Immigration Reform and the Challenge of Democratic Self-Government

Mortar_of_Assimilation_Citizenship_1889News reports indicate that President Obama will soon announce how he plans to use Executive Orders to implement some aspects of Immigration Reform, due to the failure of Congress to address the subject legislatively.  I recently had the opportunity to participate in a program on Immigration Reform at the Law School on November 5, 2014, along with Stuart Anderson, the Executive Director of the National Foundation for American Policy and an Adjunct Scholar at the Cato Institute.  The event was sponsored by the Law School Chapter of the Federalist Society, the Marquette Immigration Law Association, and the International Law Society.  I want to thank Mr. Anderson for sharing his insights with the law students.  Interested readers can click here to find a recent article by Mr. Anderson.  What follows are my prepared remarks.

I have a daughter who is turning 21 next month.  When a child reaches that age, parents start to ask themselves questions.  Will my daughter bring someone home with her one day, and announce that she is engaged?  How will I react if the person she brings home belongs to a different faith?  How will I react if he is of a different race?  How will I react if “he” is a “she?”

These are questions that tap into deep emotions, even if my rational brain tells me that the answers to these questions don’t matter.  I know that my response to such a situation should be compassionate, and loving, and focus on my daughter’s happiness.  But I also know that I may feel threatened or hurt or disappointed, without consciously wanting to.  Maybe part of the problem is that I can’t control who my daughter brings home.  To a certain extent, who becomes a member of my family is her choice, not mine.

Immigration is about membership in our national family.  It raises the same deep emotions that marriage raises within the family.  And just as we can’t always choose who our children will marry, we also can’t always control who joins our national family.  And Immigration policy needs to be rational, data-driven, and compassionate, and not based on knee jerk emotions.

Simple answers to complex social and economic problems don’t work.  One challenge we face as a nation is that we share a longstanding geographic connection with Mexico.  U.S. employers have turned to Mexican citizens for seasonal labor needs for a very long time.  People have established migration patterns that persist through generations of the same family.  These behaviors won’t change just because we tell people to stop.  We need to address the underlying incentives and motivations for these behaviors.

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Supreme Court Roundup Part Three: Harris v. Quinn

the american twins 2On October 30, I participated in a presentation entitled “Supreme Court Roundup” with Ilya Shapiro of the Cato Institute.  The event was sponsored by the Law School chapters of the Federalist Society and the American Constitution Society.  We discussed three significant cases from the 2013-2014 Supreme Court term: McCutcheon v. FEC, Burwell v. Hobby Lobby and Harris v. Quinn.  It was a spirited discussion, in which Mr. Shapiro and I presented opposing views, but I want to thank Mr. Shapiro for taking the time to visit the Law School and for sharing his perspective with the students.

This is the third and final blog post on the presentation.  Readers can find the first post here, and the second post here.  What follows are my prepared remarks on Harris v. Quinn, and also a brief conclusion regarding the three cases.  Readers interested in Mr. Shapiro’s position on the case can refer to the amicus brief that he filed on behalf of the Cato Institute.

The case of Harris v. Quinn involved an Illinois law that made home health aides state employees under the Illinois Public Labor Relations Act.  As a result of this law, these workers became joint employees of both the private individual who receives the services of the home-health worker and the State of Illinois.  The Service Employees International Union (SEIU) represents home health aides under a contract with the State of Illinois and collects mandatory dues from both union and non-union workers, which are called “agency fees.”  Persons who have a negative view of organized labor object to agency fees because they compel people to pay money to an organization to which they do not belong.  Persons who have a positive view of organized labor support agency fees because they prevent non-union employees from “free riding,” which occurs when non-union employees receive the benefits of union-negotiated employment contracts without contributing to the cost of negotiating them.

Under existing precedent, a government employer who collects agency fees from non-union members does not violate their First Amendment rights because when the government acts as an employer it has a compelling interest in avoiding conflicting demands for wages and employment conditions from competing groups of employees.  Abood v. Detroit Board of Education (1977).  The plaintiffs in the Harris case wanted to use their lawsuit to overturn the Abood decision, thereby allowing any government employees who are not union members to work for the government without paying agency fees to a public employee union. 

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Supreme Court Roundup Part Two: Burwell v. Hobby Lobby Stores, Inc.

the bosses of senateOn October 30, I participated in a presentation entitled “Supreme Court Roundup” with Ilya Shapiro of the Cato Institute.  The event was sponsored by the Law School chapters of the Federalist Society and the American Constitution Society.  We discussed three significant cases from the 2013-2014 Supreme Court term: McCutcheon v. FEC, Burwell v. Hobby Lobby and Harris v. Quinn.  It was a spirited discussion, in which Mr. Shapiro and I presented opposing views, but I want to thank Mr. Shapiro for taking the time to visit the Law School and sharing his perspective with the students.

This is the second of three blog posts on the presentation.  Readers can find the first post here.  What follows are my prepared remarks on Burwell v. Hobby Lobby.  Readers interested in Mr. Shapiro’s position on the case can refer to the amicus brief that he filed on behalf of the Cato Institute.

The legal issue in Burwell v. Hobby Lobby Stores can be described simply.  Under the provisions of the Affordable Care Act, the Department of Health and Human Services requires employers to provide health insurance plans making contraception available to their female employees at no cost.  In the NFIB v. Sebelius decision in 2012, the Supreme Court upheld Congress’ power to pass the Affordable Care Act as an exercise of its taxing power.  But even if Congress has the power to pass the law, can a for profit corporation nonetheless avoid following the law by arguing that the contraception provisions burden the corporation’s free exercise of religion in violation of the Religious Freedom Restoration Act (RFRA)?

The rights of the individual shareholders that own the corporation were not at issue.  The law does not act on the individuals, and does not require these human beings to do anything.  The only legal requirement imposed by the law is imposed on the corporate entity.

So what did Congress intend to do when it passed RFRA in 1993?  As I will explain, the Hobby Lobby case presents two opposing views as to what Congress attempted to accomplish by passing that law.  The dissent by Justice Ginsburg argues that the intent of RFRA was to create a statutory remedy for burdens on religious expression that adopted the standard for evaluating First Amendment violations prior to the 1990 Employment Division v. Smith case. The majority opinion by Justice Alito argues that by passing RFRA Congress created a statutory remedy that protected more “persons” than the pre-Smith caselaw protected and that granted them greater protections than the pre-Smith caselaw granted.

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