Congress Pushes Biometrics
The Federal Trade Commission has no jurisdiction over government entities so when it looks with concern at the use of facial recognition technology, it’s looking at the private sector.
Facial recognition is only one of many biometric technologies, of course, and Congress is pushing hard for biometrics that can help track and control us for various purposes. If anyone should be looking with concern, it should be us looking at the federal government.
There are legitimate uses for biometrics, of course, and well-designed implementations will undoubtedly benefit us all. But biometrics programs implemented for the government will tend to prioritize hoovering up federal cash over striking delicate balances among cost, effectiveness, privacy, and civil liberties.
So let’s look at how Congress is pressing—and in one case insufficiently restraining—the rapid advance of biometrics.
H.R. 658, the FAA Reauthorization and Reform Act of 2011, has passed the House and awaits action in the Senate. It says that “improved pilot licenses” must be capable “of accommodating a digital photograph, a biometric identifier, and any other unique identifier that the Administrator considers necessary.”
H.R. 1690, the MODERN Security Credentials Act, establishes that air carriers, airport operators, and governments may not employ or contract for the services of a person who has been denied a TWIC card. “TWIC” stands for “Transportation Worker Identity Card,” the vain post-9/11 effort to secure transportation facilities from bad people. TWIC cards use biometrics.
Supreme Court Takes Up Arizona Immigration Law
The Supreme Court has agreed to review Arizona v. United States, the case regarding SB 1070, the Arizona law (only) four sections of which have been enjoined by the lower courts: requiring police to check the immigration status of anyone they have lawfully detained whom they have reasonable suspicion to believe may be in the country illegally; making it a state crime to violate federal alien registration laws; making it a state crime for illegal aliens to apply for work, solicit work in a public place, or work as an independent contractor; and permitting warrantless arrests where the police have probable cause to believe that a suspect has committed a crime that makes him subject to deportation. For my previous analysis of SB 1070 and the legal challenges to it, see here, here, here, and here.
By taking up this case, the Supreme Court is wisely nipping in the bud the proliferation of state laws aimed at addressing our broken immigration system. One way or another, states will know how far they can go in addressing issues relating to illegal immigrants, whether the concern is crime, employment opportunities (providing or restricting them), registration requirements, or even so-called sanctuary cities.
Of course, states wouldn’t be getting into this mess if the federal government — elected officials of both parties — hadn’t abdicated its responsibility to fix a system that serves nobody’s interests: not big business or small business, not the rich or the poor, not the most or least educated, not the economy or national security, and certainly not the average taxpayer. For their part, SB 1070 and related laws in Alabama, Georgia, and elsewhere are (with small exception) constitutional — the state laws are merely mirroring federal law, not conflicting with it or otherwise intruding on federal authority over immigration — but bad public policy. (For more on both these conclusions, read my SCOTUSblog essay from last summer.)
What this country needs is a comprehensive reform that obviates the sort of ineffectual half-measures the states are left with given Congress’s shameless refusal to act. It’s not very often that Cato calls for the federal government to do something, but the immigration system is quite possibly the most screwed-up part of the federal government — which of itself is a significant statement coming from someone at Cato — and one that is so incredibly counterproductive to American liberty and prosperity.
The Court will hear Arizona v. United States in the spring. For more immigration-reform developments, see this note in today’s Wall Street Journal and my blogpost on Utah’s plan, which the federal government has also since sued to enjoin.
Border Security, the War on Drugs, and the 2012 GOP Presidential Race
The issue of border security has made its way into the 2012 GOP presidential race and candidates are jockeying to separate themselves from the pack. The topic garnered some attention at the Republican national security debate on November 22. An Associated Press story today examines the candidate’s platforms on the topic and as the title implies, rightly concludes securing the border is impossible. I am quoted in the article and make exactly that point:
Mitt Romney and Newt Gingrich have promised to complete a nearly 1,950-mile fence. Michele Bachmann wants a double fence. Ron Paul pledges to secure the nation’s southern border by any means necessary, and Rick Perry says he can secure it without a fence — and do so within a year of taking office as president.
But a border that is sealed off to all illegal immigrants and drugs flowing north is a promise none of them could keep.
“Securing the border is a wonderful slogan, but that’s pretty much all it is,” said Ted Galen Carpenter, a senior fellow at the libertarian Cato Institute. “Even to come close would require measures that would make legal commerce with Mexico impossible. That’s an enormous price for what would still be a very leaky system.”
The bottom line is the border is simply too big to control. Attempting to fully police the border must pass a simple cost-benefit analysis, and it is not clear that our current policy passes that test. And yet, the candidates all agree securing the border is necessary to combat terrorism, illegal immigration, and drug violence stemming from Mexico.
The candidates have little reason to reexamine that assumption. Not only is it politically advantageous to call for securing the border, but it is a convenient one-size-fits-all solution to those three broader policy issues. They have calculated that this is what voters want to hear.
But it is an illusory solution. Laws protecting the border must exist and be enforced, but it is not clear that this alone, even if done more effectively or efficiently, will prevent terrorists or illegal immigrants from entering the United States. And the “securing the border” panacea certainly will not end the flow of drugs into the United States.
Curiously, while the GOP candidates all express worries about terrorism and illegal immigration, the subject of the war on drugs has hardly been discussed. Although drug violence in Mexico is the only major security problem the Untied States faces on any of its borders, the issue has not produced serious consideration thus far. Rep. Ron Paul (R-TX) has been the only candidate to offer a thoughtful, consistent approach the issue, calling for an end to the failed policy.
The candidates should be pressured to answer why Washington continues to spend billions of dollars to wage the war on drugs each year with little to show for it. The power of the drug cartels has reached the point that the Mexican government no longer controls some areas of the country. And there are worrying signs that the violence is beginning to bleed across the border into the United States.
Our prohibitionist efforts have failed and a new policy is needed. Only by removing the lucrative black-market drug trade and thus effectively defunding the Mexican drug cartels can we begin to end the violence and illegal activity that plagues Mexico and the southern U.S. border region.
That is the substantive discussion that should be taking place in the GOP debates, rather than the posturing and repeated faux policy prescriptions to secure the border.
To Spur Technology Innovation, Stop Pulling on the Rope
I spent the morning at The Atlantic‘s Washington Ideas Forum. Before the big names were to do their spiels during the afternoon today and tomorrow morning, there were a series of breakout sessions, among which was one on “Technology Innovation.”
Our suggested “points to ponder” were:
- Can our nation regain our competitive edge through innovation?
- Will our knowledge and information-based workforce continue to offer cutting-edge technologies to improve the way we live and work?
- What measures can we implement to foster creativity and encourage companies to grow intelligently? and
- Will the paradigm of how people work, think and communicate be meaningfully transformed as a result of technology? Or is this another short-term trend, with no long term changes?
At least one of the other participants thought the summary of the discussion I gave in the latter half was pretty good, so I’ll share my takeaway here roughly as I did there—maybe sounding just a little more “Cato-y” here.
A Challenging Question
If having more maids, valets, and drivers uplifted the world’s poor, could you do it? Or does maintenance of your egalitarian sensibilities require them to stay in their place?
The New York Times on Anders Breivik
My Washington Examiner column this week looks at the rush to score partisan points over the horrific slaughter in Norway last Friday.
In it, I argue that blaming Al Gore for the Unabomber, Sarah Palin for Jared Loughner, or Bruce Bawer for Anders Breivik makes about as much sense as blaming Martin Scorcese and Jodie Foster for the actions of John Hinckley. In general, “invoking the ideological meanderings of psychopaths is a stalking horse for narrowing permissible dissent.”
And right on cue, here’s today’s New York Times editorial on Breivik, decrying “inflammatory political rhetoric” about Muslim immigration in Europe:
Individuals are responsible for their actions. But they are influenced by public debate and the extent to which that debate makes ideas acceptable — or not. Even mainstream politicians in Europe, including Prime Minister David Cameron of Britain, Chancellor Angela Merkel of Germany and President Nicolas Sarkozy of France have sown doubts about the ability or willingness of Europe to absorb newcomers. Multiculturalism “has failed, utterly failed,” Mrs. Merkel said last October.
Oh, Grey Lady: you had me at “individuals are responsible for their actions,” but you lost me after “but.”
Because, maybe there are, in fact, limits to the ability or willingness of Europe to absorb newcomers. And perhaps multiculturalism has failed. I don’t know—I don’t live in Europe, and I don’t follow its immigration debates closely. But contra the Times‘ editorialists, it seems to me that these ideas are “acceptable,” in the sense that they might actually be true, and that you ought to be able to debate them without thereby becoming morally responsible for the actions of lone psychotics.
Virtually every European immigration skeptic manages to participate in that debate without resort to violence, just as vanishingly few hard-core environmentalists try to promote their ideas by means of armed assault. The actions of the deranged few don’t tell us much about what’s wrong with those political stances.
As others have pointed out, the notion that you should “watch what you say” in political debates amounts to giving a sort of “heckler’s veto” to the biggest nutjobs within earshot.
As a means of avoiding horrifying—but thankfully rare—events like mass shooting sprees, it doesn’t seem terribly promising. But it might help you temporarily intimidate your ideological opponents—which is why it’s a perennially popular tactic.
SB 1070: Constitutional But Bad Policy
That’s the title of an essay I wrote for SCOTUSblog as part of their symposium on United States v. Arizona. This is the big immigration case that will hit the Supreme Court’s doorstep later this month when Paul Clement, recently hired by Arizona, files his cert petition.
Here’s an excerpt:
…state governments, feeling tremendous pressure from their citizens to address the consequences of the federal failure to meet this nation’s immigration needs, are acting for themselves. Arizona happens to be the “tip of the spear,” but we’ve also seen various other immigration-related laws passed in states as different as Utah, Georgia, and California. Whether related to enforcement, expanded work permits, sanctuary cities, or other types of policy innovations, Congress’s abdication of its duty to manage our immigration system has spawned a host of federalism experiments.
And so we come to S.B. 1070 (as amended by H.B. 2162), which exemplifies the crucial distinction between law and policy that both liberals and conservatives tend to forget. A law that is good policy might be unconstitutional or preempted by some higher law. Here we see the converse: while S.B. 1070 is (with the exception of one provision) constitutional, it’s bad policy.
E-Verify and Common Sense
This weekend, New York Times op-ed columnist Ross Douthat wrote a piece full of common sense thinking about immigration control and the E-Verify federal background check system.
“Common sense”—or “what most people think”—is an interesting thing: When generations of direct experience accumulate, common sense becomes one of the soundest guides to action. Think of common law, its source deep in history, molded in tiny increments over hundreds of years. Common law rules against fraud, theft, and violence strike a brilliant balance between harm avoidance and freedom.
When most people lack first-hand knowledge of a topic, though, common sense can go quite wrong. Such is the case with ”common sense” in the immigration area, which is not a product of experience but collective surmise. Douthat, who has the unenviable task of leaping from issue to issue weekly, indulges such surmise and gets it wrong.
Take, for example, the premise that American workers lose when immigration rates are high: “Amnesty,” says Douthat, would “be folly (and a political nonstarter) in this economic climate, which has left Americans without high school diplomas (who tend to lose out from low-skilled immigration) facing a 15 percent unemployment rate.”
On the whole, American workers do not lose out in the face of immigration. To the extent some do, it is penny-wise and pound foolish to retard our economy (in which displaced workers participate) and overall well-being (which affects displaced workers, too) in the name of protecting status quo jobs for a small number of native-borns.
Full immigration reform that includes generous opportunities for new low-skill workers is not folly, whatever its political prospects may be.
But I want to focus on Douthat’s conclusion that E-Verify is the way forward for immigration control. He cites a study finding that Arizona’s adoption of an E-Verify mandate caused the non-citizen Hispanic population of Arizona to fall by roughly 92,000 persons, or 17 percent, over the 2008–2009 period, and concludes:
[M]aybe — just maybe — America’s immigration rate isn’t determined by forces beyond any lawmaker’s control. Maybe public policy can make a difference after all. Maybe we could have an immigration system that looked as if it were designed on purpose, not embraced in a fit of absence of mind.
Though tentative, his implication is that a national E-Verify mandate is the solution. Everything that came before was the product of fevered impulses. Maybe E-Verify is the most practical solution. Douthat’s calm tone sounds like common sense.
Ah, but neither Douhtat or the authors of the study have thought that problem all the way through (and the study doesn’t claim to): The decline in Arizona was not produced simply by moving illegal immigrants from Arizona back to Mexico and Central America. They went to Washington state and other places in the United States that are less inhospitable to immigrants. A national E-Verify mandate would offer no similar refuge, and the move to underground (or “informal”) employment would occur in larger proportion than it did in Arizona.
The report also cautions that the honeymoon in Arizona may not hold:
[T]he initial effects of the legislation are unlikely to persist if actors in the labor market learn that there are no consequences from violating these laws. Hence, for long-term effectiveness, policymakers should also consider the role of employer sanctions, which have not played a large role in Arizona’s results so far. However, policymakers must weigh the sought-after drop in unauthorized employment against the costs associated with shifting workers into informal employment.
That’s antiseptic language for: investigations of employers, raids on workers, heavy penalties on both, and growth in black markets and a criminal underground. “Balmy” is a way of describing the temperature potatoes pass through in a pressure cooker.
It’s hard, on analysis, to see Arizona’s experience being replicated or improved upon by an E-Verify mandate that’s national in scale without a great deal of discomfort and cost. I surveyed the demerits of electronic employment eligibility verification in “Franz Kafka’s Solution to Illegal Immigration.”
The Consequences of Our War on Low-Skilled Immigrant Labor
Credit: Chiapas state government website
Authorities in Mexico intercepted two semi-trucks on Tuesday containing more than 500 migrants being smuggled across the border from Guatemala and presumably headed for the United States. An x-ray of one of the trucks that revealed the migrants struck me for its resemblance to those 18th century woodcarvings of slave ships crossing the Atlantic.
That analogy shouldn’t be taken too far, of course. According to the news reports, the migrants voluntarily paid $7,000 each for the chance to be smuggled into the United States. But like the slave ships, the conditions in the trucks were horrific, putting the lives of the men, women and some children in real danger.
People across the spectrum will try to make hay from this, but to me it argues that the status quo is unacceptable. No respectable party is in favor of illegal immigration. The real debate is over how to reduce it and all the underground pathologies that accompany it.
We can continue to ramp up border and interior enforcement, as we have relentlessly for more than a decade, driving low-skilled migrants further underground while driving smuggling fees higher and higher. Or we can expand opportunities for legal entry into the United States, and by doing so shrink the underground network of smuggling and document fraud.
Like the repeal of Prohibition in 1933, real immigration reform would go a long way to eliminating the human bootlegging that was exposed in Mexico this week. A robust temporary worker program would allow foreign-born workers to enter the country in a safe, orderly, and legal way through established ports of entry. It would allow resources now going to smugglers to be collected as fees by our government and otherwise put to work in our economy. It would save the lives of hundreds of people who needlessly die each year trying to re-locate for a better job.
If Congress enacted the kind of immigration reform we have long advocated in my department at Cato, our economy would be stronger and the human smuggling networks a lot less busy.
Responding to Critics of Immigration Reform
President Obama is making his first visit to the U.S.-Mexican border today to deliver a speech in El Paso, Texas, on the need to reform America’s immigration laws. I’ll be eagerly awaiting the president’s plan, but in the meantime, the Cato Institute has released a new study this week that examines the major objections to comprehensive immigration reform.
Titled “Answering the Critics of Comprehensive Immigration Reform,” and authored by Cato adjunct scholar Stuart Anderson, the new study draws on the latest research to address five common objections to expanding opportunities for legal immigration. The issues addressed in the study include the effect of immigration reform on government spending, welfare use, culture and language, unemployment, and incentives for illegal immigration.
After carefully weighing all those concerns, the study concludes that the arguments continue to weigh heavily in favor of expanding legal immigration as the best way to reduce illegal immigration. Here is the study’s conclusion:
The status quo is not acceptable. There is no evidence that continuing—or expanding—the current “enforcement-only” policies on immigration will be successful. The best approach is to harness the power of the market to allow workers to fill jobs legally, rather than to rely on human smuggling operations for workers to enter the United States. Addressing the situation of those now in the country illegally will achieve both humanitarian and economic objectives, including raising the wages of those now working as illegal immigrants. The primary arguments employed against comprehensive immigration reform do not stand up to a review of recent history and predictable social and economic behavior.
Here is the short-form Cato blueprint for immigration reform, and here is the long-form version (PDF).
Will Republicans Come to Grips With Immigration?
Today POLITICO Arena asks:
Given President Obama’s speech today in El Paso, Texas, is immigration a winning issue for Democrats?
My response:
Immigration will be a winning issue for Democrats only if Republicans allow it, which they’re quite capable of doing. Where’s the anti-immigrant part of the Republican base going to go — to the Democrats? Hardly. With so much else at stake, will they sit out the 2012 elections, over this one issue? Please.
If Republicans play it right, this can be a winner. No one seriously believes that the estimated 10 to 12 million illegal immigrants in the country, most working, can or should be sent back to their countries of origin. So the main issues are paving the way to legalization, better securing the borders, and providing for a rational guest worker program. If Republicans got behind a package like that, immigration would cease to be a Democratic issue. This isn’t rocket science.
Arizona Immigration Decision Underlines Need for Fundamental Reform
The legal battle over SB 1070 is far from over, so neither side should cheer or despair. The upshot of the Ninth Circuit’s splintered and highly technical opinion is merely that the district court did not abuse its discretion in enjoining four provisions. The court could not and did not rule on the legislation’s ultimate constitutionality and, of course, SB 1070’s remaining provisions—the ten that weren’t challenged and the two on which Judge Bolton rejected the government’s argument—remain in effect.
But the legal machinations are only half the story. While I personally think that all or almost all of the Arizona law is constitutional, at least as written (abuses in application are always possible), it’s bad policy because it harms the state’s economy and misallocates law enforcement resources. But I also understand the frustration of many state governments, whose citizens are demanding relief from a broken immigration system that Congress has repeatedly failed to fix. Whether it’s stronger enforcement (Arizona) or liberalizing work permits (Utah), states should not be forced into the position of having to enact their own piecemeal immigration solutions while living within a system where the regulation of immigration is a federal responsibility. Congress has dropped the ball in not passing comprehensive immigration reform, despite facing a system that doesn’t work for anyone: not big business or small business, not rich Americans or poor ones, not skilled would-be immigrants or unskilled.
The federalism our Constitution establishes sometimes demands that the federal government act on certain issues. This is such a time and immigration is such an issue.
Cato on Facebook
Cato on Twitter
Cato on Google+
Cato on YouTube
