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.

Whose Government? Which State?

Liberals want more government and conservatives want less. This isn’t really an accurate characterization of the divide between liberals and conservatives, but it’s what most people tend to think of when they think of the left/right divide. Patrick Deneen argues in his excellent new book, Why Liberalism Failed, that both liberals (i.e. left/progressive liberals) and conservatives (i.e. right/classical liberals), favor vesting colossal powers in the state so that it can protect individual rights. Progressives want to permit the state to restrict hateful speech to protect the feelings of minorities, and conservatives want to use the power of the state to extend the free market as much as possible so that we can consume more goods and services to satisfy our needs and wants.

But then there are people who want to give the government the power, not to secure individual freedom (whether from economic or social constraints), but to promote the common good. Elizabeth Bruenig’s column in the Washington Post, combined with her comments that followed it on Twitter, is a good example. Bruenig supports state-funded paid family leave for the purpose of supporting families, rather than the system backed by Marco Rubio, in which the cost of supporting a family would remain on the parent(s), albeit shifted years into the future.

I found an interesting response to this position on Twitter:

This is true, if somewhat beside the point that Bruenig was making at that particular moment. (Her point was that child rearing is a collective concern, and not merely an individual one.) But what I found interesting about this exchange is that it was unclear exactly what was meant by the “state” or “government.” Important public policy questions cannot be boiled down to “more government” versus “less government,” as government can take many different forms, some of which are better suited to pursuing certain ends than others. We do not have to choose between an expansive federal nanny state and individual autonomy. Indeed, these two things often come as a bundle, as Deneen notes in his book.

Instead, we ought to consider what other kinds of government might be better suited to promoting the collective interest that communities have in ensuring that children are raised well. The answer is contained in the question, if the question is posed properly. Communities have an interest in raising their children well, so self-governing communities should promote and protect that interest, which is a key component of their common good. We don’t need to rely on an impersonal, relatively unaccountable governmental entity that does little more than dispense cash to promote the good of families. In a properly constituted community, individual members work together to secure the common good, even if that means sacrificing some of their autonomy.

The solution proposed by Bruenig thus treats the symptoms, rather than the disease. If we have strong communities who are willing and able to govern themselves in such a way that promotes the good of the families that constitute them, then we will not need a distant federal government to tax and spend to support the welfare of families. Federally mandated paid family leave is a quick, short-term fix that might even make things worse in the long run by removing the incentive for communities to govern themselves in pursuit of their common good. The need for devotion to the good of a particular community would be annihilated because of the promise of the bureaucracy to provide financial security to all, regardless of their situation.

Yet Bruenig is correct in maintaining that child rearing is a collective concern, rather than merely an individual one. If I am truly a member of a community, then I will care about the well-being of other members of that community—how they raise their children, whether they have enough financial resources to support their family, etc. And a true community is governed by norms that effectively require members to actively pursue the common good. For example, the federal government need not require me to provide financial help to my parents should they ever need it. Doing so is my moral obligation as their son, even though it is not my legal obligation.

So Bruenig and her critics on Twitter are wrong for the same reason: they assume that an acknowledgement of a collective concern requires the empowerment of a centralized state to deal with that concern. This assumption that the only way to treat the common good as truly common is by harnessing the power of the Leviathan is one of the deadly symptoms of liberal ideology. Neither the autonomous individual nor the distant, centralized state is well-equipped to pursue the common good. Fortunately, we have an alternative, genuine self-government by well-constituted communities.

Solution for Gerrymandering

Unlike some, I don’t think gerrymandering is necessarily a problem. This paper explains why. Party affiliation isn’t an immutable characteristic, and the political goals of parties can change. As a result, the anti-democratic effects of partisan gerrymandering can be avoided, provided that voters are willing to vote for different parties and that parties are willing to change their platforms to appeal to different voters.

Obviously, these conditions don’t always obtain. Voters might be very loyal to their respective parties. Or parties might be unwilling to compromise on issues for ideological reasons. In these cases, partisan gerrymandering will have anti-democratic effects. And while I’m not the biggest fan of democracy, I prefer majority rule to minority rule, all things equal.

So I’ve been thinking about how we might solve the problem of partisan gerrymandering. Judicial remedies are unlikely to be satisfactory, for a variety of reasons. First, I’m not convinced that the judicial power furnishes a remedy for partisan gerrymandering cases in principle. If a court declares a map illegal and none of the actors who are authorized to draw a new map elect to do so, then what else is there to do? Is the court going to hold a state legislature in contempt for failing to draw a satisfactory map? Fine the state until they acquiesce? Or maybe the court will just draw its own map, notwithstanding the provision in the Constitution that empowers Congress, and not the federal courts, to revise federal election regulations. Maybe that could work, at least to some degree. But do we really want to allow unelected officials with life tenure to regulate federal elections based on a highly dubious interpretation of the Equal Protection Clause? I, for one, do not.

Second, even if it is possible in theory for judges to adjudicate partisan gerrymandering claims, finding a manageable standard has proved darn near impossible. There are simply too many factors to take into consideration, making it extremely hard to determine what district lines are “illegitimate.” Third, the proposed standards that have the most promise, such as the “Efficiency Gap” analysis, would have a tendency to further entrench the two party system that we have (because they treat party alignment as more fundamental than it actually is), making it even harder for voters whose preferences don’t align with the platforms of either party to achieve their political goals.

Instead, I favor a different solution. It would have to be passed by Congress or written into the Constitution via amendment. Obviously, these constraints would make it difficult to implement, but I can dream.

Rather than trying to determine what sorts of districts are “fair,” let’s just get rid of districts. All elections for federal office will be at-large. Instead of voting for candidates, voters within a state will pick their desired party, which will offer a list of candidates for office before the election. A state’s seats in the House will be allocated proportionally between the parties. This could also work for Presidential Electors.

This system has several virtues. First, it would eliminate the possibility of gerrymandering, because there would no longer be any districts. Second, this system of at-large proportional representation would make it easier for new political parties to win seats, as they would only need a minimum amount of support statewide, rather than majority support in any given district. Third, if adopted as the method of selecting presidential electors, the system could help to restore the function of the electoral college as a deliberative body.

As it stands now, presidential electors don’t have much agency in the process of picking the president, notwithstanding the fact that this is their job. Instead, they are bound, sometimes by state law, to vote for the candidate who won the popular vote in their state, with a few exceptions. This defeats the purpose of the electoral college, which is to be a body that deliberates over who ought to be president and then selects a candidate.

The current state of affairs could be changed if we adopted the voting system described above for presidential electors. It would still be expected that electors from the major parties would vote for their party’s candidates. However, smaller parties, who might not even be able to field a presidential candidate, would still be able to exert influence on the deliberation and eventual vote of the electoral college if they secured even a small number of electors. And the multiplicity of interests and views represented in the electoral college would make it harder for ideologically extreme candidates from either party to win.

Of course, it’s unlikely that this sort of change will come to pass, at least any time soon. Both parties in our government benefit from their continued entrenchment, and would therefore resist any attempt to make it easier for third parties to win seats in the government. And while individual states could adopt these rules for their elections, the legislatures are unlikely to do so, given that ruling parties likely stand to lose by enacting them. Still interesting to think about. Maybe someday we’ll get to a point where something like this will be politically feasible.

The Same Old Political Divide

I’m reading Michael Klarman’s book The Framer’s Coup, and it’s excellent. Everyone should read it.

Throughout the book, Klarman discusses the Constitution’s strong anti-populist bent. The framers were intent on insulating the central government from democratic influence as much as possible. They were constrained to include republican features not so much by their own liberal political philosophies as by the reality that their handiwork would eventually require popular ratification. Indeed, according to Klarman the Constitution lacked popular support among a number of constituencies in the United States, and ratification was won in a battle that was hardly fought on a level playing field.

Which constituencies got the short end of the stick? Klarman divides several axes along which opinion divided: urban/rural, creditor/debtor, East/West, and North/South. The Constitution, for the most part, had the support of the coastal elites who owned government securities. But farmers and others from more rural areas tended to oppose ratification.

The political divide that characterized the ratification debate is much like the one we have today. On the one side, you have the supporters of a stronger national government. They have strong support from the highly educated, from city-dwellers, and from those who live on the coasts more generally. The press is, by and large, on their side, as are the universities. They regard the views of their opponents as crude. And then you have those who are skeptical of the government. They mostly live outside of major cities and away from the coasts. They complain that the media is biased against them. They believe the other party is trying to make a behemoth out of the government in order to trample on their liberties.

If there’s anything that reading about the ratification of the Constitution can teach us, it’s that the divisions that characterize our politics today are hardly new. In some sense, Donald Trump and the rise of populist electoral politics in this country more generally are the result of a failure of one side to conciliate the other. The Framers knew that they needed at least some popular support, and they did everything they could to gain it for the Constitution. It’s not enough to be right about what policies are best. You need the consent of the people to rule effectively.

I sympathize strongly with the arguments of the Federalists. People can’t govern themselves, generally speaking. The common man knows nothing about economics, and if we put major national issues to a direct vote, then the consequences would be disastrous. All the same, even the best men can govern poorly. And if they do so without popular backing, then the backlash will be stronger than it would otherwise be. The elites can’t just claim power on the basis of their own knowledge or virtue. They need to persuade the people to give it to them voluntarily. Otherwise they’re in for a rude awakening.

In Defense of Ekow Yankah

It’s not surprising that Ekow Yankah’s op-ed titled “Can My Children Be Friends With White People?” has generated some controversy. My initial reaction to the piece was a mixture of contempt and bewilderment. Some of the controversy is probably because of the provocative headline, which Yankah likely did not even write. But the content of the article is quite provocative, too:

As against our gauzy national hopes, I will teach my boys to have profound doubts that friendship with white people is possible. When they ask, I will teach my sons that their beautiful hue is a fault line. Spare me platitudes of how we are all the same on the inside. I first have to keep my boys safe, and so I will teach them before the world shows them this particular brand of rending, violent, often fatal betrayal.

As someone who is skeptical of the postmodern race cult that has gained so much visibility in recent years, I find myself put on the defensive when I read this paragraph. How could anyone teach his children not to trust people on the basis of their skin color? It seems like another one of those critical race theory novices claiming that all white people are racist, that “whiteness” is toxic.

As the title of this post suggests, I don’t think this is actually what Yankah is trying to say. I’m going to try to explain what I think his point is in a way that might be less provocative. Perhaps I won’t get it quite right. But I want to do my best to take what is helpful from what Yankah is saying and make it accessible to people who are put off by the apparent similarity between his op-ed and Tariq Nasheed’s Twitter feed.

I’ll start with what should be an uncontroversial claim: Americans are woefully under-educated about the history of institutionalized racism against African-American communities. We have attempted to rehabilitate the image of the Confederacy, despite the fact that it was founded specifically to protect the institution of slavery. We remember the Civil Rights Act of 1964, but we don’t remember the one that was passed nearly a century earlier and struck down by the Supreme Court, leading to the rise of Jim Crow. We point to the end of de jure segregation in public schools as a sign of racial progress, but forget that de facto segregation of public schools is often a direct result of systemic discrimination in housing. Racism has profoundly shaped the world we live in today, and we often do not see it.

And this, I think, is the crux of Yankah’s argument. The effects of racism are not always obvious. And white Americans have an interest in being oblivious to them. African-Americans should not assume that white Americans will want to understand the ways that racism has afflicted, and continues to afflict, our country. We have an interest in being blind that can only be overcome if we are intentional about loving our African-American neighbors as ourselves. Generally speaking, people are not very good at that.

What Yankah is not teaching his children is that white people are out to get them. That’s a Tariq Nasheed way to approach racism in America, and it’s stupid. Instead, Yankah is teaching his children to recognize that most white Americans, even if they’re not “racist,” will turn a blind eye to racism as long as it’s convenient for them to do so. And this is, tragically, true.

The more universal formulation of this principle, which is less likely to provoke objections from white people, is that people are willing to overlook injustice when it is expedient for them to do so. This is our sinful nature at work. It’s why people who weren’t particularly evil were able to administer the mass-execution of Jews during the Holocaust, it’s why as great a man as George Washington was able to own slaves, and it’s why the revolutionary power of the Reconstruction Amendments lay dormant for almost a century, effectively neutered by the Supreme Court, as conditions worsened for African-Americans in the Jim Crow South.

I think this is the most productive way to read Yankah’s op-ed. The takeaway for white Americans is that we really do need to listen to African-Americans. That doesn’t necessarily mean we need to agree with our African-American neighbors about every detail of every issue. But we can’t assume that we have all the facts right, especially when it comes to issues that we have an incentive to see a certain way, or an incentive not to see at all. Just because a certain instance of racism is not immediately apparent to me doesn’t mean that it isn’t real. For me to effectively love my neighbors as myself requires me to keep that in mind at all times.

Why Bother with an Op-Ed?

Laurence Tribe has an op-ed in the Washington Post arguing that the Supreme Court should strike down the death penalty as unconstitutional. His argument is that the death penalty “violates human dignity and constitutes cruel and unusual punishment.” I actually agree with him, in part, and I think that we should abolish the death penalty. However, the mechanism for doing so is through state legislatures or a constitutional amendment, not through the Supreme Court.

It’s odd to me that Tribe chooses to set forth his case in an op-ed at all, given that he obviously isn’t counting on ordinary legislative means to put an end to the death penalty in America. If all you need to do is convince the Court, then why care about convincing the public?

I suppose it makes some sense. If people continue to lose regard for the Supreme Court, viewing it as just another political branch of our government whose rulings are determined by the party that picks the judges, then trying to sway popular opinion is rational, as that will ultimately determine who sits on the Court. And of course, Tribe, like many other progressives, wants the Court to function as a policy-making instrument to advance progressive ends like the abolition of the death penalty, gay rights, and abortion.

But beyond that, if the Court oversteps its bounds too much, it will undermine its own legitimacy. It is the Constitution of the United States that created the Supreme Court and provided the Court with its judicial powers. If the Supreme Court flagrantly disregards the meaning of the Constitution, then it effectively saws off the branch on which it sits. As Justice Scalia said in his dissent in Obergefell v. Hodges:

With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the “reasoned judgment” of a bare majority of this Court—we move one step closer to being reminded of our impotence.

The Court cannot enforce its own judgments.  It can only go so far in reinterpreting the Constitution before someone will say “no.” Indeed, this is already happening on the fringes. Roy Moore, a former Alabama judge, was removed from his seat for disobeying a federal court order. He is now the Republican nominee for Alabama’s seat in the Senate.

I don’t like Roy Moore. I consider him and people who support him a threat to the rule of law in this country. But it’s unsurprising that figures like him would pop up, given the Supreme Court’s lawless advocacy of progressive causes. If the Court doesn’t start to hold itself back from resolving all the most controversial political issues on the basis of Anthony Kennedy’s moral philosophy, Moore will start to become mainstream, no matter how many op-eds Larry Tribe writes.

All Immigrants, or Only Some?

The NYT has an op-ed today about DACA and immigration more generally. The argument is that pointing to the economic benefits that immigrant communities provide to America distracts from the more important issue in the immigration debate: kicking or keeping people out is inhumane. It’s not enough to oppose the rescission of DACA because it’s bad policy. You have to oppose it because it’s immoral. Masha Gessen writes:

But what’s wrong with the decision to discontinue DACA is that people — not workers — will be deported. Lives — not careers — will be shattered. The problem is that it’s inhumane. As long as politicians consider it necessary to qualify the victims as ‘hardworking’ or ‘talented,’ they fail to stand up to the administration’s fundamentally hateful immigration agenda.

To a degree, I agree with Gessen’s point, especially as applied to immigrants fleeing terrible conditions at home (such as refugees). At the same time, however, I don’t think it’s necessarily inhumane for us to be selective as to whom we allow to enter the country. People who want to come here have to earn a place here by making a positive contribution to our society. Some people cannot do that. It’s reasonable to say that we don’t want those people here. Indeed, I think most people on both sides of the political spectrum would agree with me that we should prefer immigrants who have something of value to offer to us to those who don’t.

Here’s a way of thinking about this: Suppose you operate a business and you’re looking to hire some employees. You would obviously prefer to hire people who are qualified and skillful over people who wouldn’t be able to do the job you need done. And if you happened to hire someone incompetent, you would probably want to fire them. Is it immoral to ignore the adverse effects that firing or refusing to hire an incompetent person will have on his livelihood? Perhaps that person has a family to support. What about his children? Are you a monster for putting those concerns aside and doing what’s in your economic interest?

If Gessen is right, then you are. It is unacceptable for you to view your employees and potential employees merely as workers. You need to consider their personal life and the circumstances they face. Unfortunately, this means that you cannot choose to hire only competent people, nor can you fire incompetent people, and you will likely go out of business.

Gessen says that we have adopted a reductive and harmful way of viewing people: “When we agree to talk about people as cogs, we lose our humanity.” I agree that it’s reductive to focus exclusively on economics when discussing immigration, but every way of discussing people is reductive, because people are too complex for us to comprehend. Moreover, I take issue with her assertion that discussing certain groups of people in economic terms causes us to lose our humanity. People have an economic aspect. Acknowledging that does not negate all the other facets of their humanity.

For Gessen, economics shouldn’t even be a part of the equation. The way she discusses it, her opponents believe it should be the only part of the equation. Fortunately, we don’t have to choose between these two extremes. We can consider the whole person when deciding who to let into our borders, including but not limited to their potential economic contributions. In fact, I’m pretty sure that this is what most of us want: holism. This way, we can look after our own interests while also helping those who most need it.

“Only 2-10% of Reported Rapes are False”

I’m not going to explain why the statistic in the title is wrong. This blog post does a much better job than I possibly could at that. Instead, I’m going to explain why the false-rape statistic, regardless of its veracity, is utterly irrelevant to the way we handle sexual assault accusations.

I see people tout this statistic in response to the (true) claim that the Obama Dept. of Education’s Title IX guidance denied due process rights to those accused of sexual assault. Supposedly the low false-reporting rate means that due process protections are less necessary. This is nonsense.

Even if it is true (and it’s almost certainly not) that only 2-10% of rape accusations are false, those accused should be presumed innocent until proven guilty. For all we know, they could be part of that 2-10%. The only way to find out for sure is to thoroughly investigate the claim.

Here’s a way to think about the problems with the argument. You can rephrase the false-reporting statistic roughly as such: “90-98% of accused rapists are actual rapists.” Does it follow from this that we should treat 100% of people accused of rape as if they are actual rapists, even in the absence of proof? Surely not! Rape claims should obviously be taken seriously, but that doesn’t mean we should do away with the presumption of innocence.

Remember that to presume that a rape claim is true in the absence of evidence is to presume that somebody is a rapist in the absence of evidence. Such a presumption is unjust, because not all people accused of doing terrible things actually did terrible things.

Opposing DACA: More than Just Prejudice?

Everyone is buzzing about Trump’s decision to end DACA (Deferred Action for Childhood Arrivals). The policy was put into place by Barack Obama, shielding undocumented immigrants who arrived in the country as children from deportation, if they meet certain conditions. Congress had repeatedly failed to enact legislation (the DREAM Act) that would accomplish basically the same thing, so Obama took matters into his own hands.

I think DACA’s policy goals are good. But I’m skeptical of its constitutionality. Because of that, I don’t necessarily disagree with Trump’s decision to end it, but I do think that it is necessary for Congress to step in and pass the DREAM Act like they should have long ago.

Of course, there will always be those who oppose anything resembling amnesty, preferring to deport thousands of people who have spent most of their lives in the United States to countries they don’t even remember. For some people, getting rid of illegal aliens is an end in itself, worth doing regardless of the costs, both human and monetary.

I think these people are either dreadfully misinformed or blinded by prejudice. Their desire to get rid of illegal aliens prevents them from asking the following important question: Is it really in our interest to get rid of all the DREAMers? Given that the policy requires that applicants be of “good moral character,” it’s not like they are running around committing crimes. If they did so, they would lose their protected status. Most of them are educated and employed, making a significant contribution to the economy. Moreover, many of them have been here so long that they’re basically American in every way except in the eyes of the law.

I have yet to see a good nonlegal argument against DACA. Generally, such arguments seem to depend on outright lies regarding the beneficiaries of DACA. References to crime and refusal to adopt our values just don’t make sense when discussing this particular policy, because the policy itself places requirements on those it shields from deportation. It’s not a blanket amnesty. It’s conditional forbearance.

Which is why it’s hard not to think that certain of DACA’s opponents are motivated more by prejudice than by anything else. For example, Evangelicals for Biblical Immigration (yes, you read that right) released a letter explaining why they are in favor of rescinding DACA.

It is easier to speak publically of mercy, as we, and many, do. And, while loving mercy, who will also stand for justice to those citizens who cannot find a job due to cheaper foreign labor? Who will speak of the real cost of illegal immigration to our states? And while many non-citizens are good neighbors, who will stand for justice for Americans victimized by people here illegally who do not uphold our values and laws? And who will prevent more needless crime and death?

This is basically saying, “We should get rid of DACA because the DREAMers are stealing our jobs, committing crimes, and burdening our government.” But there is no reason to think that any of this is true. Indeed, the data suggest that deporting DREAMers would seriously hurt the economy, and that they have a low crime rate.

So what’s really going on here? Are the signatories to the EBI letter just ignorant, or is there something more sinister beneath the surface? I don’t like attributing unsavory motives to anyone without good reason. But I just can’t see any compelling reason to adopt the position that EBI has adopted. It’s one thing to oppose the abuse of executive power. But opposing reasonable protections for people who themselves have done nothing wrong is something else entirely.