Archives: 06/2013

Immigration Bill: Better, Not Best

This afternoon the Senate voted 68-32 to pass its sweeping immigration reform bill. The bill is a solid improvement over the current immigration system. It legalizes most of the unlawful immigrants here and provides larger pathways for legal immigration in the future.

The bill does have flaws – many of which I’ve written about in detail. It doesn’t increase lawful immigration enough. The guest worker visa programs for lower skilled workers are too small, restricted to certain sectors of the economy, and governed by confusing bureaucracy. Under today’s immigration rules, very few of our ancestors would have been able to immigrate here legally. The Senate’s immigration bill takes us a small step closer to our traditionally more open immigration policy.

It shovels gargantuan amounts of security resources toward the southern border in an attempt to halt future unlawful immigration that could otherwise cheaply be halted with an expanded guest worker visa program. The border “surge,” as many are calling it, is truly embarrassing, especially for a country with such proud immigrant traditions. There are certainly legitimate security concerns, but the extra enforcement will just drive up the price of smuggling and marginally decrease unlawful immigration of peaceful workers at enormous cost.

Worse, the bill creates a mandatory employment verification system called E-Verify. Those seeking work here will have to use this proto-national ID system to ask the government for permission to work. Government audits of the system find that its inaccuracy rate hovers at around a quarter of a percent. Independent audits, the most recent carried out in 2009, found error rates 3 to 4 times as high as that. As the system is expanded it will place an unfair burden on American businesses, saddling them with costs, and incentivizing illegal hiring without even a cursory I-9 form as has happened in states that have already mandated E-Verify.

Even with those flaws, this bill still does a lot more good than bad. Millions of new Americans will finally be able to live and work openly without fear of deportation. Millions of more highly skilled workers, merit-based immigrants, and their families will be able to become Americans. Americans will have more freedom to hire whom they want and more buyers for their goods and services. Our economy will grow more quickly, wages will increase, and the fiscal state of the federal government will improve over the medium-term.

Despite all of these benefits, this bill will face an uphill battle in the House of Representatives. The first round of a major political brawl has been concluded; time for the toughest round to begin.

Crazy Backward Policy Toward Bangladesh

It is widely expected that the Obama Administration will act today to suspend Bangladesh from the Generalized System of Preferences (GSP) program in response to a complaint from U.S. labor unions. Under the GSP program, some imports from some low-income countries can enter the U.S. market without paying tariffs. (Sallie James has done excellent work describing the pros and cons of this policy from a free trade perspective). Supporters of the suspension point to recent deadly industrial accidents to argue that Bangladesh needs stronger labor laws before being allowed to benefit from GSP tariff rates. In truth though, suspending Bangladesh from the program has zero chance of improving working conditions or wages in Bangladesh.

First off, less than 1 percent of Bangladesh exports to the United States currently enjoy low tariff treatment under the program. The vast majority of the $5 billion worth of Bangladeshi goods entering the United States every year are apparel products, which are exempt from GSP and have always faced steep tariffs. In other words, revoking GSP access is not a very big stick to use to get Bangladesh to change its labor laws.

Second, if access to the U.S market through the GSP program is meant to help Bangladesh, wouldn’t revoking that access harm Bangladesh? Indeed, the success of the suspension depends on it. Proponents of the suspension claim that increasing tariffs will prompt the Bangladeshi government to change its laws. This logic depends on the premise that policymakers in Dhaka are less attached to their domestic labor laws than they are to preferential access to the U.S. market. Considering how small of an impact the suspension will have on the Bangladesh economy, this premise is highly questionable. In the meantime, U.S. trade barriers will be working to prevent the development of more industries in Bangladesh.

Finally, even if the suspension is only temporary and successfully meets its goals of encouraging new labor laws, the fact remains that most people in Bangladesh will not benefit from more restrictive labor policies. Sweatshop conditions in the developing world are often shocking to Western consumers, but employment in the garment industry offers an unprecedented level of opportunity for millions of people. This is especially true for women looking for personal independence and wealth they could never find in traditional, agricultural society. Approximately 80 percent of Bangladesh’s four million garment workers are women.

Raising tariffs to promote labor restrictions is exactly the opposite of a good policy. Employment restrictions increase the cost of hiring labor. In doing so they are sure to decrease investment. Access to foreign capital and global consumer markets, on the other hand, increases the value of Bangladeshi labor.  Greater productivity per capita will empower workers to demand higher wages and better working conditions. Removing the bottom rungs is not going to help anyone climb a ladder, but open trade and investment will give more people in Bangladesh the strength to pull themselves out of poverty. 

DOMA Ruling’s Impact on Immigration

Yesterday’s ruling in the case of United States v. Windsor, where the Supreme Court found Section 3 of DOMA unconstitutional, was a victory for individual rights. As my colleague Jason Kuznicki pointed out, this ruling will probably have the greatest material impact on the lives of people through the immigration system. Now, American citizens will be able to sponsor their same-sex spouses for lawful permanent residency as immediate relatives. No more will Americans have to move abroad to live with their same-sex spouses. Americans can now sponsor their spouse’s green cards.

For political reasons, an amendment that would have provided for gay spouse sponsorship was not included in the Senate immigration bill. Senator Rubio went so far as to say that he would oppose the bill if it allowed Americans to sponsor their same-sex spouses, as the Leahy amendment would have done. Now that Section 3 of DOMA is struck down, the Leahy amendment is unneeded, a measure of justice is restored to the immigration system, and the threat of that type of amendment becoming a poison pill is totally removed.

Gay Marriage at the Supreme Court: The Morning After

I liveblogged yesterday’s decisions at Overlawyered. A few excerpts:

Kennedy’s majority opinion in Windsor cites the “federalism brief” by Cato-associated scholars, but disentangling the federalism strands from the “equal liberty” strands is likely to keep scholars busy for a long while.

From Josh Blackman, “The Top 10 Most Liberty-Oriented Kennedy Quotes in Windsor.” Flashback: Windsor decision was written by Second Circuit’s Dennis Jacobs, leading conservative and a favorite judge of the Federalist Society (and of mine). And earlier, from my colleague David Boaz, a post on Judge Vaughn Walker, who struck down Prop 8 and who like Jacobs has faced vitriol at various points from ostensibly progressive quarters.

GOP platforms for years have been decrying the unfairness of the death tax, but it took Edith Windsor to do something about it.

Randy Barnett, SCOTUSBlog: “Federalism marries liberty in the DOMA decision.” And a Trevor Burrus podcast for Cato.

Just minutes after it was issued, the Windsor decision made a difference for one couple:

At 10:30 a.m. EDT this morning in a New York Immigration Court, attorneys from our law firm (Masliah Soloway) requested and were granted a continuance in removal (deportation) proceedings for a Colombian gay man married to an American citizen for whom we had filed a marriage-based green card petition last year. A copy of the 77-page Supreme Court decision in United States v. Windsor was delivered to the court by our summer intern, Gabe, who ran five blocks and made it in time for the decision to be submitted to the Immigration Judge and to serve a copy on the Immigration & Customs Enforcement Assistant Chief Counsel. DOMA is DEAD and it had its first impact on a binational couple within 30 minutes of the Supreme Court ruling.

Hoping it will make the difference for my friends Eleanor and Fumiko as well.

Both Perry and Windsor remind us that standing issues are regularly 1) orthogonal to underlying substance; 2) important for own sake. 

Whole thing here.

Climate vs. Climate Change

Global Science Report is a weekly feature from the Center for the Study of Science, where we highlight one or two important new items in the scientific literature or the popular media. For broader and more technical perspectives, consult our monthly “Current Wisdom.”

There seems to be a fundamental misunderstanding in the difference between climate and climate change.

This is on very public display in the president’s recently unveiled Climate Action Plan, which details a series of executive actions designed to reduce greenhouse gas emissions in an attempt to control the future course of the climate.

In justifying the need for these actions, and why he doesn’t have time to wait for Congress to act, the president points to numerous recent examples of extreme weather disasters while linking weather extremes to climate change brought about by anthropogenic greenhouse gases emissions.

In doing so, he goes awry of the best science.

Here’s why.

Why Is European Unemployment So High?

The issue of unemployment is a complex one for economists.  There are many factors involved.  I’m a lawyer, not an economist, so I’m not the best person to spell out a comprehensive plan to deal with the problem.  But in the particular context of high European unemployment, I was struck by this Economist article about the Italian fashion industry, which notes that there are lots of jobs available:

With youth unemployment running at 35% in Italy and annual net pay for a young leather-cutter starting at around €18,000 ($24,000), fashion firms ought to have applicants beating down their doors. …

… the shortage of craftspeople is so widespread that some firms have taken to poaching from competitors, much as football clubs try to lure the best players from rival teams. So those with skills can be sure of finding work and commanding good pay. …

But Italians aren’t going for these jobs, and companies have to look elsewhere:

Some firms have looked abroad for skilled sewers and knitters. Mr Scervino has brought in knitwear specialists from Bosnia and Moldova, for example. But these, again, are typically middle-aged workers who will need replacing before long. Other Italian fashion firms have caused controversy by sending some sewing work abroad, bringing the pieces back to add the final stitches before slapping a “Made in Italy” label on them.

Why aren’t Italians interested?

Like people in other rich countries, Italians tend to look down on manual work, however skilled, and families prefer to push their children towards careers in the professions and the public sector. The education system, at all levels, generally provides a poor preparation for working life. Italian universities are full of youngsters studying subjects in which they are not interested but which their parents think are good, regardless of the job prospects.

A Great Year for Cato at the Supreme Court

The Supreme Court’s term is over, with 75 cases having been argued and decided. It’s safe to say that the most significant ones were those decided this week, on the politically fraught subjects of affirmative action, the Voting Rights Act and gay marriage. I’m extremely proud that Cato was on the winning side of each of these issues. In fact, we were the only organization to file briefs supporting the challengers on each one (Fisher v. UT-AustinShelby County v. Holder, Windsor v. United States Perry v. Hollingsworth).

That says a lot. Not that the Supreme Court always takes its guidance from us – would that it were so! – but that we’re consistent in embracing the Constitution’s structural and rights-based protections for individual freedom and self-governance. It’s gratifying that the Supreme Court saw it our way in those “big” cases, even if Fisher was an extremely narrow decision and the others were all 5-4.

But that’s not all. After finishing my commentary on Windsor and Perry last night, I was curious to see how we did overall, beyond the high-profile cases. It turns out that we went 15-3 on the year. That is, looking purely at briefs we filed on the merits – you can see our record on briefs supporting cert petitions here – the Supreme Court ruled our way 15 times and against us three (and I can assure you that we don’t pick cases strategically to inflate our winning percentage. (I don’t count Perry in either column, by the way. While we ended up with a favorable result, Prop 8 struck down, the Court decided the case on standing grounds, incorrectly in my view).

Again, I’m not claiming that the Court was heavily influenced by briefs with Cato’s (or my) name on them – there’s just no way to know, and even briefs that are cited may be less influential than others – but many, many of these decisions track our thinking. That’s also gratifying, regardless of how the justices reached their conclusions.  

For the record, here’s the list of cases in which we filed this term (in order of argument):

Winning side (15): Kiobel v. Royal Dutch PetroleumArkansas Game & Fish Commission v. United States, Fisher v. UT-Austin, Florida v. Jardines, Bailey v. United States, Comcast v. Behrend, The Standard Fire Insurance Co. v. Knowles, Gabelli v. SEC, Koontz v. St. Johns River Water Management DistrictPPL Corp. v. IRSShelby County v. Holder, Horne v. U.S. Dept. of Agriculture, Windsor v. United StatesAID v. AOSISekhar v. United States

Losing side (3): City of Arlington v. FCCSalinas v. TexasUnited States v. Kebodeaux

My colleague Walter Olson has already compared our record to the greatest sports teams of all time, as well as what I consider to be the most dominate year by a baseball player, Sandy Koufax in 1963 (who went 25-5 and was the regular season and World Series MVP). I just wish that The Man With the Golden Arm could have had as long a career as Cato’s amicus brief program.