January 8, 2021 4:09PM

Election Results in Georgia Open Potential Path to Immigration Reform: Here Are Some Ideas

Georgia Republican Senators David Perdue and Kelly Loeffler lost to Democrats Jon Ossof and Raphael Warnock in a tight election. The Senate now has 50 Democrats (including 2 independents who caucus with Democrats) and 50 Republicans. With Kamala Harris as a tie-breaker, Democrats will now have an opportunity to reform the immigration system in 2021 as they will control Congress and the Presidency. President-elect Joe Biden said that he will “introduce” an immigration reform bill

This bodes well for immigration reform becoming law as the median voters in the Senate will be moderates like Kyrsten Sinema (D-AZ) and Joe Manchin (D-WV). Because the median voters in the Senate are moderate and the bill will need some Republican support, any legislation will also be moderate. The riots in the Capitol have also unified the Democrats so they will be able to push more effectively for reform. The House of Representatives will pass better immigration reform bills that the Senate will then water down, but there is a much better chance that they will attempt to pass legislation.

A Senate bill will also have to attract some Republican votes. Fourteen Republican Senators voted for the 2013 immigration reform bill, just over 30 percent of the GOP delegation. There is no way that 30 percent of Republican Senators would vote for a similar immigration reform bill today unless many in the GOP believe that Trumpist nativism is one of the main reasons that they lost the Senate. This is more possible now because both Loeffler and Perdue were anti-immigration. Senator Perdue even cosponsored the RAISE Act, the most anti-legal immigration piece of legislation proposed in a generation. Senator Perdue did sponsor a bill in 2020 to recapture unused green cards and give them to medical professionals, but that did not salvage his reputation.

Convincing 10 Republican Senators to vote for an immigration reform bill requires it to be watered down or split into numerous pieces. Numerous bills with small and attainable goals would be better and may result in some of the positive aspects of immigration reform becoming law, such as legalization for illegal immigrants and (less likely) some expansion of green cards, while avoiding mandatory E-Verify or boosting immigration enforcement. To be clear, moderate reforms are more likely to become law but the chance of those moderate reforms becoming law is a lot higher than a week ago due to the Georgia elections and the riot on Capitol Hill.

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January 8, 2021 1:18PM

Only 44 Percent of Employment‐​Based Green Cards Were Granted to Workers in 2019

In normal operating years, the United States’ immigration system favors family reunification. This favor extends even in the so‐​called employment‐​based green card categories. The family members of immigrant workers must use employment‐​based green cards despite the text of the actual statute and other evidence that strongly suggests that this was not Congress’ intent. This is not unusual as Japan is the only OECD country that has more immigrant workers than immigrant family members, but the difference is larger in the United States than in other countries. Instead of a separate green card category for the spouses and children of workers, those family members get a green card that would otherwise have gone to a skilled worker.

In 2019, 56 percent of employment‐​based green cards went to the family members of workers (Figure 1). The other 44 percent went to the workers themselves. That’s the same percentage of employment‐​based green cards that went to workers in 2018. It’s undoubtedly true that some of those family members who receive employment‐​based green cards are workers and many of them are highly skilled. After all, skilled people tend to marry each other. Family members should be exempted from the employment green card cap altogether or, at a minimum, have a new and separate green card category for themselves.

If family members were exempted from the employment‐​based green card’s numerical cap or if there were a separate green card category for them, an additional 77,927 immigrant workers could have earned a green card in 2019 without increasing the numerical cap. President Biden could order this immediately as there is no law mandating that the family‐​members of principal employment‐​based green card recipients should be counted against the cap.

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Reforming the Immigration System: A Brief Outline

With the election of a new president, Congress has the opportunity to correct the two fundamental flaws that plague the current U.S. system. First, the system is too restrictive, and second, the system is too inflexible to adapt to new economic or social conditions, allowing small problems to build into national crises. Here is a compendium of 52 reform proposals, both for enforcing the law, and for a less restrictive and more flexible immigration system.

Read the Reforms  

Over 79 percent of those who received an employment‐​based green card in 2019 were already legally living in the United States (Figure 2). They were able to adjust their immigration status from another type of visa, like an H-1B or an F visa, to an employment‐​based green card. Exempting some or all of those adjustments of status from the employment‐​based green card cap would more than double the number of highly skilled workers who could enter from abroad. More pressingly, this would also empty the wait‐​line imposed by the per country caps that especially affect Indian workers on the H-1B visa without increasing the wait for immigrants from other countries. Exempting adjustments of status, rather than tinkering with the cap, is best for two reasons. First, the system would be more open and flexible. Second, it would avoid the debate over which arbitrary number should be the new employment‐​based green card cap.

Here are some other exemption options for increasing the number of employment‐​based green cards issued annually without raising the overall cap of 140,000:

  • Workers could be exempted from the cap if they have a higher level of education, like a graduate degree or a Ph.D.
  • A certain number of workers who adjust their status could be exempted in the way the H-1B visa exempts 20,000 graduates of American universities from that numerical cap.
  • Workers could be exempted if they show five or more years of legal employment in the United States prior to obtaining their green card.
  • Workers could be exempted based on the occupation they intend to enter. This is a problem because in involves the government choosing which occupations are deserving, but so long as it leads to a general increase in the potential numbers of skilled immigrant workers without decreasing them elsewhere, the benefits will outweigh the costs. Exempting healthcare workers from the cap during COVID-19 would have been a good step, for instance.
  • Workers could be exempted from the cap if they have waited for 5 years and are otherwise eligible.
January 8, 2021 1:14PM

The Blanket Ban on Felons Possessing Firearms Is Unconstitutional

In 2005, Raymond Holloway, Jr. pled guilty to driving under the influence, a misdemeanor under Pennsylvania law. Because Holloway had an earlier misdemeanor DUI, the 2005 offense was punishable by up to five years’ imprisonment. U.S. law prohibits anyone convicted of a misdemeanor crime punishable by more than two years’ imprisonment from possessing any firearm or ammunition.

Since his 2005 DUI conviction, Holloway has been an upstanding, law‐​abiding citizen with no other criminal convictions. He would like to own a firearm for self‐​defense, so he sued in federal court, arguing that the categorical prohibition of firearms possession was unconstitutional as applied to him, a non‐​violent offender. The district court sided with him, finding that he presented no special danger to the public and that his 15 years of lawful, virtuous behavior demonstrate that he is a responsible citizen.

The Third Circuit reversed, over a dissent. The panel majority applied a multi‐​factor test based on virtue, which favored Holloway. Despite this, the majority found that Holloway was in the class of persons excluded from the Second Amendment. They justified the ban as applied to him because the maximum level of punishment Pennsylvania imposed reflected the “seriousness of the offense.” Holloway has petitioned for certiorari to the Supreme Court.

Because fundamental rights cannot be so summarily disregarded, Cato, joined by the Reason Foundation, the Individual Rights Foundation, the Independence Institute, and the Center to Keep and Bear Arms, filed an amicus brief supporting Holloway. Though the Supreme Court announced that the Second Amendment is an individual and not a civil or collective right, lower courts continue to use civil right tests to determine the scope of the Second Amendment. Civil rights, in this context, mean rights like voting and serving on a jury. Those rights are different than the individual right to self‐​defense, and the same test shouldn’t apply.

By letting state legislatures essentially disarm people by defining crimes, the Second Amendment has been relegated as a second‐​class right compared to other individual rights. States couldn’t broadly deny felons Fourth Amendment protections—even though searching and seizing felons without a warrant or probable cause might benefit public safety—and they shouldn’t be able to do so for the Second Amendment.

Moreover, looking at the maximum punishment of a crime is problematic as it treats all offenders the same without engaging in meaningful review. As more and more minor offenses carry criminal penalties, legislatures possess the power to define the scope of the Second Amendment by raising the maximum possible punishment for an offense. Pennsylvania, where Holloway committed his offense, is one of only eight jurisdictions that punishes a second misdemeanor DUI severely enough to implicate the firearms ban. A person’s ability to possess a firearm should not depend on how the state decides to punish an offense.

Where the government wants to strip an individual of his rights, it must demonstrate that the deprivation survives an exacting level of scrutiny. Looking at the maximum punishment of an offense is the sort of “broadly prohibitory” approach that the Supreme Court said is impermissible. While driving under the influence is not admirable conduct, it is not usually the type of offense that means a person should be permanently unable to possess a gun.

January 8, 2021 11:54AM

The Vaccine Allocation Mess In New York

New York City Mayor Bill de Blasio and New York State Governor Andrew Cuomo are currently at loggerheads over vaccine allocation in the city. The governor has only approved for the vaccine to be given to the first prioritized groups: healthcare workers in hospitals, urgent care providers, and nursing home residents and staff. New York City Mayor De Blasio believes that the city should be given authority to broaden eligibility further, and that if given that authority, they could already be vaccinating many more New Yorkers, including the over‐​75 demographic at highest personal risk from the virus.

Yet Cuomo is refusing to relent, despite New York City officials being adamant that, using current eligibility criterion, vaccines sit in storage or are going to waste. As my colleague Jeff Singer explained this week, a lot of healthcare workers either have immunity from the disease already or do not want the vaccine. The restrictions mean some doses are having to be transported out of the city. This follows stories from earlier in the week that claim some public and private New York hospitals had used just 15 percent of their vaccine allocation.

Given vaccines are widely regarded as being in short supply relative to demand, that sounds baffling. One would think that if those eligible priority groups were not filling slots, providers would be seeking out other people to ensure that either appointment times or the vaccine doses themselves do not go to waste. Vaccinating anyone still susceptible to the disease has a public benefit by (at a minimum) reducing the chances of severe disease for the recipient.

Allowing pharmacists and providers to allocate spare vaccines to avoid waste is what economists call a Pareto improvement—a situation where nobody would be harmed but someone would benefit. That makes society better off. If the vaccine reduces transmission of the virus too, an additional inoculation makes everyone better off! HHS Secretary Alex Azar understands this. He warned states last week to not let “perfection be the enemy of the good” in rolling out the vaccine. Getting it in as many arms as possible was preferable to sticking rigidly to the recommended rollout prioritization, he said.

Here in DC, pharmacies have seen sense in regard to mitigating some of the waste associated with a centrally planned vaccine allocation like New York’s. Pharmacies have been vaccinating people from waitlists, or those in stores, if eligible healthcare workers fail to show up, or vaccines would otherwise be binned after vials are opened. I saw it with my own eyes a few nights ago, when a supermarket pharmacy announced that they had 4 vaccine doses remaining at closing time. The pharmacist opted to give them to the front two people in a line of about 20, and to two very elderly shoppers whom he identified as being more at risk from the virus.

Yesterday, I popped back towards closing time and was administered one of Moderna’s vaccines myself. I would have left the wait line if there had only been a few left, given an elderly couple were stood behind me. But owing to the violence on Wednesday in DC and the subsequent cancelled appointments due to the city’s curfew, the pharmacy had 8 spare doses that they said needed to be used yesterday. Better in the arm of someone than nobody. You don’t turn down a free shot.

So why not the application of such decentralized common sense in New York? Well, it doesn’t help that in the name of fairness and avoiding vaccine fraud, Governor Cuomo has claimed that any provider who breaches the state’s distribution plan could be liable for fines up to $1 million, and risk having their license revoked. Economists wouldn’t be surprised to learn that disincentives matter. Meanwhile, millions of elderly New York residents—those at the highest risk from this virus—are unable to be vaccinated by appointment, even as providers say they have spaces and vaccines remain in storage.

It’s impossible to think of a surer way to slow the overall vaccination process for the city than limiting eligibility and then imposing such a high cost on any deviation from it. And this points to an often unacknowledged truth. If you don’t allocate by willingness to pay a price, you must allocate either by letting politicians and bureaucrats decide who will get the good, or by some crude queue or waiting list.

Without the decentralized knowledge of who will want the good and when, allocation by bureaucrat can create either severe shortages or unforgivable waste, not to mention risking the allocation process itself being tainted by cronyism and political favoritism. Allocation by queue biases towards particular groups too. In this case, it favors those with time on their hands, who are able to spot news stories on Twitter and are young and able‐​bodied, making them most willing to risk standing in the frozen meat section of a supermarket among shoppers for an hour during an aerosol‐​transmitted pandemic.

As should be obvious, the idea that the bureaucratic or queuing methods lead to the allocation best suited to ending this public health crisis seems laughable. New York manages to combine the worst of both worlds—dictating limited eligibility in a heavy‐​handed way and then deterring the safety valve of local providers allocating spare vaccines. The question then is not whether any allocation system is perfect. It’s whether a more market‐​oriented system would get us closer to our social goals of herd immunity and hospital systems insulated from the risk of overcrowding sooner. It’s difficult not to conclude that, by ignoring basic economics, better outcomes in New York are being sacrificed on the altar of zero‐​sum conceptions of fairness or “waiting your turn.”

January 8, 2021 10:23AM

A Brief Assessment of DeVos’s Ed Sec Tenure

Ed Secretary Betsy DeVos official picture

Betsy DeVos resigned last night as U.S. Secretary of Education. She cited this week’s storming of the Capitol, which she wrote was fueled by President Trump’s incendiary rhetoric and was an “inflection point” for her.

Whether DeVos should have left the administration sooner, especially as her boss became more dismissive of electoral reality, may weigh heavily on her legacy. But based on education policy, DeVos’s tenure overall was a good one. Not great – the administration did not work with Congress to substantially shrink the largely unconstitutional federal presence in education – but DeVos recognized federal excesses and launched no grand scheme, like No Child Left Behind or Race to the Top, to enlarge them.

She, of course, also strongly supported school choice, which is absolutely the direction American education needs to go. That said, outside of Washington, DC, military installations, and Native‐​American schooling, education is not within the federal purview. Unfortunately, DeVos did promote a national scholarship tax credit which would not pass constitutional muster and would threaten to inject federal regulations into private schools. But she tried to make it as Constitution‐​friendly as possible, avoiding direct federal funding and allowing states to opt‐​in.

Secretary DeVos also worked hard to protect oft‐​forgotten taxpayers, as well as sometimes dubiously targeted institutions, when it came to matters such as student loans. This earned her a lot of flak, especially her reticence to forgive all of the debt of students who attended colleges found guilty of fraudulent practices. DeVos held that if borrowers had benefited from their education they should not receive full forgiveness. This was an understandably controversial position, but her detractors rarely acknowledged that her motives may have been good: to protect taxpayers, who have no say in the loans, from being the ultimate losers. She also fought for the due process rights of college students accused of sexual misconduct. Again, a difficult stance, but one rooted in basic American principles of justice.

Betsy DeVos had a job that should not exist. She recognized that fact and largely acted accordingly. She also championed school choice and criticized public schooling, which threatened a lot of the education establishment that is omnipresent in DC. Those positions garnered her a lot of sometimes vitriolic enmity, but on the whole hers was perhaps as good a tenure as a constitutionalist, and realist about the often deleterious effects of federal education policy, could hope for after decades of federal expansion.

January 8, 2021 8:54AM

Reflections on the President’s Conduct

Because the election was close, fair‐​minded persons acknowledge that President Trump had every legal right to investigate possible irregularities. If he uncovered significant fraud, he would and should have taken appropriate steps to challenge the outcome. But the President and his surrogates opted instead to fabricate claims that he had already won the election, the process was totally corrupt, and Americans could not trust the results. Therefore, the Trumpists insisted, millions of voters should be disenfranchised by replacing their chosen electors with alternative slates to be designated by state legislatures or Congress.

Numerous elections have been contested, and final tallies are sometimes delayed pending investigations of misconduct. Accordingly, there would have been no defensible outcry if the President had said: “We have received a number of reports concerning questionable voting practices. We plan to scrutinize those reports and seek appropriate redress if justified. But if the reports are not verifiable, we will accept the outcome, congratulate our new president‐​elect, facilitate a smooth transition, and continue governing the nation to the best of our ability until January 20.”

Sadly, Trump preferred inflammatory disinformation and outright lies – undermining what might otherwise have been a legitimate inquiry. In the process, he dangerously eroded voters’ confidence in our electoral system and its republican foundations. In desperation, he put his personal interests above those of the nation – ironically but predictably lubricating a Democratic takeover of the Senate.

It’s a shame that Trump couldn’t bring himself to deliver a healing concession speech. He had much for which he could take credit – fewer regulations, lower taxes, a booming pre‐​Covid economy, good judges, and selective progress abroad. Indeed, he deserves kudos for out‐​performing the pundits’ 2020 expectations – holding some Senate seats, gaining representation in the House, and capturing statehouses and state legislatures. But rather than conciliation, President Trump decided to incite his more radical supporters, some of whom committed contemptible, pernicious, and violent acts.

Even prior to the appalling episode at the Capitol, Trump’s recorded phone call to Georgia secretary of state Brad Raffensperger arguably violated both federal and state laws. The Georgia statute implicates any person who “solicits, requests, commands, importunes, or otherwise attempts to cause” another person to commit election fraud. The federal law applies to anyone who “knowingly and willfully” facilitates the “procurement, casting, or tabulation of ballots that are known by the person to be materially false, fictitious, or fraudulent.”

During their hour‐​long call, Trump threatened Raffensperger and instructed him to “find” votes. The President’s defense would likely be that his solicitation to commit fraud wasn’t knowing and willful; he intended only to rectify election returns that were fatally defective. That defense is without merit. Even if the votes in Georgia were inherently flawed, the remedy for fraud is not an inducement to more fraud. Such an inducement cannot be excused by alleging voting infractions.

In short, President Trump’s conduct has been unacceptable. To be sure, the nation needs time to heal. So, the decision – urged by some observers – to impeach the President a second time, or remove him from office by invoking the 25th Amendment, may well hinge on prudential rather than legal assessments. Still, at a minimum, a congressional censure – joined in particular by Trump’s Republican enablers – would be both welcome and warranted.

January 7, 2021 6:31PM

Capitol Police Funding

The attack on Capitol Hill yesterday was disgraceful. It was also remarkable. After all the security breaches at both the congressional complex and White House over the years, and the many large protests in the city, you would think that the Capitol Police would have been better prepared.

The Capitol Police certainly has enough funding to be prepared. The force has 2,300 officers and a $516 million budget to defend two square miles.

The chart shows that outlays for the Capitol Police have soared over the past two decades. In actual or nominal dollars, spending increased from $115 million in fiscal 2000 to an estimated $516 million in fiscal 2021. That equals an annual average growth rate of 7.4 percent, much faster than the 2.1 percent average annual inflation over the period.

The Capitol Police budget is more than the police budgets of Atlanta and Detroit. A watchdog group examined the agency’s activities in posts here and here.

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Spending data is from the federal budget here. The figure for 2021 is the estimate from last year’s budget. A conversation with David Ditch prompted this post. William Yeatman examines the agency here.