Category: reason

Though President Joe Biden is coming up on 150 days in office, many of the promises he made on the campaign trail have fallen flat. They came as part of his case against former President Donald Trump, which hinged in large part on crafting an immigration system that looked nothing like the one Trump presided over. But for many migrants coming to the Southwest border, the situation is little changed under Biden.

Biden has continued much of the Trump administration’s approach to immigration: separating families, overfilling detention facilities, and plainly telling people to stay away. One such holdover policy is Title 42.

Invoked by Trump in March 2020, Title 42 is a section of the Public Health Service Act that grants federal health officials broad discretion to enact disease mitigation measures. The Centers for Disease Control and Prevention (CDC) used it to issue an order barring certain kinds of arrivals to the U.S. borders with Mexico and Canada while permitting other forms of international movement to continue. It allows Customs and Border Patrol (CBP) officials to expel migrants immediately upon arrival.

In practice, the measure almost exclusively applies to asylum seekers arriving at the Southwest border. Between March and September 2020, for instance, the Southwest border saw 197,043 Title 42 expulsions compared to just 328 at the Canadian border. In total, CBP has carried out over 640,000 Title 42 expulsions in one year of the order’s application.

That all flies in the face of legal protections for migrants. According to David J. Bier, an immigration expert at the Cato Institute, it’s a massive disruption of U.S. asylum law, “which guarantees [migrants] the right to apply at any port of entry.” Presentation at a port of entry or on U.S. soil is a necessary component of the asylum-seeking process. Bier says it’s imperative that the Biden administration “afford asylum seekers every opportunity to make their claims” and “reopen ports of entry to allow asylum seekers to apply there.”

That’s all impossible under Title 42, though. Danilo Zak, senior policy and advocacy associate for the National Immigration Forum, notes that vulnerable migrants have been harmed by Title 42’s blanket approach to expulsions. “Even if an individual or family can provide evidence that they have been specifically persecuted and face a real risk of further persecution or death should they be returned to their home countries,” he says, they are expelled regardless.

Zak identifies several serious legal issues at the heart of Title 42. In addition to its conflict with U.S. asylum law, the Refugee Act of 1980 also “makes it very clear that arriving migrants seeking asylum must be allowed to make their case for protection.” Even so, “the Trump administration and now the Biden administration appear to believe that Title 42 allows us to disregard those asylum laws,” Zak says.

They supposedly did so in the name of public health, but the medical basis for Title 42 has long been questionable. Many studies and experts have cast doubt on the efficacy of closing borders to limit the spread of COVID-19. In early March 2020, Martin Cetron, who leads the CDC’s Division of Migration and Quarantine, refused to support the measure due to its flimsy public health basis. Only after White House and CBP officials strong-armed the CDC into complying was Title 42 put into practice.

The policy is a relic of an administration that actively sought to limit immigration. Olivia Troye, a former aide to Vice President Mike Pence, called it “a Stephen Miller special” after resigning in protest of the policy. Miller was the adviser behind many of the Trump administration’s most heinous immigration policies, including the “zero tolerance” policy, which separated children from migrant parents in an attempt to deter arrivals.

Migrants expelled from the U.S. under Title 42 face hostile conditions similar to those subjected to another Trump policy, the Migrant Protection Protocols (MPP). Known as “Remain in Mexico,” MPP relegated asylum seekers south of the border while they awaited decisions in their immigration cases. There, many faced murder, rape, and torture. Biden did away with the policy just weeks ago, but his continued operation of Title 42 contradicts his campaign promise to “restore our asylum laws so that they do what they should be designed to do.”

Those dangers to migrants continue under Biden. “These individuals are being pushed back into very dangerous environments in northern Mexico,” says Zak. “Migrants are at very serious risk of being exploited by gangs and traffickers.” He adds that “Human Rights First has documented 492 instances of publicly reported attacks and kidnappings against asylum seekers in Mexico since Biden took office,” many against those expelled under Title 42.

In spite of this harsh approach, Title 42 has likely exacerbated the very issue it sought to tackle: the high volume of asylum seekers crossing the border. Zak says that the recidivism rate—individuals who were apprehended, expelled, and apprehended again by CBP—has “skyrocketed.” That rate “tended to hover around 10 percent” prior to Title 42 and has hit 38 percent as of May 2021. Zak says this is partially because “individuals (particularly single adults) are expelled extremely quickly,” thus encouraging multiple crossings. There is also no formal penalty for repeat crossings under Title 42. With that uptick in mind, the reasons for increased apprehensions at the border become clearer—and Biden’s approach to immigration less so.

No border policy “will appease both sides,” says Bier, but there are ways to reinstate (and reform) the asylum-seeking process. For one, Bier says that the U.S. government should broaden the asylum statute, which currently excludes many types of persecution from warranting protection. He notes that family case management, which assigned case managers to migrant families and achieved a 99 percent compliance rate with immigration court requirements during its tenure, “could be a way to help maintain awareness of cases as they proceed through the courts.” Getting immigrants access to legal counsel is “the most important thing.”

The Biden administration has not yet taken those kinds of action. Recently, it quietly asked six humanitarian groups to recommend which migrants should be allowed to skate expulsion, though the criteria for their recommendations have not yet been made public. That approach has led to a modest number of asylum seeker admissions since early June. “It is better than not allowing anyone to enter,” says Bier, “but it is far worse than honoring U.S. asylum law.”

The Trump administration used the pandemic to justify immigration restrictions already within officials’ interests. Understandable enough. Why the Biden administration is keeping Title 42 on the books is less clear. Its public health basis is poor, it contradicts long-standing U.S. asylum law, and it puts already vulnerable migrants at further risk. Any administration committed to “following the science” and “ending Trump’s detrimental asylum policies” should not be upholding Title 42.

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“We are horrified and outraged by the incident of police violence in Ocean City, MD, this weekend,” reads a statement from an advocacy group, drafted in response to the viral videos of cops using force on vaping teens. “There is absolutely no place for violence and abuse in enforcing tobacco laws.”

Such expressions were commonplace as the clips ripped their way through social media. Yet the above press blurb was particularly rich. It came from the Campaign for Tobacco-Free Kids, an organization that has fought to put in place the very same sorts of laws that they now regret to see enforced.

“Our communities cannot be safe and healthy when police often choose to enforce these laws with violence, often disproportionately against Black and Brown people,” they continued.

Unfortunately for the campaign, there is essentially one way the state upholds the laws they enact: through men and women with guns. Politicians, then, must be comfortable with the fact that any rules they pass will at some point be maintained via force, and, yes, violence.

Certain crimes merit that treatment. Consider any number of offenses where the actions of an alleged perpetrator directly endanger or infringe on the rights of those around them: murder, rape, assault, arson, property crimes. The core job of the government as laid out in the Constitution is to protect the citizens from such offenses whenever possible.

Yet the state’s purview has grown to encompass much more, charged with stamping out victimless offenses like drug use, prostitution, and one of the newest moral panics: vaping. Lawmakers may disagree with those personal choices—some of which may be deleterious to the health of the individual—but the government must weigh the costs and benefits of armed state agents policing people’s habits.

Vaping likely isn’t worth that treatment. As I wrote yesterday, there are plenty of costs that come with prohibition. Foremost is that it spurs violence, as people are resigned to black markets and are prohibited from litigating anything in public, allowing organized crime to take flight. The community pays the price.

Yet that hasn’t stopped a bipartisan effort to dictate who is allowed to vape and how they’re allowed to do it, despite data that show such rules funnel people toward cigarettes—a more dangerous product.

The efficacy of any proposed ban is relevant. More important in the context of this conversation, though, is the collateral damage incurred by enforcement. Take the kids in Perth Amboy, New Jersey, who had their bicycles seized after they were confronted by officers for minor traffic infractions and for failing to register their bikes with the city. One was arrested. Those sorts of interactions damage trust in the police and can turn deadly.

The Campaign for Tobacco-Free Kids positions their work as “protect[ing] children and sav[ing] lives.” I have no doubt they believe that to be true. But when they use the state as their lever of choice to accomplish that end, then they shouldn’t be surprised when law enforcement officers do what they’re told: enforce the law.

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Today, a group of congressional Democrats re-introduced the Facial Recognition and Biometric Technology Moratorium Act of 2021. And it’s not a moment too soon.

Earlier this month a coalition of more than 40 privacy advocacy organizations including the Electronic Frontier Foundation, the Electronic Privacy Information Center, Fight for the Future, and Restore the Fourth, issued a declaration calling for a ban or moratorium on law enforcement use of facial recognition technology. In its statement, the coalition observed that police use of facial recognition technologies is already becoming pervasive.

“Law enforcement agencies routinely use the technology to compare an image from bystanders’ smartphones, CCTV cameras, or other sources with face image databases maintained by local, state, and federal agencies,” noted the coalition. “Potentially more than 133 million Americans are included in these databases, with at least thirty-one states giving police access to driver’s license images to run or request searches, and twenty-one states giving the FBI access to the same. Law enforcement use of these databases for investigations places millions of Americans in what has been called a ‘perpetual line-up.'”

In addition, more than 1,000 federal, state, and local law enforcement agencies have used the facial recognition tool developed by the surveillance startup Clearview AI. That company created its massive faceprint database by illicitly scraping more than 3 billion photos from across the Internet, including employment sites, news sites, YouTube, and social media networks such as Facebook, LinkedIn, and Instagram.

Using the service, police can upload a photo of an unidentified person to Clearview AI’s database and retrieve publicly posted photos of that person along with the locations at which the photos were posted. Back in January 2020, the New York Post reported, “Rogue NYPD officers are using sketchy [Clearview AI] facial recognition software on their personal phones that the department’s own facial recognition unit doesn’t want to touch because of concerns about security and potential for abuse.”

The privacy group coalition argued that ubiquitous police facial recognition surveillance would chill the exercise of First Amendment freedoms to protest, attend political events, or gather for religious ceremonies. “American history is fraught with efforts to monitor individuals based on dissent or religious beliefs, and face recognition could supercharge that surveillance,” the coalition pointed out.

In addition, police often hide the fact that they used facial recognition software in investigating cases, thus preventing defendants from exercising their Sixth Amendment rights to challenge the accuracy of identifications made by police procedures and software algorithms. While noting that current versions of facial recognition technologies are much worse at accurately identifying black and brown people, the coalition stressed that “face recognition expands the scope and power of law enforcement, an institution that has a long and documented history of racial discrimination and racial violence that continues to this day.”

“Facial recognition is the perfect tool for oppression,” wrote Woodrow Hartzog, a professor of law and computer science at Northeastern University, and Evan Selinger, a philosopher at the Rochester Institute of Technology. It is, they persuasively argued, “the most uniquely dangerous surveillance mechanism ever invented.”

“Facial recognition is like nuclear or biological weapons. It poses such a threat to the future of human society that any potential benefits are outweighed by the inevitable harms,” asserted Caitlin Seeley George, director of campaigns and operations for the privacy group Fight for the Future, in a statement supporting the bill. “This inherently oppressive technology cannot be reformed or regulated. It should be abolished.”

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If you’ve been following recent congressional spending negotiations, you’ve probably heard about President Joe Biden’s $2.2 trillion infrastructure plan. This is a bit of a misnomer, since the plan would spend hundreds of billions on programs that are not, strictly speaking, infrastructure, though, for the purposes of politics, the Biden administration and Democrats in Congress have decided to call infrastructure. But the Infrastructure and a Bunch of Other Unrelated Stuff That We’re Going to Insist Is Actually Infrastructure Plan is a bit of a mouthful, and sadly doesn’t produce a memorable acronym. So they named the proposal the American Jobs Plan instead.

Biden certainly has lofty ambitions for the Jobs Plan. A White House fact sheet on the proposal declares it will, among other things, “unify and mobilize the country to meet the great challenges of our time” (climate change and increased competition from China, the fact sheet says) and “invest in America in a way we have not invested since we built the interstate highways and won the Space Race.” (Fine, sure, if you say so…although I’m not quite sure I’d call these puffy statements facts.) There are mentions of racial justice and rural communities, clean energy and caregiving, and even a few nods to roads and bridges. Biden wants his Jobs Plan to do it all—or, at the very least, to do an awful lot until the next trillion dollar plan comes around.   

But here, too, there is a problem with the name. For as it turns out, there’s good reason to think Biden’s American Jobs Plan would result in fewer American jobs. 

That’s the big takeaway from a recent analysis by the center-right Tax Foundation, which found that the “the combined effects of the tax changes and spending would reduce U.S. gross domestic product (GDP) in the long run by 0.5 percent and result in 101,000 fewer U.S. jobs.” So: A smaller economy and fewer domestic jobs. Take that, China!   

This finding is all the more damning since the Tax Foundation analysis relies on conventional assumptions about multipliers. Per the Congressional Budget Office, that most inside-Washington of inside-Washington economic establishments, the report assumes a 5 percent return for the Jobs Plan’s public investments, and a long-run increase in GDP of about 0.3 percent as a result of boosted infrastructure spending. If you build it, the economy will grow—or at least that is what this report assumes. 

If you tax it, on the other hand, the results are rather different. And that’s where the problems begin. According to the Tax Foundation report, the “positive economic effect is entirely offset by the increase in corporate taxation, resulting in less corporate investment which reduces GDP by 0.5 percent in the long run, reduces wages by 0.5 percent, and eliminates 101,000 full-time equivalent jobs. Gross national product (GNP), a measure of American incomes, falls by 0.3 percent in the long run—somewhat smaller than the drop in GDP—as the combination of permanent tax increases and temporary spending would in the long run reduce the deficit and payments to foreign owners of the federal debt.” Ah. 

Biden’s Jobs Plan has many follies. It tries to do too much, at too great an expense, and it attempts to offset much of the total cost via a hike in the corporate tax rate that is counter to the plan’s stated goals. Indeed, Republicans—and, more recently, some moderate Democrats—have been working up counter proposals that are funded heavily by repurposing unspent funds from the trillions in COVID relief proposals. Biden, however, has rejected plans to rely mostly on unspent funds, because they didn’t include enough “new spending.” 

The various counter proposals have also been smaller in scope, which is not to say they were small (recent versions have hovered in the $1 trillion range). And they have also been more targeted. As The Washington Post notes, a new bipartisan proposal from moderate Republicans and Democrats in the Senate “is expected to hew largely to a more traditional definition of infrastructure—a contrast with the White House’s plan.” In other words, it’s an infrastructure plan that’s actually about infrastructure. 

That’s not to say it’s necessarily a great piece of legislation. But unlike Biden’s infrastructure and jobs plan—much of which isn’t about infrastructure and which might well result in fewer jobs—at least it’s an honest attempt to tell you what it’s about.

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The Department of Justice (DOJ) is asking the Supreme Court to let the federal government execute Boston Marathon bomber Dzhokhar Tsarnaev, undermining President Joe Biden’s campaign promise to eliminate the death penalty.

Federal prosecutors submitted a 48-page brief Monday asking the Supreme Court to reinstate the death penalty for Tsarnaev after the sentence was tossed out by a panel of judges with the U.S. Court of Appeals for the 1st Circuit in August 2020. The panel determined that the judge overseeing Tsarnaev’s trial did a poor job of evaluating potential jurors for bias during the sentencing phase. At least two jurors had posted comments on social media expressing opinions about Tsarnaev prior to being seated. The court panel mandated a new sentencing trial for Tsarnaev.

Former President Donald Trump’s DOJ appealed to the Supreme Court to reconsider the decision. The Supreme Court agreed in March to hear the case and consider reinstating the death penalty for Tsarnaev.

But while then-Attorney General William Barr and Trump were carrying out federal executions during the latter half of 2020, Democrats were campaigning against Trump with the promise of eliminating the federal death penalty. Biden’s campaign site carries this pledge:

Because we cannot ensure we get death penalty cases right every time, Biden will work to pass legislation to eliminate the death penalty at the federal level, and incentivize states to follow the federal government’s example. These individuals should instead serve life sentences without probation or parole.

This does not seem to be the actual position of the DOJ under Biden. The brief asks the Supreme Court to reverse the decision and “put this case back on track toward a just conclusion,” meaning Tsarnaev’s eventual execution.

“The jury carefully considered each of [Tsarnaev’s] crimes and determined that capital punishment was warranted for the horrors that he personally inflicted—setting down a shrapnel bomb in a crowd and detonating it, killing a child and a promising young student, and consigning several others ‘to a lifetime of unimaginable suffering,'” the brief concludes. “That determination by 12 conscientious jurors deserves respect and reinstatement by this Court.”

It’s easy to simply not care whether Tsarnaev gets executed. This is not a case where innocence is even remotely in question. Since the 1970s, about 185 people have been exonerated while on death row awaiting execution. Tsarnaev is never going to join that list.

Nevertheless, as long as the death penalty remains on the table, the likelihood of an innocent person’s execution remains a concern. Biden’s campaign position didn’t contain an exemption for the killers who are most obviously guilty of extremely high-profile, terror-motivated violence. But his administration doesn’t appear to be acting on the some-odd 59 people currently on death row in federal prison.

White House Press Secretary Jen Psaki was asked directly about the Tsarnaev case in March when the Supreme Court agreed to take up the case. Psaki said merely that Biden had “grave concerns about whether capital punishment, as currently implemented, is consistent with the values that are fundamental to our sense of justice and fairness. He’s also expressed his horror at the events of that day and…Tsarnaev’s actions.”

No federal death row inmates were executed during the eight years of former President Barack Obama’s administration. But even so, federal prosecutors continued to seek the death penalty for certain cases, as they did here with Tsarnaev. It’s easy to see the Biden administration taking the same path of least resistance. His DOJ could decline to schedule any executions while continuing to pursue and defend the death penalty in the sentencing phase. He could then claim to have not put anybody to death while not actually changing the policies at all.

Biden promised to sign legislation to end the death penalty if Congress passed it. But he could, if he were inclined, commute the sentences of every federal prisoner on death row to a life term. He has not done so. And clearly his own Justice Department is still in favor of having the authority to execute prisoners for capital crimes.

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