What's this about?

The Immigration System, and Why It's Broken

Most foreigners coming to live in the U.S. come here in one of three ways: through close family ties, through employer sponsorship, or as a refugee. The family-based and employment-based systems have fixed quotas for immigrant visas that were last updated in 1990.

In the ensuing 20 years, those quotas have not kept pace with demand. As a result, there are now extraordinary waits for families to reunite and for workers to get their "green cards." Currently, an immigrant living here who is trying to bring a spouse or minor child must wait between four and five years. Others wait longer.

For some categories of immigrants, the prospect of legal immigration is even more unrealistic. For example, there are only 5,000 visas available per year for low-skilled immigrants who, during the late 1990s and parts of the last decade, were being absorbed by our economy at a rate of 300,000 to 500,000 per year. If all of those immigrants "got in line" for a proper visa, the waiting list that would develop in one year would span one human lifetime.

It's not hard to understand, given the above facts, that a lot of people in the last 20 years have found a way around the immigration system. Before the economic downturn took hold, there were an estimated 12 million unauthorized immigrants living in the U.S. Unauthorized workers made up five percent of the U.S. workforce.

Fixing the Broken System

Advocates on the National Mall this weekend will be calling for "comprehensive immigration reform." Broadly, this reform consists of, first, some sort of process by which unauthorized immigrants are brought out of the shadows, register, and get a criminal background check. Those who have no criminal record will be allowed to attain legal status, putting them on a path to citizenship. Second, family visa backlogs must be cleared, and admissions levels must be adjusted so that long backlogs to not immediately re-appear. Third, there must be some way to match the number of workers coming to the U.S. with what is happening in the economy. Fourth, there has to be an effective, intelligent enforcement scheme, prioritizing the worst violators of immigration and labor law. Enforcement must respect the due process rights of all, and it must be accountable. Comprehensive immigration reform will also include measures to speed the integration of immigrants.

Immigration Reform and Economic Recovery

Given that unauthorized workers make up five percent of the U.S. workforce, immigration reform will be an important component of our economic recovery. With that many U.S. workers subject to deportation, there are plenty of opportunities for unscrupulous employers to offer substandard pay to unauthorized workers. This hurts all U.S. workers. Bring unauthorized workers into the system, and they will be more willing to stand up for the rights they have under our labor laws. The "wage floor" will be raised for all U.S. workers. The Center for American Progress estimates that comprehensive immigration reform will result in a $1.5 trillion boost to the economy over a ten year period. By contrast, the economy would take a $2.6 trillion hit over ten years if we were to send all unauthorized workers packing.

Going forward, we had better make the adjustments in our admissions systems before the economy recovers. If the economy returns to anywhere near where it was in the 1990s, we can expect the number of unauthorized workers to climb steeply.

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Matthew Yglesias, a fellow at the Center for American Progress Action Fund, and a blogger at the organization's ThinkProgress, chatted with ACSblog about increased use of the filibuster and other delaying tactics to scuttle the president's judicial nominations. Yglesias spoke with ACSblog following his participation in a recent ACS panel discussion on the filibuster and the pace of judicial confirmations.

Yglesias said the concept of debate over judicial nominations is not obsolete or irrelevant, "but that the procedural tactics around congressional debate are not really about debate, their just about delay and taking up time. We are seeing an unprecedented level, I think of just pure delay, in the sense where you don't have the votes to block someone and you don't have any intention of blocking them, but you just engage in procedural maneuvers to slow them down."

Yglesias also addressed the Obama administration's reaction to the slow pace of judicial confirmations, saying "I think the Obama administration has not made any really serious effort to elevate the judicial side of this; they haven't nominated all that many people, they haven't talked in a really public way about the difficulty their nominees are having. The Bush administration after putting up with a lot of delays, at one point decided to make a big point of emphasis; that it really wanted to get judges confirmed and they had an enormous amount of success after they did it."

Watch the interview with Yglesias below, or download a podcast of it here.

The full video of the ACS event on the filibuster and judicial confirmations is available here. Earlier this week, several senators took to the Senate floor to denounce the delays in conforming executive branch and judicial nominees.

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The U.S. Supreme Court unveiled a new look for its Web site earlier today, prompting longtime Supreme Court correspondent Tony Mauro to joke that the new site launches the high court "into the 21st century only a few years late."

Mauro noted that the high court's old site had drawn criticism for being outdated and "clunky." But, he writes, while the new site does not feature much new content it is "more accessible and reader-friendly." The site's resources continue to include recent opinions, its calendars and oral argument transcripts.

Kathy Arberg, the high court's information officer, suggested that new information and features would be added over time. 

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A forthcoming report by the Brennan Center and Justice at Stake will show that unprecedented sums of money are being spent to influence the election of judges, ABC News reports.

"In the past decade, candidates for state judgeships raised more than $206 million, more than double the $83 million judges raised in the 1990s," according to the forthcoming study. ABC News also noted former U.S. Supreme Court Justice Sandra Day O'Connor, joined by Justice Ruth Bader Ginsburg, have spoken out against the large sums of money flowing into judicial campaigns.

O'Connor recently told Georgetown law students that the amount of money being funneled into electing judges has become "a threat to judicial independence." When asked about judicial elections in the 39 states that conduct them at a recent event by the National Association of Women Judges, Justice Ginsburg said, "If there's a reform I would make, it would be that."

University of Maryland law school professor Sherrilyn Ifill, in a post for Concurring Opinions, said the Supreme Court's decision in Citizens United v. FEC, which invalidated decades of restrictions on corporate campaign contributions, "is likely to unleash a virtual run on judicial elections in some states," citing the ABC News article. 

Ifill continued:

There is a real constitutional crisis in the judiciary of some states (and no, Justice Roberts, it's not the judicial pay scale). More and more, state courts are losing confidence of the public. The single largest contributor to judicial elections is the Chamber of Commerce and other pro-business groups. Business advocates argue that this is to counter the influence trial judges had in the 1980s, when they were the largest contributors to judicial campaigns. Whatever the history, the reality is that there are strong, well-financed forces favorable to business and to conservative political principles that exert powerful influence over state judicial elections.

Earlier this week other media outlets reported on the U.S. Chamber of Commerce's plans to significantly ratchet up its campaign contributions. The Washington Post reported that the pro-business lobby "plans to spend at least $50 million on political races and related activities this year, a 40 percent increase from 2008." The newspaper noted that high court's Citizens United opinion has "bolstered" the organization's potential to sway this year's midterm elections. 

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The Annotated U.S. Constitution and Declaration of Independence

By Jack Rakove

[Available Here]

When Harvard University Press asked me to prepare an annotated edition of the Constitution, I was at once deeply intrigued and somewhat daunted. On the one hand, having a chance to say what one wished about every clause of the Constitution seemed a challenge worth taking up-even if many of those clauses were rather removed from my immediate interests. On the other hand, each of these clauses has its own independent history of application and interpretation, and who knows how many legal scholars would be lying await out there, eager to pounce on my doctrinal errors, major and minor. As a reader of web-sites like Balkinization and ConLawProf, I knew that the entire corpus of constitutional interpretation ran well beyond my poor power to add or detract.

Fortunately, there were two saving graces to the invitation that I thought would work to my benefit. One was that the edition was never meant to be a massive disquisition or commentary. It was designed to be reasonably short and snappy, with something of importance or interest said about every clause, but no pretension of being comprehensive or doctrinally exhaustive. Second, if the publisher really wanted that kind of work, he would turn to someone better qualified to prepare it, not an 18th-century historian. Having the chance to annotate meant that I should know what the main lines of doctrine and interpretation have been. But I remained professionally free to focus on particular clauses as a historian would, paying special attention to origins.

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ACSblog reported yesterday on a number of senators who have expressed frustration over the lagging pace of judicial confirmations. In one statement, Judiciary Committee Chairman Patrick Leahy condemned the "delays and obstruction" of President Obama's nominations. Other senators, though, joined the chorus charging Republicans with abusing the filibuster to delay or scuttle the administration's judicial selections and to obstruct other important business of the Senate. 

Senator Al Franken (pictured) took to the senate floor to deliver a pointed rebuke of his "colleagues [who] seem more interested in using every procedural method possible to keep the Senate from doing anything." Franken cited multiple instances in which senate Republicans attempted to filibuster nominations that were ultimately confirmed by unanimous or near-unanimous votes. This practice, he charged, is a "perversion of the filibuster and a perversion of the role of the Senate." 

Franken continued:

In February, the Senate finally confirmed the noncontroversial administrator of the General Services Administration after 9 months. The vote was 94 to 2. Similarly this month, my colleagues forced a cloture vote, they forced a cloture vote to approve a judicial nominee for the Fourth Circuit Court of Appeals. She was then confirmed unanimously, 99 to 0. Yet we are forced to vote for a filibuster. That is nuts. This is a perversion of the filibuster and a perversion of the role of the Senate. It used to be the filibuster was reserved for matters of great principle. Today it has become a way to play out the clock.

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According to reports from The New York Times and The Washington Post, the U.S. Chamber of Commerce, a big business lobbying group, is planning to spend even larger sums of money to influence this year's midterm elections. Thomas J. Donohue, leader of the chamber, told The Post that its electioneering plans are "the most aggressive voter-education and issue-advocacy effort in our nearly hundred-year history." The Times reported yesterday the chamber is also unleashing a "multimillion dollar wave of advertising that rivals the ferocity of a presidential campaign" and will target Democrats "whose votes will determine the fate of President Obama's top domestic priority," heal care reform.

The Post notes:

The chamber's potential impact on the November elections was bolstered further by a recent Supreme Court decision, which allows corporations and their surrogates to spend freely on political ads for and against specific candidates right up to Election Day.

The newspaper also reports that the White House, recognizing the growing public opposition to the Supreme Court's decision in Citizens United v. FEC, is trumpeting its efforts to mitigate the ruling.

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Attacks leveled by conservatives against Department of Justice (DOJ) attorneys who provided legal representation to military detainees before joining the government continue to reverberate with lawyers, including many with ACS affiliations, have countered the tactics in newspaper op-ed pages across the country. The attacks triggered by Sen. Charles Grassley's criticism of the DOJ attorneys have been fueled by Liz Cheney's group called Keep America Safe.

Former Iowa Supreme Court Judge Mark McCormick, in a column for The Des Moines Register wrote, "The smear directed at the Justice Department lawyers is misguided and shameful. Defenders of the lawyers have noted the example set by John Adams in courageously representing the five British soldiers charged with murder as a result of the Boston Massacre in 1770."

"Like Adams," McCormick continued, "lawyers who represent Guantanamo detainees, including military defense lawyers, act in the highest tradition of our system of justice."

In a Chicago Tribune column published today, Seattle attorney Harry H. Schneider Jr. and Chicago attorney Thomas P. Sullivan lambasted Cheney's Keep America Safe group for producing an inflammatory YouTube video tagging the DOJ the "Department of Jihad," and the attorneys the "Al Qaeda Seven."

Schneider and Sullivan write:

It is hard to imagine a more reckless charge. Well, on second thought, we can think of one. Her video is reminiscent of similar tactics used during one of the darker episodes in American history, when Sen. Joseph McCarthy charged that those who insisted on due process for anyone he accused must be a Communist sympathizer or a closet enemy of the U.S.

The two defend the DOJ attorneys' previous work on behalf of military detainees, writing:

Our constitutional system requires that we afford due process to defendants even in times of genuine threat to our nation and attacks on our people. The courts depend on the willingness of lawyers to represent those accused of crimes, although their clients may be feared or hated. We have long since accepted that a lawyer who is acting as counsel for a person accused of a crime does not make the lawyer a criminal.

In an op-ed piece for the Boston Globe, Sabin Willet, an attorney with Bingham McCutchen, who has represented military detainees, wrote, "Some Americans will see the rule of law as a threat, and lawyers as the enemy. Small men with loud voices will exploit their fears on cable television. Petty politicians will mine them for votes."

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The board spent the past few months examining social studies/ history standards. A faction on the board aligned with the Religious Right was determined to rewrite American history. Among other things, the new standards eject Thomas Jefferson from a list of influential Enlightenment-era figures and replace him with theologian John Calvin. The standards extol the influence of right-wing groups like the Eagle Forum and the Heritage Foundation.

Study about some important minority figures was summarily axed. Hispanic leaders in the state had pressed for more inclusion of Latino civil rights pioneers, but the board rebuffed the move. The New York Times reported that one board member, Mary Helen Berlanga was so upset she walked out of a meeting, proclaiming, "They can just pretend this is a white America and Hispanics don't exist."

The new standards reflect a bogus and long discredited "Christian nation" revisionism that has more to do with promoting a right-wing political ideology than educating young people. When one board member proposed teaching about how separation of church and state and secular government protects religious freedom, the board rejected it on a party line vote.

This disgrace comes just months after the board flirted with creationism in state science standards, adopting new guidelines that many observers believe are designed to encourage teachers to sneak creationist concepts into science classes.

Texas can't say it wasn't warned. Last year, the board appointed David Barton and the Rev. Peter Marshall, two notorious "Christian nation" propagandists, to an advisory body that examined the social studies standards. To no one's surprise, Barton and Marshall (neither of whom is a legitimate historian) proposed a raft of suggestions that reflect Religious Right dogma.

Texas has plenty of well-regarded public and private universities full of actual historians, so why did the board appoint these two? (Marshall doesn't even live in the state.) It was obvious that the battle all along was about ideology, not education. The board, unhappy with actual U.S. history that shows our country was founded with a secular government, demanded a rewrite. 

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A number of senators took to the chamber's floor today to express frustration over continuing delays in confirming President Obama's executive and judicial nominations. In a statement from the floor, Senate Judiciary Committee Chairman Patrick Leahy blasted what he called the "delays and obstruction of President Obama's nominations ...."

Not only are many of the administration's executive branch selections stalled in the Senate, but nominations to the federal bench are also languishing, due to filibusters and other delaying tactics, "the result of a Republican strategy to stall, obstruct, and delay that has existed throughout President's Obama's time in office, Leahy (pictured) said.

From the Senate floor, Leahy said:

In addition to the many executive branch nominees currently stalled on the Senate calendar, there are 18 judicial nominees that have been reported favorably by the Judiciary Committee-most of them unanimously-who await Senate consideration. That is more nominees than the total of President Obama's circuit and district court nominees-17-that have been confirmed since he took office. This sorry state of affairs is the result of a Republican strategy to stall, obstruct, and delay that has existed throughout President Obama's time in office. The casualties of this effort are the American people who seek justice in our increasingly overburdened Federal courts.

By this date during President Bush's first term, the Senate had confirmed 41 Federal circuit and district court nominations. 

...

In contrast, the Senate has confirmed just 17 Federal and circuit court nominees-just 17-during President Obama's first term.

We are currently on pace to confirm fewer than 30 Federal circuit and district court nominees during this Congress, which would be easily the lowest in memory. That number stands in sad contrast to the 100 judges we confirmed when I chaired the Judiciary Committee for 17 months during President Bush's first term. When we were reviewing the judicial nominees of a President of the other party, and one who consulted across the aisle far less than President Obama has, we confirmed 100 judges in just 17 months. President Obama is in his 14th month and Senate Republicans have allowed only 17 Federal circuit and district court judges to be confirmed. We are 24 behind the pace we set in 2001 and 2002.

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Over the weekend, my organization, the National Security Archive issued a report on FOIA implementation, Sunshine and Shadows: The Clear Obama Message for Freedom of Information.

The purpose of the report was to test the impact of President Obama's first full day issuance of a Memorandum on the Freedom of Information Act (FOIA) and Attorney General Holder's Guidelines on FOIA.

This was the eighth "FOIA Audit" that the Archive has issued since 2003. We use a very specific methodology for the reports. We make FOIA requests to all agencies on the same day asking for the same thing and then report on the results. That data is supplemented by data gleaned from the agencies' own annual reports. So, what we report is what they tell us. This year we added in another statistic that we drew from statements of the Department of Justice which DOJ claimed show that there is an increase in disclosure from agencies. We tested that statistic, however, to also look at what has been denied at agencies.

While our findings showed unevenness in the implementation of the Obama FOIA policies, those findings are mainly a reality check on how difficult it is to shift the course of the ship of state. Indeed, when we ran a similar audit eight years ago to look at implementation of then-Attorney General John Ashcroft's FOIA guidelines, we found very limited impact at the agencies in the short run. Over time, of course, that changed and the Ashcroft policies did impact FOIA processing and release. Moreover, the prior FOIA policy, combined with the many other secrecy policies of the Bush Administration severely interfered with the public's right to information. Thus, to use the metaphor in the title, those were cloudy and dark days for access. Today the challenge of fixing FOIA takes place in the context of the Administration's Open Government Initiative and improved executive orders issued about both the President Records Act and classified national security information. The sun seems to be creeping through the clouds.

The Archive's latest report finds many signs of progress. The message delivered by President Obama is clear - the government belongs to the people and the government should be transparent.

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Following a recent ACS National Press Club event on the use of the filibuster to slow or scuttle the administration's judicial nominations, Russell Wheeler, a visiting fellow at Brookings, talked with ACSblog about some of the factors at play in Senate battles over the judiciary. Wheeler, author of a Brookings study from last fall comparing judicial confirmations in the first nine months of the Bush and Obama administrations, will issue an updated report later this month. Wheeler told ACSblog that the forthcoming midterm elections have the potential for further slowing the pace of judicial confirmations.

Video of the ACS filibuster panel discussion is available here. Watch Wheeler's interview below or download it as a podcast here.

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Duquesne University law school professor and interim dean Ken Gormley, who participated in a fall ACS panel discussion focusing on Louis Brandeis' influence on privacy rights, will be in Bethesda, Md., this week to discuss his book, The Death of American Virtue: Clinton vs. Starr. 

The New York Times' Janet Maslin writes of the book, "But by and large Mr. Gormley has packed his narrative with intense, overdue and definitive testimony about the still-surprising investigation of Mr. Clinton's activities spearheaded by Kenneth W. Starr." The Times' Sunday Book Review also featured Gormley's book. 

Visit the Barnes & Noble in Bethesda Thursday, March 18 at 7 p.m. to hear Gormley talk about his work. For more information about the book event visit Barnes & Noble's Web site here.

Video of the panel discussion, "Louis Brandeis and the Development of the Right to Privacy," which Gormley participated, is available here. Also watch video or download a podcast of an ACSblog interview with Gormley. 

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The New Yorker's Jeffrey Toobin explores the tenure Justice John Paul Stevens, the Supreme Court's "fourth-longest serving" justice in an article that contemplates a high court "without its liberal leader."

In an interview with Toobin, Justice Stevens reflects on his time on the bench, saying there are "dozens" of cases he is unhappy with. The justice signaled out Citizens United v. FEC, which overturned court precedent and found that corporations have similar First Amendment rights as individuals, at least in the area of campaign financing, District of Columvia v. Heller, which found that the Second Amendment provides a personal right to possess firearms, and Bush v. Gore, which decided the 2000 presidential election.

Stevens said the Court has lurched rightward since he joined it in 1975. "You don't have to ask me that," Stevens responded to Toobin's question on the tilt of the high court. "Look at Citizens United. If it is not necessary to decide a case on a very broad constitutional ground, when other grounds are available, then doesn't that create the likelihood that people will think you're not following the rules?"

Toobin maintains that the peak of Stevens' work centers on his decisions involving the treatment of military detainees:

In the 2004 case of Rasul v. Bush, among the first major cases to arise from Bush's war on terror-and the first time that a President ever lost a major civil-liberties case in the Supreme Court during wartime-Stevens wrote for a six-to-three majority that the detainees did have the right to challenge their incarceration in American courts. In his opinion, which was written in an especially understated tone, in notable contrast to the bombastic rhetoric that accompanied the war on terror, he cited Rutledge's dissent in the Ahrens case-which he himself had helped write, fifty-six years earlier. One of Stevens's law clerks, Joseph T. Thai, later wrote an article in the Virginia Law Review entitled "The Law Clerk Who Wrote Rasul v. Bush," which concluded that "Stevens's work on Ahrens as a law clerk exerted a remarkable influence over the Rasul decision."

Two years after Rasul, Stevens wrote the opinion for the Court in Hamdan v. Rumsfeld, in which a five-to-three majority rejected the Bush Administration's plans for military tribunals at Guantánamo, on the ground that they would violate both the Uniform Code of Military Justice and the Geneva conventions. (Roberts did not participate in that case, because as a judge on the D.C. Circuit he had joined the opinion that Stevens overruled.)
Stevens's repudiation of the Bush Administration's legal approach to the war on terror was total. First, in Rasul, he opened the door to American courtrooms for the detainees; then, in Hamdan, he rejected the procedures that the Bush Administration had drawn up in response to Rasul; finally, in 2008, in Boumediene v. Bush, Stevens assigned Kennedy to write the opinion vetoing the system that Congress had devised in response to Hamdan.

After the attacks of September 11, 2001, the Bush Administration conducted its war on terror with almost no formal resistance from other parts of the government, until Stevens's opinions. He was among the first voices, and certainly the most important one, to announce, as he wrote in Hamdan, that "the Executive is bound to comply with the Rule of Law."

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While scholars question the legal principles espoused by the Tea Party, some are celebrating the organization's role in democratizing discussions of constitutional principles.

"The content of the movement's understanding of the Constitution is not always easy to nail down, and it is almost always arguable," writes Adam Liptak in The New York Times. "But it certainly includes particular attention to the Constitution's constraints on federal power (as reflected in the limited list of powers granted to Congress in Article I and reserved to the states and the people the 10th Amendment) and on government power generally (the Second Amendment's protection of gun rights, the Fifth Amendment's limits on the government's taking of private property)."

According to Liptak, by focusing on these elements of the Constitution, the Tea Party is helping bring our nation's sacred document to the forefront of national, political conversations. If that is a goal of the Tea Party, it may not hurt to have Virginia Thomas on board.

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