"Fear itself" and how Trump manipulates tragedies from Paris to Orlando

Donald Trump is remarkably adept at exploiting tragedies.  Not content to let the public fear only fear itself, he stokes resentment against politically vulnerable minorities, fanning racism and xenophobia among Americans.  He has opportunistically seized upon the latest Orlando massacre to spread his messages of hate.  How does he do it?  By banking on the public's ignorance of policy, putting events and persons in categories that do not conceptually belong together, and strategically omitting important information that would provide context about our immigration system and would have allayed public fears.

His latest rant on foreign policy, immigration, and national security is a case in point. 

Putting events and persons in a single category that don't conceptually belong together

One of the ugliest things Trump has done is to play fast and loose with legal immigration categories (including citizenship) by regularly conflating nationality, race/ethnicity, and religion.  We should not do the same.  The Paris bombers were not refugees, they were French and Belgian citizens who grew up in Europe.  How would a ban on nationals from predominantly Muslim countries save us from such an attack?  It won't. 

Omar Mateen, the Orlando shooter, was a U.S. born citizen who was a violent homophobe and says he was inspired by ISIS.  But Trump characterizes Mateen as "born to Afghan parents who immigrated to the United States."  Similarly, Syed Rizwan Farook from the San Bernardino shooting was a Chicago born U.S. citizen.  Trump described Farook today as "was the child of immigrants from Pakistan." I don't point out these inconsistencies to defend Mateen or Farook, but instead to highlight the vicious smear Trump perpetrated on innocent persons who happen to be of Afghani and Pakistani descent.

Let's not forget Trump referred to Judge Ganzalo Curiel, a native born U.S. citizen, as "Mexican" as if he were a foreign national.  Legal categories and nationality are just dry technicalities that Trump banks on the public not understanding the distinctions between.  He suggests that what defines you is your race, religion, or your parents' place of birth.  That is called racism.  But I digress.  Would a ban on Muslim immigration have saved us from Mateen?  It wouldn't have.  The Orlando and San Bernardino shootings are a failure of American gun policy, not its immigration policy.

Of the terrorists he enumerates, Trump says "I don't want them in our country."  Who is "them"?  

It becomes clear how he is constructing" us "versus "them" later in Trump's speech when he says:

Each year, the United States permanently admits more than 100,000 immigrants from the Middle East, and many more from Muslim countries outside the Middle East. Our government has been admitting ever-growing numbers, year after year, without any effective plan for our security.

In fact, Clinton's State Department was in charge of the admissions process for people applying to enter from overseas.

Having learned nothing from these attacks, she now plans to massively increase admissions without a screening plan, including a 500% increase in Syrian refugees.

This could be a better, bigger version of the legendary Trojan Horse.

Tarring adherents of an entire religion with a broad brush as a threat, while eliding terrorists and mass murderers of the home-grown variety is not new for Trump.  But in the passage above,  "Muslim" in Trump's mind renders someone one of "them" whether one has murderous proclivities or not.  It remains unclear if evil doers who are domestic terrorists are also "them" if they are not also Muslim.

Trump's racist guilt-by-association-with-an-allegedly-dangerous-Mulslim country strategy only builds on existing media bias. For example, mass murderers who happen to be white and "American" like Dylan Roof, of Charleston, SC infamy, is not referred to as a "terrorist" but as "mentally ill." 

Omitting crucial information that would provide factual and historical context

1) Trump mentions the following events in his speech:  9/11, Paris, San Bernardino, the Boston Marathon bombing, and Orlando.  Yet there were hundreds more mass shootings in between those headline grabbing events.  He singled out these particular events because they were carried out by shooters who claimed to kill in the name of ISIS and who were claiming to be Muslim.  He omitted from his speech the many school shootings, many like at Sandy Hook which were also deadly with multiple lives lost.  Tellingly he never mentioned Robert Lewis Dear, Jr.  Remember him?  He's the guy who shot up Planned Parenthood in an overtly political act saying he was motivated by Christianity.  Where's the call to ban Christians?

2) Trump's laser beam focus has been on terrorists (and he means foreign terrorists whether the person is actually foreign-born or merely associated with someone foreign-born).  In fact the inextricable problem with mass murder is the profusion of firearms in the U.S. including semi-automatics that kill with deadly ease and accuracy.  Trump omits any discussion of many other deaths in the United States caused by handguns, a number that dwarfs than the number of deaths caused by a terrorist act.

3) Trump makes it sound like the U.S. borders are porous when he said, "We have to screen applicants to know whether they are affiliated with, or support, radical groups and beliefs."  People do not just come into the U.S. at will, especially refugees. Refugees coming to the United States are rigorously screened n a process that takes at least 18-24 months and requires the handing over of biometrics to multiple federal agencies and hours of questioning and interviewing.  The process is described here and by this White House description.  Are we to believe a would-be terrorist is willing to hand over biometrics to multiple federal agencies and cool their jets in a refugee camp overseas for 18-24 months?

Truth was never his strong suit, but for the record, Syrian refugees are not pouring into the country as Trump suggests.  This year, we've admitted 1,100 Syrian refugees as of this March 2016.

Building walls and excluding nationals from allied nations, whether predominantly Muslim or not, will not make us safer. It will weaken our diplomatic ties with them making intelligence sharing and law enforcement cooperation more difficult.  Any discussion of "security" and "terrorism" which omits serious policy proposals on gun control is not going to make us safer.  Alienating and demonizing adherents of an entire religion will not make us safer.  An unrelenting search for the facts by citizens of conscience and a free press to confront Trumps' innuendos and lies, even though it feels some days like a no-win game of Whac-a-Mole , is mostly what we have left as the thin guardrail of our republic against authoritarianism.

 

 

Law and Musalo Awarded NSF for Collaborative Research: "How do immigration courts decide gender-based asylum claims?"

National Science Foundation- Law and Social Sciences Division

Grant #1556551 to CUNY Brooklyn College/$79,497

Grant #1556131 to UC Hastings College of Law/$185,998

Last Fall, I spoke to Karen Musalo at UC Hastings Law by phone, whom I had never met, but knew by reputation well.  She is the leading expert in the country on gender and asylum.  She wanted to apply for an NSF to study immigration judge decisions using the methodology I used in my first book.  I am in the middle of writing a second book on immigration federalism before the Civil War.  Had anyone else called, I probably would have said no.  I told Karen the NSF is a high mountain to climb--the acceptance rate is low, it would take us 3 months to come up with a credible proposal, and no one lands it on the first try.  She was game, so we put together a proposal and vetted it with many friends in both law and political science.  We are pleased to report it only took us one and a half tries and this collaborative grant is the result.  After working on the grant proposal for a year with Karen and her staff by conference calls and emails, I still have not met them, but will soon and look forward to working on this project with them!

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To quality for asylum or refugee protection in the United States, one must demonstrate a well-founded fear of persecution "on account of race, religion, nationality, membership in a particular social group, or political opinion."  That definition is derived from the United Nations 1951 Convention and 1967 Protocols Regarding the Status of Refugees.  Noticeably absent from that definition are sex and gender.  Yet many women and children are the face of the continuing humanitarian crisis along the U.S.'s southwestern border surge as they flee sexual and domestic violence in their home countries.  These women and children do not fit the profile of the Soviet dissident or political prisoner of the Cold War era. How are gender-based claims adjudicated in the U.S. asylum system by administrative agency judges?

Non-Jargon Abstract

How do immigration judges decide when to grant someone asylum when they claim protection on the basis of gender? Headed by Co-PIs Karen Musalo, a law professor, and Anna O. Law, a political scientist; two leading authorities in their respective fields of refugee law and public law, this collaborative study between UC Hastings College of Law and CUNY Brooklyn College will illuminate the decision making processes in the evolving field of gender-based asylum law.

An ongoing humanitarian tragedy continues along our own border with Mexico with the “surge” of migrants. Much controversy over U.S. border practices, such as detention of asylum-seeker families, reflects conflicting understandings over whether refugee protection properly extends to Central American women and children—many of whom are fleeing gender-based violence. Because the legal refugee definition does not explicitly designate gender as a ground for protection, gender-based claims are fraught.

When the Department of Homeland Security charges an immigrant with violating laws, or when one claims asylum, immigration judges, part of the Executive Office for Immigration Review (an agency within the Department of Justice), hold administrative hearings to interpret and adjudicate these laws. At hearings, these judges decide whether immigrants can remain in the U.S. or be removed to their home country, and federal court review is sought in only a minority of cases. Yet, existing scholarship on decision-making processes have focused almost solely on federal courts, primarily because access to immigration judge decisions are difficult to obtain.

The Co-PIs will undertake a study of the largest known repository of immigration court asylum decisions from around the country (more than 760 decisions) housed at the Center for Gender & Refugee Studies of UC Hastings and supplement those with decisions obtained through FOIA requests. They will create an original data set to systematically examine how factors such as case facts patterns and legal precedent affect legal outcomes. This unique study will examine a level of immigration bureaucracy never before studied in this regard.

See CGRS's announcement here.

Further Elaboration of Study

Overview:  The objective of this collaborative research project is to better understand decision-making processes in the U.S. immigration courts, which decide the vast majority of immigration cases, in contrast to the federal judiciary that decides far fewer cases. The project therefore studies the “base” of the immigration decision making pyramid, the decision making point that renders the most decisions affecting the largest number of asylum claimants.

This project proposes a multi-methodological analysis of gender-based asylum adjudication at the immigration judge (IJ) and administrative appeals levels. We will undertake an interpretive content analysis of the largest known repository of immigration court asylum decisions from around the country—containing nearly 700 decisions of immigration judges and the agency appellate body—housed at the Center for Gender & Refugee Studies of UC Hastings (CGRS). CGRS, headed by Co-PI and Professor of Law Karen Musalo, has amassed these decisions over the course of two decades. The CGRS sample will be supplemented by cases obtained by FOIA requests from ICE’s detention centers.

Building upon the work of Co-PI and Associate Professor of Political Science Anna Law of Brooklyn College, our study will use grounded theory to identify and analyze modes of legal reasoningto assess the influence of case facts in immigration decisions. We will supplement and cross check our findings with quantitative analysis of the aggregate data obtained from the Executive Office for Immigration Review (EOIR) to assess how representative the CGRS sample is.

Intellectual Merit: This project will re-evaluate and extend theories of decision-making in asylum adjudication. Existing scholarship on immigration courts examines either how asylum decisions map onto national foreign policy and economic interests, or how individual characteristics of judges or circuits produce variability in asylum success. With respect to the latter, studies have shown that asylum grant rates diverge enormously based on the identity of the adjudicator, even when controlled for factors such as the applicant’s country of origin or jurisdiction of filing. These existing studies are constrained, however, by the quantitative data they use—as scholars have relied on the immigration courts’ own database, which does not track legal reasoning or case facts in decisions. Public access to the decisions themselves, moreover, is limited.

Because of the unique nature of CGRS’s data set, containing several hundred of these decisions, this project will be able to identify and code for legal reasoning and case fact patterns in the decisions of immigration courts nationwide: a level of immigration bureaucracy never before studied in this regard. In so doing, this study will respond to and avoid some of the key criticisms of extant decision-making research: that quantitative analyses of decision-making fail to account for the specificities of cases or to adequately consider the constraining effects of legal doctrine.

Via an innovative grounded theory approach, supplemented by quantitative data analysis, this study will answer the critical questions of why and how decision-makers differ in adjudication approaches and outcomes. It will make key scholarly contributions by examining the interplay of legal and extralegal factors, e.g., how gender influences agency decision-making; and assessing the impact of discrete institutional components of the administrative system, e.g., the influence of structural changes and changes in doctrine on case outcomes.

 

 

Obama's 2016 Immigration Raids: It's On.

The Obama immigration raids that were first reported by The Washington Post last week have now begun.  Although it is not unexpected given Obama's track record as Deporter-in-Chief, the development is still disconcerting and disturbing. Most of these are families, including women and children from Central America (not Mexico), arrived on our southwestern border with Mexico and have claimed asylum protection. The surge along our southwestern border is caused by gang violence and drug trafficking violence in El Salvador, Honduras, and Guatemala. Obama justifies the current roundups and deportations saying that these people have either a) been denied asylum in an administrative hearing before an Immigration Judge (IJ) or b) never appeared for their hearing and were ordered removed in absentia.  

As Dara Lind of Vox observes, while the deportation of the first group is keeping with Obama's prosecutorial discretion priorities, conducting raids in neighborhoods is far more aggressive a tactic that he has ever used.  Obama has previously relied on partnerships with local law enforcement to scoop up undocumented immigrants via programs like Secure Communities.  These programs, although controversial, were less invasive than raids.  Mass raids were more the modus operandi of George W. Bush and Lind explains why that tactic was so reviled among the targets :

Raids also traumatized immigrant communities — decreasing trust in local police, local government, schools, etc. Unauthorized immigrants got the message the raids were designed to send: they weren’t safe anywhere. And people who lived alongside unauthorized immigrants worried that, in the chaos of an ICE raid, they could be snatched up too.

With regard to being denied asylum protection in a hearing before an immigration judge, not surprisingly, multiple studies show that there is strong correlation between one's ability to win asylum and whether one has legal counsel and the vast majority are not counseled.  The reason is the persistent legal fiction that deportation/removal and all purely immigration matters are administrative and not criminal in nature and therefore, wait for it, not punishment.  In practical terms,  it means that immigrants in deportation proceedings do not have the right to counsel at public expense as criminal defendants (of any immigration status charged of committing a crime).

What is dismaying about Obama's move is that it is incomprehensible.  For the record, immigration scholars and advocates including myself believe that many of these people either were wrongfully denied asylum protection by the IJ or did not receive enough information about and do not understand that they had to show up for a hearing.  So from a legal standpoint, I believe many who are now being rounded up are being deported back to conditions where they may face violence or death because of an error made by an IJ.  

From a political standpoint, it is mystifying to me why Obama would not use his lame duck status to simply not deport people and maybe ease human suffering.  It has been suggested by political analysts that he may be trying to look tough on immigration by ramping up his deportation numbers so that he can get movement on other parts of his immigration reform agenda.  Specifically, it has recently been suggested that the ongoing raids/roundups are designed to play to the Supreme Court which is poised to hear a case that will decide the authority of Obama's executive action.  Trying to out-Republican the GOP on immigration by deporting more people than George W. Bush has not helped Obama one wit in getting any of his immigration agenda through.  One has to wonder what he is thinking in trying to appeal to the Third Branch, a branch that ostensibly prides itself on insulation from the elected branches.  Thanks a lot, Obama.  With friends like these, who needs Donald Trump and the GOP?

Anatomy of the contemporary "southern strategy"

Donald Trump's anti-Muslim and anti-immigrant rhetoric today has been compared to the GOP's "southern strategy".  Meanwhile polls consistently show that most Trump supporters are not religious, or ideologically conservative, but are blue collar voters without college degrees as reported by The Los Angeles Times in their recent poll.  Just branding Trump supporters uneducated does not get to the mechanics of how his appeals work on low education voters.


Nixon's southern strategy relied on coded appeals to whites by tweaking their resentment against African Americans via raising the issues of forced busing and states rights.  Trump's appeals today don't even need to be coded, it is out in the open as he exploits tragedies and singles out politically unpopular minority groups for demonization--all while playing to supporters that are not sophisticated enough to have complex reasoning skills that even many college graduates are weak at.  These kinds of skills allow one, for example to differentiate between fact from opinion, and to understand quantitative, and probability evidence especially related to threats of terrorism.

In higher education, you learn critical thinking skills which includes how to evaluate evidence, including conflicting pieces of evidence when solving problems.  As a result, many of Trump's supporters, which Janell Ross of The Washington Post has bluntly called "less educated Americans", are swayed by only by persuasive rhetoric because they do not have the ability to judge the actual risk posed by terrorism and immigration.

Trump's anti-immigrant message is actually multi-pronged.  Although a July 2015 poll indicates a correlation between negative views of immigration and low levels of education, and indeed there is a genuine debate about whether undocumented immigrants compete for jobs with unskilled Americans,  Trump's anti-immigration message is not just about tapping into white's economic insecurities in the middle of a fragile economy; it also relies on their fear of crime and dose of race baiting a la Willie Horton.

Trump conflates immigrants with criminal activity by suggesting that immigrants are agents of crime and drugs as evidenced by his now familiar words characterizing Mexicans as "criminals, drug dealers, and rapists." Early in the campaign, he and other GOP candidates invoked the 2015 version of Willie Horton, by politicizing Kathryn Steinle's murder in San Francisco by an undocumented immigrant. Blithely ignoring the findings of a major study by a non-partisan think tank showing that immigrants are not more prone to criminal activity than the native-born, Trump (and the other GOP hopefuls) relentless deployed the term "sanctuary cities" like an epithet. The beauty of a soundbite like "sanctuary cities" is that it elides the complexity of immigration federalism and distills it into a catchy phrase that suggests that these cities are sheltering criminal immigrants who are preying on innocent Americans.

Trump has also ridden the wave of the popular fear national security right after the Paris and Beirut bombings and now the San Bernadino shootings.  His call to ban Muslim immigrants has been met with wide condemnation across the political spectrum and internationally, but a recent Bloomberg poll showed that many likely Republican voters support it.  Rather than just dismissing these people as xenophobic and religious bigots, which indeed many are, it also likely that many don't understand statistics and probability. 

As Stephen Walt, an International Relations Specialist, has argued, the United State's own political leaders have added fuel to the fire by not communicating to the public that the threat of a terrorist attack on the homeland is actually very low. Walt wrote: "If the United States were truly serious about terrorism, it would start by gauging the level of threat properly and communicating that appraisal to the American people...Yet instead of using logic and evidence to reassure the American people, leaders from both parties have encouraged, since 9/11, the irrational fear of terrorism to drive a host of counterproductive policies."

When one does not understand statistics and probability evidence, when the media keeps focusing on visa categories to suggest that these may be pathways to terror attacks, and our own political leaders' focus is on terrorism, voters' fears are primed. But when Trump then goes the extra mile to single out an entire religious group that a Huffington Post/YouGov poll says many Americans have little knowledge of and little personal contact with individual members of for exclusion and demonization, it is possible to see why less educated voters support his disgusting proposal. 

Does all of this make Trump and his supporters' views less loathsome? No. But it makes it more comprehensible to educated voters why many Trump supporters are entirely unpersuaded by factually based arguments like the ones put forth by Andrew Shaver arguing that "Americans are more likely to be crushed by furniture than killed by a terrorist" or his other admonition that "If you are worried that ISIS might strike the United States and want to prevent the loss of American lives, consider urging Congress to invest in diabetes and Alzheimer’s research."

 

The Dis-United States: Fortress America Refusing Refugees

In the aftermath of the Paris terror attacks, there was first an outpouring of worldwide grief.  Upon the discovery that one of the attackers was carrying a Syrian passport, the largest movement of refugees since World War II became linked to the terror attacks.  Never-mind that the provenance of the Syrian passport is in question.  That development has spawned a cascading effect of knee jerk and hysterical responses from state governors in the United States who now wish to pull up the drawbridge to their state. Unfortunately for these governors, neither U.S. immigration or constitutional law is on their side.

In less than 48 hours after the Paris attacks in the United States, state governors crawled out of the woodwork to say that they would refuse any Syrian refugees who wished to resettled in their state because the threat they might pose to the citizenry of their respective states.  By the end of Monday, November 16, more than half of the nation's governors,  27 state governors, had jumped on the bandwagon to proclaim their refusal to take Syrian refugees or to impose a religious litmus tests to only accept Christian refugees.  Can the governors do this?  Well, no.  Several facts to consider:

1) The decision of whether to admit refugees and how many to admit to the United States is made at the federal level.  States do not have input in that decision. 

Also relevant, in actuality, the several year vetting process for Syrian refugees has meant that in the past 4 years, the U.S. has admitted about 2,200 Syrian refugees since the civil unrest began in that country.  That number no where nearly approaches what our European allies have admitted. 

Also, unlike Europe, the United States resettlement program follows a priority system in which we settle vulnerable refugees first:  women, their children, and the elderly.  The governors are losing their minds over THIS trickle of people.

2)  Once admitted into the United States, the Refugee Act of 1980 details a role for the states, which is to work cooperatively with the federal government's Office of Refugee Resettlement (ORR).  Susan Martin at Georgetown University, a nationally recognized refugee policy expert ,says that virtually all states have opted into this federal/state cooperative program. State refugee offices receive federal funds to cover Refugee Cash Assistance and Refugee Medical Assistance for those refugees who do not qualify for the more traditional Transitional Assistance to Needy Families, and Medicaid.  So the states are receiving federal "filter through" funds to assist the refugees who settle there based on a formula and on a cost share basis.

Theoretically, states could choose not to financially aid any Syrian refugees that arrive in their state with these funds, but legal issues would arise because states cannot pick and choose which refugees to fund once the state has opted into working with ORR.

3) Once refugees arrive in the United States, they can move freely among all the 50 states.  There is absolutely nothing state governors can do to stop refugees or any persons for that matter from moving around in the interior of the U.S. from state to state once they have been admitted.  Are we to presume that the governors are going to deploy their national guard to ring the perimeter of their state to check the papers of all who cross state lines?

At the risk of beating a dead horse, Timothy McVeigh and Terry Nichols were hardly foreign terrorists, yet their actions were more deadly than Paris.  They killed 168 people and injured 650 others.  But there was no call after the deadly Oklahoma City bombing to round up 27 and 40 year old white, male, anti-government types and no calls to ban them from neighboring states.
 

Summary of 2015 Kurz Chair public programming LGBTQ Equality v Religious Rights

Each year, as the occupant of the Herbert Kurz Chair in Constitutional Rights at CUNY Brooklyn College, I have the privilege of putting together public programming that probes the limits and possibilities of the U.S. Constitution's ability to protect the rights of politically unpopular minority groups.  In past years, the series has taken on the topics of NYPD's Stop and Frisk, school desegregation, and comprehensive immigration reform.

In June of 2015, the Supreme Court issued a landmark decision on same-sex marriage in Obergefell v Hodges.  The decision was regarded as a huge victory for the LGBTQ community and for our country, but it left unfinished business.  Although undoubtedly a significant development, Obergefell only confined itself to the question of marriage and fell short of designating sexual orientation as even a quasi-suspect class under U.S. constitutional law's equal protection framework.  In practical terms what this move means is that unless there is a state level anti-discrimination law in place that specifically designates sexual orientation as a protected grounds along with race, sex, and religion for example, it may still be legal to refuse to hire, to fire, to refuse adoption, refuse to rent or sell property to persons solely based on their sexual orientation.

With the Obergefell victory, the LGBTQ movement currently finds itself at a crossroads.  Having overcome sodomy laws, overturned Don't-Ask-Don't-Tell, and now having achieved a major milestone of the national recognition of same-sex marriage, where is the movement headed? 

At the same time, the United States has had a long tradition of respecting religious liberty as protected in the First Amendment's establishment and free exercise clauses.  In 2014, the Supreme Court ruled in Burwell v Hobby Lobby that the Religious Freedom Restoration Act, (RFRA), a federal law, shielded a for-profit business from compliance with a provision in the Affordable Care Act that compelled employers to provide contraception to their employees if doing so would violate the employer's religious beliefs.  (RFRA was passed with overwhelmingly bipartisan support in both chambers of Congress and signed into law by Bill Clinton.)

Shortly after the Obergefell decision, when I had already decided that the 2015 Kurz event would address the subject of LGBTQ equality and religious rights, Kentucky county clerk Kim Davis, citing her Christian faith, made international headlines by refusing to issue marriage licenses to same-sex couples.  As that same New York Times article noted, Davis became "a symbol of religious opposition to same-sex marriage."  The rallying cry for the Christian right against same-sex marriage was no longer that it threatened heterosexual marriage, but that accommodation of same-sex marriage was a violation of one's religious liberty.

The media certainly casts the LGBTQ community's claims of equality and claims of religious rights as if they are in opposition, but is this construction unavoidable?  Or is there a way to reconcile the two that would be satisfactory to both?

This year's Kurz Chair public event brought Law Professor Steve Sanders from Indiana University's Mauer School of Law to Brooklyn College to speak on the subject of how to balance LGBTQ equality against claims of religious freedom. Sanders, a constitutional law expert and specialist in the rights of LGBTQ couples and their families, visited Brooklyn College on October 26, 2015.  About 70 to 80 students, faculty members, staff, and the Dean of the School of Humanities and Social Sciences attended the event in Woody Tanger auditorium.

Sanders gave a thoughtful and nuanced talk in which he provided a way forward for how the LGBTQ community and progressive allies should weigh claims of religious liberty against LGBTQ equality.

He began by sketching the current legal and cultural landscape facing LGBTQ citizens.  Although same-sex marriage is legalized across the land, only 21 states have passed anti-discrimination laws which protect this community, leaving the gay community vulnerable to discrimination in the remaining 29 states in areas such as housing, adoption, public accommodation, and employment. 

Sanders also noted the generational shift in attitudes toward gay marriage, but also drew attention to a point of concern for progressives concerned about sex and gender rights across the board.  He pointed out that today, more Americans support gay rights than abortion rights and that this trend is strongest among Millennials.  He believes that the plan of the religious right is to keep the same-sex marriage issue in political play to prevent if from becoming a settled issue.

Sanders spent the rest of his talk pragmatically urging restraint and caution of the LGBTQ community in taking care to strategically distinguish between taking on genuine bigotry and overplaying their hand, which would risk squandering the precious public support the movement currently enjoyed.  He noted that while bigots had coalesced around using religious liberty as a strategy to counter LGBTQ rights, especially same-sex marriage, it is important to recognized that there are also religious moderates who have deeply held religious convictions that cause them to have a genuine conflict with accommodating gay marriage. 

Sanders pointed out that the problem with the construction of the Christian right's "religious rights" is that it is absolutist in rejecting completely any gay rights as entirely compatible with it.  He argued that LGBTQ activists should not be equally absolutist and intolerant in their construction and litigation against claims of religious rights.  The example he presented was to urge LGBTQ activists to make the distinction between bringing a lawsuit against a florist who has served without incident for years her gay clients but who now drew the line at making the flower arrangements for their same-sex weddings citing her religious faith, versus the florist who refused to serve any gay clientele under any circumstances. 

Given the limited litigation resources, Sanders said he would be in favor of litigating against the latter, not the former.  Sanders would also favor legal action against the latter rather than the former as a matter of public relations; he said the LGBTQ community needs to come across as reasonable and not as rigid as the Christian right.  It needs to be understood and perceived by the public as a movement that is sympathetic to the rights of moderate, religious persons and a movement that views the expansion of its rights with equal regard for not unduly placing burden the rights of others. 

Sanders believes that Kim Davis was an entirely unsympathetic case for the cause of religious liberty and starkly illustrated the unreasonableness and uncompromising nature of the religious right.  He believes that ugly spectacle was a textbook case of what NOT to do and how to lose public support for your cause by being absolutely narcissistic and uncompromising in your own position.  He argued that her stance was completely devoid of any nuanced understanding of true religious liberty and totally unaccommodating toward the opposing point of view.

Sanders closed by listing some public opinion figures on support for LGBTQ rights from The Washington Post:  63% of respondents said Davis should "be required to do her job."  66% of GOP respondents said that people should be treated equally regardless of their sexual orientation.  In light of this state of current public opinion, Sanders concluded, the Christian right was like "A child throwing a tantrum."  Nevertheless, he cautioned, the LGBTQ community had not yet consolidated broad public acceptance and must not squander it by overplaying its hand by appearing unsympathetic toward moderate religious persons who may have genuine religious-based objections to accommodating same-sex marriage but who are not hardened homophobes.

Sanders then turned over the microphone to Paisley Currah, professor of political science at Brooklyn College.  Currah, a founding editor of Transgender Studies Quarterly, is an expert in queer legal theory, political theory, and public policy.  (I had asked Currah to assess the evolution of the LGBTQ movement.)  Currah noted the irony that in U.S. history, it fell to the most undemocratic of institutions, the federal courts (undemocratic because the courts consist of un-elected and politically unaccountable judges) to provide the LGBTQ community with their individual rights, and that the individual rights of gay citizens was repeatedly withheld and curtailed through the "democratic" exercises of the franchise.

Indeed the Obergefell decision illustrated Currah's point--the Supreme Court, through a narrow 5-4 majority, nationalized gay marriage across the land, overriding the objections of the many states had chosen to ban gay marriage through legislative or ballot initiative measures.  What the Court majority did in Obergefell is take on one of the roles that the framers had anticipated the federal judiciary would play in Federalist 78 in guarding against the "ill humors of society", but still, it is jarring and "counter-majoritarian" to those on the losing side of the decision.

Currah also highlighted the disjuncture that while conservatives purport to advocate small government in every other sphere of public policy, they have no problem with big and invasive government policies when it comes to matters of abortion and gay rights where the government is literally "in your bedroom." 

At this point, the floor was opened to the audience for a vigorous 35 minute Question and Answer session that I moderated.  Most of the Q and A was dominated by what I would describe as Sanders' pragmatism clashing with the students' raw idealism.  Some of the student audience members did not take well Sanders' admonition to pick and choose which cases to litigate; they felt that any case in which a gay person or couple was refused service or public accommodation based on a claim of religious rights should be vigorously litigated and countered based on 1)  the indignity and insult to the person/couple denied service, and the 2) need to establish a positive body of precedent to counter claims of religious liberty to deny LGBTQ rights. 

Sanders reiterated that it was a question of finite resources and that he didn't think it was a good use of funds to litigate every case.  He again explained that surely the LGBTQ community should not want to alienate moderate religious allies who had genuine religious difficulties with recognizing gay marriage but who were not homophones.  He said, "We [the LGBTQ community] don't want to be perceived as having won the war and are now going back across the battlefield to shoot the remaining survivors."  He was trying to stress that there was an additional matter of the public relations war that had to be won, not just the litigation at hand. 

One student retorted that he'd be more likely to believe a claim of religious belief if it hadn't been trotted out so often in U.S. history to oppose mixed race marriage and gender equality before.  Sanders responded that the students should not just think of claims of religious liberty as just the extreme ones put forth by the Christian right.  What about the ones by non-mainstream religious such as Islam?   He said he also believed the more urgent matter was to get anti-discrimination laws passed in the remaining 29 states that did not have them.  Clearly there was going to be a difference of opinion among the speaker and some of the audience members. 

Other audience members asked whether persons of faith who were supportive of gay rights could act as intermediaries and emissaries between the two communities and both Sanders and Currah pointed out that indeed many such efforts were underway and in fact many in the LGBTQ community are themselves deeply religious people. 

Someone else asked if the two speakers believed that American supporters of gay rights also had an obligation to support LGBTQ communities abroad.  Currah answers that he'd have to take a good hard look at who was calling for support for those efforts and why those calls were being made.  For example, he noted that he would look askance at a call to invade a foreign country to "aid the oppressed LGBTQ community."

A very big thank you to Steve Sanders and Paisley Currah for providing such a stimulating talk on an important subject. And thanks again to all who came out to the event and to all the cosponosoring departments and units, especially the Wolfe Institute for the Humanities and the LGBTQ Resource Center.  I look forward to seeing everyone at next year's Kurz event.

Anthony Bourdain blasts Trump on immigration, supports path to citizenship

Never one to be shy about expressing his strong opinions, celebrity chef Anthony Bourdain let it all hang out during his interview with Pete Dominick on Sirius XM yesterday.  When asked by Dominick, "What is your point of view of these undocumented immigrants?” Bourdain wasted no time in condemning both Trump's immigration policies and the work ethic of native-born culinary students.  Bourdain, a graduate of both Vassar College and the Culinary Institute of America, said:

Like a lot of other white kids, I rolled out of a prestigious culinary institute and went to work in real restaurants… I walked into restaurants and the person always who’d been there the longest, who took the time to show me how it was done, was always Mexican or Central American.

He said immigrants were, “the backbone of the industry, meaning most of the people, in my experience, cooking" and that if Trump really were to carry out his plan to deport the 11 million undocumented immigrants that currently reside in the United States, "every restaurant in America would shut down."

Bourdain went on to praise the work ethic of immigrants and denigrate the lack thereof among native-born culinary students.  He noted that after 20 years in the restaurant business in which he made hiring decisions by culling hundreds of resumes of those including many from native born applicants:

“Never in any of those years, not once, did anyone walk into my restaurant — any American-born kid walk into my restaurant — and say, ‘I’d like a job as a night porter or as a dishwasher....Not willing to start at the bottom like that.”

Given that undocumented immigrants are an integral part of the restaurant industry and thatthey are "people who’ve been living here, and who are so much part of our lives, and who have done nothing but do their best to achieve the American dream" Bourdain concluded that "there should be an easy path to legality."

When asked if others in the restaurant industry shared his point of view, Bourdain said, "Yeah, because they'd be up a creak."  He pointed to the pipeline problem in New York, Washington, DC and other major cities and attributed this shortage to the unwillingness of native-born culinary students to take low level jobs and their sense of entitlement.  In his words:

Because all the kids coming out of culinary school, they don’t want to do the prep job. They show up out of school with their little knife roll up and the white coffee filter on their head and say, ‘When do I get to be on Top Chef? When do I get my own show? What do mean I have to clean squid for a year?'

With his remarks, Bourdain joins other high profile chefs, namely Jose Andreas, and Geoffrey Zakarian, in condemning Trump and the GOP's ugly attacks on immigrants.

 

 

Trump's advantage achieved by framing immigration as zero-sum

Today's column by Max Ehrenfreund in the Washington Post provided psychological explanations of why Trump still tops the polls despite all his in-artfulness as a campaigner and frequent pundit predictions of his demise.  What psychologists had to say about Trump's approach to immigration is interesting and says more about the American public than about Trump himself.

Essentially, when Ehrenfreund interviewed several psychologists in an effort to understand the Trump phenomenon, they said the following:

1) We like people who talk big.

2) We like people who tell us that our problems are simple and easy to solve, even when they aren't.

3) And we don't like people who don't look like us.

These three points explain Trump's appeal on immigration. Trump has said he would deport all undocumented persons and their families--never-mind the cost, due process issues, and that it's politically not viable.  But, hey, he's going big.

Trump has also laid out a 6 page immigration plan which involves building a wall between us and Mexico, mass deportation, and repealing the 14th Amendment.  Even if all of these are actually accomplished, it still would not stop undocumented immigration because these are simple solutions to a very complex problem.  But hey, he's putting forth, simple, bite -sized solutions, however non-viable.

Finally, it's pretty clear he's demonizing and racializing immigrants as criminals and Latino.  While immigration specialists (and many businesses including the Chamber of Commerce that represents them) see the long term effects of legalizing immigrants as positive, Trump is portraying immigration as a zero-sum proposition and throwing race on top of it.  As Ehrenfreund wrote:

His [the psychologist's] explanation is that whites see competition between groups as zero sum. Whites assume that they must be worse off, since the legal and economic situation for blacks has improved. Research also suggests that white voters with stronger prejudices against African Americans are more likely to support the conservative GOP faction known as the tea party.

That logic and psychological effect is carried over for Latinos.  If undocumented people (which Trump paints as Latino) are getting "free stuff", that means less stuff for white people.

All of this analysis makes sense.  It just doesn't inspirel much faith in our fellow citizens.

 

The legacy of the 1965 Act, 50 years later

October 3, 2015 is the 50th anniversary of the Immigration and Nationality Act of 1965.  Unlike the Civil Rights Act of 1964 and the Voting Rights Act of 1965, the 1965 Immigration Act is much lesser known in the popular consciousness, but it should be, given the dramatic changes it has brought about by shifting the U.S. immigration selection system from a racist logic that privileged northern and western Europeans, and one that shut out most of the developing world, to one that is national origin's neutral.

LBJ and the framers did not anticipated the 1965 Act bringing about the kind of sweeping changes that it did.  Still, he and the framers were savvy enough to tap into the spirit of ethnic and racial tolerance that swept the nation in the mid-1960s to pass the Act.  They also cited the impetus that the discriminatory national origins immigration selection system was hampering the nation's foreign policy standing around the world as we tried to claim that we were the "good guys" while we still had a racially discriminatory immigration system.  But as he stood before the Statue of Liberty signing the bill, he said, "This bill that we will sign today is not a revolutionary bill. It does not affect the lives of millions. It will not reshape the structure of our daily lives, or really add importantly to either our wealth or our power." He simply believed that by moving away from a national-origins based selection process was an act of fairness.  At the signing ceremony, he stated:

This bill says simply that from this day forth those wishing to immigrate to America shall be admitted on the basis of their skills and their close relationship to those already here.
This is a simple test, and it is a fair test. Those who can contribute most to this country--to its growth, to its strength, to its spirit--will be the first that are admitted to this land.

The selection system implemented in 1965, in which each nation is granted a 20,000 per country quota, and by which immigrants are selected based on the dual priorities of family reunification or job skills remains intact today.  LBJ and his congressional colleagues were very wrong about the 1965 Act not being revolutionary.  In fact it changed the complexion of America; they simply did not anticipated that it would be Indian, Mexican, Chinese, and Nigerian applicants who would be applying and entering through employment and family visa categories instead of the old white European immigrants.

The Pew Research Center has just released some statistics in time to commemorate the 50 Anniversary of the 1965 Act.  Their data illustrate conclusively the effects of the 1965 Act.  While both large waves of immigrants to the U.S. in the mid-nineteenth century and early twentieth century were dominated by white ethnic Europeans, since the passage of the 1965 Act, half the immigrants to the U.S. are from Latin America and one-quarter are from Asia. Another way to assess the effect of the 1965 Act is this way:

In 1965, 84% of Americans were non-Hispanic whites. By 2015, that share had declined to 62%. Meanwhile, the Hispanic share of the U.S. population rose from 4% in 1965 to 18% in 2015. Asians also saw their share rise, from less than 1% in 1965 to 6% in 2015.

There is no doubt the 1965 has changed the demographics of America with broad implications for our cultural and political system.  I urge everyone to read the extensive Pew Report for themselves which contains a plethora of data including profiles of the immigrant wave today and polling about Americans' views on immigration.

Trump and the GOP primary field are not really putting forward policies about how to solve the undocumented immigration problem.  Proposals such as building a wall, mass deportation, repealing birthright citizenship, having Fedex track immigrants like packages and admonishing immigrants to learn English and assimilate are not serious solutions to the complex phenomenon of undocumented immigration.  What they are instead are reactionary flailing against the sea of cultural and racial changes wrought by the 1965 Act and the sense of unease and dispossession some whites and even non-whites feel about the browning of America.  Those feelings are also exacerbated by a fragile economic recovery and their perceptions of labor market competition from immigrants (both undocumented and documented) who are a different color or are more recent immigrants than themselves.

 

WWRD: What would Reagan do on immigration?

As the Republican primaries roll on and the candidates take positions on a variety of issues, immigration remains central.  A non-surprising feature of the two debates and campaigns has been the frequent invocations of Ronald Reagan's name, a revered icon among conservatives.  (Read here for an assessment of why conservatives love him; they include the beliefs that he shrank the national government, devolved power to the states, and generally left the nation stronger when he left office.)  A testament to Reagan's continued importance to conservatives is that the second GOP debate was held in the Ronald Reagan presidential library.  What would dismay the Gipper is the manner in which immigration is being discussed by the current crop of presidential hopefuls. 

Trump's profoundly negative influence on this campaign cycle is to drag the field so far to the right on immigration, that the many GOP voters who currently support Trump and virtually all the other candidates taking the current hard line and nativist stances on immigration would run their beloved Regan (debating Bush, Sr. in 1980) out of town on a rail for heresy. Take a listen for yourself.

Bush, Sr. and Reagan in 1980 Presidential Debate (h/t Rob Barr)

In this clip, a young man from the audience asks both candidates whether undocumented children should receive a free public education or whether their parents should pay for their education.

Bush, Sr.: "I don't want to see a whole thing of 6 and 8 year old kids being made, one, totally uneducated, and being made to feel like they're totally outside the law.  Let's address ourselves to the fundamentals.  These are good people, strong people, part of my family is a Mexican."

Reagan:  "They [Mexico] have a problem with 40-50% unemployment...Rather than talking about putting up a fence, why don't we work out some recognition of our mutual problems, make it possible for them to come here legally with a work permit, and then while they're working and earning here, they pay taxes here.  And then when they want to go back, they go back; open the border both ways by understanding their problems."

The rhetoric from 1980 sounds quaint and politically inconceivable today.  It seems that the GOP field is taking a buffet approach to Reganism, picking and choosing what they want from the 40th president's policies and ideas.

PS:  I should add that the Supreme Court eventually settled this question in Plyler v Doe in 1982, guaranteeing undocumented children a free public education.  Among the rationales was one Bush, Sr. mention; the Court majority did not want to create an "underclass" of undocumented immigrants of which children would become a "subclass of illiterates" (45 U.S. 202 @230) if they were barred from a free public education.

Second GOP debate takes ideas out of the dustbin of immigration history

Photo by Martin Alfaro/iStock / Getty Images
Photo by Martin Alfaro/iStock / Getty Images

The second GOP primary debate on September 16, 2015 aired on CNN not surprisingly featured immigration prominently now that Trump has made the issue a front burner one.  What was shocking was the positively retrograde solutions posed by the GOP field that many of us had long thought our country was past and too good for.  Plus ce change...

Deport them all:  Trump's "solution" to undocumented immigration of rounding up the 11 million and shipping them out with their families is reminiscent of Operation Wetback in 1954 under President Eisenhower when the Border Patrol swept through several western states netting over 130,000 immigrants (along with lawful permanent residents and U.S. citizens who looked Mexican) while hundreds of thousands of others fled voluntarily to Mexico in advance of the raids.  Rather than depositing the deportees at the border, they were taken deep into the Mexican interior to discourage their return.

My colleague Corey Robin has already pointed out that Trump's seemingly altruistic move to "keep the families together" as he deports them all is "family values fascism" with roots in the Vichy regime.

Assimilation not integration:  Jindal insisted that immigrants today need to assimilate and "learn English", like he did.  Jindal is very clear that he means assimilation and not acculturation as he rails against "hyphenated Americans", implying that preserving any aspect of your native culture or language makes you less American.  This notion is also not new.  In the early 20th century, the U.S. embarked on a zealous Americanization program across the country that was coercive rather than benevolent.  As Alex Nowrasteh notes, the program did more harm than good:

The Americanization movement was not a benevolent government program that sought to assimilate immigrants into American society so much as it was an avenue for American opponents of immigration to vent their frustrations about immigrants.  Such an atmosphere of hostility could not produce greater assimilation.  The Americanization movement, however, did create an air of government-forced homogeneity similar to the government policies of Russia, Hungary, and Germany that tried to forcibly assimilate ethnic and linguistic minorities with tragic consequences – an experience many immigrants came to America to avoid.  The Americanization movement replaced the tolerant cosmopolitanism (for the most part) that defined America’s experience with immigration up to that point, and represented a low-water mark of American confidence in the assimilationist power of her institutions. 

Still, several other candidates seconded Jindal's call for assimilation and Trump piled on by criticizing Bush and Rubio for speaking Spanish while campaigning.

Guest worker program:  Carson's immigration policy is to first, seal the border.  Then, for those who are undocumented with "pristine records",  they will given a 6 month grace period to pay up on back taxes and then they will be eligible to apply for agricultural jobs as guest workers since no Americans want these jobs (regardless of the skill and training level of the immigrant).  Carson almost gleefully went out of his way to make clear these workers would not ever have the rights and privileges of citizens and never be able to vote. It's as if he read Elizabeth Cohen's book and adopted the concept of semi-citizen.

There is also a historical precedent for that idea.  As a bilateral agreement with Mexico, the U.S. ran the Bracero Program from 1942 to 1964 that brought 4.6 million Mexican men to work as short-term guest workers in agricultural jobs.  The legacy of the program is not a positive one.  In theory the rights of the workers and the U.S. workers who took the jobs as well out of economic desperation were supposed to be protected, their salaries guaranteed to be paid,  of adequate sanitary conditions and free housing provided, meals, as well as free transportation to and fro Mexico.  In practice there was much abuse of the workers in terms of shorting or outright stealing of their wages and benefits as growers enjoyed a pool of cheap labor for many decades.

The historical precedent whose name shall not be spoken--IRCA 1986.  Since the GOP field is apparently so very fond of history, it boggled the mind that at a debate that took place in the Ronald Reagan Presidential Library and with the Gipper's name invoked every three sentences, none of the candidates wanted to draw on the historical precedent of the Immigration Reform and Control Act of 1986 signed into law by their beloved Reagan.  That landmark law, despite its flaws a visionary piece of legilsation at the time,  provided (gasp!) amnesty and created an employer sanctions system we have today, thereby doing enforcement and benefits simultaneously.  But it's the primaries, and the vision thing is too much to ask.

A bifurcated tale of two immigration crises in the American media

Open any American newspaper in these last few weeks and one is struck by how immigration stories dominate the front page, but also how the stories are segregated not just by geographical region, but in their framing.  You'd think from the U.S. coverage that refugees are not part of U.S. immigration policy.  Here, according to the GOP hopefuls and the mirroring news coverage, our "immigration problem" is that we have to deal with those pesky. allegedly criminal Mexicans and anchor baby dropping Asians.  Political scientists have long known that the media can play an important role in setting the agenda and shaping public opinion, which is why it is particularly disconcerting that the U.S. media's recent coverage of immigration issues has been bi-modal, either European refugees, or Trump/GOP/undocumented. This, even though the U.S. has been historically and recently held the best record on resettlement of refugees among all nations.

European Union nations are being challenged by a major humanitarian crisis, the largest wave of refugees since World War II are on the move as tens of thousands of people flee the war torn Middle East, mainly exiting Syria, and trying to reach the wealthier European nations.  Each day, there is a new, more tragic report, and accompanying pictures of desperate people trying to get out of their unstable home countries.  This week, a picture of the body of drowned three-year old Aylan Kurdi, a Syrian boy found on a Turkish beach, may have done much to turn the tide of public opinion and jolted European nations into action. (The picture below is from The Guardian of a Turkish solider carrying away the boy's lifeless body.) After months of inertia, Germany has pledged to take in 800,00 refugees, and the UK's Cameron has signaled that his country will accept "thousands more" refugees.

Meanwhile, I could not even find one hard news story in the New York Times or Washington Post which discussed the U.S. government and the refugee crisis in Europe in the same article, in the last few months.  The most recent news article I found was dated April 17, 2015 in the New York Times on the UN's call for more western nations to take in additional Syrian refugees and the U.S. reluctance to do so due to security concerns.  Since that story, that crisis has dramatically escalated, but more stories on U.S. obligations toward refugees have not appeared in either the NYT or the Washington Post --except as op-eds.

Ironically, just 2 days ago on September 1, The Washington Post ran an article mocking Great Brittan for the minuscule number of Syrian refugees they have taken in, saying in the headline, "Brittan takes in so few refugees from Syria they would fit on a subway train."  At least the reporters also noted, "The United States, a country five times the size of Britain, has resettled about 1,500 Syrian refugees, with plans to accept more next year.", but that one sentence of coverage of the U.S. role (or the lack thereof) in the face of a massive international crisis was all that there was.

It seems that Trump and the other GOP contenders are dictating the coverage in the U.S. print media (at least in the WashPo and NYT) of the immigration content, with much of it in recent weeks being devoted to coverage of undocumented immigration, and not even to other aspects of our complex immigration system, such as legal immigration, and non-immigration visa categories.  While both papers have covered the European refugee crisis as well, the lack of content on the U.S. in those very same stories has several consequences.  First, it suggests that the current refugee crisis is a problem over there in Europe, and not our problem to deal with.  Our "immigration problem" is only Mexicans and Asians.  Second, the coverage elides the domestic politics (ably covered by the international press) that have led to the timid U.S. resettlement role. Third, the recent coverage at least ignores the role of the U.S. in precipitating the instability in the region that has led to the present mass exodus of people.

I found the most in depth coverage about the United States, including the fact that now 14 U.S. Senators are calling for the U.S. to resettle more Syrian refugees, in The Guardian which reported that Obama Administration's policy has long been limited to sending mostly financial humanitarian aid overseas and that his administration's view is that long term solution to these kinds of problems "is not resettlement of refugees in the U.S. or else where."  Of particular interest to U.S. readers, The Guardian article addressed explanations of why the U.S. has taken in so few Syrian refugees.  One has to wonder why American papers have not run a similar story even as they have run the same stories tracking the worsening crisis within Europe and among the EU member countries.

Deutche-Welle, a German international broadcaster, also has an excellent article dated August 27 investigating the domestic politics causes of the anemic U.S. role in the current refugee crisis.  The DW article states, "Barack Obama publicly lauded German Chancellor Angela Merkel's European leadership role in the Syrian refugee crisis. But the US president's praise also draws attention to his own country's meager record on the issue."  The article added that the main impediment to a more active U.S. resettlement was a fear that Syrian refugees were security threats to the U.S.

The poignant pictures of human suffering have moved public opinion, which in turn put pressure on European leaders to act.  Even citizens far from Europe have been motivated.  A Facebook page set up by an Icelandic writer has garnered much praise and attention for spurring debate and moving 12,000 Icelanders to offer Syrian refugees either a place to stay or at least messages of compassion or other material support.  As a BBC story reported, it may not sound like much, unless you consider that the total population of Iceland is "not much more than 300,000."  That generous response has also shamed many other nations and individuals. 

Every scholar of U.S. immigration law and policy knows a key component of this policy area includes refugee and asylum policy, but you'd never know that from observing the print media coverage in these two major newspapers in recent months.  Why is the tail wagging the dog?

As this blog post was going live, the NYT posted a story about the failure of the west in the refugee crisis which also detailed the role the U.S. played in causing this catastrophe.  This is exactly the kind of story that is a welcome corrective to the bifurcated coverage I am referring to.  The Washington Postalso has a story about why Europe's refugee problem is also America's problem.

PS: In case anyone wishes to sign, the International Rescue Committee, a well-known refugee relief organization, has set up a White House petition to urge resettlement of more Syrian refugees in the U.S.

GOP primary immigration "innovations" have all US borders covered as of 8/30/15

As I stated in a previous post, the United States has multiple borders, not just the southwestern border.  Thankfully, between the GOP hopefuls, they got this one, especially with the boomlet of end of the week policy innovations.

Donald Trump:  build a wall, repeal birthright citizenship, and mass deportation.  His 6 page plan is here.

Chris Christie (at a NH event):  "At any moment, FedEx can tell you where that package is.  It’s on the truck.  It’s at the station. It’s on the airplane.  Yet we let people come to this country with visas, and the minute they come in, we lose track of them.  We need to have a system that tracks you from the moment you come in. "  The New York Times said, "A FedEx spokeswoman declined to comment on Mr. Christie’s remarks."  I guess the only question is does Christie favor tattooing a bar-code on every immigrant upon arrival as @kalhan has (totally facetiously) suggested, or should we just microchip everyone like our pet dogs and cats?  Because neither of those suggestions could have Fourth Amendment, unreasonable search implications....

Scott Walker:  Since Trump already called dibs on the wall on the Southwestern border, and Christie is addressing the issues of visa overstays with this Fedex plan, Walker decided to deal with the last frontier, the Canadian border.  When asked by Meet the Press' Chuck Todd about the fixation on the southwestern border and the neglect of the northern border, Walker responded, "That is a legitimate issue of us to look at." North, south, and interior.  Check.  Check.  Check. 

Build a wall; they'll still come.

Among the many ill-advised components of Donald Trump's "immigration plan" is his instance on building a wall on the southwestern border with Mexico (Pg. 1-2 of his plan).  Never mind that much of the U.S. Mexico's 1,954 mile U.S.-Mexico border is already fortified and guarded, but pledging to beef up the border with either physical barriers,  more border patrol personnel, or newfangled technology and equipment is a favorite promise by both Democratic and Republican politicians running for public office. And now that Trump has called dibs on a wall on the southwestern border, Scott Walker is talking about a fence on the northern border.

I've beat this dead horse many times, but here I go again: The main reason building a wall is a waste of money  and will be ineffective in curbing undocumented immigration is that there is more than one way into the U.S.  Multiple sources, including the nonpartisan Migration Policy Institute, agree that at least 40% of the undocumented population currently in the U.S. did not enter by surreptitiously crossing the southwestern border,  but instead they arrived on a valid temporary non-immigrant visa (think of tourist,  student, and temporary work visas), overstayed, and didn't go home.  When their visas expired; these people (known as "visa overstays")  became part of the 11 million undocumented population. 

Therefore, fortifying or building a wall and amassing border patrol agents, drones, cameras, and what have you on the southwestern border is tantamount to you (before leaving for work each morning) dutifully double deadbolt locking your front door, securing your back door with a twisty tie from the supermarket, and leaving the roof off of your house. 

The "build a wall" proposal makes no good sense, yet neither Trump nor the dozens of politicians before him who have gone down this well tread path are fools.  As Peter Andreas explained in Border Games--Policing the U.S- Mexico Divide public policies don't actually have to work to have political utility to the proposer.  The move allows the proposer to look tough on undocumented immigration without actually doing much about it.

LGBTQ v Religious Rights?: The 2015 Kurz Chair public event

As the Herbert Kurz Chair in Constitutional Rights at Brooklyn College, I have the opportunity to create public programming for the College community and general public about the possibilities and limits of using the U.S. Constitution to protect politically vulnerable minority groups.  In past years, I have taken on the topics of Stop and Frisk, school desegregation, and last year, immigration reform.  Consistent with past practice, I bring in an outside expert and also tap Brooklyn College's own talented faculty.  This year, I take on the issue of LGBTQ versus religious rights.

LGBTQ vs. Religious rights?

The media casts these rights as in opposition, but is this the only way these issues can be framed?

Having overcome anti-sodomy laws, overturned the military’s Don’t-Ask-Don’t-Tell policy, and achieved marriage equality, the LGBTQ movement is at a crossroads.  Despite the Supreme Court’s recent landmark ruling in Obergefell v Hodges (2015), the marriage equality case, sexual orientation as a category, unlike race, sex, and gender, has not been elevated to a protected class. The consequence is that LGBTQ citizens may still be open to discrimination in employment, housing, adoption, and other areas of public and private life.

At the same time, the United States has a long and proud history of respecting the free exercise of religion.  Are we as a nation prepared to force religious persons to act against their sincere and deeply held religious beliefs and conscience? How do we balance LGBTQ claims to equal treatment against those claiming religious freedom? Are these two sets of claims mutually exclusive?  Is there any way to reconcile them that would be fair or acceptable to both? 

WHO:  Helping us sort through these questions are one visitor and one of Brooklyn College's own.

Steve Sanders of the Indiana University's School of Law, a nationally recognized expert on constitutional law and the legal issues of same sex couples and their families, conflict of laws, federalism, and academic freedom.  He has also argued a case before the Supreme Court.

Paisley Currah, a political scientist and pioneer in the field ofsexuality and gender studies and founding co-editor of TSQ: Transgender Studies Quarterly.  His areas of expertise are in LGBT studies, queer legal theory, public policy, and political theory.  

WHEN:   Monday, October 26, 2015, from 11am -12:30PM  

WHERE:  Woody Tanger Auditorium, inside the Brooklyn College Library (Bldg #13 on the map)

Trump tangles with Jorge Ramos, the Walter Cronkite of Latinos

Yesterday, Trump had Jorge Ramos, the well known anchor of Univision, thrown out of his news conference in Iowa for asking a question out of turn, before letting him back in.  There was probably no better way to further infuriate the Latino population.  Ramos is described by Matthew Dowd, a campaign adviser to George W. Bush, as "not only a journalist",  but "the voice of the Latino constituency.” Dowd asked, "Remember what L.B.J. said, ‘When you lose Walter Cronkite, you’ve lost the war’?”; he believes Ramos has that same influence among Latino viewers.  

You can watch Ramos and Trumps' very testy exchange after Ramos is allowed back in the room.  In the questioning, the two cover three elements of Trump's immigration plan.  I provide 2 sentence summaries here but you should watch the video to hear it in their own words.

1) Birthright citizenship:  Trump believes the birthright citizenship provision can be repealed statutorily through Congress and he is prepared to test that move in Court. He claims great constitutional scholars agree with him.

2) Building a wall on the southwestern border:  Ramos expresses skepticism that a wall can be built.  Trump says it's harder to build a 95 story building and he's been able to do that, so why not a wall.

3) Mass deportation:  Ramos says there is no way Trump can deport 11 million people.  Trump says he will do it "humanely" and shoots back "I have more heart than you do."  He says while "government" would be ineffective and not up to such a monumental task, "management"  which he is adept, could pull it off.

The Hill reports that apparently Ramos got one last question in at the end and Trump signed off by saying.

“Do you know how many Hispanics work for me? Thousands. You know how many Hispanics have worked for me over the years? Tens of thousands.”

Trump ended the Q & A session by telling Ramos, "We’re going to be talking a lot over the years."

A Gallup poll just released this Monday shows Trumps' approval rating among Hispanics now stands at -51 .  By contrast, Hillary Clinton's approval rating is +40.  This recent dust up with Ramos probably didn't help, but then again, Trump is clearly not worried about garnering the support of this constituency.


Jeb! on anchor babies: The Asians are the problem

Jeb! weighed in on the birthright citizenship debate on August 24 by affirming his support for the provision and saying he is against Trump and others' efforts to repeal it.  However, he believes it is unfortunate that Asians are coming to abuse the system.  Hear what he had to say in his own words.

Jeb! was referring to  "birth tourism", an industry which is real, but by no means is it limited to Asians. Why he gratuitously singled out Asians as abusing the system is a gift to the Democratic Party head scratcher.

On August 24th, Pat Egan of NYU was explaining  in the Washington Post that Trump's stand on immigration was hurting the GOP. He wrote that while Obama "trounced Romney" among Latino voters, "The gap was even larger (73-26 percent) among Asian-Americans, who were 3 percent of the electorate. Since most recent immigrants hail overwhelmingly from either Asia or Latin America, campaign weeks like this make it less likely that Republicans will make gains with either group in 2016."

Political Scientists Kuo, Malhotra, and Mo explain that while much has been written about Obama's commanding share of the Latino vote over Romney, his even larger share of the Asian American vote can be explained in part by the solidarity that Asian-Americans felt with Latinos on the immigration issue.  The authors advise:

What can the GOP do to win them [Asian-Americans] back? As long as Republicans appear scornful of minorities, our findings suggest, they will not get Asian Americans’ electoral support. This applies not only to rhetoric, but also to policy issues such as immigration reform. The Republican Party could try to capitalize on divisions between Asian Americans and other minorities, emphasizing how Democratic policies benefit other groups at their expense. But doing that successfully would require a level of political dexterity that Republicans haven’t shown much of late.

It does appear that Jeb! has that political dexterity either. All the pundits keep talking about the damage that is being done to the GOP brand by the Trump anti-immigration talk; it looks the GOP has more than one group to worry about.

What U.S. v Wong Kim Ark actually said about birthright citzenship

There has been a lot of debate about the birthright citizenship clause of the Fourteenth Amendment which reads, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."  The Supreme Court case U.S. v Wong Kim Ark (1898) is often cited to make the point that the birthright citizenship clause has been applied to non-African American immigrants. But some conservatives dispute whether the case is applicable to the children born to undocumented immigrants.  That argument is a non-starter and there is evidence in Wong Kim Ark and other case law to cast serious doubt upon it. (h/t Professor Kunal Parker)

By no means do all conservatives agree with Trumps' desire to repeal the  birthright citizenship clause. Indeed, one of the most eloquent critics of the repeal of birthright citizenship is Republican and Federalist Society member Margaret Stock, an expert on the subject and the rest of U.S. immigration law.  However, others have taken the tack that Wong Kim Ark was about immigrants legally residing in the U.S. albeit ineligible for citizenship (due to the provisions in the Chinese Exclusion Act) and therefore the Supreme Court has never actually rendered a judgement on whether the birthright citizenship clause covers the children born to undocumented immigrants.  The second related strategy is to question the words "subject to the jurisdiction of" actually applies to undocumented immigrants to argue  since the U.S. never authorized their entry in the first place.  John Eastman, Henry Salvatori Professor of Law and Community Service, at Chapman University’s Fowler School of Law, puts forth such a view in today's New York Times:  

“Subject to the jurisdiction” means more than simply being present in the United States. When the 14th Amendment was being debated in the Senate, Senator Lyman Trumbull, a key figure in its drafting and adoption, stated that “subject to the jurisdiction” of the United States meant not “owing allegiance to anybody else.”

The Supreme Court has never held otherwise. Some advocates for illegal immigrants point to the 1898 case of United States v. Wong Kim Ark, but that case merely held that a child born on U.S. soil to parents who were lawful, permanent (legally, "domiciled") residents was a citizen.

One need only turn to the actual text of Wong Kim Ark to see that Eastman is wrong. The case was about Wong Kim Ark, a U.S. born man of Chinese descent whose parents were legally working and residing in the U.S. but who were also rendered racially ineligible for citizenship under the terms of the Chinese Exclusion Act. Mr. Wong as an adult traveled to China and was returning to the U.S. and denied entry based on the Chinese Exclusion Act.  Wong sued saying he was admissible as a citizen by birth on U.S. soil, the Court agreed.

That Court considered the meaning and legislative history not just of the Fourteenth Amendment, but also of the Civil Rights Act of 1866 that worked in tandem to give newly freed African Americans full citizenship.  The Wong Kim Ark Court stipulated only three exceptions to "subject to the jurisdiction of" and they are:  "with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes." (@693)  The Court was laying out a geographic conceptualization of citizenship in which anyone born within the territorial lines of the nation was to be granted citizenship, barring the already stated exceptions. To erase any confusion, the Court wrote emphatically:

The [Fourteenth] Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States.

There is no exception for the children born to undocumented immigrants.  Full stop.

In fact, the Court went out of it's way in that case to express concern for the fate of the children born to European immigrants if birthright citizenship were not conferred broadly.  It stated:

To hold that the Fourteenth Amendment of the Constitution excludes from citizenship the children, born in the United States, of citizens or subjects of other countries would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage who have always been considered and treated as citizens of the United States.

The irony was the Court's concern in 1898 was for the precarious status of the children of white ethnics.

Even if one is still not convinced of this reading of Wong Kim Ark v U.S., the arrival on the scene of Plyler v Doe (1982) greatly complicates the line of argument that Eastman and his ilk are advancing. Recall that Plyler was the case about the right of undocumented children to access public education in Texas.

As part of the justification for granting these children that right, the Court majority referred to the entirety of the undocumented population in the U.S. as a "permanent caste of undocumented residents" and to undocumented children, the plaintiffs in the case, as " special members of this underclass." (@218-219)

What makes them special, the majority explained was the lack of agency of an undocumented child versus an undocumented adult. The majority stated, "But the children of those illegal entrants are not comparably situated. Their parents have the ability to conform their conduct to societal norms, and presumably the ability to remove themselves from the State's jurisdiction; but the children who are plaintiffs in these cases can affect neither their parents' conduct nor their own status. Even if the State found it expedient to control the conduct of adults by acting against their children, legislation directing the onus of a parent's misconduct against his children does not comport with fundamental conceptions of justice." (@220) Given the Plyler majority's awareness of the limited options of children brought into the country by undocumented parents, it would not be a stretch for members of the Court to show similar concern for mere infants born in the U.S. to undocumented parents.

Setting aside all these inside-baseball doctrinal debates, perhaps the most salient point is that repealing birthright citizenship simply will not curb immigration as I have recently argued in the Washington Post.

Donald Trump doubles down on immigration

A little knowledge is a dangerous thing, but that is exactly what Trump has on immigration.  He may have been shooting from the hip in demonizing Mexicans when he started his campaign, but it is clear that he senses an opportunity and wants to capitalize on the issue.  And as the front runner for now, it means that the other GOP candidates must react to Trump's position. Today, August 16, Trump was on Meet the Press and boldly went well beyond Romney's suggestion of self-deportation, stating that he wishes to repeal Obama's DACA order and deport undocumented immigrants.  He said:

We're going to keep the families together, but they have to go.

What is extraordinary about this quote is that he seems to be suggesting we also deport US citizens since so many immigrant families are of "mixed status" or consisting of US citizens, undocumented, and lawful permanent residents ("greencard" holders) all within the same family. Or perhaps he  perfectly that concept and is going for a "twofer" in practicing what my colleague Corey Robin has termed "Family Values Fascism" in calling for the deportation of the undocumented while insisting on keeping their families intact.

Not to be outdone by his Senate opponents (mainly aiming at Rubio) who previously championed comprehensive immigration reform, Trump today also put out his own  6 page immigration plan. On Twitter, Frank Sharry, a well known immigration activist, called it "Pure Jeff Session-Steve King Ugliness." No doubt Sharry is correct, but it before immigrant advocates tune Trump out, they would be wise to analyze his proposal carefully.  The man, or at least some half-competent advisers, have been at least nominally reading up on immigration.  The whole thing reads of a cynical ploy to shameless appeal to racist, nationalist, populism. 

What makes Trump's proposals dangerous is that there is quite a bit of ignorance of the complicated U.S. immigration system and there is a long tradition of scapegoating immigrants for the nation's ills, especially in times of economic uncertainly.  Trump, with these proposals, has done the usual mixing of fiction with a sprinkling of half truths.  Take for his example his exhortation to build a wall on the southwestern border; it wins for dramatic flair and symbolic effect even though the efficacy is dubious.  But he is not unaware of the 40 percent of visa overstays who contribute to the undocumented population as he is the first candidate, of any party, to explicitly call for an escalation of interior enforcement in addition to building a wall.  (See his proposal to "Triple the number of ICE officers".)

Still, he can't resist returning to the canard that immigrants are predisposed to criminal activity and that argument has some resonance because around the time he made his racist remarks about Mexicans, the Kathryn Steinle murder happened.  Instead of citing more recent and credible evidence, Trump cited a 2011 GAO report enumerating arrests of undocumented immigrants in which not all those data points represented violent crimes.  Meanwhile, Trump, cherry picking his data, ignored a major report exploring the relationship on immigration and criminal activity that showed immigrants are less likely to commit violent crimes and end up behind bars than the native born.  But the Steinle murder and the use of the soundbite of "sanctuary cities" as alleged havens for violent immigrant criminals has meant political pay-dirt for Trump playing to a segment of the population that feels dispossessed not only by a shaky economic recovery, but by a culturally and racially evolving America wrought by immigration.

Looking to divide and conquer, Trump is if nothing, an opportunist.  Perhaps observing Bernie Sanders' stumbles and confrontations with the Black Lives Matters activists, sprinkled throughout Trump's immigration proposal is a new found, purported concern for black Americans and Hispanics and the economic harm that undocumented immigration causes them.  Indeed, the report makes racial and ethnic references to "black Americans", "black teenagers", "Hispanic teenagers", "Hispanic immigrants,", in addition to several references to "middle class Americans"--all of these presumably the "real Americans" he is seeking to protect from the invading hoards of Mexican "drug dealers and rapists"?