Is Birthright Citizenship Challenge “Doomed”? Let’s Hope So

Posted by Daniel Griswold

Yet another front has opened in the battle over illegal immigration, this one involving birthright citizenship. According to today’s New York Times and other news outlets, Republicans at the state and federal level are gearing up to re-open the question of whether children born in the United States to parents who are here illegally should be granted automatic citizenship under the 14th Amendment to the U.S. Constitution.

James Ho makes a strong case in this morning’s Wall Street Journal that the 14th Amendment as written after the Civil War was intended to include the children of resident aliens whatever their legal status. The former solicitor general of Texas, Ho describes a series of Supreme Court decisions since then that have consistently upheld the principle that birthright citizenship applies to the children of illegal immigrants. He offers this sobering advice to those who want to retest the case in court:

Opponents of birthright citizenship say that they want nothing more than a chance to relitigate the meaning of the 14th Amendment. But if that is so, state legislation is a poor strategy.

Determining U.S. citizenship is the unique province of the federal government. It does not take a constitutional expert to appreciate that we cannot have 50 different state laws governing who is a U.S. citizen. As a result, courts may very well strike down these state laws without even invoking the 14th Amendment. The entire enterprise appears doomed to failure.

At a Cato Hill Briefing event in October, I spelled out additional reasons why the principle of birthright citizenship has served our nation well since the Civil War amendments. Attorney Margaret Stock reviews the legal and constitutional arguments underpinning birthright citizenship, while I examine the practical policy arguments for not tampering with the established interpretation. (My segment starts at the 25:11 mark.)

What Privacy Invasion Looks Like

Posted by Jim Harper

The details of Tyler Clementi’s case are slowly revealing themselves. He was the Rutgers University freshman whose sex life was exposed on the Internet when fellow students Dharun Ravi and Molly Wei placed a webcam in his dorm room, transmitting the images that it captured in real time on the Internet. Shortly thereafter, Clementi committed suicide.

Whether Ravi and Wei acted out of anti-gay animus, titillation about Clementi’s sexual orientation, or simply titillation about sex, their actions were utterly outrageous, offensive, and outside of the bounds of decency. Moreover, according to Middlesex County, New Jersey prosecutors, they were illegal. Ravi and Wei have been charged with invasion of privacy.

This is what invasion of privacy looks like. It’s the outrageous, offensive, truly galling revelation of private facts like what happened in this case. Over the last 120 years, common law tort doctrine has evolved to find that people have a right not to suffer such invasions. New Jersey has apparently enshrined that right in a criminal statute.

The story illustrates how quaint are some of the privacy “invasions” we often discuss, such as the tracking of people’s web surfing by advertising networks. That information is not generally revealed in any meaningful way. It is simply being used to serve tailored ads.

This event also illustrates how privacy law is functioning in our society. It’s functioning fairly well. Law, of course, is supposed to reflect deeply held norms. Privacy norms—like the norm against exposing someone’s sexual activity without consent—are widely shared, so that the laws backing up those norms are rarely violated.

It is probably a common error to believe that law is “working” when it is exercised fairly often, fines and penalties being doled it with some routine. Holders of this view see law—more accurately, legislation—as a tool for shaping society, of course. Many of them would like to end the societal debate about online privacy, establishing a “uniform national privacy standard.” But nobody knows what that standard should be. The more often legal actions are brought against online service providers, the stronger is the signal that online privacy norms are unsettled. That privacy debate continues, and it should.

It is not debatable that what Ravi and Wei did to Tyler Clementi was profoundly wrong. That was a privacy invasion.

China Bill All about Saving Lawmakers’ Jobs

Posted by Daniel Griswold

The House is expected to vote today on a bill that would allow U.S. companies to petition the Commerce Department for protective tariffs against imports from countries with “misaligned currencies.” Everybody knows the bill is aimed squarely at China.

Advocates of the legislation say it is about jobs, and they are partly right. The bill is about saving the jobs of incumbent lawmakers who are desperate to appear tough on China trade, which they blame for the loss of U.S. manufacturing jobs.

As my colleague Dan Ikenson and I have argued at length, in blog posts, op-eds, and longer studies,

Let’s hope cooler, wiser heads in the Senate and the White House save us from this election-season folly.

DREAM Act Would Improve a Bad Situation

Posted by Daniel Griswold

The U.S. Senate may vote in the next few days on a piece of legislation known as the DREAM Act. The Development, Relief and Education for Alien Minors Act would offer legal status to as many as 2 million students who are currently in the United States without authorization, many of them Hispanic immigrants who entered the country illegally with their parents.

The act would legalize students who entered the United States at least five years before its passage and were under the age of 16 when they entered. A practical effect would be to make many of these students eligible for in-state tuition at colleges and universities.

The DREAM Act is not a perfect call for those of us who believe in limited government, but in our less-than-perfect world, the act would make a bad situation better. As I wrote earlier this year in a post on the Cato on Campus web site:

Ideally, there would be no reason to propose the DREAM Act if there were more opportunities for legal immigration and if the government were far less involved in providing higher education. Far fewer minor children would enter the country illegally if more work visas were provided for their parents to enter the country legally. In-state tuition and government aid would cease to be a major issue if responsibility for providing higher education shifted more to a competitive private sector.

Given our current system, however, the DREAM Act would somewhat improve a bad situation. It would extend legal status to a group of people who have completed high school, typically speak English well, and are thus able to pursue higher education or better support themselves in the labor market. It would help to maintain a healthy growth rate of the U.S. labor force and provide entrepreneurial spirit associated with immigrants.

The DREAM Act would also extend more equitable treatment to students whose lack of legal status is no fault of their own. Their parents, although undocumented, have usually paid the same sales and property taxes paid by legal residents with similar incomes. The DREAM Act would lift thousands of students out of a legal netherworld and allow them to improve themselves while at the same time contribute to a more productive United States.

The Likelihood of Repealing ObamaCare

Posted by Michael F. Cannon

The political science blog Rule 22 has a post discussing the likelihood of repealing at least some part of ObamaCare.  Author Jordan Ragusa finds:

  • If “the Republicans regain only the House in the upcoming election…the estimated likelihood of at [least] some repeal during the 112th Congress is 52 percent.”
  • If “Republicans regain both chambers in the upcoming midterm…the estimated likelihood of at [least] some repeal is 59 percent.”
  • If “Republicans regain unified control of government in 2012…the estimated likelihood of some repeal in the 113th Congress is 69 percent.”

Ragusa is predicting only that the odds are better than 50-50 that Congress will repeal some part of the law, such as the expanded 1099 reporting, which House Democrats have already moved to eliminate because small businesses find it so onerous.  He is not laying odds on whether Congress will repeal the entire law or its most important and unpopular provisions (i.e., ObamaCare’s individual mandate).

His post does shed light on the likelihood of repealing the individual mandate, however.  As the below graph shows, the probability of repealing any provision of major legislation rises in each of the next five Congresses (i.e., over the subsequent 10 years).  After that point, the probability of repeal begins to fall.

Note that this graph shows the instantaneous probability of repeal.  The cumulative probability is the area under the curve, and increases monotonically over time.  Thus the probability that Congress will repeal some part of ObamaCare by 2020 is more than 13 percent.

Ragusa therefore concludes:

the newly enacted law will be most “at risk” not in the next Congress, but a decade from now.  So sit tight.

Also noteworthy is that Ragusa presents only the probability of legislative repeal.  The prospect that the courts may invalidate all or part of the law increases the probability that some day, ObamaCare will no longer be on the books.

More on Justin Amash

Posted by John Samples

I wrote yesterday about a candidate for the House of Representatives who offered an interesting and critical look at his experience as a state legislator in Michigan. This candidate, Justin Amash, both reads the bills he votes on and posts explanations for his votes on his Facebook page. Here are two of his explanations:

Justin Amash just voted no on HBs 6038 and 6226, which impose stiff penalties and prison sentences on individuals who possess or use two synthetic drugs: one that mimics the effects of ecstasy and another that mimics the effects of marijuana. I have never possessed or used illicit drugs, nor should anyone. But this legislation is more about sensationalism than actual public protection. HB 6038 passed 105-1. HB 6226 passed 104-1.

Justin Amash just voted no on HR 294, which “recognize[s] the perfect game pitched by Armando Galarraga of the Detroit Tigers on June 2, 2010, against the Cleveland Indians.” Congrats to Mr. Galarraga for his outstanding performance and achievement, but I’m not the commissioner of Major League Baseball, and this resolution is not an appropriate legislative matter. It passed 101-5.

If he keeps this up, I may stop being cynical about politics which would be a problem because I don’t know any other way to be, having living in DC for 18 years. But I’m willing to give it a try.

You can have a look at his other explanations for his votes here. (Make sure you go down to the older posts on his wall to get his explanations).

Short-Sighted Rules for Affordable Housing

Posted by David Boaz

The state of Maryland wants more people to have affordable housing — at least if they’ve already got it. Concerned that the owners of mobile home parks might sell the land for other uses, “affordable housing advocates” succesfully lobbied Maryland legislators this year for

legislation that, they say, discourages owners of mobile-home parks from selling their properties. If the landowner does sell, it provides the homeowner with some protection.

Under the law, which was passed earlier this year, a mobile-home park owner who wants to sell and change land use must give written notification to the residents and provide displaced homeowners with a relocation plan and relocation assistance that equals 10 months’ worth of rent. The legislation applies to mobile parks with more than 38 sites.

Now the first thing to be said about this is that it is theft. That’s become so common in legislatures that we’ve become accustomed to it. But we shouldn’t lose sight of what happened here: Some people spent their own money to buy land. They rented that land to people with mobile homes, who knew that they were not buying the land, they were just renting a place to park their mobile homes. (The word “mobile” might be a tipoff that they’re made to move.) And then the government took away the owner’s right to change the use of his land. The owner could still sell it, of course, as long as he gives written notification of his plans, provides the renters with a “relocation plan,” and pays them 10 months’ rent to leave his land. That’s a huge burden; the government has simply appropriated much of the value of the owner’s land.

But there’s an obvious long-term consequence here, too, one that the Washington Post didn’t get to in its 1000-word story. What’s going to occur to a landowner as she reads this story? She’s going to think, if I allow anyone to park a mobile home on my property, I’ll be permanently harnessed to that tenant, like a medieval serf. So maybe I’d better not rent any space to a mobile home owner. But then she’s going to think a bit further: What about other kinds of affordable housing? If I build inexpensive apartments or bungalows, and rent them to people who need affordable housing, will the state of Maryland decide that I shouldn’t be allowed to change the use of the land or sell it? After all, wealthy Montgomery County, Maryland — which doesn’t have many mobile homes — does have a 20-page handbook of rules and restrictions for any owner who might want to convert an apartment building to condominiums, including the county’s right to buy the land and a guarantee of lifetime tenancies for low-income elderly tenants. William Tucker pointed out in a 1997 Cato paper how rent control laws usually had to be followed by condo conversion restrictions, as building owners tried to find some way to make a profit on their buildings. And then of course the whole series of attempts to “protect” affordable housing leads to housing shortages and sky-high rents.

If you want people to supply affordable housing, it’s probably a good idea not to pile taxes, restrictions, and threats of confiscation on the backs of those who do.

Three Steps to Comprehensive Immigration Reform

Posted by Daniel Griswold

Congress can and should pass comprehensive immigration reform in 2010. Any legislation worthy of the name would:

1) offer legalization to undocumented workers who have been here for several years, pass a security check, and pay a reasonable fine and back taxes;

2) create a temporary-visa program sufficient to meet future labor needs of a growing economy; and

3) enforce the law against those who still insist on working outside the system, but in a way that does not restrict the freedom of American citizens.

Reform would reduce illegal immigration by offering a legal alternative. It would tighten border security by allowing U.S. agents to focus on intercepting real criminals and terrorists, not dishwashers and gardeners. And it would expand output, investment, and job opportunities for middle-class Americans. Polls show a majority of Americans will accept the three-fold approach to reform. Recent elections confirm that support for reform is a modest plus with swing voters, and a huge plus with Hispanics.

This is an issue where both major parties can work together to fix our immigration system in a way that boosts the economy, enhances security, and expands liberty.

For more, see Cato’s research on immigration.

SEC vs. Goldman Sachs: Legislation by Demonization

Posted by Alan Reynolds

The Obama administration thinks it has discovered the perfect formula to cram legislation through in a hurry:  Demonize some prominent firm within an industry you plan to redesign, and then pass a law that has nothing to do with the accusation against the demonized firm.  They did this with health insurance and now they’re trying it with finance.

With health insurance, the demon was Anthem Blue Cross Blue Shield of California, which Obama accused of raising premiums by “anywhere from 35 to 39 percent.” Why didn’t some curious reporter interview a single person who actually paid 39% more, or quote from a letter announcing such an increase?  Because it didn’t happen.  Insurance premiums are regulated by the states, and California wouldn’t approve such a boost.  Yet the media’s uncritical outrage over that 39% rumor helped to enact an intrusive, redistributive health bill that has nothing to do with health insurance premiums (which remain regulated by the states).

Today, the new demon de jour is Goldman Sachs, a handy scapegoat to promote hasty financial rejiggering schemes  The SEC’s suspiciously-timed civil suit against Goldman looks as flimsy as the last month’s health insurance story.  It also looks unlikely to win in court.

As Washington Post columnist Sebastian Mallaby explains, “This is a non-scandal. The securities in question, so-called synthetic collateralized debt obligations, cannot exist unless somebody is betting that they will lose value.”  In such a zero-sum contest, big investors who went long knew perfectly well that other investors had to be taking the other side of the bet.  Goldman lost $90 million by betting this CDO would go up; John Paulson went short.

Columnists have moralized about the unfairness of the short investor (Paulson) negotiating the terms of this deal with a long investor, ACA Management, which had the last word. This too, notes Mallaby, “is another non-scandal.  An investor who wants to bet against a bundle of mortgages is entitled to suggest what should go into the bundle. The buyer is equally entitled to make counter-suggestions.  As the SEC’s complaint states clearly, the lead buyer in this deal, a boutique called ACA that specialized in mortgage securities, did precisely that.”

Like the earlier fuming about Anthem California, this new SEC publicity stunt is likewise irrelevant to the pending legislation.  Congress hopes to get standardized derivatives traded on an exchange. But synthetic collateralized debt obligations dealing with a customized bundle of securities could not possibly be traded on an exchange, and would therefore be untouched by reform.

Losses sustained by a few financial speculators on one exotic derivative had nothing to do with starting a global recession in December 2007 or the related financial crisis of September 2008. The core of the latter crisis was mortgage-backed securities per se, yet Goldman was only the 12th largest private MBS issuer in 2007.  Fannie Mae and Freddie Mac were and are the biggest risk; any reform that excludes them is a fraud.

The SEC’s dubious civil suit against Goldman is a wasteful diversion at best. It has nothing to do with the Obama administration’s suicidal impulse to impose more tough regulations and taxes on banks to encourage them to lend more.

[Cross-posted at NRO's The Corner]

Media Coverage of the Health Care Overhaul

Posted by Michael D. Tanner

Over the course of the health care debate, the media often reported and editorialized — and sometimes it was impossible to tell the difference — quite favorably on the Democratic proposals running through Congress. While some upheld their journalistic responsibility to scrutinize and offer objective analysis of the legislation, many did not.

It was not surprising to read stories almost daily about how Obamacare would lift millions of poor, elderly, sick, and generally down-trodden Americans out of financial and medical crisis, and even go so far as to singlehandedly save the lives of hundreds of thousands of Americans over the course of the next decade. (It would even provide one free turkey for Thanksgiving to every family living 400 percent below the poverty level.)

This morning, however, the headlines read something like this:

  • “Lawmakers, Staff May Lose Coverage” (New York Times): Adds the Times, “The confusion raises the inevitable question: If they did not know exactly what they were doing to themselves, did lawmakers who wrote and passed the bill fully grasp the details of how it would influence the lives of other Americans?”

My question is this: where were these reporters before the passage of the health care bill?

On ObamaCare, Don’t Put Your Faith in the Courts

Posted by Randy E. Barnett

Now that the Obama health plan is law, more than a dozen states are asserting that Congress has exceeded its Commerce Clause power in imposing a mandate on individuals to purchase health insurance from private companies. No doubt, individual citizens will challenge the individual mandate on their own behalf.

States are also asserting that the threat to withhold all Medicaid payments if the states do not set up health insurance exchanges and enact other regulations amounts to coercion and unconstitutional commandeering of states by the federal government.

No one who opposes ObamaCare should put their faith in the Supreme Court to strike down an act of Congress, no matter how unprecedented and unconstitutional it may be. Nor should those who support ObamaCare be confident that the Supreme Court will uphold these provisions.

Legal challenges cannot take the place of political action. The Court hates to strike down popular legislation, but if the legislation is unpopular, one or both houses of Congress have changed parties and only a filibuster or presidential veto is preventing repeal, then the Court may feel more comfortable upholding the Constitution.

Thursday Links

Posted by Chris Moody

  • Now that the health care bill is law, you should know exactly how it’s going to affect you, your premiums, and your coverage over the next few years. Here’s a helpful breakdown.
  • As the health care overhaul crosses home plate, global warming legislation steps up to bat.