Category Archives: legal

Podcast March 10, 2010

Posted on March 10, 2010 | Leave a comment

“My show” podcast — March 10, 2010

David Leonhardt’s article on health care finance.

Why don’t we leave the lawyers alone?  Detainee lawyers criticized by Lynn Cheney, while other conservatives come to their aid.  (New York Observer commentary) (New York Times article)  The left criticizes Bush administration lawyers.  This is politics.  The lawyers are doing their job, fulfilling an important role in the system — in both cases.  What do you think?

The Chief Justice wonders, “why we’re there” referring to the State of the Union address and Obama’s criticism of the court.

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Posted in Barack Obama, detainees, economics, health care, legal, podcasts, politics, Uncategorized

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Military Tribunal or Civilian Courts for Terrorists?

Posted on January 6, 2010 | Leave a comment
By Marc Seltzer; originally published on January 6, 2009, at care2.com

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The recent decision to treat the perpetrator of the December 25, 2008, terrorist attack on a commercial airline flight as a criminal defendant, rather than as an enemy combatant, again raises questions about the use of civilian courts for terrorists.

A foreign national enemy soldier in U.S. federal court, will not, in fact, receive all the constitutional rights of U.S. citizens.  Still they will receive more substantial legal protections than likely to be provided in a military tribunal.  Why then provide all the rights and process of U.S. civilian courts, rather than simply relying on military courts and justice?

The answer relates more to the failure of the Bush administration to effectively establish and use military tribunals than to the appropriateness of federal court for terrorists.  The Bush administration created secret prisons and harsh interrogation techniques but no workable process for judging enemy prisoners.  Under the circumstances, Republican criticism of the Obama administration decision to prosecute Abdulmutallab in civilian court is hypocritical.

This case is different in key ways from the case of the five Guantánamo detainees, who will be tried in federal court.  For example, the government will seek the death penalty for the five Guantánamo detainees.  After the damage to the government’s reputation because of treatment of prisoners at Abu Ghraib, and questions about interrogation and legal authority for detention without trial at Guantánamo, the execution of these detainees without a traditional civilian trial would have aroused international outrage and significant domestic criticism.

However, the December 25th attempt to destroy a plane as it descended towards Detroit failed, and no injuries resulted.  Thus, the government will likely seek incarceration, not the death penalty.  Moreover, Defendant Abdulmutallab has not been interrogated using enhanced techniques and his detention will be at the hands of the Obama administration, which has disallowed torture.  Therefore, there is not the same need to demonstrate the legitimacy of the process as there was with the Gauntanamo detainees.

The Bush administration proposed to deal with detainees outside of the civilian legal process, but parts of its plans were rejected by Congress and the courts.   After scandals at Abu Ghraib and questions about the administration’s treatment of prisoners and judgment in reviewing detainee cases without judicial oversight, the Bush administration lost some credibility in its role as authority over detainees.  This also cost the executive branch authority to use what should have been an ordinary process in time of war, the military tribunal.

The Obama administration has asserted that it will use tribunals in some cases.  For example, where evidence against a detainee is not sufficient to achieve a conviction in a civilian court, the administration will still seek to incarcerate people it believes are a threat, using a military tribunal.  Similarly, if a large number of foreign soldiers needed to be tried, it would overwhelm a civilian court, but be easily accommodated in the more flexible rules of a tribunal.

It makes no sense to try every enemy soldier in a civilian court. But the Obama administration will have to pick up where the Bush administration failed.  It will have to demonstrate to Congress and the courts that it can conduct military tribunals with the right mix of prosecutorial judgment and judicial process.

For now, the December 25, bomb attempt left an obvious trail of evidence and only one defendant.  This is an easy case for a federal court to handle.  Moreover, the defendant started providing information to the law enforcement officials immediately upon his arrest.  CIA or military intelligence officials could have been called in, but the defendant cooperated and provided detail immediately, according to the administration.  Under these circumstances, the administration’s decision to prosecute Abdulmutallab in civilian court was sound, although the greater challenge will come as the administration tries to prosecute some of the remaining Guantánamo detainees in military courts.

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January 6th, 2009, UPDATE:  In depth discussions on foreign policy and detentions on C-Span; President Obama discussing security issues.

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Firefighters in the U.S. Supreme Court

Posted on July 23, 2009 | Leave a comment

Originally published at care2.com on July 1, 2009

The U.S. Supreme Court decision regarding Connecticut firefighters is interesting for two principle reasons: it overturns a decision in which current Supreme Court Nominee Judge Sonia Sotomayor participated, and it provides Supreme Court authority in the sensitive and controversial legal area of race-conscious decision-making by government authorities.  The heart of the issue is whether there was sufficient justification for the city of New Haven, in charge of promoting officers in its fire department, to reject results of a test that saw no black candidates reach promotion, despite many applicants.

The High Court was called upon to make a difficult decision, and the 5-4 breakdown of the court shows it was a close call.  The majority opinion and dissent, penned by Justices Anthony Kennedy and Ruth Bader Ginsberg, respectively, provide details of the city government’s and the high court’s analysis of the fairness of treatment of minority firefighters and the legal standards that govern one aspect of how race should be dealt with in the workplace.

Falling into the trap of football politics and simplistic analysis, early reports call the decision “a blow to diversity in the American workplace” and a win for the conservative approach to discrimination law (more responses). However, this case is not Plessy v. Ferguson (perpetuated race-based discriminiation) or Brown v. Board of Education, (rejected “separate but equal” treatment of minorities).  The distinctions in this case, if given honest, unbiased consideration, are so subtle and intertwined with legal policies that they require in-dept analysis and some speculation to figure out what they could mean and achieve in the workplace.

Justice Anthony Kennedy’s opinion rejected arguments that past discrimination at the fire department (where there has been only one African American of 21 fire captains), perceived unfairness in the exam (some concerns were voiced at a public forum when the results were announced while experts interviewed had mixed responses), and state agency concern over being sued for discrimination would justify the city’s throwing out the results — which promoted only white and Hispanic firefighters.

The facts before the Court showed that the city authorities made significant and costly efforts to create a fair, consciously race-neutral test.  Evidence from scholars and testing experts showed that the tests and results were in line with those for good tests given elsewhere and did not make a clear case of evidence of a bad test.

The city rejected the test results out of concern that they turned out to discriminate against African Americans and that they would result in lawsuits from African American firefighters.  It is possible, but not certain, that other tests would achieve more race-neutral results.

Crucially, the majority decision found that there was not enough evidence under the legal standard, which the city was expected to use, to throw out the test results and deny promotion to white and Hispanic firefighters with higher scores.

Local government officials in Connecticut worked hard to try not to descriminate unfairly.  This is commendable.  The Court said that they erred when they took the further step in throwing out the results of a test designed carefully to be fair, without more evidence that it was, in fact, unfair.

The dissent disagreed.  Four members of the Court felt that past discrimination, test results (black candates passed, but didn’t score high enough for promotion), and local government concern over being sued by black candidates was enough to throw out the test and start again with a new process in hopes of better eliminating unfair descrimination.

This situation may still indicate that unfair racial descrimination exists in testing procedures used by government agencies.  However, it also shows that significant efforts were made by officials acting in good faith to avoid prejudice and unfair assessment.  The majority’s decision says that under these circumstances, it is not fair to winning candidates to throw out the results of their exams.

The city government and both sides in this Supreme Court decision tried to remove unfairness from the process of promotion of fire officials.  That is what we pay them for.  If respect were accorded to effort and not results, we would recognize in the workings of our government and the behavior of its leadership nobility of purpose and integrity of character.  Next time, the results may be different, but let us hope that the effort by public authorities can rise to the level of that evidenced here.

Governmental authorities may also consider the New Haven testing program a failure and may go on to make even greater efforts to root out testing problems if and where they exist.  The Court makes no determination of what other efforts governmental agencies should make in order to achieve fairness for its citizens.

Nor does it stop African-Americans from filing suit where they believe that they were discriminated against by tests and processes.  They may have a case where outcomes differ by racial groupings.  The issue would be different than in the current case (Constitutional or Civil Rights Act claims of unfair or unequal treatment) and the outcome could be different.

I think I can say all this and still have deep compassion and concern for African-Americans that have not yet found a level playing field for competition in the American workplace.  The discussion and investigation of problems must continue aggressively.

We need to do the best we can because our nation has embraced merit and rejected prejudice as a defining principle.  Let’s continue on that path.  But anyone that labels the various decision-makers he

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Judicial Nominee Sparks Debate on Racism, Discrimination

Posted on July 13, 2009 | Leave a comment
By Marc Seltzer; originally published on July 13, 2009 at politicsunlocked.com

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As the hearing on Judge Sonia Sotomayor’s nomination to the Supreme Court commences, there is a great focus on whether Judge Sotomayor is biased. This reflects more the nations’ prejudices than it does any real question about the judge. She has been on the bench for sixteen years, and there is little informed concern about the impartiality of her decisions.

The Ricci decision, in which she rejected claims by Hispanic and white firefighters in favor of the city of New Haven’s effort to aid African American firefighters, clearly does not show a bias towards her Hispanic cultural identity. Her decision followed federal law, which allowed cities such as New Haven to take remedial efforts where discrimination was argued or perceived. In concert with other federal judges, she deferred to Congress in its lawmaking and the city in its application of the law. While a five-member majority of the U.S. Supreme Court reversed her decision last week and provided a new authority for lower courts, this hardly paints her as either biased or activist.

Her comment, “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life,” has also inspired a strong reaction and many questions regarding her perspectives on race and gender.

News reports about her judicial temperament showed her to be no-nonsense, tough, smart, detail-oriented, and fair. Even those on the losing side held her in high regard. Some critics have harped on her toughness on lawyers appearing before her as a negative aspect, which reminds me of a very tough senior federal judge I have often appeared before. He sometimes berated lawyers and their arguments and had no tolerance for the unprepared. In my experience, I went out of my way to make sure I was ready for every hearing, and I was nervous in my uncertainty about how each hearing would go. But I did not question his capacity for the job because he was particularly demanding.

Judge Sotomayor’s comments off the bench do raise questions about the role of personal characteristics such as gender, race, religion and culture in judging, but do not create real issues about her capability or about the nature of her judicial philosophy. Justice Sanual Alito said essentially the same things that Judge Sotomayor has said – noting the impact of his Italian heritage and experience as an Italian American on his judicial outlook – without raising an eyebrow. When this kind of sentiment is expressed by a white male, it sounds “cultural,” like a tribute to our shared melting-pot cultural identity. But when the same ideas are expressed by a minority voice, it raises the concern in some of reverse discrimination as if minorities given a voice must necessarily use it in a power grab.

After a period of being attacked, without the opportunity to respond, the hearings will be Judge Sotomayor’s forum to speak. Republicans have noted that while they cannot seriously expect to thwart Sotomayor’s confirmation, they can use the hearings as a platform to argue judicial philosophy. As their criticism so far has been off the mark, it is likely that it is they who will receive a schooling in the Senate.

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What We Wont Learn from the Sotomayor Confirmation Hearings

Posted on July 11, 2009 | Leave a comment

By Marc Seltzer; originally published on July 11, 2009, at politicsunlocked.com

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If there is one legal question that is profound and topical, the discussion of which would be deeply thought provoking and educational in the Supreme Court nomination hearings of Judge Sonia Sotomayor, it is the constitutional division of power between the different branches of government.

The power struggle between the branches is most notably implicated in the national debate over the Bush administration’s conduct of foreign policy and war.  President Bush and Vice-President Cheney asserted generally exclusive executive branch authority in the conduct of intelligence, detention of prisoners and avoidance of oversight in national security operations after 9/11.

Now that Bush and Cheney are out of power and more information is coming out about their conduct, opponents of such policies are on the attack, calling for investigation.  Only the most recent issue is whether Vice-President Cheney directed that the CIA withhold information from Congress that Congress has by law, demanded that the executive branch provide.  Other red-hot manifestations are whether the use of torture by the administration can be subject to explicit laws banning such activity, and whether the President was in fact required to brief congress regularly on its conduct of foreign policy and military action, as Congress has demanded.

Underlying this and other such conflicts is the question of constitutional authority in the different branches of government.  The President is the Commander-in-Chief.  Does this grant the President sole authority for decisions relating to national security, or is it an authority shared by the peoples’ representatives in Congress?

In the same vein, what are the limits of such Presidential authority?  Can the President authorize torture if he believes it is necessary for national defense?  If Congress requests that the President provide information on on-going military operations, can the President ignore the request if he believes that to follow it will harm the operations?

The ultimate answers to these questions cannot be known until the U.S. Supreme Court decides each issue in the context of specific facts presented in a lawsuit.  But a Supreme Court nominee could give us her reflections and a certain education.  This would be far more meaningful then the competing assertions of power by the administration and congress.  Of no more use are the pundits and professors who weigh in.  Almost universally, commentators take political positions based on desired outcomes, but give no real insight into what the Supreme Court would be likely to do.  The Supreme Court is deeply aware of its profound power and cautious about its legitimacy in asserting its authority over other branches of government – being the unelected branch.   Pundits have none of this real world caution.

Consequently, the Supreme Court tends to go to great lengths to avoid constitutional questions, instead deciding cases on smaller technical matters whenever possible.   There is nothing wrong with this judicial approach, except that it leaves many of us wondering where the bounds of legislative or executive power really are.

I, for one, have no doubt that they are not where the President and Congress say they are.

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Supreme Court Reverses Sotomayor Panel in Ricci Case

Posted on July 8, 2009 | Leave a comment
By Marc Seltzer; originally published on July 8, 2009 at politicsunlocked.com

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The Supreme Court recently overturned an opinion issued from a three-judge appellate panel including Supreme Court nominee Judge Sonia Sotomayor. The core of the case turned on how a government agency, in this case the city of New Haven, Connecticut, should deal with potential discrimination against minority employees.

The city took a number of steps to address concerns about discrimination in promotions for fire department officer positions, such as making great efforts to create a race-neutral test and ensuring that minority officers from other departments participated in the candidate evaluation process. The lawsuit arose when the city decided to throw out the results of the firefighter promotion exams because no African-American applicants achieved top scores, meriting promotion.

The Supreme Court decision sheds some light on how government entities are expected to handle discrimination concerns. However, it does not fit as nicely into the affirmative action debate as commentators claim. It also fails to provide any significant evidence against Judge Sotomayor’s promotion to the U.S. Supreme Court.

It was white and Hispanic firefighters who sued the government in Ricci v. DeStefano when their success on the exams was disregarded. They lost their case in the lower courts and petitioned the Supreme Court for a final review. The Supreme Court found that once the promotion exams were completed, the city needed evidence that the exam was discriminatory, beyond just the results themselves, to justify disregarding those results. This, the city did not have. It had a history of discrimination, where only one of 21 fire captains was African-American, and it had a fear of lawsuits from unsuccessful black candidates, a legitimate concern recognized in the law guiding cities’ decision making on employment matters, but it did not have evidence that this test was unfairly discriminatory.

The Supreme Court decision was 5-4, with Justice Anthony Kennedy writing an opinion joined by Justices Scalia, Thomas, Alito and Chief Justice Roberts. The decision does not seem to overturn much law on affirmative action or to allow discrimination against minorities to go unchecked. It does say that once a hiring process is completed and candidates are ranked for promotion, it should not be upended without evidence that it was faulty.

The dissent would have allowed the city to disregard the test results in light of past discrimination and suspicion and potential legal challenges over the results themselves. There was evidence that another type of exam process might have yielded different results and the dissenting opinion considered that sufficient to put the test results into question and justify the city’s action.

Judge Sotomayor, along with two other appellate judges, had agreed with the trial judge that the city was within its rights to redress what it perceived was a problem in the test results. Justice Sotomayor will be asked about the decision in the nomination hearings next week. However, her position was hardly the type that should concern the judiciary committee reviewing her nomination. Sotomayor followed existing law on an issue where there is obviously substantial disagreement.

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Justice Sonia Sotomayor Fits the Obama Mold

Posted on May 29, 2009 | Leave a comment
By Marc Seltzer; originally published on May 29, 2009 at politicsunlocked.com

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The nomination of Justice Sonia Sotomayor to the U.S. Supreme Court fits perfectly with President Obama’s vision for good government: independent intellect, moderate politics, and pragmatism.

Sotomayor is a first generation Puerto-Rican American of humble upbringing. She distinguished herself academically, graduating summa cum laude from Princeton and editing the Yale Law Journal. Like Mr. Obama she proved herself and opportunity followed academic excellence.

Sotomayor has acknowledged that being Hispanic and a woman may be qualifications, or at least qualities, important to her professional career. “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life,” she said in a speech. This differs from President Obama who hesitated to make distinctions part of his political language and for whom “we” most often meant middle-class Americans.

Republicans have attacked Sotomayor’s remarks as identity politics and raised fears of a judicial philosophy of preferences. But is this just grasping for straws?

First, simply, is the question of what she meant. Did she mean that it was about time for women and Hispanics to be better represented in government service? After all, there have been 110 Supreme Court Justices since the nation’s founding, and only two have been women. None have been Hispanic except Justice Benjamin Cordozo, of European Jewish ancestry, who may have had Portuguese bloodlines a few centuries back. Arguing that Cordozo keeps Sotomayor from being recognized as potentially the first Hispanic on the Court is nonsense.

Or did Justice Sotomayor mean that experience in life – adversity, discrimination, and disadvantage – helped her to build character and taught her about life in a way that wealth and social status might not have?

Conservatives may worry that she would be an advocate for women and for minorities on the court, emphasizing sympathy over the legal rules. This treads into especially difficult waters. Politically, liberals have often taken up the causes of women’s and minority rights. In the legal context, at least, conservatives have opposed affirmative action, or race-conscious government actions as reverse discrimination.

Commentators refer to decisions rendered by Ms. Sotomayor as technical and narrow rather than ideological and sweeping. In one case she emphasized how “embarrassing and humiliating” the school strip searches can be to teenage girls. Is this comment a sign of prejudice and activism? Because Sotomayor’s decisions are mainstream and are specific responses to facts rather than sweeping pronouncements of political theory, it is a stretch to find in them judicial activism or bias.

What is easier to find is pragmatism. Justice Sotomayor is known for concentrating on the facts of each case and for diligence and care in crafting her decisions.

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A Judicial Review: Justice Richard Posner

Posted on May 20, 2009 | Leave a comment
By Marc Seltzer; originally published on May 20, 2009 at politicsunlocked.com

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A potential candidate for the U.S. Supreme Court?

Justice Richard Posner of the U.S. Court of Appeals for the 7th Circuit is a giant in the field of legal theory. In association with others at the University of Chicago Law School, Posner is a chief architect of a movement called “law and economics”: efforts to bring free-market economic thinking into legal theory. Consequently Posner is known as a conservative for his economic principles. However, he does not take broad ideological positions. For example, he supported the government’s recent efforts to stimulate the economy using public funds, but he opposed the use of tax rebates because he concluded that the public would save this money rather than spend it. Instead, he endorsed spending on roads, bridges and other infrastructure, generally in line with Democratic Party positions.

Justice Posner is also a unique Supreme Court candidate because he has expressed so many opinions outside of the courtroom. He has written 40 books and hundreds of articles. He also maintains an active blog with colleague Gary Becker and is considered the most prolific justice in U.S. history. He has expressed support for environmental regulation, abortion rights and other principles that make him appear socially liberal. On the other hand he has supported a powerful government in the context of national security, defending the use of torture and limiting press freedoms in a way that is not popular with critics of the Bush administration.

Can such a person be nominated to the U.S. Supreme Court?

In the past, this would not have been a problem. However, since the 1980s, every Supreme Court nomination has become a power struggle and performance where the political parties attack the other side and try to score points while painting the opposition as extreme. The nomination of Posner would be difficult because it would appeal to centrists from both parties, but it would also be a sitting duck for attack by ideologues from both parties.

The question for President Obama is whether he believes Posner would make a great justice. Obama knows Posner from their time together on the faculty at the University of Chicago Law School. They share a pragmatic view of politics and policy. Is the President willing to apply his political capital in support of a candidate who will draw fire from his own party? Is Obama comfortable appointing a justice with such an independent mind that his judicial decisionmaking is difficult to predict?

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A Judicial Review: Professor Cass Sunstein

Posted on May 15, 2009 | Leave a comment
By Marc Seltzer; originally published on May 13, 2009 at politicsunlocked.com

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Harvard Professor Cass Sunstein is 54, the same age as Justices Kim Wardlaw and Sonia Sotomayor, profiled here in recent weeks. A longtime Professor at the University of Chicago Law School, where he was a colleague of President Barack Obama, Sunstein is one of the country’s leading legal scholars. He has published widely with particular interest and expertise in environmental issues, information technology, and behavioral economics.

Sunstein is referred to as a liberal, but his political philosophy is not easy to categorize. He would appeal to some conservatives because of his belief that judges should carefully limit their focus to the case at hand, leaving the larger legal rulemaking to legislators. Mr. Sunstein supported the nomination of Bush appointee John Roberts Jr. to the Supreme Court. Roberts had articulated this philosophy of judicial minimalism in his Senate confirmation hearing.

However, when Justice Samuel Alito was nominated by President George W. Bush, Mr. Sunstein wrote a detailed analysis of Alito’s conservative rulings arguing that Alito was a “conservative’s conservative.” The op-ed did not overtly oppose Mr. Alito’s nomination, but it sought to make plain theesssential conservatism of Alito’s positions.

This type of record is something that would not be available for those considering Professor Cass as a nominee to the high court. He has not served as a judge and has no record of judicial decision-making to dissect.

Professor Sunstein left the University of Chicago to join the Harvard Law faculty this academic term, and in January was nominated by the Obama administration to be head of the Office of Information Technology and Regulatory Affairs.

He is extremely creative and forward-thinking. His most recent book Nudge: Improving Decisions about Health, Wealth, and Happiness, which he co-authored with Richard H. Thaler, discusses a framework for moving society’s decisions in the right direction.

Responding to the question, “How does anyone determine what’s “good”? How do we determine what’s good for the environment?” in a recent interview, Sunstein explained,

“For most nudges, we’re thinking of people’s good by reference to their own judgments and evaluations. We’re not thinking that the government should make up its own decision about what’s good for people. The environment can fit within that framework to a substantial extent, but it has a wrinkle, which is that often when we buy certain goods or use certain energy or drive certain cars.…we inflict harm on others, so our own judgments about our own welfare aren’t complete. We want nudges that do help people who are being nudged but also help people who are harmed by those who are not taking adequate account of the risks they are imposing on other people.”

Sunstein’s pragmatism also seems a good fit for President Obama, demonstrated in the following quote:

“I think on a lot of problems, including environmental problems, we can make progress without getting stuck on issues that divide people. The price system can be used in a way that fits with people’s moral obligations. If you’re inflicting harms on other people but the costs of your actions (become) higher, then you’re probably going to inflict lower harms on other people. One of the great tasks of the next decade is to ensure that when people are creating risks though their daily activities, that they bear the cost.

I believe also that one big motivator of behavior is economic and another big motivator is moral, and for certain environmental activities we should appeal to people’s conscience. A lot of people are buying hybrids not because they save money, which they might, but because it’s the right thing to do. I just bought a hybrid myself. The reason I bought it was moral.”

Fundamental to Sunstein’s public policy theory is the idea that more information makes people more able to get the right outcome. If Sunstein is nominated to the Court, or if he is confirmed in the position at the Office of Information Technology and Regulatory Affairs, we should expect to receive an education.

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Immigration Solutions

Posted on May 12, 2009 | Leave a comment
By Marc Seltzer; originally published May 12, 2009, at care2.com

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Last month, after President Obama announced the beginning of a discussion on immigration reform, I wrote a blog discussing the fundamental political conflict at the heart of the matter:  Legalization for twelve million or so immigrants, whose status is currently illegal.

The two solutions offered by opposing sides are:  (1) strict enforcement of current law, leading to deportation of the illegal work force and those family members without legal residence; or (2) legal status and a path to citizenship with a fine for breaking the law.

The first option is not realistic because of the human costs, economic disruption and political beliefs of the majority of Americans and their representatives.  Those who see this as a black and white issue, where illegal means “no rights” are missing the historic context of a nation built on immigrants and hard work, not entitlement and status.  It’s not that illegal immigration is right, it’s that this solution is not right.  The nation may or may not be capable of policing its borders, but it is not capable of ten million deportations.

The second option is essentially the same “Amnesty” program that was implemented under President Ronald Reagan, with the addition of a potentially significant fine to punish and discourage the immigration law violations.

There has not been much discussion of the fine or potential restrictions of this type of legalization.  This may be where there is some room for compromise.  There is no reason that the fine could not be substantial, that the path toward citizenship could not be long, or that some immigrants could not be put in legal worker programs, where they would not be entitled to a path to citizenship without further application along with other non-resident applicants.

A stricter, more “punishing,” legalization program would serve to discourage illegal immigration in the future, especially if legal quotas for immigration kept up with the labor needs of U.S. employers and employers who broke the law were sanctioned.

If the second option (legalization) can be achieved politically, then the 12 million people who can take advantage of the program will come out from the shadows of the law and establish legal identities in the American system.  If this option cannot be achieved politically, the status quo may continue for another period.  This option has many negative consequences.   For the illegal residents, they suffer exploitation and lack of legal participation in the society in which they live.  Society loses their number in the census, in some tax collection and public allocation of resources.  Unfair competition with the legal workforce is also a problem.

So far, anti-legalization forces have not shown an interest in creative compromise.  It’s time they did so.  The failure to enact legal reform does not create a better real-world solution.  Helping to create an immigration program for the future that is realistic and firm is the best way to get the legal framework in line with an enforceable legal reality.

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