California Discovers Federalism

2018-07-20 · Guest: Joe Mathews (Journalist at Zócalo Public Square) · 51:41

Filed under: Federalism and exit · Immigration · Markets and money · Taxes, spending and debt · The Constitution and the courts
Topics: 10th Amendment · Federalism · Immigration · Minimum Wage · Welfare State

California residency status for undocumented immigrants

Bob Zadek and Joe Mathews discuss a proposal for California to create its own “residency” status for undocumented immigrants, effectively using the 10th Amendment to bypass federal immigration enforcement. They explore the economic necessity of immigration for an aging society and the role of federalism in setting policies like the minimum wage and occupational licensing.

Topics: Federalism, Immigration, 10th Amendment, California Residency, Welfare State, Minimum Wage, Zócalo Public Square, Medi-Cal, Prop 13

Speakers: Bob Zadek, Joe Mathews

The Crisis at the Border [00:18]

Bob Zadek: Good morning, everyone. Welcome to the Bob Zadek Show, the longest-running live libertarian talk radio show on all of radio. For 11 years, we have been the show of ideas, never the show of attitude. Thanks so much for listening this Sunday morning.

This morning, we’ll be discussing an interesting subtopic on the contentious, always in the news, painful to watch what our federal government is doing topic of immigration. It is for me heartbreaking to see the news every night, to see what the federal government is doing in my name and presumably on my behalf to immigrant families, immigrant children at our borders. It breaks my heart, and I wish, I wish I had the capacity myself to change things. But change will come, I hope.

The media has become very active, the mainstream media and not-so-mainstream media, in encouraging a change. So far, that change has not been reflected in any change in process. But in furtherance of that and to encourage a change, I’m delighted to welcome to the show this morning a journalist, Joe Mathews. Joe Mathews writes for Zócalo Public Square. It is a blog center sponsored by Arizona State University or administered by Arizona State University. Joe’s column appears syndicated in many newspapers around the country. Specifically for today’s show, there was a piece which caught my attention in the San Francisco Chronicle. Joe’s thesis in his piece and the subject of this morning’s conversation is Joe proposes—I will just give you the topic and Joe will expand—Joe proposes that California in particular, and perhaps states in general, be allowed to create and enforce and regulate their own immigration policy independent of that of the federal government. Joe, welcome to the show this morning.

Joe Mathews: Great to be with you, Bob. Thanks for having me.

Bob Zadek: Now, Joe, I gave a one-line—you never can summarize a thoughtful piece in one line. So please expand, if you will, and tell us the thesis in your piece entitled, “In Great American Tradition, Let California Take Undocumented Immigrants.”

Defining California Residency [02:50]

Joe Mathews: Sure. I guess it’s about an opening, and I must say I was inspired by conversations with a number of different people, particularly a fellow named Dave Marin, who’s the research and policy director for the California Freedom Coalition, which is sometimes the butt of jokes. There are different groups that have gotten notice for being on the ballot or trying to get things on the ballot, initiatives on the ballot to have California leave the Union. The Freedom Coalition is the most moderate of those proposals. It actually doesn’t call for secession; it calls for seeking greater autonomy as much as possible from the federal government over the long term.

And then there’s the idea of residency, and the idea that California should be able to determine who is a legal resident. In the Constitution and federal law, the federal government in our country gets to decide who citizens are. That’s not true in all sorts of places. I’ve spent a lot of time in Switzerland, where actually your local government gets to decide who a citizen of the country is. But that’s a very federalist system, a truly federalist system, a strong federalist system, unlike the US.

So that’s the context. Could we protect immigrants, the immigrants that we want to protect? Could we make that decision? And I think the answer is that we could, and we have begun. It’s sort of a natural extension of what California’s been doing. People talked about a “California package” over the many recent years, from in-state tuition to Medi-Cal or Medicaid eligibility for undocumented immigrant children. There’s this sort of driver’s licenses for undocumented folks. There’s a sort of suite of things there.

But I think the ability to say that certain people are residents—I don’t think it would be all undocumented immigrants. There are certainly people in that class that we don’t necessarily want in the country. But there are folks who are part of families with other Americans, or that serve in the military, or hit a number of other groups that we would grant residency to. This is not a new idea. The state has a very strange body called the Little Hoover Commission. It’s a reform body, a state commission that way back in 2002 suggested creating a Golden State Residency Program. In the context there, the idea was to accelerate the integration of immigrants, all immigrants, including the undocumented, into California society. And so the idea there was that anyone who is participating in their local community—that was sort of the standard suggested—should be considered a resident with the rights and responsibilities that entails. That might even include voting in local elections, as is about to happen in San Francisco, where immigrants will be able to vote in school board elections soon.

And the idea, the way I would argue that this could provide protection: if you were a resident, if you had a residency program, I think you would then go to the federal government or perhaps sue the federal government seeking ultimately a resolution where you can protect at least your own immigrants. And the idea is, of the ones you’ve chosen deserve protection because of whatever status or whatever they’ve done. So if a California resident was in another state, for example, and ICE or the federal government grabbed them and wanted to deport him or her, what I would like to happen is that person had to be deported back to California. If the federal government didn’t want to do that and deported them anyway, they would have to—the federal government would agree to bear all the related costs of that, including any costs the government takes on to take care of any family they might leave behind here in the US and California.

Bob Zadek: Now, Joe, would the group of immigrants who you are protecting under this proposal, would they be otherwise considered by the federal government to be illegal immigrants and undocumented and therefore subject to deportation? And if so, here they are living in California under the protection of California residency, a new status which you have created. So now, wouldn’t the federal government—because now they’re still not welcome legally in the rest of the United States—would the federal government have to now build its wall along the California border with Nevada? Because now all you’ve done is move the wall from the southern border to California’s eastern border. How would you prevent—if the government says we want to keep out bad actors, and if they are welcome in California or California has a different standard than the federal government, how does the federal government protect the rest of the country from doing an end-run around the wall?

Joe Mathews: Well, I think the issue—I mean, there is a wall in California, but we set the walls in different places. But remember, even that question is a foolish question. It’s not like the border is the point of entry for people. People come into our country mostly by the airports, okay? And they don’t come in illegally jumping around fences; they come in legally, and then often they stay. I get every kind of ignorant email every time you write about immigration that says, “These people knew they were coming over the border illegally.” No, they didn’t come over the border illegally. Most of them came for legal purposes and they’ve stayed.

And in many cases, they’ve done everything legally right. When it was no longer—when they no longer stayed legally, they began the process of trying to stay legally. But we have a broken immigration system, terrible federal bureaucracies that take way too much time, take years to do things that could be done in matters of days or weeks. It’s funny, people complain about the government can’t do anything right in other contexts, and in this context will tell you, “Hey, everything’s perfect and if you’re in any violation, it must be the person’s fault and not the government’s fault,” right?

So that’s the context. The wall is nonsense. That’s not how we control the immigration in the past. And in fact, the way things work in this country is it’s not even a wall. If you drive down to that part of the state, you’re not going to be sort of checked right at the border; you’re going to be checked several miles from the border. We have sort of zones near the border, the 100 miles and all that. I don’t want to bore you with the details. But the ultimate thing is, yeah, I mean, the people with California residency cards or however we identified them would not be welcome in other parts. So I would hope other states might follow our thing.

And we wouldn’t want to have dangerous and violent people in the state either. Anyone convicted of a violent felony, under current laws, is not welcome here. I think a residency program should enshrine that. The people we’re trying to protect are people who haven’t done anything violent, haven’t committed a serious crime, but have family members who are US citizens or legal permanent residents, people who are veterans of the US military. We have a lot of people who are in the US military and veterans of it who are not US citizens, and I would include their spouses, probably, the veteran spouses, asylum seekers. That’s something where there’s just gross violation of law, Constitution, and all sorts of treaties and basic principles of human rights by the current administration. People coming for your protection just to seek asylum, those people should have actual protection while they go through that process. And then the Dreamers, who are now without status. That’s 800,000 people nationwide; a couple hundred thousand of those are in California, 25% of them. That’s who you’re trying to talk about. You get to decide who your residents are as a state has a right to do in our system, and you protect them. And much better to know who everyone is, to bring people out of the shadows. That’s the other virtue, right? When people have the status of residency, they might be able to do other things like make illegitimate businesses or businesses in the shadows legitimate so they can grow, get different kinds of financing. I spend a lot of time in South LA, South Central to the world, and there’s tons of very ambitious people who have been here for 10, 15, 20, 30 years who have businesses that they could grow and do more with, but for their status. Giving them status would be this economic boom. The notion that these immigrants are in some way an economic weight is nuts. This is being told to us by a president who thinks that putting tariffs on things is anything less than a disastrous economic strategy. There’s no need for a wall unless you’re foolish. Plus, the Colorado River is not that easy to cross.

The “Sanctuary State” and Economic Realities [13:48]

Bob Zadek: What you’re really describing, now that you’ve clarified or explained more about your approach, you’ve captured my imagination. What you seem to be describing is, in a very formal way, California becomes a sanctuary state in official status. That is, California creates a status, California residency, and what you’re really saying is people who California will permit to have this status, who are otherwise in the country illegally under federal law, so long as they stay in California, they do not have fear of deportation. And even if they leave California, if they go to Nevada or to Texas, the worst that could happen to them under your theory is they get deported back to California. Not the worst thing that could happen to somebody, I dare say, especially because of the weather. So I think what you’re saying is—is it fair to summarize what you’re saying, is this a fair characterization, that you are proposing that the federal government, if help is needed at the federal level, the federal government endorse the concept of sanctuary states? And then you’re encouraging California, “Hey California, it is good for civic life and good for business for you to be a sanctuary state. It will be good for the economy, people will be happier here, and only good will come of it.” Is that a fair summary of your proposal?

Joe Mathews: It is. I would also point out it’s also good for a lot of US citizens who are in the same family as people who are now under fear. It also gives protection from—I’m not a big ideologue. Context matters, and the context here is the federal government that is sort of, you know—ICE is a terribly incompetent, abusive federal bureaucracy that predates Donald Trump. It’s whole history is still less than two decades, and we somehow managed to survive as a country without it. Now it’s pitched as essential by the Trump folks. We just want to protect people from that.

And we also want to protect families. There are a lot of families that are mixed, right? And in many cases, it’s American adults, younger adults and children with parents or grandparents who are more likely to be undocumented. And that’s, you’re just essentially trying to keep families together long before there was this big controversy about separating people basically fleeing Central America at the border from their children. The policy of family separation has been the policy for years, aggressively pursued by the Obama administration and the late Bush administration, which is to separate American children from their parents. I see this. Not that many years ago, people across the street from me in LA, the parents were separated by ICE, came early in the morning, took the parents away, deported them, leaving behind an 18-year-old who was about to start her freshman year at UC Riverside with her four-year-old brother alone to make it as they may. In that case, I dug into it and it turned out that the mother had once been accused of shoplifting, and they had been previously deported so they had a second illegal entry. But it strikes me that that’s the sort of person, sort of people who should be protected by a California residency program so they can raise their American children, one of whom has gotten into our elite university system, so she could actually do that and not have to quit to take care of her four-year-old brother. That’s the kind of context I’m thinking about.

Immigration and the Welfare State [18:25]

Bob Zadek: Most economists, and I’ll include Milton Friedman, who’s written a lot about this—Milton Friedman, of course, is one of the most well-known libertarian free-market economists, Nobel Prize winner.

Joe Mathews: May he rest in peace. I interviewed him several times when he was alive.

Bob Zadek: Ah, did you? Interesting. Well, Milton Friedman thought about long and hard about immigration and how immigration can exist, how an open border policy can exist in a welfare society. And I say that with no pejorative; that’s just a statement of fact. The United States has reasonably generous welfare benefits, as we all know. And Milton Friedman concluded, and his conclusion carries infinitely more weight than almost anybody else’s, Milton Friedman concluded in a data-driven analysis that immigration, an open border more or less policy, cannot exist in a welfare state. It will bankrupt us. And therefore he said, ideally, he said—you’re not going to agree, Joe—that we have to scale back the welfare benefits. Well, of course, our society is not quite ready for that, perhaps never will be. But if you don’t do that, then you have to simply deny welfare benefits to immigrants or else the system will die. You can’t have the two policies; both are important, they can’t coexist.

Joe Mathews: So I haven’t read his work on that subject. I spent much more time talking about tax policy and his involvement in the development of Prop 13 and some other things since he was a Californian at Stanford.

Bob Zadek: And getting rid of the draft.

Joe Mathews: And getting rid of the draft. But I would dispute that premise. I actually think societies with relatively high degrees of welfare need immigration because, particularly aging societies like our own—and you see this even more dramatically in a place like Japan—you need younger people to be—you need productive young workers who pay taxes to cover our welfare suite of things, which disproportionately go to older people because they tend to be sicker and most of our welfare goes to health. So there’s very little evidence of a bankrupting of such. And where you see it in California, where we’ve extended Medi-Cal to undocumented kids, there’s virtue in that. If those kids stick around, become Americans, we want them to be healthy so they are well-educated, are productive taxpayers who pay for the retirements and all the benefits that go to older people. And they also do well enough that they can buy your house, which you may need to sell in this country to pay for all the things you need at the end of your life.

So that’s to me, that’s the context of it. And I think the problem, potentially, we still—the Trump argument makes it sound like we’re in the 1970s and ’80s when we had all this immigration to the country. We don’t. I mean, the only crisis is capacity’s been created by the way that this has been handled. We have very low, almost historically low levels of immigration. We’ve had a period in the last decade where we had net zero, negative immigration from here in Mexico, which has been a big source of immigrants. And Latin American immigration is way down. California immigration from Asia is more than that from Latin America, and those are still at very low levels. And that’s a problem. We actually need right now more immigrants. We have in the country historically high levels of job openings. We have massive shortages of skilled workers and college grads. We certainly should be pursuing more immigration amongst people who either are skilled workers or college graduates or are very likely to become those folks.

That’s the conversation we should be having. It’s sort of shocking. And that’s where I think it’s pretty obvious that a lot of the policy we’re seeing and the conversation we’re having is sort of driven by not by the realities of immigration but by fears, racial and ethnic fears are driving it, not a sort of logical, what’s actually happening at the border. The border is not hordes going—I go to the border, it’s not hordes crossing. And to the extent people are crossing, they’re crossing both ways into Mexico; people are going back. It’s just a different context. The Latin American birth rates have gone way down, just like American ones. And our birth rates here are now low, well below replacement in California and dropping. Last year, California had the lowest birth rate in recorded history, lower than even during the depths of the Great Depression. So that’s California’s a place we have a lot of immigrants, but they’ve been here a long time, right? We don’t have that many new immigrants, and we could use some, particularly those who have the capacity and the desire to become well-educated and thus productive members of society.

Bob Zadek: This is Bob Zadek, and I’m speaking with Joe Mathews. Joe has written a very intriguing piece for Zócalo Public Square which caught my attention and captured my imagination. Joe and I are discussing the concept of a California residency, a special immigration status where California can become sort of a sanctuary state. Is it good for California? Could California lead the way and show the vibrancy and the importance of the 10th Amendment? An amendment that’s not quite an amendment. More about that after the break. We’ll be back in 60 really short seconds to further our discussion on federalism and immigration policy. Please stay tuned. Lots more to follow.

[Commercial Break]

Federalism and the 10th Amendment [26:05]

Bob Zadek: Welcome back to the Bob Zadek Show, the longest-running live libertarian talk radio show in all of radio, the show always of ideas, never of attitude. This morning, we’re speaking with Joe Mathews. Joe has written an interesting piece, “In Great American Tradition, Let California Take Undocumented Immigrants.” Joe’s proposal in part suggests an immigration status called California residency, where otherwise undocumented immigrants would be lawfully in the state of California even if perhaps not welcome legally in other states. That, of course, invites a conversation of one of my favorite topics, which is federalism.

Federalism is a concept which reminds us that since our country’s founding, we had separate but equal levels of government, the federal government which in theory in the Constitution was only assigned certain enumerated responsibilities and powers, and all other powers were given to the states. In fact, I would like to—it’s only one short sentence—open this discussion of federalism with a quote, which is the one-sentence, short-sentence 10th Amendment to the Constitution, often forgotten but needs to be—we need to be reminded of that. The 10th Amendment to the Constitution says, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, and to the people.” In other words, almost all the powers reside in the states or in the people, and only enumerated powers are reserved for the federal government. That seems like a bit of a cruel joke when you read it today given the power of the federal government. But Joe’s suggestion reminds us of the 10th Amendment, that why not devolve power back to the states, in this case, the power to grant residency status, to put out the welcome mat for a certain class of undocumented immigrants? Joe suggests the California would set the standards, and therefore otherwise illegal immigrants would be welcome, would be in the sunshine, would have driver’s licenses, would have many of the rights of residents, perhaps all of the rights of residents, not citizens but residents. And that, of course, brings to mind and invites a discussion of federalism.

One interesting side light before I turn it back over to Joe is I’ve read to you what is called the 10th Amendment. Rather strange title, even though it’s the 10th Amendment and it’s part of the Bill of Rights, is that as I read it, it doesn’t amend anything. It’s a reminder. It’s a “don’t forget, folks, that lots of power resides in the states.” So it doesn’t in any way amend the Constitution; it just tells readers of the Constitution, “Don’t forget about the states,” because the founders felt that was important. So interesting why it’s called an amendment when it doesn’t amend anything. That’s for another show, perhaps for no show ever. I wanted to just mention that.

Now, Joe, isn’t it fair to say that in your proposal, you are simply embracing, at least insofar as immigration is concerned, the concept of federalism and saying, why not have at least part of our immigration policy decided by the states? And if you are right, Joe, that California can give welfare benefits or some welfare benefits to California residents who are otherwise undocumented aliens or undocumented immigrants, whatever the words you want to use, that California will show—maybe Joe is right, or maybe Joe is partially right, or maybe Joe is wrong—and California will become, in the words of Justice Brandeis, yet another innovator of democracy, which is what the states are supposed to be. So you and I don’t have to agree on whether it’ll work or not; we do agree it ought to be tried.

Joe Mathews: Right. I mean, that’s right. I mean, this is certainly 10th Amendment territory, it’s federalist territory. You know, it’s—I mean, the great irony is that a lot of sort of liberals and progressives who in other times, other contexts, have not been great fans of the 10th Amendment, have been willing to, in the context of President Trump, really sort of embrace its full fruits. I will say California does have a history of such carve-outs and exemptions, and probably the best-known ones involve, you know, are now almost 50 years old, date back to powers and exemptions that we were granted under President Nixon, a Californian himself, around to pursue sort of different policies on higher standards around auto emissions, air quality, and the like, in part because of our famous problem of smog here. So that—I mean, we still utilize that, though that is of course now being contested by the Trump folks, who are not 10th Amendment people or much even really constitutional people, I would argue, they’re for the guy in charge getting to decide everything he wants. But that’s a larger problem, that’s a bigger problem than what we’re talking about today.

And, you know, we have a lot of different rules. I mean, I’m not sure if it’s always a great thing. I mean, just, you know—I mean, I could, you know, tell you lots of funny stories about when it gets into the areas of licensing and occupation in the state, which is completely crazy and overdone, all kinds of license structures, but we often—in many cases, we proudly don’t align with, you know, other kinds of—you can be an architect anywhere in the world, for example, but California has an entirely different set of rules and a different test you have to take. The basically international architecture sort of rules which apply everywhere else in the US don’t apply here. I mean, some of it comes from litigation. For example, this is actually something of quite importance when you get into special education, for example, and you’re trying to test people to kids to find out, you know, if they’ve got learning disabilities. There are actually specific—it’s a result of a court case—basically make it basically illegal to give an IQ test to an African-American kid.

Bob Zadek: Well, it’s interesting, Joe. You mention licensing. I have done lots of shows on licensing. It’s an issue of great importance to libertarians because it denies economic freedom. But what’s interesting is California, which has had in recent history very strongly Democratic, i.e., progressive administrations pretty much in total control of all branches of state government, is the state with economic freedom index of 49th or 50th out of 50. So California, in the exercise of its constitutionally given right of what it can legislate as a state, has failed in many ways. And it’s interesting you picked that because it’s been progressives often are the proponents of those licensing rules because states have the power to do so.

Joe Mathews: I agree. I mean, we’ve done it with water and I would say healthcare where we’ve had freedom we’ve tried to be generous. Certainly our extension of Medi-Cal benefits to undocumented folks is an example of us exercising our rights under federalism. We do a lot of other things in a lot of other areas, and we have a big fight now and have had it with both Obama and Trump on education standards where we’ve very much sought to go our own way. That’s being driven by the very powerful, the bigger and more powerful of the teachers’ unions in the state. And so, you know, I mean, there’s good and bad to all of this depending on where you’re coming from.

The “Bonus” of Welfare Benefits [35:38]

Bob Zadek: Now, Joe, you had mentioned before the break that you seem to favor allowing those otherwise illegal or undocumented immigrants who have the status of California residency, you seem to welcome the idea or not being opposed to it of giving them full or somewhat meaningful welfare and other similar type healthcare benefits. And I was wondering why that would be part of your proposal. If the assumption is, or at least it’s my assumption, that most immigrants come here not for the purpose of welfare, they come here for the American dream, which is not homeownership, but the American dream is to live free and to have their children have the possibility of a better life than they had, and to simply live with the ability to preserve their life, liberty, and the pursuit of happiness. That’s the American dream. If that’s why immigrants seek to come here, since they’re not coming here for welfare benefits, why do you find it appropriate or necessary or desirable to also offer them some bonus, as if freedom needs a bonus, to offer them the bonus of welfare benefits? Wouldn’t you have a policy that’s more acceptable to more people if you had a period of time during which these holders of California residency would not be entitled to most benefits other than perhaps education and perhaps emergency healthcare, maybe? Why do you feel it necessary to throw in the bonus?

Joe Mathews: Well, because it’s in the reason you listed to come, to have your children do better. And you want children to have healthcare and health coverage. You don’t want them in emergency rooms; that’s more expensive. So having kids on Medi-Cal—and, you know, we’re now at a point where well beyond immigrants, half the kids in California are on Medi-Cal and more than a third of all Californians are on. So I want them to be—younger immigrants tend to be younger so they’re not big users of such benefits, and even the legal folks who are eligible and undocumented folks are less so. I mean, made this exception for kids in Medi-Cal, which seems wise. Educational benefits, I want them to be healthy, I want kids to be developed well and healthy. I mean, this only works if you integrate kids and make them healthy and ultimately hopefully some of them wealthy members of society so we can have the sort of investments we need. I mean, that’s the basic reason to do it. I mean, if, you know, I would much rather—I mean, what are you talking about the suite of benefits? Not terribly generous, but if you’re looking at like, you know, sort of, you know, basic family of three sort of welfare benefits which are still at like 700 bucks a month in California, not too much, not going too far. And I think people are using, need the assistance of SNAP, of food stamps to feed their kids. I would organize it—I mean, I’d probably, you know, I mean, they’re residents and we could make them eligible or not eligible for certain benefits they would be in the class of folks that we give, but I would try to, you know, give—I would focus on giving families and particularly children what they need to succeed because this really works for the state when the kids do well and succeed and become taxpayers and buy your mother’s house when she dies, you know? I mean, that’s what we’re talking about here. So that’s the idea. I mean, I don’t want to throw money at people and make people dependent. I don’t, you know, I think you’re looking for the support of benefits that do the opposite, that get people who may be poor when they start out through. I mean, certainly things that make people eligible for in-state tuition, not that that’s any bargain anymore in today’s California, but the extent you can do that, that’s smart. I mean, does it put people on a growth trajectory? That’s what you’re looking for.

Bob Zadek: Isn’t there a danger that since people respond to incentives and to stimuli, that if, for example, the deal was, if you become a California resident, you will have economic freedom, you will earn money, you can be hired, you will pay Social Security and you will be in the economic system, but for a period of time, you will not be in the welfare system, then wouldn’t that have the effect of eliminating whatever number it is—and I don’t know how much it is, and maybe it’s very low—but wouldn’t that eliminate those immigrants who are motivated primarily to get welfare benefits? I’m suggesting it’s not a very high number anyway; I’m not trying to impugn that. I have too much respect for immigrants.

Joe Mathews: You could do that. You could do what you suggest. I mean, of course, life is complicated. I mean, you have the mother who comes, who’s an asylum seeker from El Salvador, comes with two kids, is working two jobs, putting the kids to school, and let’s say she’s got an older mother that she wants to bring. That older mother might need older health things, is going to draw more, but the mother also helps her, you know, pick up the kids from school and and—I mean, you know, I mean, things are complicated. And, you know, I don’t—I mean, I—I think, you know, you’re talking about freedom and people often find their best solutions. And I certainly would rather have that mother, even if she’s not working and is, you know, I don’t know, getting the benefits of Medicare, right? She has a real economic value long-term if those kids are safe and they’re being picked up from school and they’re doing their homework so the mother can, you know, work and prosper. I mean, that’s the context of reality here. If our benefits are too generous and we’re having to look at that, I mean, just with the aging shape of our society, you know, can we continue to be this generous and be able to afford these for, you know, particularly the older age stuff for people like me, you know, Gen Xers who are 25 to 30 years away from retirement? You know, that’s a bigger question. But I mean, making sure those immigrant kids do well, that the asylum seeker’s kids do well if they stick around, that’s the, you know, that’s where the long-term economic value is to all of us.

Bob Zadek: I have just one thought. The “generous” word used was generous benefits. Those benefits, while they are valuable, the fault line perhaps or a fault line between how I would approach your suggestion of California residency would be: while those benefits, health and other societal benefits, are of course valuable, but what I would suggest that my view would be the system to provide those ought to be voluntary. Charities and churches and the like. And if Californians felt that immigrants needed that added benefit, those who felt that way could contribute, and those who didn’t feel that way would not contribute. The fund would be created to be used for the purpose of providing those benefits to immigrants. But forced charity is something that I just find myself immediately railing against. Charity is good, but charity is forced.

Joe Mathews: That’s a libertarian—that’s a very principled libertarian view and you’re a libertarian. I mean, I’m a squishy moderate and I do think that that sort of system would be—you’d have a very different society and you would have a less wealthy society.

Bob Zadek: Maybe more, maybe more wealthy.

Joe Mathews: I don’t think so. I think you’d have a society—I mean, look at the history of our state. The heart of it when it succeeded, it’s not the government and it’s not private; it’s actually sort of social compact stuff with the two working together. I mean, that’s the story of the place. And where I would meet you is, I mean, honestly, I’m talking about state-level stuff, but I would particularly—I dislike our state government; it’s way too powerful and too centralized. That’s probably where we agree with the libertarians on it. I wish a lot of these things were done at a very local level. I mean, if it were me, I would do what the Swiss do, a very free society where, you know, citizenship and tax collection, those kinds of things are done at the local level and then some of the money flows up. You know, to me, that’s the happy medium between what you’re talking about, where no forced charity, you know, where these things are decided at the local level. I mean, we don’t really live in the state. I mean, this is such a big state and we’re about to cross into 40 million people.

Bob Zadek: We’re about to become three states. We may become three states.

Joe Mathews: No, we’re not. That guy kicked off the ballot this week. It’s off the ballot.

Bob Zadek: Joe, we have a couple of minutes left. I agree, we are totally simpatico on that. I’d like to raise, just to test your federalism bona fides, let’s—we only have time for maybe one more topic, very briefly. Minimum wage laws are a big deal in this country. It’s been—it may be a topic in 2020 or 2018, who knows, but it gets talked about a lot. Joe, minimum wage laws. Federal—we have a federal minimum wage law, and states and cities and localities all have living wage laws, have their own wage laws which are higher than federal. Would you support, now that you are or now that you have certain see certain benefits of the principle of federalism, no federal minimum wage, let the states decide, just like you would have states decide immigration policy? Anything wrong with that?

Joe Mathews: No, and probably because the issue I’m not a big fan of minimum wage laws. I don’t like the statewide one so much here either. I again that particularly because I spend a lot of time in different parts of California and our regional economies are so different. If you’re going to have those laws, which I would tend not to want to have, I would they should be at the—you know, we’re a collection of regional economies and they should be at a regional level, not a state level and certainly not a federal level. I mean, I think, you know, I’ve covered that and I write a lot about direct democracy and lead the Global Forum on Direct Democracy. And basically, that’s—I feel like the people in California who reach for that, you know, are folks who are worried about inequality and what’s happened to the middle class and have not found the tools or figured out how to revive it or their ideology keeps them from thinking about better ways to revive the economy and revive middle class, and so they reach for that out of desperation because it’s something they can do. But yeah, I mean, I think that’s an easy one. I mean, yeah, I mean, ultimately things like wages should be set at the unit of economy, and in this country, our economies are very much regional.

Bob Zadek: How about set at the level of the market and never mind government at all?

Joe Mathews: Again, your libertarian bona fides are unchallenged. But yeah, I mean, I do think it should be—if you’re going to do that, which I’m not sure you want to, it should be done at the level by the people who are living in, dealing with the economy with, in consultation with people who work there and own businesses there and the like. I mean, there, you know, it’s—I’m a big believer in participatory democracy, and I could see, I mean, in my ideal world, I would have not so much elected officials, but regular folks who have some background, who are in the economy or employers, different people represent different roles who, you know, would decide regional economic policy and make those decisions based on their knowledge and experience.

Bob Zadek: Joe, tell our listeners about Zócalo. Tell us about Zócalo Public Square, what its mission is and how our friends out there can follow your writing.

Joe Mathews: Sure, it’s zocalopublicsquare.org. We do two things: we put on free public events, about 40 or so a year, mostly in Southern California but in other parts of California around the country via partnership with the Smithsonian where we do events and publish essays about what it means to be American. And then we publish on all kinds of topics. We’re very eclectic, but often about place and ideas. We’re a media nonprofit, so we publish daily, put on free public events, and try to do it in a very open, ecumenical spirit. Our motto is that we connect people to ideas and to each other.

Bob Zadek: Joe, thank you so much. John Philip Sousa is telling us we’re all done here today. Joe, thanks so much for joining us for this hour. I truly enjoyed it, as I’m sure my listeners, our listeners have as well. This is Bob Zadek saying so long to Joe, so long to all my friends out there. I’ll be back next Sunday for another hour of ideas, not attitude. Thanks so much for listening, enjoy your Sunday.

Show prep notes

Bob’s own preparation for this episode.

Twitter: @ThePublicSquare

Website: zocalopublicsquare.org

“Zócalo Public Square connects people to ideas and to each other by examining essential questions in an accessible, broad-minded, and democratic spirit. At a time when our country’s public sphere and our global digital conversation have become ever more polarized and segregated, Zócalo seeks to create a welcoming intellectual space and engage a new and diverse generation in the public square. We pursue our mission by convening events and by publishing ideas journalism. Because democracy is as much a culture as it is a system, we believe that creating meaningful opportunities for citizens to communicate with—and learn from—one another both nurtures and protects it.”

This day in History (7/22)

1937 – The United States Senate votes down President Franklin D. Roosevelt’s proposal to add more justices to the Supreme Court of the United States.

Main Article:

In great American tradition, let California take undocumented immigrants.”

Mathews writes the column from the perspective of the state of California, taking Trump administration [To: Acting U.S. Secretary of Homeland Security Elaine Duke and Attorney General Jeff Sessions] to task for its scapegoating of immigrants, and forcing California to be complicit. Here’s his big idea:

‘But if civil war is not your intention, let’s make a deal that would protect Californians and perhaps de-escalate the conflict, at least over immigration.

Under this deal, Congress and your administration would grant me, California, an exemption from federal immigration law, just as the U.S. government has granted me exemptions to fight air pollution.”

He proposes creating a new status of “California residency” for undocumented immigrants. This was proposed back in 2002 from the Little Hoover Commission (city of Little Hoover). It would provide legal aid to those being deported. Mathews also seems to be in favor of broad government benefits (healthcare, education, etc.) for immigrants.

If California could control its own immigration policy, it wouldn’t have to deport undocumented immigrants.

“One great American tradition is our federalist system — letting states choose their own paths and seeing how things work out. California is confident that being a haven that integrates immigrants will produce far more greatness than your approach of removing millions of people and breaking up families.”

Academic literature:

The Constitutional Dimension of Immigration Federalism, by Clare Huntington

Examples of state-based immigration policy – mostly anti-immigrant:

In Farmers Branch, Texas, the city council enacted a measure to fine landlords who rent their premises to unauthorized migrants, and in Arizona, the state legislature passed a law imposing stiff penalties on employers who intentionally or knowingly hire unauthorized migrants. In San Francisco, the board of supervisors passed a measure that bars law enforcement officers from inquiring into the immigration status of an individual in the course of a criminal investigation. In Alabama and Florida, state officials have entered into agreements with the federal government permitting state law enforcement officers to arrest and detain non-citizens on immigration charges. Other examples of non-federal involvement in immigration abound. Although these efforts vary in type and political orientation, increased state and local involvement in immigration—often referred to as “immigration federalism”—is one of the most important developments in immigration policy.

…

Most legal scholars decry immigration federalism – it’s more likely to result in discrimination, even if California wants to use it to the benefit of immigrants.

Structural preemption holds that Federal government has all the authority over immigration:

This Article challenges the structural preemption argument, contending that the constitutional mandate for federal exclusivity over pure immigration law is far more contestable than the traditional debate would suggest. The text and structure of the Constitution allow for shared authority. Until the late nineteenth century, states enacted immigration laws, and nothing in Supreme Court precedent clearly supports a claim of structural preemption.

Apart from “pure” immigration law, which is federal jurisdiction, there is alienage law, which determines the rights and obligations of non-citizen in the country.

Some states are enforcing immigration law because of the federal government’s unwillingness to do so, while others (like California) are refusing to enforce federal immigration law.

“Alaska, Maine, New Mexico, Oregon, and the District of Columbia have policies restricting local law enforcement of federal immigration law.”

What does the Constitution say?

“Unlike most other areas of law understood to be exclusively federal, the text of the Constitution does not grant sole authority over immigration to the federal government.95 Instead, the Constitution refers only to a uniform rule of naturalization.96 The authority of the federal government to regulate immigration has been found in other sources, including the authority inherent in sovereignty,97 the authority to conduct foreign affairs,98 and the authority to regulate foreign commerce,99 but not in the words of the Constitution.

Doesn’t forbid states from immigration policy, as it does with alliances, treaties, etc. Author concludes that there is more room for states to try their own policies along the lines of alienage laws.

Immigration Federalism: A Reappraisal (2013)

The California “Residency” Permit Plan

Bob Zadek: Now, Joe, you can never summarize a thoughtful piece in one line, so please expand, if you will, the thesis in your piece entitled, “In Great American Tradition, Let California Take Undocumented Immigrants.”

Joe Mathews: I was inspired by a fellow named Dave Moran, the Research and Policy Director for The California Freedom Coalition, which is sometimes the butt of jokes. They were trying to get initiatives on the ballot for California to leave the union. The Freedom Coalition is the most moderate of his proposals. It actually doesn’t call for secession — it just asked for as much autonomy as possible from the federal government over the long term.

The central idea is that California should be able to determine who is a legal resident. Whereas now the Constitution and the Federal government get to decide who citizens are, that’s not true in all sorts of places. I spent a lot of time in Switzerland where the local government gets to decide who the citizens of the country are. But Switzerland is a truly federalist system unlike the U.S.

Could we protect the immigrants we want to protect and make that decision for ourselves? This is what has begun and it is a natural extension of what California has been doing over recent years, regarding everything from in-state tuition to Medicaid eligibility for undocumented immigrant children.

There is something like a driver’s license for undocumented folks, but the idea of the piece was that California should have the ability to determine that certain people are residents and we want them. Not all undocumented immigrants would become residents – there are certainly people in that class that we don’t necessarily want in the country. But there are folks who are part of families with other Americans, or that serve in the military, or are from a number of other groups that we would grant residency to. This is not a new idea. The state has a very strange body called The Little Hoover Commission, formed in 2002, that created a Golden State residency program to accelerate the integration of immigrants.

The idea was that anyone who was participating in their local community should be considered a resident with the rights and responsibilities that entails, which includes voting in local elections – as is about to happen in San Francisco, where immigrants will be able to vote in school board elections. I would argue that this could provide protection if you were a resident. If you had a residency permit you could sue the Federal government, seeking a resolution to protect at least your own immigrants, or at least the ones you deemed deserving of protection. If a California resident was in another state, for example, and the Immigration and Custom Enforcement grabbed them for deportation, I would like to have them deported back to California. If they deported them anyways the Federal government would have to bear all the costs.

A New “Border”

Bob Zadek: Now, Joe, would the group of immigrants you are protecting under this proposal otherwise be considered by the Federal government to be illegal immigrants and undocumented and therefore subject to deportation? Here they are living in California, under the protection of California residency – a new status you would have created.

Now, since they are still now illegal according to the rest of the Federal government, would the government now have to build a wall along the California border with Nevada? Because now all you’ve done is move the wall from the southern border to California’s eastern border. If the government says they want to keep out bad actors, but California has a different standard, how would the Federal government protect the rest of the country from doing a run around the wall?

Joe Mathews: I think this is a foolish question. The border is not the point of entry for most immigrants. People mostly come into our country by the airports. They don’t come in illegally by jumping around fences. They come in legally, and then they often stay.

Every time I write about immigration someone says “these people knew when they were coming over the border illegally.” But they didn’t come over the border. Almost everyone came for legal purposes and decided to stay. In many cases, they’ve done everything legally, right? They just stayed illegally while they were in the process of trying to stay here legally.

We have a really broken immigration system with terrible bureaucracies that take way too much time. They take years to do things that can be done in a matter of days or weeks. People complain about how the government can’t do anything right in other contexts other than this context. They will tell you that everything’s perfect and if you’re in any violation it must be the person’s fault – not the government’s fault.

The wall is nonsense. That’s not how we controlled immigration in the past. Under current law, you’re not going to be checked right at the border, you’re going to be checked 100 miles away from the border. I don’t want to bore you with the details, but people with residency cards, or however we identified them, would not be welcome in other parts of the country. I would hope other states might follow our idea.

We wouldn’t want to have dangerous and violent people in the state either. If anyone is convicted of a violent felony, even under current laws, they are not welcome here. I think the residency program protects people who haven’t been violent and haven’t committed a serious crime, but have family members who are U.S. citizens or legal permanent residents. People who are veterans of the U.S. military who are not U.S. citizens — and I would include their spouses. Another group is asylum seekers. That is something where there is just a gross violation of law of the Constitution and of all sorts of treaties and basic principles of human rights by the current administration.

And finally, the dreamers would have status. That is, 800,000 people nationwide — a couple hundred thousand of which are in California. 25% of them are in California. That is who we are trying to bring in as residents. This program is about getting to decide, as a state, who our residents are, and who has the right to do what in our system.

It is much better to know who everyone is and to bring people out of the shadows. When people have the status of residency, they might be able to do other things like make a legitimate businesses so they can grow different kinds of financing. I spent a lot of time in South L.A., South Central, and there are tons of very ambitious people who have been here for 10, 15, 20, 30 years, who have businesses they could grow and do more with. The notion that these immigrants are in some ways an economic weight is nuts. I mean, this is being told to us by a president who thinks that putting tariffs on things is anything less than disastrous economic strategy.

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