Zero Tolerance

I’m not going to pretend to be an expert on this topic, but I’m going to lay out what appears to me to be true about the fiasco at the border.

First, illegal entry into the United States is a crime. If you enter the U.S. illegally, you can be prosecuted. If you are charged with illegal entry, you will be detained, and our law requires that adult criminal detainees be kept separate from children, which isn’t generally unreasonable.

(Note: not all people who enter the U.S. without authorization are entering illegally. Illegal entry requires that one either “(1) enter[] or attempt[] to enter the United States at any time or place other than as designated by immigration officers, or (2) elude[] examination or inspection by immigration officers, or (3) attempt[] to enter or obtain[] entry to the United States by a willfully false or misleading representation or the willful concealment of a material fact.” In theory, one can show up at a designated port of entry at the right time and present oneself to immigration officials to request asylum. My understanding, however, is that CBP has been blocking asylum seekers from entering legally. So they’re entering illegally instead. It’s worth noting that the aforementioned CBP practice appears to violate immigration law.)

Second, not all crimes need to be prosecuted. Prosecutorial discretion, for better or for worse, is part of our system. This means that, in certain circumstances, prosecutors can decline to charge people who may have committed crimes. One of the ways that the executive branch of our government effects policy changes is by laying out enforcement priorities. Of course, it’s possible to go too far with this, to the point at which the executive is no longer faithfully executing the laws. But faithfully executing the laws can’t mean a 100% prosecution rate for all crimes, in part because that’s impossible to achieve.

Third, there are some really good reasons not to charge at least some illegal entrants with illegal entry. For example, it is presumably more expensive to conduct criminal proceedings (which must be before an actual Court) than to conduct civil deportation proceedings (which are held before Article II immigration judges). Moreover, it is presumably undesirable (unless you’re Jeff Sessions) to separate children from their families, especially when doing so makes the whole immigration process more chaotic and costly for everyone involved. What’s more, at least some of these entrants will attempt to claim asylum, and at least some of these claims will be meritorious, and prosecutions against them will fail. The economic and moral cost of charging every illegal entrant is sufficiently high that you can make a strong case against charging every illegal entrant.

Now, Sessions implemented this zero-tolerance policy because he has deemed it expedient to separate parents from children, as this will deter illegal entry. He has made the judgment that, in spite of the cost of prosecuting every illegal entrant, which includes the cost of figuring out how to hold parents and children in separate detainment facilities without losing track of where people are, is outweighed by the good of deterring illegal entry. And this deterrence is supposed to be achieved by separating families. You may have heard the moral principle that we ought not to do evil that good may follow. But that’s exactly what the government is doing. They are separating families in order to deter people from entering the country illegally.

Our immigration system is a mess. It’s way overloaded with pending asylum applications, and we don’t have sufficient facilities to hold everyone who has crossed the border while we process their claims. There isn’t a simple and humane solution for the overload our system is dealing with. Nevertheless, the existence of a serious problem does not justify the Trump administration’s use of the suffering of children as a deterrent and/or political bargaining chip. This policy is evil and it should be changed.

 

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Trump’s DOJ and the ACA

You may have heard that the Trump DOJ is not going to defend Obamacare in court, and the administration lawyers have adopted the position that the law is unconstitutional. You may also have heard that this is an egregious breach of longstanding norms. The government is supposed to defend its laws, after all! Just remember that the Obama administration declined to defend the Defense of Marriage Act, so it’s not like the Trump administration’s decision is without precedent.

Indeed, it’s sometimes a good thing when presidential administrations take the requirements of the Constitution seriously enough to defy Congress. Not all laws passed by Congress accord with the Constitution, and having an independent executive is a useful check on Congress’s power in much the same way that having an independent judiciary is. We have three co-equal branches of government, and the Constitution is supreme above each of them.

Nevertheless, the Trump administration’s argument is bad. It’s not bad because they believe the individual mandate is unconstitutional and aren’t defending it, however, but because they are arguing that the individual mandate’s legal invalidity requires the judiciary to “strike down” other provisions of Obamacare, namely, the Guaranteed-Issue and Community-Rating requirements. These two requirements ensure that people with pre-existing conditions cannot be denied coverage or charged more than people without such conditions, all else equal.

The argument is based on the idea that the aforementioned requirements just don’t work without the individual mandate. This very well may be true. Insurance companies just can’t afford to insure sick people at a low price if healthy people don’t also buy insurance. That’s how insurance works. Get rid of the individual mandate and there just won’t be enough people paying for insurance without using it for insurance companies to make money.

The problem with this is that the way we think about courts and how they “strike down” laws is wrong. Courts don’t just decide whether laws are unconstitutional. They provide legal remedies for concrete injuries according to law, and this sometimes requires them to determine the constitutionality of statutes. For example, the individual mandate as originally written would injure me by requiring me to pay a penalty if I chose not to buy insurance. This is an injury that I can sue the government over. If the law is valid, then the government can use that as a defense against my lawsuit and prevent me from obtaining a remedy. But if it turns out that the law is unconstitutional, then the Court can command the government not to enforce the law against me, thus protecting me from injury.

However, this only applies to the part of the law that would actually injure me. In fact, it doesn’t technically apply to the law at all, but to the executive’s actions. Even if the Court tells the government not to enforce the law at all, the law remains law and stays on the books until Congress repeals it. The Court does not have the power to modify the law; it can only protect individuals from injury by enjoining the law’s enforcement. Because the Guaranteed-Issue and Community-Rating requirements do not unlawfully injure any parties before the Court, the judiciary does not have the power to do what the Trump administration is asking, i.e., invalidate the provisions.

The strangest thing about the whole situation is that Congress has already repealed the “tax”/penalty associated with the individual mandate, meaning that no one is injured by that particular provision anymore. The states that are suing are basically saying that they are being injured because the law doesn’t work and it is nevertheless being imposed on them. But just because a law doesn’t work very well doesn’t mean it’s unconstitutional, and the injury alleged is not exactly concrete and particularized. You can tell the injury isn’t particularized because there doesn’t seem to be a narrowly tailored remedy available (the plaintiffs request an injunction that basically forbids any enforcement of any provision of the ACA).

When you have a huge, complex law like the ACA, and one of the key provisions is unconstitutional, the proper course for the courts is not to sweep away the whole thing (or even to enjoin enforcement of the whole thing). They simply don’t have that power. All they can do is enjoin the enforcement of the unconstitutional provision as to the parties before the court. Then, if that provision is truly central to the functioning of the law, then the law will fall apart, and Congress will have to repeal it or modify it if they have any sense in them. Of course, that’s a big “if.” We’ll probably be stuck with this hacked-together healthcare disaster for a while.

Women’s Healthcare

Lately I’ve been thinking a lot about the morality of contraception, which led me to a podcast called The Catholic Feminist. I am not a Roman Catholic, nor do I consider myself a feminist, but so far I have found the podcast helpful. In particular, an episode titled “Women’s Healthcare and Natural Family Planning” has provoked some reflection.

The episode’s host, Claire, and her guest, Leah, both agree that it is a shame that “women’s healthcare” has become so thoroughly identified with the prescription of contraception and the availability of abortion. In essence, our current understanding of women’s healthcare is primarily concerned with inhibiting the one of the primary natural functions of women’s bodiesbearing children.

What is the source of this belief? Why on earth would we consider self-induced infertility to be an essential form of healthcare?

I trace it back to the liberal redefinition of the person as an autonomous utility-maximizer. Persons exist to pursue their own pleasure, which will result in the attainment of the greatest good for the greatest number, or so it goes. If this is the fundamental nature of what human beings are, then everything else should yield, even if that includes our bodies.

Men’s bodies don’t put up a fight to this redefinition in the same way that women’s bodies do.  We don’t bear children, nor do our bodies have to regularly prepare themselves to bear children. This makes it easier for us to think of ourselves as autonomous utility-maximizers instead of persons embedded in networks of duties and obligations oriented toward the common good. In order to make the same transition for women, however, we have had to suppress their bodies’ natural functions.

In the podcast, Leah goes so far as to call this misogyny, which sounds right. We now believe that women need to artificially inhibit the natural function of their bodies in order to achieve their fullest potential. In other words, women must effectively deny a part of who they are in order to be persons (e.g. autonomous utility-maximizers). If we’re serious about affirming the dignity of women (and men, for that matter), then we have to reject this faulty understanding of what it means to be a person.