless by a singular event, it’s a terrible argument.

Think about where we were on 9/10. At that point, the most successful attack on American soil was the Oklahoma City bombing. Should Bush have therefore ignored the threat of Jihadists? On the contrary, many liberals slammed him for paying insufficient attention to the “Al-Qaeda determined to strike in US” memo.

Just to be clear: I think the danger presented by people coming into this country with visas or as refugees is low. But it is not zero. Can we quit pretending that it is?

(I would note, in passing, that deciding on the wisdom of a policy is not the Court’s job. Antonin Scalia used to note that the Courts were required to uphold laws that were ill-advised but passed Constitutional muster. He joked that he wished he had a stamp: “Stupid but Constitutional.” I’m not quite familiar enough with this case to opine on whether Trump’s order is legal or Constitutional. It may be dumb. I know many on this blog disagree. But even if we assume it’s dumb, it’s not the Court’s job to stop stupidity.)

President Clusterfrack

I said this in the comments on my last post, but wanted to put it above the fold. This is from Charles Cooke on the refugee ban:

The way that this was rolled out showed a staggering incompetence by the Administration. According to detailed reports, this was crafted by Rudy Giuliani as a way to get a Muslim ban through the side door. It was put out without vetting by the Office of Legal Counsel or the Department of Homeland Security (according to DHS, they were literally discussing on the phone when Trump signed the order). I know there are those of you who will say, “Good! Fuck the bureaucrats!” But those bureaucrats exist for a reason: to prevent screwups like this; to execute the President’s orders within the bounds of the law and the Constitution. The initial order exempted green card holders, but racist conspiracy-theorist Steve Bannon and Trump confidant Steve Miller overrode that. It was rolled out on a Friday with minimal instructions given to customs agents.

As a result, there was total chaos. Border agents had no idea what they were supposed to be doing and were detaining people at random, trying to pressure them into surrendering their green cards and asking them questions about politics. People in transit — including children, people visiting sick relatives, PhD students, volunteers who helped us in Iraq — were suddenly thrown into an unknown situation. Airports erupted in protests and confusion. There are even reports of federal agents refusing to comply with the court order to cease or the later DHS Secretary’s order to let in green card holders.

The engine of state is vast and complicated. You can’t just issue executive orders like you’re playing an online Be The President game. Our federal agents and agencies need what the hell they are supposed to be doing. Citizens, permanents residents and immigrants need to know what the rules are, not have the rug jerked out from them when they get off of a plane.

Had Trump said something like this: “One week from now, we will temporarily stop immigration from the seven countries that Obama designated as problems. Green card holders, dual citizens and those in transit will be allowed in. After we review our vetting procedures, we will consider whether or not to lift the ban,” people would have opposed it. But there would not have been the chaotic angry scene we saw this weekend.

(Trump is on Twitter saying that if he’d done this, a bunch of “bad hombres” would have rushed to get in under the ban. This is a monumentally ignorant thing to say. It is a very long and time-consuming process to get visas from those countries — to say nothing of booking travel. You can’t do it in a week. This a fantasy concocted to give post facto justification to his incompetence.)

Trump’s first week has been marred by these kind of unforced errors. And it may get worse, with him having elevated Bannon to the NSC in place of the DNI and Chairman of the Joint Chiefs. Is this what we elected? Is this what we want? Chaos, protests and confusion? A President who rules by executive orders put together by crackpots? Four (or God help us eight) years of blunders, mistakes and Constitutional violations?

Maybe some people want that. But don’t call it conservatism.

A Few Days in The Capital of the World

My blogging was light this week because I was visiting New York City with my extended family. I’ll be back up over the weekend with my thoughts on the RNC and so on. If you need some political meat to chew on, here’s the leak of the DNC’s internal e-mails which reveal an establishment — an a DNC chair specifically — who heavily favored Hillary Clinton, to the point of pushing garbage stories deleterious to Bernie Sanders. I expected as much. I’m still waiting for the big wikileaks bomb to drop in November when they reveal that Clinton put Trump up to running.

In the meantime, here’s a few thoughts from NYC:

Read more… »

Obama Smacked Down. Yes, Again.

The Supreme Court split 4-4 on United States v. Texas. This lets stand the lower court ruling that invalidated Obama’s attempt to do immigration reform by executive fiat. And it really should have been 8-0.

I support immigration reform. I also support doing it through Congress, as the Constitution mandates. If Obama has the executive power to rewrite immigration law, so will Trump.

Texas Judge Blasts Obama DOJ

Texas v. United States is the lawsuit over Obama’s executive amnesty in which he tried to implement immigration reform around Congress. Obama lost in court, lost in the fifth Circuit and the case is now before SCOTUS. A ruling has yet to be issued. But today, the judge in the Texas case issued a scathing rebuke of the Obama DOJ:

A federal district judge on Thursday excoriated U.S. Department of Justice lawyers who are defending the Obama administration’s immigration plan, issuing an extraordinary order that questioned the department’s policing of attorney ethics and ordered certain government lawyers to take an annual ethics class.
Finding that Justice Department lawyers repeatedly misled the court about when the government would begin implementing new immigration directives, U.S. District Judge Andrew Hanen ordered any Washington-based Justice Department lawyer who wants to appear in any state or federal court in the 26 states that sued the administration to attend an annual legal ethics course.

“The United States Department of Justice … has now admitted making statements that clearly did not match the facts. It has admitted that the lawyers who made these statements had knowledge of the truth when they made these misstatements,” Hanen wrote. “This court would be remiss if it left such unseemly and unprofessional conduct unaddressed.”

Those of you familiar with Obama’s euphemisms will be interested in the latest. In their filings, the DOJ claimed that their lawyers “lost focus” and “the facts receded from memory”.

The lawyers in my twitter feed indicate this order and the angry language around it, is highly unusual. He literally said that the only reason he hasn’t disbarred them is because he legally can’t. This indicates lying and deception on an unprecedented scale.

The Amnesty that Dare Not Speak Its Name

So Obama gave his big speech last night about immigration. The big change is he will extend temporary legal status to about 4-5 million illegal immigrants. To qualify, they will have to have been here five years, have US citizen relatives and have not broken the law (I mean, other than the ones they broke getting here). There is no path to legal status, a green card or citizenship (at least, not yet). And, of course, the next President could undo it.

I’ve made it clear where I stand on this: we need to make it easier for people to legally come here and work; we need to make it harder for people to come here illegally; people who came here illegally should not be moved to the front of the line when it comes to getting legal status. The underlying problem is that we have a broken immigration system. We have a system where coming to America to work involves a long, drawn-out, frustrating and expensive process and becomes a big driver of illegal immigration. Until we fix that, illegal immigration is still going to be a problem. I’m also sympathetic to the arguments that our immigration policy shouldn’t break up families or send people back to countries they’ve never lived in.

But …

All that having been said, I still don’t like what the President is doing.

First, he is doing this by executive fiat without any consultation with Congress. Now I absolutely agree that Congress has dropped the ball on this. Over and over again, they have refused to do anything about our immigration mess. But this does not make the President’s unilateral action wise or even constitutional. Our Constitution does not have a “Congress are being assholes” clause. In fact, the Justice Department informed Obama, they day before his speech, that his actions were of dubious legality. When your own justice department tells you that, that translates into plain english as “this is fucking illegal.”

Even if you assume that he has the authority to act here, that still doesn’t make it right. He’s not even giving Congress a chance to do something about immigration. Obama told the last Congress to stall on immigration until after the election. He has not given the lame duck Congress a chance to act nor has he given the new Congress a chance to act. If he were doing this six months into a Republican Congress, he might have a point. But then again, the new Congress is unlikely to give him the kind of immigration reform he wants. Thus, the petulant act.

Second, Obama can dress this up all he wants. He can claim this isn’t an amnesty. But as noted Matt Welch — a supporter of massively expanded immigration — this is amnesty. When you say you will not deport people who break the law, that’s pretty much the definition of amnesty.

My fellow supporters of vastly increased legal immigration to this country do not, I believe, further their cause by retreating into soft-focus euphemism (DREAMers!) or sidestepping uncomfortable language just because it has proven politically effective for people on the other side of the issue.

If you recognized the existence of more than 10 million unpermitted residents in this country as the product more of prohibition than of criminality, and acted upon that insight foremostly by expanding and deregulating legal immigration, then I predict the word “amnesty” would start to lose some of its negative potency. People really resent line-jumpers when the queue stretches back as far as the eye can see; speed up that process and our national debate would look a lot more reasoned and thoughtful.

Exactly. I lived in Texas for four years. We had a lot of people who did work for us that I’m sure were of questionable legal status. They worked hard, they took care of their families, they obeyed any laws unrelated to immigration. But they were still law-breakers. I want to see them get a chance to come to this country legally. I do not want to see them get that chance ahead of people who have obeyed the law.

The laws against illegal immigration aren’t like a law against free speech or for discrimination. Coming to this country illegally is not an act of civil disobedience. This is a serious business.

Finally, the President’s verbal gymnastics did not persuade me; they annoyed me. He argued very well that we need immigration reform. He didn’t persuade me at all that this was what we needed McArdle:

As an act of rare semantic derring-do, this was a towering achievement. As a political speech, I don’t think it was very effective. It puts one in mind of the debate in “The Hitchhiker’s Guide to the Galaxy,” which ends when one side manages to prove that black is white — and gets themselves killed at the next pedestrian crosswalk.

To be honest, it’s not clear to me that the president was trying to be persuasive. He seemed, rather, to be triple-dog-daring Republicans to jump off the bridge with him, and if history is any guide, they will probably oblige. But there’s a real risk that Democrats will come to regret having the president jump first.

(McArdle also points out the significance that his speech was only broadcast on Univision. And that is a key point. A lot of this speech wasn’t about advancing policy; it was about trawling for latino votes. Expect the ability of the next President to undo Obama’s amnesty to become a big issues in 2016.)

So what should Republicans do? The most common tactic I hear is recession — using the budget process to defund the President’s actions. I would support that but I think it’s small. A better idea would be for the Republicans to pass their own version of immigration reform and dare the President to veto it. Force his hand. Force him to choose his executive fiat over the legal and constitutional moves of the Congress. Show that Republicans are not a bunch of anti-immigrants racists; they just want the law to be obeyed.

The First Salvo on Immigration

The Gang of Eight (I guess) release the outline of immigration reform today. Let’s go through it.

1. Create a tough but fair path to citizenship for unauthorized immigrants currently living in the United States that is contingent upon securing our borders and tracking whether legal immigrants have left the country when required;

Putting aside the proclamation, they propose increases in the border patrol and tracking entry and exit for visa holders. It will also allow current illegals to come forward, pass a background check, pay back taxes and fines and acquire probationary legal status. If they continue to pass checks, they will move to the back of the line for eventual green card status. There will be special dispensations for people who came here as minors and agricultural workers (the latter put in place, no doubt, because of reports of food rotting all over the west when no one was around to pick it).

I suspect this provision will be the most contentious, but it is a fairly obvious tradeoff: enhanced border security in exchange for a path to citizenship. The striking thing is that they are trying to improve the number of people protecting the border rather than building a ridiculous and useless fence — although I suspect the fence will come when some campaign contributor needs a federal contract.

The effectiveness of this will depend on well they do on the other provisions. To wit:

2. Reform our legal immigration system to better recognize the importance of characteristics that will help build the American economy and strengthen American families;

We desperately need an overhaul of our nightmarish immigration system, which is complex, slow and expensive for legal immigrants. I have said it before and I’ll say it again: if you make it easier for people to come her legally, fewer will come here illegally. More illegals will go back and get in line.

The interesting provision is that they will give a green card to anyone in the sciences who gets a Ph.D. from an American University. While it has been fairly easy for STEMs people to get visas, getting a green card is notoriously difficult.

3. Create an effective employment verification system that will prevent identity theft and end the hiring of future unauthorized workers; and,

This is the second part that makes the “path to citizenship” work. If illegals can’t compete for jobs and have an easier way of becoming legal, the problem will eventually abate. I suspect, however, this will prove very difficult to implement. And it’s not going to do much about the guys standing around at Lowe’s who will work for cash.

4. Establish an improved process for admitting future workers to serve our nation’s workforce needs, while simultaneously protecting all workers.

This mainly is about allowing more flexibility with low wage and agricultural workers.

Overall, the outlines are about what I expected. Provisions 2-4 are fairly uncontroversial, depending on the detail. It’s the first provision that’s going to provoke a battle. I’m not fond of the path to citizenship myself. As someone who is married to a green card holder and has been through the stress and expense, I’m disinclined to allow an easier path for those who broke the law.

But I also recognize that we have a Democratic President, a Democratic Senate and a Republican Party that is hemorrhaging votes. If we get better border enforcement, cleaner immigration law and a employer verification system, I’ll take the tradeoff. It will be a massive improvement over the current mess.

Post Scriptum: I should not that illegal immigration has dropped substantially in the last five years. But that little to do with policy and everything to do with the crappy economy. When the economy improves, those numbers will spike again.