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Immigration policy and the rule of law I

[ 23 ] November 22, 2014 |

Scott addressed the most glaring flaws with Damon Linker’s column the other day, but I want to discuss another one: his invocation of his commitment to “the rule of law” as a reason to oppose this executive action:

The rule of law is far more about how things are done than about what is done. If Obama does what he appears poised to do, I won’t be the least bit troubled about the government breaking up fewer families and deporting fewer immigrants.

As Scott said, this doesn’t stand up to scrutiny first and foremost because the case that Obama is operating outside the law is simply incorrect, as Russell Arben Fox, who holds a view congenial to Linker’s, has acknowledged in comments. But there are additional reasons to be troubled by it. I confess I’m increasingly dubious of the way the rule of law is used in political debates; Judith Shklar’s observation that the rule of law “may well have become just another self-congratulatory rhetorical devices that grace the utterances of Anglo-American politicians” rings true to me, especially with an “and pundits” added. But let’s consider it more carefully. The conception of the rule of law advocated here is one that appears to only apply to how the different parts of government relate to each other, and not how the government relates to the governed. This is consistent with an old and venerable tradition—one that predates liberalism and democracy—in ‘rule of law’ thinking; that the rule of law is satisfied when the monarch (and his agents) operate in a manner consistent with the law, whatever that may be.

But the rule of law is an essentially contested concept, and there are other uses of it in circulation. In a liberal and democratic world, we have some very good reasons to care about how the law governs not just the interaction of different parts of government with each other, but how it shapes the interactions of the different parts of government with the governed. Jeremy Waldron:

There may be no getting away from legal constraint in the circumstances of modern life, but freedom is possible nevertheless if people know in advance how the law will operate and how they have to act if they are to avoid its having a detrimental impact on their affairs. Knowing in advance how the law will operate enables one to plan around its requirements. And knowing that one can count on the law’s protecting certain personal property rights enables each citizen to know what he can rely on in his dealings with other people and the state. The Rule of Law is violated, on this account, when the norms that are applied by officials do not correspond to the norms that have been made public to the citizens or when officials act on the basis of their own discretion rather than norms laid down in advance.

On this account, it is difficult to square existing immigration law with the rule of law: it authorizes the deportation of many millions of current settled residents, while a) explicitly authorizing significant administrative discretion, and b) only appropriating the resources for a small fraction of those eligible to be deported in any given year. As Ilya Somin puts it,

To the extent that the rule of law is in jeopardy here, it is because the scope of federal law has grown so vast that no administration can target more than a small percentage of violations, thereby unavoidably giving the president broad discretion.

In other words: when statutory law is simply too vague, broad, or general to authorize a predictable pattern of governance as written, the rule of law is enhanced when administrators prioritize and systematize with administrative law, assuming they do so in a manner consistent with the spirit and general intent of the law and other constitutional norms.

I’ve written about Joe Carens excellent work on the political theory of immigration here before. One of his smarter pieces of non-ideal theory is this defense of what he calls the ‘firewall’ requirement for states that have a population of irregular migrants. Carens assumes for the sake of argument that states have the right to deport such individuals. However, insofar as they’re not deporting them, they ought to have a number of basic legal rights and protections in common with residents in general. This can be framed as a matter of basic human rights, as Carens does, but it’s also a rule of law issue—for one’s life to be governed predictably by law one must have access to the parts of the state that provide for various protections. But the threat of deportation cuts of access to what the rule of law provides:

The fact that people are legally entitled to certain rights does not mean they actually are able to make use of those rights. It is a familiar point that irregular migrants are so worried about coming to the attention of the authorities that they are often reluctant to pursue legal remedies and protections to which they are entitled, even when their most basic human rights are at stake….States can and should build a firewall between immigration law enforcement on the one hand and the protection of basic human rights on the other. We ought to establish a firm legal principle that no information gathered by those responsible for protecting and realizing human rights can be used for immigration enforcement purposes. We ought to guarantee that people can pursue their basic rights without exposing themselves to apprehension and deportation.

Carens’ firewall does not, unfortunately, exist (although many municipal governments have moved in this direction) and Obama’s executive order doesn’t create it. But for those eligible, it contributes to the same goal; it makes it more possible and likely that they’ll have reasonable access to the predictability and protections that the rule of law affords.

While we can acknowledge its important role in the history of the concept, it’s difficult for me to see any good reason for the use of a strictly formal concept of the rule of law indifferent to the nature of government/governed interaction today. It is the character and quality of those interactions that cause me to care about government in the first place. Linker’s clumsy attempt to use the rule of law against the Obama administration in this case highlights the shortcomings of that particular version of the concept.

Are the Mariners the best team in the American League right now?

[ 32 ] November 22, 2014 |

Ask 100 Mariners fans this question, and 85 would say immediately say no, and other 15 would eventually say it when they stopped laughing. So I expect I’m not the only Mariners fan struggling to process this. As the team managed to succeed and stay into contention through September this year, missing the playoffs by a single game, I became vaguely aware that the team was not, in fact, significantly overperforming or getting particularly lucky, but were, in fact, a borderline playoff team in true talent. But it never really sunk in or felt true.

Initially I approached this data with a similar skepticism. Surely this is a story about the flaws of projection systems in general.  But looking under the hood a bit, it doesn’t seem so unreasonable. The projections include some regression for Seager, Hernandez, and Cano, their three best players, as well as the bullpen as a group. The flawed prospects who underachieved in 2014, Zunino and Miller, are projected to continue to be flawed, making only modest improvements, mostly revolving around a correction for bad BABIP luck. Ackley is projected for a third consecutive modest step forward with the bat, to be cancelled out by regression on defense giving him no improvement at all. Austin Jackson is also projected for a modest bounceback from last season’s dismal showing, but given his age, talent, and three year track record, how could you not?

The most implausible sources of optimism, to my mind, are the playing time estimation for Saunders, the team’s fragile third best hitter and plus RF, as well as the IPs for Walker and Paxton. On the latter, though, it’s worth noting they’re not projected to be especially good, which will lessen the impact if they can’t stay healthy, assuming the team finds some passable inning-eaters on the cheap, which isn’t an implausible assumption.

As for DH, they’re projected to be just above replacement level, which would be a massive improvement over last year’s parade of horribles. I’m not buying the projections for non-prospect Romero; I’ve watched him try to hit at the major league level  and I don’t see a sustained 300+ wOBA there, but based on the current roster they could get that by using whichever SS isn’t playing the field that day. And, of course, they’ll presumably add a bat that projects to be above replacement level, although after the Hart/Morales fiasco it’s hard to be too optimistic about this seemingly modest task. So…huh. I’m not ready to be optimistic, but it’s nice to have a reason to think my pessimism might be not be entirely rational. Via Jeff Sullivan.

Stop making me defend Rick Perry

[ 28 ] November 3, 2014 |

The legal case against Rick Perry continues to underwhelm. The TPM headline is alarming; whatever one thinks of the merits of the case against Perry obviously threatening the grand jury is out of bounds, and Perry is powerful enough that he needs to take extra care to not appear to be doing that. But the alleged threat appears to be based on the following Perry statement:

I am confident we will ultimately prevail, that this farce of a prosecution will be revealed for what it is, and that those responsible will be held to account

This is boilerplate rhetoric for a battling indicted politician. The prosecution is specifically mentioned in the previous paragraph; I can’t see how a good faith reading of this statement could plausibly interpret it as directed to members of the grand jury.

Heroes of the day

[ 62 ] October 31, 2014 |

Kaci Hickox and Judge Charles LaVerdiere. LaVerdiere:

“We would not be here today unless Respondent generously, kindly and with compassion lent her skills to aid, comfort and care for individuals stricken with a terrible disease. We need to remember as we go through this matter that we owe her and all professionals who give of themselves in this way a debt of gratitude.”

I know that after decades of the wars on terror and (some people who use some) drugs, the notion that the evidence used to justify restricting basic rights should actually have to meet some kind of quality standards might seem rather quaint. But it’s not quite dead yet, despite the mendacious, lazy, and casually racist stupidity of ebolanoia and those who pander to it.

Non-citizens voting

[ 39 ] October 28, 2014 |

A good post here from John Ahlquist and Scott Gehlbach, and another from Michael Tesler here, responding to a rather sensational, oversold post from David Earnest and Jesse Richman, which was greeted with much enthusiasm by those who’ll take their justification for voter suppression wherever they happen to find it. The Earnest/Richman post was frustrating in its eagerness to over-extrapolate from some really small numbers to get a splashy headline. I haven’t read the paper (gated) they were discussing; but there’s reason to hope it might be better with the data than the blog post suggests. Earnest has done good work before; I’ve learned a great deal from his earlier work on patterns and practices of enfranchizing non-citizens, which are considerably more common than most people realize (mostly, but not exclusively, in local elections). 

The Stanford Political Science Experiment

[ 97 ] October 27, 2014 |

Admittedly, the allusion in my title oversells the story a bit, but this isn’t good.

It seems to me there are two issues here worth disentangling.

1) Is it ethical for researchers to interact with voters in a way that might change the outcome of an election (but with no intent to do so, and no partisan valence)?

2) Is it ethical for for researchers to do (1) while misrepresenting themselves as agents of the state?

I’m inclined to answer the first question with a ‘no’ but am willing to listen to arguments to the contrary. An anonymous political scientist in the TPM piece makes the case for a yes answer:

“I would say, just looking at the country at large, is the great threat to the integrity of our process good social science or is it the Koch brothers?” the source, who was not authorized to discuss the situation publicly, said. “You’ve got to be courageous about this. We need to know how to improve our politics and how to renovate it. We can’t just be playing Mickey Mouse games in the classrooms. We’ve got to be out there in the political world trying stuff.”

The Koch brothers thing is risible misdirection; whatever one thinks of the Koch brothers political activity in a post-Citizens United world, this is an entirely separate issue. The implied argument here is that the current trend in cutting edge political science research to eschew observational studies in favor of ‘experiments’ is, inevitably going to lead to manipulation of actual political events if it’s going to be done well. There’s some truth to this; ‘experiments’ conducted in artificial scenarios with a bunch of undergraduate volunteers will lead us to replicate the WEIRD problem in a good deal of psychological research (and only answer a very limited number of kinds of research questions).  That said, as someone with no professional attachment (and a skeptical attitude toward) to the experiments trend, my inclination is to say ‘so much the worse for experiments’; as with all social science methodologies it has real limits, in this case ethical ones, that need to be acknowledged. But I suppose it’s possible that there’s a conversation worth having about minor, random influence as potentially acceptable in some circumstances.

As for (2), though, I don’t see how there can be any debate at all. I can’t imagine what they were thinking if this was their intention (and it’s hard to account for their use of the state seal in the mailing in any other way). I would guess it was an effort to get more people to take their flyer seriously, but I can’t fathom what would cause someone to think that misrepresentation is in any way ethical.


Campaigning, Alaska-style

[ 42 ] October 22, 2014 |

Yes, the town of Wasilla will forever have to live with the shame of launching Sarah Palin’s political career, but it’s not their children’s fault, and they didn’t deserve this:

The Alaska Dispatch News reported that students and staff at Wasilla High School said U.S. Rep. Don Young (R-AK) “acted in a disrespectful and sometimes offensive manner to some students, used profanity and started talking about bull sex when confronted with a question about same-sex marriage” during his 60-minute appearance.

When one student asked Young why he thought same-sex marriage was so bad, the congressman responded: “You can’t have marriage with two men. What do you get with two bulls?” according to Wasilla Principal Amy Spargo.

Witnesses told the Dispatch News that Young’s comments on suicide also stunned the assembly, as students and staff were mourning the loss of a Wasilla student who took his own life last week. Young mentioned alcohol and depression and said that suicide shows a lack of support from friends and family, according to the witnesses.

This, of course, is coming right on the heels of Young implying that he may have murdered someone in retaliation for violating his personal space.

I’m sure the good people of Alaska will return him to congress to serve is 73rd term.

Changes in VMT forecasting

[ 18 ] October 22, 2014 |

Earlier this year, in a lengthy post about the disastrously stupid plan to replace the Alaskan Way viaduct with a risky, costly deep bore tunnel with no access to downtown Seattle (update: still not looking good!), I expanded my complaint to WSDOT’s planning process, mirrored by DOTs around the country. They exhibited a stubborn refusal to adjust their future projections about vehicle miles traveled based on a new information; up through the 2013 projection, they were insisting that the steady increase in VMT that characterized the second half of the 20th century is likely to return immediately.  The September 2014 WSDOT projections are now available, and something appeared to get through to them this time:

Washington State Transportation Revenue Forecast Council - Peak Traffic

Looking at the data, the change here is really striking: they went from assuming the 80′s are coming back immediately to assuming the modest declines in VMT per capita will not just continue but accelerate, such that VMT per capita is now projected to drop by over 1% per year, at a slightly increasing rate, throughout the 2020′s and 2030′s, resulting in a 2041 VMT per capita a full 33% below the peak rate (see pg 28 here). I would have expected formulas and assumptions to be tweaked and nudged, not radically revised. I think these projections are more sensible, and I obviously certainly hope they’re correct, but it’s striking to see such a dramatic change. One possible reason might be political–forecasts like this make extravagant highway projects funded by assumptions about the future more politically difficult. (That WSDOT might now recognize this is a good thing is a happy possibility to contemplate). Whatever the reason, this shift in forecasting is good political news regardless of whether it’s accurate or not, as Clark Williams-Derry explains:

Second, even if the forecast is wrong, assuming that traffic won’t grow much is the most fiscally prudent way to plan a transportation budget.

For far too long, “build now, pay later” has been the transportation budgeter’s mantra. In the 2000s, for example, Washington committed itself to massive road projects that it didn’t have the money to build. So the state floated bonds, assuming that revenue from gas taxes would show up to pay them off.

That hasn’t worked out so well. Traffic didn’t grow as expected, and gasoline and tolling revenue has gone AWOL as a result. Gradually, planners have come to realize that debt service will swallow up most of the state’s gas tax receipts, crowding out everything else. As the chart below shows, WSDOT predicts that within a few years three-quarters of the state’s gas tax receipts will pay for old projects.

And because so much of the state’s gas revenue is going to pay off old debts, state and local governments simply don’t have the money to keep existing streets and roads in good repair—let alone complete projects, such as the SR-520 bridge, that we’ve already started. And there’s even less money left for the transportation priorities where demand is actually growing, such as walking, transit, and biking.

The irony here is that one reason we might see future VMT decline is declining investment in transportation infrastructure maintenance, caused by foolishly overspending in the 00′s based on budgeting on future VMT increases. It will be interesting to see (and when I have more time I may do some digging) if this is part of a national trend. USDOT’s last VMT forecast appeared to be straight from the late 20th century, even as the US Energy Information Agency projected little to no growth. It’ll be interesting to see what they’ll do with the 2014 report.


Rick Scott’s fascinating new strategy

[ 100 ] October 15, 2014 |

You’re an unpopular governor running for re-election, burdened by a terrible record and an image and appearance more appropriate for a B-rate supervillian. You’re struggling to keep up in the polls with your opponent, a former governor of the state, who despite a record of mediocrity and rank political opportunism, is starting to look pretty good compared to you. With a few precious weeks to go before the election, what do you do? This, apparently.

Is there a constituency that isn’t quite ready to vote for Scott, but might be convinced to do so if acts even more like a petulant seven year old child? Seems implausible, but it’s Florida, so…

The cause of traffic fatalities is driving

[ 109 ] October 14, 2014 |

Good post by Philip Cohen on the absurd misdirection and dubious statistics surrounding the texting-while-driving panic. The parallel with making the famous crying Indian commercial about littering, rather than pollution/deforestation is apt. Driving, of course, is what’s deadly here, and texting-while-driving, like anything that takes your focus away from such a dangerous, high-stakes activity, is obviously a terrible idea, the effort to focus on this one distracting activity misdiagnoses the fundamental problem. A serious approach to reducing traffic fatalities would recognize that humans being what they are, there are real limits to the use of social norms and laws to make humans better driving machines (and for many reasons not immediately solvable via public policy, modern life isn’t really geared toward only driving cars when you’re well-rested, not distracted or angry, incommunicado with the outside world, etc). Getting drivers to take seriously the danger associated with the activity itself is key. Stigmatizing texting-while-driving is fine, but if we’re serious about continuing to push the fatality figures down, the most important thing we can do is make the kind of transit investments and change the regulatory environment to encourage the construction and development of neighborhoods and cities that facilitate low-car lifestyles. (To mount a hobby-horse of mine, down with parking requirements!) The good news is the kids want it, if we’ll let them have it.

Congratulations to Microsoft’s Satya Nadella

[ 35 ] October 9, 2014 |

The latest graduate of the Larry Summers school of leadership.

Things that probably shouldn’t have been put in writing

[ 78 ] October 1, 2014 |

Speaking of slow motion crashes suddenly accelerating, the latest from the flaming train wreck that is Mark Driscoll and Mars Hill Church. Back in July leaders of Mars Hill admitted that non-trivial portions of the millions donated to their “global fund,” ostensibly to aid in missions in Ethiopia and India, was in fact being pumped into the Church’s general fund, and whatever undisclosed salaries it supports. Today we learn, via Brendan Kiley, that Warren Throckmorton has got his hands on some internal memos suggesting that was the plan all along. From the memo:

The Global Fund could be beneficial in a number of ways, besides the obvious gain of increased funding:
• For a relatively low cost (e.g. $10K/month), supporting a few missionaries and benevolence projects would serve to deflect criticism, increase goodwill, and create opportunities to influence and learn from other ministries.

• Many small churches who may consider joining Mars Hill hesitate because they do not believe we support “missions.” While we need to continue to challenge the assumptions underlying a claim, the Global Fund would serve as a simple, easy way to deflate such criticism and help lead change in these congregations.

• The ability to communicate and interact with supporters of Mars Hill Global provides an avenue for promoting events, recruiting leaders, and developing Mars Hill core groups in strategic cities

Here’s at LGM we’ve managed to obtain an image of the meeting where the plan for the global fund was constructed. Context for the “low cost” estimate of 10K a month: as of May, the fund was taking in 300K a month. What’s most striking to about this memo isn’t the plan it reveals, which is more or less what I’ve come to expect from that organization. It’s that it was actually written down in some sort of formal memo. I’m legitimately curious about the intended audience for this memo. It was a group of people that, on the one hand, must have been assumed to be sufficiently cynical about the nature of the Church that such frank admissions wouldn’t be jarring or alarming, but at the same time, be deemed to be sufficiently trustworthy that they could be trusted with such a potentially damning document. How big was that group?  If I were running this scam, my concern would be that people who meet the first criteria were unlikely to meet the second, and vice versa, such that the number of people I would trust to have their hands on such a document must be very small, and the risks associated with putting something this in writing couldn’t possibly be worth it. The memo doesn’t appear to be dated, but it must have been sometime prior to the launch of Mars Hill global fund, which I believe was sometime in 2012. That would place this document most likely in 2011 or early 2012, well after Driscoll’s consolidation of power, but before ex-members and pastors started speaking publicly and critically about the Church in significant numbers, which makes this memo a striking artifact from the high water mark of an extraordinarily successful long con, just before the fall.

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