We Should Not Praise Stalin, But Bury Him

Although the debate has been raging for months, it has just come to my attention that the man responsible for the second-most number of murders ever – after Mao, of course, with Hitler a distant third – is to have his bust placed at the National D-Day Memorial in Bedford, Virginia.
Defenders of the Stalin bust argue that, whether we like it or not, our uneasy alliance with the Soviet Union during the war is a part of history and should be recognized. Furthermore, they say that his visage is in no way glorifying the man or his deeds.

This argument misses the point entirely. Memorials are monuments to fallen heroes, not historical dioramas. There is no statue of Stephen Douglas at the Lincoln Memorial, no bust of Wendell Willkie at the FDR Memorial, and no plaques honoring Allied dead at our WWII Memorial. Moreover — and perhaps most importantly from a historical perspective – Stalin had no role in D-Day; the invasion of Normandy by U.S., British, Canadian, Australian, Free French, and other Western forces.

While there is no question that Stalin, by virtue of commanding the army fighting on the Eastern Front, played an indispensable role in defeating Hitler, it should escape no one’s memory that he too was an evil, mass-murdering despot.

Stalin and communism should be universally reviled in the very same way as Hitler and Nazism. (Note also that Stalin only fought the Germans because Hitler invaded the USSR in violation of the Molotov-Ribbentrop Pact that divided Eastern Europe and enabled the Reich’s western incursions in the first place.)

Finally, no one doubts or discounts the bravery of the Russian and other Soviet soldiers fighting in defense of their homeland and families, far removed from the politics of terror that permeated their government — including my maternal grandfather, a tank captain who helped take Berlin. Accordingly, if we are to honor the Soviet role at our D-Day Memorial, we should honor the common Red Army soldiers — whom Stalin treated as disposable bullet-stoppers, many of whom he murdered after the war because they had witnessed the world beyond communism – not the tyrant and the murderous system they represented.

You can read about the collective amnesia — if not willful blindness — about the evils of communism that has set in among Western elites in Paul Hollander’s excellent Cato Development Policy Analysis.

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The Nets Finally Win!

Unfortunately, that win comes as another blow to property rights:

The last major obstacle to a groundbreaking for the $4.9 billion Atlantic
Yards development in Brooklyn fell Tuesday when New York’s highest court, the Court of Appeals, dismissed a challenge to the state’s use of eminent domain on behalf of the developer, Bruce C. Ratner.

Mr. Ratner, whose 22-acre development has been delayed for three years by a flurry of lawsuits, the collapse of the credit and real estate markets and a glut of luxury housing, plans to begin selling tax-free bonds next month to finance the development’s cornerstone project: an 18,000-seat basketball arena for the New Jersey Nets at the intersection of Flatbush and Atlantic Avenues near downtown.

Given the high-profile nature of the would-be new tenants of the land, this is the most famous property rights case currently being litigated, but it’s the same ol’ story: rich company wants land on the cheap, company gets the government to seize the land, property owners lose their land for the benefit of another private party for a decidedly not public use.

And, as I allude to in this post’s title, this loss comes to the 0-13 New Jersey Nets. (Even the Redskins can win a game without getting the government to bail them out!)

While the story goes on to promise all this new office space and buildings to go on the newly acquired land, we know from recent experience that a successful deal doesn’t automatically trigger the jobs and benefit promised. To give you an idea what the rest of Brooklyn is looking like:

If construction begins in the coming weeks as expected, Atlantic Yards will
stand out in a city where 530 different construction projects are stalled, sitting lifeless and without adequate financing in virtually every neighborhood.

One would think that if there was such a guarantee of money to be made, investors would be funding one of those 530 other projects in the city.

And if you think a brand spanking new stadium is more likely to bring in business to the immediate area, just ask the shop owners around the new Yankee Stadium how business was this year — when that team put up the best record in baseball and won the World Series. (NB: Go Red Sox!)

In any event, Cato continues the fight for the Fifth Amendment’s Takings Clause. We filed a brief in a case coming before the Court next week, Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, which can be found here; and just yesterday filed a brief urging the Court to consider 480.00 Acres v. United States, which you can read here.

HT: Jonathan Blanks CP: Cato's blog

Battle of the Ilyas and More on the Chicago Gun Case

Josh Blackman, my coauthor on “Opening Pandora’s Box? Privileges or Immunities, The Constitution in 2020, and Properly Incorporating the Second Amendment,” has inaugurated a series of podcasts devoted to law and liberty. He’s already has an interview with PLF’s Timothy Sandefur (also a Cato adjunct scholar) and the Independence Institute’s David Kopel (also a Cato associate policy analyst). Tim authored Cato’s brief in McDonald v. City of Chicago, the case seeking to extend Second Amendment protections to the states — and about which I blogged yesterday.

Well, now Josh has come up with a bit of a twist on the podcast medium: he invited George Mason law prof Ilya Somin (also a Cato adjunct scholar) and me to engage in a contest based on the trivia challenge Sixth Circuit Judge Danny Boggs issues his clerkship applicants. The winner of this “Battle of the Ilyas” would receive the free and exclusive right to the Ilya name — because apparently it’s too confusing to have two libertarian lawyers named Ilya in the same metropolitan area/professional circle. It was a lot of fun, and while I won’t tell you the outcome here, you can easily find that out and listen to the conference call we had about it.

Finally, after this “Battle of the Ilyas,” Josh asked me to record a podcast about McDonald — which inspired our article — and United States v. Comstock (another important case in which Cato filed a brief, and which I blogged about here). Happy listening!

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A Special Kind of Eminent Domain

In federal eminent domain cases, the “scope of the project” rule requires that in determining “just compensation” under the Fifth Amendment’s Takings Clause, any increase or decrease in property value caused by the federal project be disregarded. As it turns out, the federal government had discussed the idea of expanding Everglades National Park for over 30 years, and also induced the local government to enact tougher zoning standards that decreased the value of the property that was to be taken for this purpose. This type of behavior is a special kind of eminent domain abuse called “condemnation blight.”

The Everglades-related federal actions forced Gilbert Fornatora to watch the value of his South Florida property decline until the federal government finally condemned it — and paid him much lower compensation than he would otherwise have received. Then, once condemnation proceedings began, the government manipulated the hearing schedule by front-loading ill-prepared owners who lacked counsel, thereby setting a low valuation precedent that would then be applied to the later parties with representation, like Fornatora. The Eleventh Circuit sided with the government, so Fornatora petitioned the Supreme Court to review the case.

Cato filed an amicus brief supporting this petition, arguing that property owners have virtually no “scope of the project” protection if they must prove that the government’s sole or primary purpose for pre-condemnation action was to depress property values for later eminent domain proceedings. A more workable test, consistent with due process, is merely to require evidence of a nexus between the government’s actions and the depressed property value. The Court should also hear this case to ensure that just compensation proceedings comport with the due process, equal protection, and general fairness standards the government is required to follow in a variety of other settings.

The Court will be deciding early in the new year whether to hear the case, which has the ungainly name of 480.00 Acres of Land v. United States.

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Cato Files Brief to Extend Second Amendment Rights, Provide Protections for Privileges or Immunities

Last year, in District of Columbia v. Heller, the Supreme Court confirmed what most scholars and a substantial majority of Americans long believed: that the Second Amendment protects an individual right to keep and bear arms. Heller led to the current challenge to Chicago’s handgun ban, which raises the question of whether the Fourteenth Amendment protects that right against infringement by state and local governments. The Seventh Circuit answered the question in the negative, finding itself foreclosed by 19th-century Supreme Court decisions. The Supreme Court agreed to review the case — after Cato filed an amicus brief supporting the cert petition — and specifically consider whether the Fourteenth Amendment’s Due Process Clause or its Privileges or Immunities Clause is the proper provision for incorporating the Second Amendment right to keep and bear arms as against the states.

Now Cato, joined by the Pacific Legal Foundation, has filed a brief supporting those challenging the handgun ban — who are represented by Alan Gura, the lawyer who successfully argued Heller — and calling for an overruling of the Slaughter-House Cases, which eviscerated the Privileges or Immunities Clause in 1873. Slaughter-House narrowly circumscribed the rights protected by the Privileges or Immunities Clause, contrary to the intentions of the Amendment’s framers and in direct contradiction to the developments in legal theory that underlay its adoption.

We also argue that in addition to ignoring the history surrounding the Fourteenth Amendment, the Slaughter-House majority violated basic rules of constitutional interpretation. Finally, restoring the Privileges or Immunities Clause would not result in the demise of substantive due process because the idea at the core of that doctrine — that the Due Process Clause imposes something more than mere procedural limits on government power — was widely accepted when the Fourteenth Amendment was enacted and its authors rightly believed that the Due Process and the Privileges or Immunities Clauses would provide separate but overlapping protections for individual rights.

Again, go here to read Cato’s brief in McDonald v. City of Chicago. Related, Josh Blackman and I have put up on SSRN our article, “Opening Pandora’s Box? Privileges or Immunities, The Constitution in 2020, and Properly Incorporating the Second Amendment,” which comes out in January in the Georgetown Journal of Law & Public Policy. I will be blogging more about “Pandora” — and, of course, the McDonald case — in future.

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How Will the Court Vote on "Incorporating" the Second Amendment?

Yesterday I described the brief Alan Gura filed on behalf of the petitioners challenging Chicago’s gun ban in the Supreme Court — asking the Court to apply the individual right to keep and bear arms to the states.

Late last night, Orin Kerr at the Volokh Conspiracy sketched out his predictions of whether the individual justices would go for Gura’s main argument: that the indefensible Slaughter-House Cases should be overturned and thus that the Court should “incorporate” the rights at issue via the Privileges or Immunities Clause. (Cato supports this argument, as we’ll show in the brief we’ll be filing next week.) He concludes that Justice Thomas is the only vote available for this claim. According to Orin, the Chief Justice and Justices Scalia and Alito are too enamored with stare decisis to overturn an 1873 precedent, Justice Kennedy isn’t an originalist and likes substantive due process too much, and the other four are too afraid of Lochner and Institute for Justice-style economic liberty arguments to go there.

As George Will would say: Well. Orin could turn out to be right, but I think his analysis is too simplistic. I was just about to write my response when I saw that Josh Blackman, with whom I have a law review article forthcoming on these issues, already said it best in the comments to Orin’s post:

First, I think you present a binary choice; incorporate through Due Process OR incorporate through privileges or immunities. The question presented asked about both routes of incorporation. Neither path is by necessity mutually exclusive. As Gura’s brief makes clear, the Court could incorporate through the Due Process Clause, and alternatively recognize that the right to keep and bear arms is also among the Privileges or Immunities of Citizenship. The Court need not displace 100 years of substantive due process jurisprudence with this single case. And from a practical perspective, basically the entire Bill of Rights has been incorporated. So, unless some people start clamoring about states quartering troops in theirs homes, this would be a one time deal. Such a holding would do little to upset the apple cart, or as we put it, open Pandora’s Box.

Second, I think you may over-simplify Scalia’s views on originalism and stare decisis. Our article shows that Scalia, while on the Supreme Court, has never voted in favor of a substantive due process incorporation. The last such case was in 1982. Can Scalia really cite the doctrine that he excoriated in Lawrence, Casey, and elsewhere based solely on reliance interests? It is no secret Scalia likes guns, and he wants to incorporate the 2nd Amendment. But he does not want to enlarge substantive due process. Is he stuck between a rock and a substantively hard place? The Privileges or
Immunities Clause provides an alternative method for Scalia. He could write a classic originalist opinion tracing the right to bear arms during Reconstruction, and find that it applies to the State.

Finally, fellow Volokh conspirator Randy Barnett (and Cato senior fellow) also disagrees with Orin, offering this perspective:

When choosing between the two pending cases in the Seventh Circuit, why would
four Justices grant cert on the McDonald case in which the challenge was focused on the Privileges or Immunities Clause and deny cert on NRA case, which confined its argument to the Due Process Clause? Why would they have rejected the City of Chicago’s proposal which limited the question presented to Due Process?

Faced with this background and the actual question presented, I wonder how would Orin have briefed the case. Would he have offered any of the analysis in his post?
Would he have told the Court just to ignore the Privileges or Immunities Clause? Or might he not have assumed as an experienced litigator that the Justices could write a Due Process Clause “incorporation” opinion in their sleep–heck, their clerks could write that opinion in their sleep–and then devoted the bulk of his brief to describing the meaning of the Privileges or Immunities Clause in context?

Ultimately, Orin’s analysis is based in what he thinks will be the Justices’ dislike for the interpretation of the Privileges or Immunities Clause described in the brief. The conservatives will hate the references to “natural rights” while the liberals will hate the references to “property.” Fair enough. But notice that the brief does not offer Alan Gura’s theory of the Privileges or Immunities Clause. All the phrases to which Orin objects are taken from quotes from the historical sources. Was Gura supposed to conceal these sources from the Court or faithfully report them? Orin may think this case is a hoot, but for the parties and the Court it is serious business.

In short, Orin’s legal realism/conventional wisdom may turn out prescient — and all the rest of us are engaged in a quixotic originalist/libertarian crusade – but I’ll put my money elsewhere.

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Heller Counsel Argues for an Originalist Revolution

Alan Gura, who successfully defended the individual right to keep and bear arms under Second Amendment in District of Columbia v. Heller has now filed his brief in the case that seeks to apply that right to the states, McDonald v. City of Chicago. (Cato earlier filed a brief supporting Alan’s cert petition, the background to which you can read about here.)

The question presented in this case is: Whether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment’s Privileges or Immunities or Due Process Clauses. Remarkably, only 7 of the brief’s 73 pages are devoted to the Due Process Clause, which is the constitutional provision by which almost all the the Bill of Rights has been “incorporated” against the states. Indeed, the brief argues that the Due Process Clause “has incorporated virtually all other enumerated rights” and so there is no reason to make the Second Amendment an exception.

The rest of the brief is far more interesting, arguing for overturning the ill-fated Slaughter-House Cases, which eviscerated the Priviliges or Immunities Clause in 1873. Slaughter-House forced the Court to start protecting natural rights and fundamental liberties under the oddly named “substantive due process” doctrine — and it remains a bugaboo for legal scholars of all ideological stripes. Overturning it would potentially open the door to challenges against legislation that violates a host of unenumerated rights, such as the right to enter into contract or to earn an honest living.

Understandably, libertarians are excited at the prospect of Privileges or Immunities’ revival. But so too are liberals, at the thought of potentially filling an empty constitutional vessel with positive rights (to health care, education, pensions, etc.). I believe this to be an overstated threat from the perspective of constitutional interpretation — as opposed to legislation – and have an article coming out with Josh Blackman in the Georgetown Journal of Law and Public Policy in January making this point. (The article, titled “Opening Pandora’s Box? Privileges or Immunities, The Constitution in 2020, and Properly Incorporating the Second Amendment,” will shortly be up on SSRN, but for now you can read the abstract/introduction here.)

In any event, P or I (as it’s known) is a vastly superior way of giving people in the states the right to keep and bear arms for self-defense. But it’s ambitious to argue this way rather than settle for the traditional jurisprudence. As Orin Kerr says at the Volokh Conspiracy, “It’s certainly an attention-getting way to brief the case. It’s not just arguing for a win: It’s arguing for a revolution.”

For further discussion of Alan’s McDonald brief — which Cato will be supporting with an amicus brief next week – see Lyle Deniston’s write-up at SCOTUSblog.

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How Is Sotomayor Doing?

I was one of those who opposed the nomination of Sonia Sotomayor to the Supreme Court, mainly because the pick was based on race and gender rather than merit and she was disingenuous and obfuscatory at her confirmation hearings. Well, the Court still hasn’t decided any cases argued with Justice Sotomayor on the bench — and the first term isn’t always indicative of the kind of jurist a new justice will be – but we do have some early statistics about her performance.

It turns out that, unlike her next most junior colleague, Justice Alito — who hung back early in his tenure while learning the rhythms of the Court – Justice Sotomayor has not been a shrinking violet in her questioning of advocates. Indeed, according to a National Law Journal tally, during the 13 November arguments that just concluded, she asked 146 questions (or 11.2 per case), which is even ahead of where Chief Justice Roberts was at this point in his career. And, because Sotomayor speaks more often than her more reserved predecessor, Justice Souter, she has made a “hot” bench even hotter.

By another indicator, however, Sotomayor ranks at the bottom of the Supreme Court table: Apparently her questioning has not yet generated a single laugh (as measured by such indications in the argument transcript). Not surprisingly, Justice Scalia leads in that department — as he long has, both in absolute and per-question terms – with the Chief being the only other justice in double figures. Joining Sotomayor with a goose-egg so far this year are Justices Ginsburg and Thomas (who hasn’t asked a question since 2006). If you’re curious about last year’s final standings, see here.

For what it’s worth, all this accords with the sense I’ve gotten from the handful of times I’ve been to the Court for oral argument so far this term. To my mind, Sotomayor is still acting as a Court of Appeals judge — or maybe even a district judge – asking simpler questions about the factual record or procedural history rather than the broader issues the Court tends to grapple with. And therefore I’ll go out on a counterintuitive limb here to predict that, as Sotomayor settles into her new role, her questioning will become less frequent but more substantive.

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First Amendment for Me, But Not for Thee

A high school newspaper in Manhattan recently added a new and prestigious editor to its staff: Supreme Court Justice Anthony Kennedy. Adam Liptak of the New York Times reports:

It turns out that Justice Anthony M. Kennedy, widely regarded as one of the
court’s most vigilant defenders of First Amendment values, had provided the
newspaper, The Daltonian, with a lesson about journalistic independence. Justice
Kennedy’s office had insisted on approving any article about a talk he gave to
an assembly of Dalton high school students on Oct. 28.
Kathleen Arberg, the
court’s public information officer, said Justice Kennedy’s office had made the
request to make sure the quotations attributed to him were accurate.

The justice’s office received a draft of the proposed article on Monday and returned it to the newspaper the same day with “a couple of minor tweaks,” Ms. Arberg said. Quotations were “tidied up” to better reflect the meaning the justice had intended to convey, she said.

I’m all for being tidy — and, for all his faults, Kennedy has indeed been friendly to the First Amendment (if not to student speech rights in the “Bong Hits for Jesus” case, Morse v. Frederick) – but public figures don’t usually get to change a story to “better reflect” the intent of their words.

Frank D. LoMonte, the executive director of the Student Press Law Center,
questioned the school’s approach. “Obviously, in the professional world, it
would be a nonstarter if a source demanded prior approval of coverage of a
speech,” he said. Even at a high school publication, Mr. LoMonte said, the
request for prepublication review sent the wrong message and failed to
appreciate the sophistication of high school seniors.

While this is hardly a major scandal — and it’s not unusual for justices to exclude the press entirely from public appearances — Kennedy’s use of a judicial editor’s pen does support the general feeling that students don’t always get a fair shake when it comes to their constitutional rights. As I said about an unrelated case in which Cato filed a brief last week (quoting the landmark Tinker case), students shouldn’t have to “shed their constitutional rights to freedom of speech… at the schoolhouse gate” — especially when a man charged with protecting those rights comes to talk to them about the importance of law and liberty.

H/T: Jonathan Blanks CP: Cato's blog

Taking Land for Public Uselessness

Over at the Washington Examiner, Tim Carney reports that Pfizer is abandoning its New London offices and deciding what to do with the property it gained in the infamous Kelo v. New London land-grab:

The private homes that New London, Conn., took away from Suzette Kelo and
her neighbors have been torn down. Their former site is a wasteland of fields of weeds, a monument to the power of
eminent domain.

But now Pfizer, the drug company whose neighboring research facility had
been the original cause of the homes’ seizure, has just announced that it is closing up shop in New London.

To lure those jobs to New London a decade ago, the local government promised to demolish the older residential neighborhood adjacent to the land Pfizer was buying for next-to-nothing. Suzette Kelo fought the taking to the Supreme Court, and lost.
Five justices found this redevelopment met the constitutional hurdle of “public
use.”

That this purported “public use” is now exposed as the façade for corporate welfare that it always was is, of course, little comfort to Suzette Kelo and the other homeowners whose land was seized. But hopefully this will be an object lesson for other companies considering eminent domain abuse as a route to acquire land on the cheap — and especially for state and local officials who acquiesce in this type of behavior.

You can read Cato’s amicus brief for the ill-fated case here. Cato also hosted a book forum for the story of Suzette’s struggle, Little Pink House, featuring the author, Jeff Benedict, the attorney who argued the case, the Institute for Justice’s Scott Bullock, and Ms. Kelo herself, here.

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The Right to Speak in Non-Government-Approved Ways

School officials denied student Pete Palmer the right to wear a shirt supporting John Edwards’s presidential campaign at his Dallas-area high school. They cited the district’s dress code, which prohibited messages on student clothing except for those that supported school activities or district-approved organizations, clubs or teams.

The U.S. Court of Appeals for the Fifth Circuit agreed with the school district that this was a reasonable “time, place and manner” speech restriction. Applying the test from United States v. O’Brien, the court found that the dress code was content- and viewpoint-neutral, and served an important governmental purpose. Palmer now seeks Supreme Court review, citing seemingly contradictory precedents from the Second and Third Circuits and arguing that the regulation here flies in the face of the protection afforded to student speech by the famous case of Tinker v. Des Moines Independent Community School District.

Cato, joined by the Institute for Justice, the Becket Fund for Religious Liberty, the Christian Legal Society, and the National Association of Evangelicals, filed an amicus brief supporting Palmer’s petition and urging the continued use of Tinker. We argue that the Court should clarify its jurisprudence in this area to stop schools from applying broad restrictions in an attempt to avoid controversy and debate—and thereby threaten the very political and religious speech at the First Amendment’s core.

To prevent the chilling of student speech, the Court should solidify Tinker’s central tenet, reaffirming that so long as speech doesn’t “materially and substantially disrupt” the educational process, students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

The case is Palmer v. Waxahachie Independent School District. The Court will be deciding early in 2010 whether to hear it.

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Liberty Most Deer

As a footnote to Chris Moody’s post about Monday’s 20-year anniversary of the fall of the Berlin Wall, I just came across this article about red deer refusing to cross from Germany into the Czech Republic. This, of course, is a border that was the once heavily fortified dividing line between free West Germany and captive Czechoslovakia.

Even deer who weren’t born when barbed wire, watchtowers, and armed guards prevented the natural extension of their happy grazing grounds act as if the Cold War never ended — apparently because they learned their habits from their parents, who learned them from their parents.

Still, as with the new generation of Eastern Europeans who have no memory of Communism, some young deer are starting to break the mold, taking advantage of — and even taking for granted — their newfound freedom. I wonder if the grass (and ferns, and whatever else deer eat) is any greener on the other side of the former Iron Curtain.

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Give Us Your Tired, Your Energetic, Your Poor, Your Rich — Pretty Much Anyone Who’s Not a Criminal or Terrorist

On Wednesday I blogged about how, for the first time in many years — since the last recession — H-1B skilled worker visas remain available despite the hard cap on their number. In other words, even foreigners respond to market incentives: when there are no jobs, there are fewer immigrants.

I’ve gotten some interesting email in response to that little notice, one of which I post below, along with my paragraph-by-paragraph responses.

Just read your blog entry on the H-1b visa. The problem is that this visa
has been misused by sponsoring companies, suffering from high rates of
fraud. I find it strange that Cato supports (or appears to support) a
labor tool that is anything but free market. The H-1b visa is more of an
indentured servant visa program than anything else – where employees must be
sponsored by an employer. Since employees aren’t free to find new jobs or
start their own business, it results in a captive workforce who will do whatever
the employee asks, even beyond reason. They won’t bargain for higher
wages, quit if mistreated, join unions, or do anything that might result in
their immigration status being jeopardized.

Having myself been on H-1Bs with several employers, including Cato, I agree that the program is seriously flawed, in the ways this correpondent describes and in others. Ideally, people would be able to apply for a work permit — their application gaining more “points,” say, for language, youth, skills, the needs of the economy, or whatever other criteria the political process determines are important — and then not be tied to an employer and have an opportunity to receive permanent residence and eventual naturalization if they pay their taxes, stay out of jail, etc. Or, indeed, we could admit all people who want to come here (after screening for security, criminal, and health concerns), and give them the same opportunity. But until we get to that more perfect world, I see no conflict in advocating for a repeal of the H-1B cap or pointing out how this recession shows that immigrants come for jobs, not to leech off our welfare state (if that’s the concern, then wall off the welfare state, not the country) or commit crimes.

One thing not correct in your blog is that H-1b visa holders cannot get a
green-card. They can, unfortunately most of the workers are from India so
it is difficult for those workers to get the green-card because of how,
numerically, green-cards are issued. The H-1b visa is a “dual intent” visa
meaning there is a path to permanent residence and after 6 years on the visa
holders can extend 1 year until their green-card is processed. Indian
workers call it the “green carrot” and relate it to the picture of where the
mule driver holds a carrot on a stick in front of the mule to keep him
moving. No matter how hard the mule tries, the carrot gets no closer.

The H-1B’s “dual intent” provision is categorically not a path to a green card. All it does is, as the correspondent points out, allow the worker to stay in the country during the green card application process. That process, however, and the substantive requirements for obtaining a green card, is no different for H-1B holders than it is for anyone else. Indeed, spending five or six years on an H-1B with one employer can be a detriment, inasmuch as that employer’s sponsorship application cannot take into account the skills gained during that time of employment. And yes, the nationality-based restrictions are also obnoxious.

The primary sponsors of H-1b workers are Indian outsourcing firms. In
short, the visa is used as a tool to send jobs overseas. People from Cato
may not have a problem with that because of their own views on globalization and
free trade, but the majority of Americans do. You guys are notorious at
just looking at one half of the equation when it comes to free market practices
unfortunately – which is the corporate side. Yes, corporations can move
people around the world using a variety of immigration programs. But do
the people being moved around control their own destinies or are they at the
mercy of the corporations?

Cato is not a corporate shill. Plenty of what we advocate is counter to the expressed preferences of Big [fill in your preferred Villain] because the business community often prefers stability over liberty-enhancing volatility — smaller, secure profits over potentially larger but not-guaranteed ones — and a place at the government subsidies trough over a truly free market. Moreover, and with much irony, it is the H-1B’s cap and costly bureaucratic processing that has promoted outsourcing — which in and of itself is not problematic for the American economy as a whole — by preventing American firms from bringing Indian (and other) workers here. And people on H-1Bs are “at the mercy of corporations” precisely because this visa is tied to one employer, as mentioned in the first quoted paragraph above.

Liberty doesn’t just apply to corporations and the narrow objective of free
trade. I just don’t understand how the Cato Institute and all of your
intellectuals don’t see through this visa for what it is. It deprives
people of liberty. Many American workers don’t care that “an Indian” is
being deprived of their liberty, but they should if not for moral reasons than
for economic reasons. If I have a worker that I can exploit and pay less,
now I have a bargaining tool against the worker I previously could not.
When one man is deprived of their liberty, in a way we all are.

I couldn’t agree more that our current immigration regime benefits nobody — not big business, not small business, not skilled workers, not unskilled workers, not the American economy as a whole, not certain sectors of it — with the possible exception of populist demagogues of both the left and the right. The answer to that morass isn’t to attack globalization or free trade — which is not a “narrow objective” but a fundamental mechanism for enhancing peoples’ lives all over the world — but to reform our immigration system.

For more on these and related issues, check out these recent studies put out by my colleague Dan Griswold and his trade and immigration policy team:

On the fiscal impact of low-skilled immigration

On the economic benefits of immigration reform

On the influx of immigrants pushing Americans up the income scale

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As It Turns Out, There Are Limits on Congress's Power

In 2006, Congress passed the Adam Walsh Child Protection and Safety Act. One provision of the law authorizes the federal government to civilly commit anyone in the custody of the Bureau of Prisons whom the attorney general certifies to be “sexually dangerous.” The effect of such an action is to continue the certified person’s confinement after the expiration of his prison term, without proof of a new criminal violation.

Six days before the scheduled release of Graydon Comstock — who had been sentenced to 37 months in jail for receiving child pornography — the attorney general certified Comstock as sexually dangerous. Three years later, Comstock thus remains confined in a medium security prison, as do more than 60 other similarly situated men in the Eastern District of North Carolina alone.

Comstock and several others challenged their confinements as going beyond Congress’s constitutional authority and won in both the district and appellate courts. The United States successfully petitioned the Supreme Court to review the case.

Cato, joined by Georgetown law professor (and Cato senior fellow) Randy Barnett, filed a brief opposing the government. We argue that the use of federal power here is unconstitutional because it is not tied to any of Congress’s limited and enumerated powers. The government’s reliance on the Necessary and Proper Clause of Article I, Section 8, is misplaced because that clause grants no independent power but merely “carries into execution” the powers enumerated elsewhere in that section. The commitment of prisoners after their terms simply is not one of the enumerated powers.

While the government justifies its actions by invoking its implied power “to establish a federal penal system” — itself a necessary and proper auxiliary to certain enumerated powers — civil commitment is unrelated to creating or maintaining a penal system (let alone any enumerated power). Nor can the law at issue fall under the Commerce Clause, because civil commitment involves non-economic intrastate activity.

As the Supreme Court recognized almost 150 years ago in Ex Parte Milligan, “[n]o graver question was ever considered by this court, nor one which more nearly concerns the rights of the whole,” than the government’s unconstitutional assertion of power against its own citizens. In this spirit, the Court should affirm the Fourth Circuit’s rejection of this blatant government overreach.

United States v. Comstock will be argued on January 12. You can read Cato’s brief here.

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Immigrants Respond to Economic Incentives

As I blogged here, I got my green card in April — and am now counting down the days till I can naturalize (five years from the green card, though you can apply three months before that and processing takes a year or so). Because of my various travails over the years that led to that fortunate day this spring, I’ve learned quite a bit about immigration, both as a matter of policy and as a matter of law. Indeed, both before joining Cato and ever since, it’s been an area in which I’ve been writing and speaking — and I appreciate very much the synergy this work has had with my colleagues in the trade and immigration shop.

One oped I had in National Review Online dealt with H-1Bs, the temporary visas for highly skilled workers to work in the United States. One of the problems with H-1Bs is that they provide no path to a green card (meaning permanent residence) or citizenship — so just as hard-working, tax-paying professionals gain expertise in a particular American company or industry, just as they grow roots in an American community, they have to leave. Nevertheless, there have long been more H-1B applicants than available visas. The last few years, the annual 65,000 quota has been oversubscribed on the very first day of eligibility for each fiscal year!

Well, not any more. As this recent article points out, the recession has impacted our immigration system as well: “A coveted visa program that feeds skilled workers to top-tier U.S. technology companies and universities [the H-1B program] is on track to leave thousands of spots unfilled for the first time since 2003, a sign of how the weak economy has eroded employment even among highly trained professionals.”

This is just another indication that the free movement of goods, money, and people, will regulate even such perceived social ills as “foreigners taking American jobs.” There’s simply no need for “U.S. citizen only” provisions in (so-called) stimulus bills, or (further) immigration restrictions during bad economic times.

In other words, even foreigners respond to market incentives.

For more on Cato’s work on immigration policy, go here.

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Health Care Bill Improves Lawyers' Financial Health

The great thing for legislators about a nearly 2000 page bill — such as, oh, the House’s latest health care salvo — is that very few people bother to read the whole thing. So it’s easy to bury little gifts to favored supporters. Or big ones.

For example, check out section 2531 — that’s pages 1431-33 for those following along at home — which has gone largely unnoticed in the major news cycle. These three pages of the bill reward states that refrain from setting (or repeal) any caps on medical malpractice rewards — and the accompanying lawyers’ fees! – by requiring the Secretary of Health and Human Services to provide them an “incentive payment.”

As Hans von Spakovsky notes at NRO’s Corner, this “alternative medical liability law” aims to eviscerate cost-saving measures that protect doctors from frivolous lawsuits that increase the cost of health care to the consumer. So this has nothing to do with providing better or cheaper care, covering the uninsured, or even eliminating waste and fraud. Instead, it’s a pure sop to one of the Congressional Democrats’ key constituencies: trial lawyers.

For more information on free market health care reform alternatives, please visit Cato’s Health Care website here.

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