Center for Equal Opportunity

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Stop the Fear Mongering

The good news at the U.S. border with Mexico is that the flood of children from Central America crossing illegally, now totaling nearly 60,000, has slowed. The bad news is that those whose aim it is to stop legal immigration reform are using the kids to fan fears and turn a humanitarian crisis into political blackmail for anyone even contemplating positive changes in current law.

At the height of the crisis in late June, some 350 unaccompanied minors were crossing illegally each day. Last week that number had dropped by more than half. Clearly, news stories and a U.S. government-funded ad campaign in Central America, as well as word of mouth from immigrant communities in the U.S., have spread the word that kids who make it into the U.S. won't be able to stay permanently. The administration has already begun to deport children who came with parents, and even pro-reform advocates are pushing for changes in law that would treat Central American youngsters the same as Mexicans, allowing for expedited removal.

In the meantime, however, the children already here are suffering in overcrowded, unsanitary conditions -- and fearmongers are peddling disinformation to discourage communities from allowing the children to be housed more humanely. Protests have led ugly mobs to confront buses carrying the children to centers away from the border. Politicians from both parties have taken a hard line against allowing children to be housed in their communities. And cable news, talk radio and the blogosphere are filled with stories about an "invasion" of illegal immigrant children bringing disease and gang violence into the American heartland.

The worst stories suggest that the kids are carrying life-threatening infections. In what may be the most reprehensible allegation, Rep. Phil Gingrey, R-Ga., a retired ob-gyn, wrote the Centers for Disease Control and Prevention warning that the children may carry "swine flu, dengue fever, Ebola virus and tuberculosis." Ebola virus! The deadly virus -- which leads to organ failure and bodily fluids leaking from the eyes, noses and other orifices of victims, killing about 90 percent of those affected -- has never been found outside of Africa.

In an interview with NBC's Luke Russert, Gingrey acknowledged there weren't any known cases of Ebola among the kids, but then threw in smallpox as a possibility: "Smallpox, some of the infectious diseases of children, all of these are concerns." The last known case of smallpox in the world occurred in 1978. The World Health Organization declared the disease eradicated in 1980, and it exists only in a few laboratories (including one run by the CDC, which recently uncovered vials containing the virus in a forgotten storage closet outside of Washington D.C.).

The children come from countries that have a 93 percent vaccination rate against most childhood diseases, and given their social status in families able to afford the thousands of dollars in fees to transport them north, they are very likely to be among those who have been vaccinated. But in any event, the children receive vaccinations once in U.S. custody.

A few cases of flu, including one confirmed case of swine flu, and four of children who tested positive for TB have been found -- but the incidence in a population this large hardly suggests the danger of epidemics breaking out. More common are cases of scabies and head lice, both diseases carried by parasites: the first, a small mite that gets under the skin and causes a rash; the second, a problem that affects an estimated six million to 12 million mostly white children in the U.S. each year, according to the CDC.

There's little evidence to support the claim that the influx of unaccompanied minors includes many gangbangers, either. There is a direct link between the crisis and violent drug cartels and gangs -- but not what talk-show hosts would lead you to believe with their file-footage pictures of tattooed MS-13 members already in U.S. jails.

The kids are fleeing gangs in their home countries, not coming here to establish them. The whole breakdown in civil society, which has become endemic in parts of Central America, is a direct result of the drug trade that feeds America's nearly insatiable appetite for cocaine, meth, heroin and other illegal drugs. It's U.S. demand for illegal drugs coupled with the successful U.S. interdiction of drugs through the Caribbean that created the problem in Central America. As The Wall Street Journal's Mary Anastasia O'Grady recently noted, "This crisis was born of American self-indulgence. Solving it starts with taking responsibility for the demand for drugs that fuels criminality."

Fisher v. University of Texas – again!

About a year ago, the U.S. Supreme Court overturned a court of appeals decision that had upheld the University of Texas’s use of racial and ethnic admissions preferences, ruling that the court of appeals had not been strict enough in its scrutiny of the school’s discrimination against the plaintiff, Abigail Fisher.  Last week a divided court of appeals panel on remand has again upheld the university’s discriminatory admissions policy (here are the judges’ opinions). 

It’s likely that this case is now headed back to the Supreme Court. The good news is that the court of appeals ruled on the merits — it did not deny Ms. Fisher’s standing or send the case back to the trial court — and that there is a strong dissent.  For most of the balance of this week’s email, I’d like to offer a few more thoughts on the panel’s decision.

By the way, the Fisher case is one in which the Center for Equal Opportunity has been involved for a long time, filing two briefs in the Supreme Court and two in the court of appeals — and even filing an administrative complaint before the lawsuit was brought.  And we plan to join and help write a brief appealing from last week’s panel decision, too.

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First, the majority opinion says that it is all right to engage in racial discrimination in order to achieve the educational benefits that accrue from having a critical mass of this or that racial group.  Yet the precise nature of the “educational benefits” at the University of Texas is never defined, nor is the term “critical mass.”  And how, in particular, can a court ensure that there is the “narrow tailoring” that Justice Kennedy’s recent opinion for the Supreme Court demanded in this case – that, specifically, there are no race-neutral ways of achieving the relevant educational benefits – when these terms are undefined?  As a practical matter, it seems that the framework erected by the Supreme Court in Grutter v. Bollinger — the 2003 decision in which the Court upheld the use of racial preferences — is not working very well.

Second, the reason that racial preferences are being used in addition to Texas’s “Top Ten Percent Plan” (or “TTPP,” which grants automatic admissions to anyone in the top ten percent of the graduating class of any Texas public high school) is that the TTPP admits the “wrong kind” of blacks/Latinos — that is, not to put too fine a point on it, they are lower class instead of upper class.  But surely some blacks/Latinos of the “right kind” are admitted under the TTPP, and surely some of the blacks/Latinos admitted under holistic review are of the “wrong kind.”  Yet the University seems confident that it can predict that the quality of the random interracial conversations occurring on campus will be improved by drawing more from this pool of blacks/Latinos versus that pool of blacks/Latinos — so confident, in fact, that it is willing to overlay racial preferences on top of the TTPP.  

And this takes us back to my first point:  Precisely what “educational benefits” from these conversations are heightened not only by having different amounts of melanin, but different incomes within a melanin group?
It is quite true that one cannot assume that all African Americans and all Latinos think alike or have the same backgrounds.  But that is precisely why all stereotyping, preference, and discrimination based on race should be rejected.

To elaborate just a bit more:  Will there be some marginal increase in “educational benefits” if race is considered among the non-TTPP applicants?  Not on this record.  But even if there were, those marginal increased benefits have not — and cannot — be shown to outweigh the costs of inserting race into the admissions mix.  CEO supporters may recall by now my litany of costs (see my discussion in the Chronicle of Higher Education, here); I think it is important that we force the courts somehow to consider them (especially, for example, the well-documented problem of setting up for failure the black and Latino students who are mismatched at schools that admit them with lower qualifications than the rest of the student body).

Thus, something is wrong with the courts’ framework when, after all the attention that the “mismatch” issue has drawn, neither the majority opinion nor the dissent mentions it.  Likewise, the courts should require schools  to explain with some precision what the educational benefits in the particular context at issue; it cannot be the case that those benefits can be taken as a given for the University of Texas’s engineering school even if they have been established for the University of Michigan’s law school.  The more we can force schools to document the purported benefits of these random interracial conversations, the better.

One more, not unrelated point:  The race-neutral alternatives that Justice Kennedy demanded to be considered ought to be to the end of achieving some level of educational benefits, not to increasing the number of “underrepresented” minority students per se.

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By the way, there has just been published an outstanding article by Peter Schuck on the topic of racial preferences in university admissions.  It’s in the current issue of National Affairs, and it’s really, really good.

Here’s the powerful conclusion:

The public opposition to race-based affirmative-action programs on cam­pus is amply justified. Affirmative action defies — indeed flouts — equal protection and other liberal values. It rests upon a diversity rationale that is theoretically incoherent and in fact produces little if any of the diversity value that alone might justify it (and then only under a dubious rationale). It cannot satisfy the constitutional tests that the Court has laid down and reaffirmed as recently as last year. It has failed to increase its political support in the nation after four decades of energetic advocacy. It fosters corrosive racial stereotypes, poisons race relations, and encourages opac­ity, dissimulation, and even evasion by its administrators and advocates.

And if that were not enough, affirmative action seems to grievously harm many of its supposed beneficiaries — not to mention the non-preferred groups who are disadvantaged by the practice.

We are far from putting America’s history of racial intolerance and injustice behind us, but affirmative action fails to rectify these evils and instead harms both our students and our society as a whole.

Time to Reverse Two Bad Supreme Court Decisions

Much was written last week about the 50th anniversary of the Civil Rights Act, signed into law by President Lyndon B. Johnson on July 2, 1964. But recently there was another important historical landmark, namely the 35th anniversary of an unfortunate milestone in that law’s interpretation: United Steelworkers v. Weber, decided on June 27, 1979, by the Supreme Court.  In this week’s email, adopted from a column I published on National Review Online, I’ll explain why this case is noteworthy.

In Weber the Court allowed “affirmative action” discrimination against a white employee, notwithstanding the clear language of the 1964 Act, which prohibits all discrimination based on race. White male Brian Weber, a production worker at Kaiser Aluminum & Chemical Corp. in Gramercy, La., had sought selection for a craft-training program and lost out to an African American with less seniority because of an affirmative-action plan. Justice Brennan’s majority opinion held that such discrimination was permissible where there was “manifest racial imbalance” in “traditionally segregated job categories.”

The decision was 5–2, with two justices recused and Chief Justice Burger and Justice Rehnquist dissenting. Rehnquist’s angry and eloquent dissent painstakingly reviewed the text and history of the statute. He began by saying that the majority opinion was “ahead of its time” and would “more appropriately have been handed down five years from now, in 1984, a year coinciding with the title of a book from which the Court’s opinion borrows, perhaps subconsciously.”

The Court took the same approach eight years later in Johnson v. Santa Clara County Transportation Agency, extending Weber to affirmative discrimination on the basis of sex at the expense of one Paul Johnson, another blue-collar white male. Again Justice Brennan’s majority opinion commanded only five votes, with Justice O’Connor concurring separately and Chief Justice Rehnquist, Justice White, and Justice Scalia dissenting. Justice Scalia’s dissent was even angrier and more eloquent than Rehnquist’s had been.

The unfairness and disregard for law in these two decisions is compounded by the fact that under the purported authority of Executive Order 11246, issued by President Johnson in 1965, the Labor Department has propounded blatantly illegal regulations that require federal contractors to adopt goals and timetables for hiring and promoting women and minorities if they are “underrepresented” in the workforce.

Justice Brennan’s Weber opinion cannot really be defended, but it can be understood. It was explicitly a product of its time, when Jim Crow had only recently ended and in some cases the beneficiaries of affirmative action had themselves been direct victims of that system.

That rationale, however understandable it may once have been, is no longer available, so today’s employers declare instead that they “celebrate diversity.” Their lawyers ought to know that the federal courts have never recognized a “diversity” rationale for employment discrimination (unlike university admissions, where it is sometimes permissible) under the 1964 Act, and at least one has rejected it. Nor are the courts likely to recognize such a rationale, since, for example, the statute pointedly allows no “bona fide occupational qualification” for race. What’s more, the Johnson decision made clear that preferences are to be used only “to attain a balanced work force, not to maintain one” (emphasis in original), a proviso that is inconsistent with the diversity rationale.

Nonetheless, eight out of ten business executives said that affirmative-action programs had resulted in their giving jobs and promotions to applicants who were less qualified than others, according to a 1997 survey conducted by Yankelovich Partners and commissioned by the PBS show Nightly Business Report. Things have only gotten worse since then (with faculty discrimination being especially blatant).

Companies celebrate diversity because, we are told, it is good for business. But the evidence here is at best mixed, and it is hard to see how hiring people in part on the basis of skin color or national origin, rather than simply on merit, could do anything but hamper productivity. Race and ethnicity are poor proxies for having a particular perspective or background; why stereotype someone with a Latino name as a Spanish-speaker who will know how to sell a particular product in South Texas, when she may be an English-only Puerto Rican from the Bronx?

In all events, as a matter of law, any employer using preferences must meet Weber’s remedial predicate, showing a “manifest imbalance” in a “traditionally segregated” position. But 50 years after the 1964 Act made other employment discrimination illegal, there is not much “traditional segregation” left, especially for employers who have been celebrating diversity for years by cheerfully discriminating in favor of “underrepresented” minorities.

The Supreme Court’s 2009 decision in Ricci v. DeStefano — the New Haven firefighters case — further suggests that an employer’s track record of discrimination against, say, Hispanics must be so bad and so recent that if the employer did not compensate by providing a preference, there is a “strong basis in evidence” that it could be successfully sued for that failure. That’s a very high bar.

Weber and Johnson also held that preferences cannot “unnecessarily trammel” the interests of non-preferred employees. In 2014, there will never be a situation where the “necessary” way to remedy discrimination is through practicing more discrimination, rather than simply stopping discrimination. The Court’s opinion a year ago in Fisher v. University of Texas likewise stressed that racial preferences in university admissions may be used only as a last resort.

Properly construed, then, Weber ought to have little force today, and there would be less mischief if the Supreme Court would overturn it. But litigation is uncertain and there is no need to wait. The Court’s decision this spring in Schuette v. BAMN makes clear that states have the authority to ban preferential treatment, and — better yet — Congress itself can (and should) clarify the meaning of the 1964 Act.

There will be predictable cries that it is a travesty for Congress to celebrate the 50th anniversary of the Act by “gutting” it. But it was the Supreme Court that gutted the Act when it ruled against Brian Weber, and Congress would not be gutting the statute but restoring it.

We're Talking To the Wrong Iranians

When it comes to an agreement with Iran about its nuclear program, no deal is better than a bad deal. Secretary of State John Kerry delivered the news to President Obama this week that a deal was unlikely by the July 20th deadline agreed to at the beginning of talks last September -- which no doubt disappointed his boss, who is desperate for some foreign policy success to point to. But unless Iran is willing to give up its program -- and dismantle the uranium-enriching centrifuges it currently operates and destroy its existing stockpile of heavily enriched uranium -- economic sanctions should not be lifted.

Unfortunately, the U.S. negotiating position has been far more conciliatory to the Iranians. We've virtually conceded Iran's right to enrich uranium, with the caveat that we expect them to freeze their capabilities of producing weapons-grade nuclear material and will ensure their compliance through inspections. If they agree, we will lift the sanctions that have helped cripple the Iranian economy.

If Iran truly needed nuclear power for purely peaceful energy-producing purposes, it could allow foreign companies to build and operate the reactors.  They want to keep enriching uranium because they want to build nuclear weapons -- they already have an ICBM program whose only purpose is to build delivery systems to target the West, including the United States.

The impetus behind the talks is the naive sense in Washington and elsewhere that new leadership in Iran makes a deal possible. The election of President Hassan Rouhani gave many in the West hope that Iran was entering a more moderate stage. But Rouhani's actions should dispel that myth. Internally, he has been as repressive as his predecessors, executing hundreds of Iranians in public hangings that give lie to the hope he is a moderate. And his own words in the past show he's an expert manipulator who should not be trusted.

In his published memoirs, Rouhani bragged that in the past Iran has agreed to suspend programs in areas where they had no technical problems, knowing that they could quickly revive those programs when needed. He also boasted that during talks about its nuclear program with England, Germany and France in 2003, Iran was busy building a uranium conversion facility that produced heavy water and yellow cake uranium and boosted the number of centrifuges to 3,000 over the next two years. Negotiations were simply a way to make it appear that Iran was willing to slow down its nuclear program, while rushing ahead as quickly as it was technologically capable.

We've been fooled over and over again by the Iranians. Why should this time be different?

The only way to ensure a nuclear-free Iran is if the mullahs in power are gone. But the U.S. does nothing to promote a democratic future for Iran. Obama turned a deaf ear to thousands of protesters in Tehran in 2009 who sought change. He kept the main Iranian opposition group in exile, the MEK, on the U.S. terrorist list until a U.S. court basically forced the State Department's hand to either show evidence that the group was a threat or delist them.

Former New York City Mayor Rudy Giuliani summed up the problem of negotiating with Iran in a gathering of some 100,000 MEK members in Paris in June, for which I was the emcee: "We went through this before. They promised they weren't going to enrich uranium. And then they were caught red-handed three times enriching uranium. Who was in charge of that program for Iran? Rouhani the 'reformer,' who brags about it in his memoirs that he fooled us, that he cheated us, that he lied to us. And who caught him? Who caught him in his lies? You did, the MEK."

When it comes to a nuclear-free Iran, the Obama administration is talking to the wrong people. Rouhani and the ruling mullahs are not the future of Iran. No agreement with them would be worth the paper on which it's written. At least MEK leader Maryam Rajavi understands what the West should be demanding. "Compel the mullahs to shut down their entire bomb-making, enrichment and heavy water program," she told her followers in Paris. Shouldn't we make the same demands?

Usurping Power

House Speaker John Boehner has had enough of executive usurpation of power. He announced this week that he will ask the House of Representatives to file suit against President Obama for ignoring laws the president doesn't like and for using agency rule-making, executive orders, memoranda and even simple letters to accomplish that on which the president can't get Congress to act.

When our framers wrote the U.S. Constitution, they envisioned a separation of powers between the three branches of government that would prevent any one branch from becoming all-powerful. Congress enacts laws that govern the nation, with the Senate advising and consenting on presidential appointments and ratifying treaties, and the House initiating bills to raise revenues. The president faithfully executes the laws, appoints officials to serve in executive and judicial roles with the advice and consent of the Senate, negotiates treaties, and acts as commander in chief. The judiciary interprets the Constitution and the laws passed by Congress and signed by the president.

This separation of powers has always caused conflicts, especially between the executive and legislative branches, each jealous of its own prerogatives. But Obama seems to have taken his assertion of executive power to a new level and exerted it in a broad range of areas. The president got his Affordable Care Act passed just as he wanted it, with no Republican input. But because the law was so complex and hardly anyone seemed to have read the whole thing before it went into effect, the president found it wasn't quite what he wanted. So he unilaterally adopted nearly two-dozen changes to the law without bothering to go back to Congress.

He's done the same thing on environmental law, immigration, education and drug enforcement. And of course, he ignored the clear obligation under the law to notify Congress before releasing any prisoners from Guantanamo, as he did last month when he released five high-ranking Taliban officials to obtain a captive U.S. soldier's release. In each case, the president and his appointees behaved as if they were entitled to do so because Congress wouldn't give them what they wanted the constitutionally established way.

Sure, passing legislation is messy and requires both compromise and cooperation -- neither of which is a strong suit for Obama or some Republicans in Congress. But our system of government requires it -- and when the system breaks down or a president simply flouts it, real harm occurs. This is not a political problem but a real assault on our form of government.

Boehner is right to attack the problem by taking the House's constitutional grievances to the courts. Democrats, predictably, are claiming the suit is a desperate gesture by a do-nothing Republican-controlled House. But it's nothing of the sort. These clashes have come up before -- and they were settled in ways that we don't blink an eye at but were very controversial at the time.

Take the landmark Marbury v. Madison case in 1803. The specifics of the case are less important than the principle the case established, namely judicial review of the constitutionality of laws written by Congress. Chief Justice John Marshall wrote the opinion, which stated: "an act of the legislature, repugnant to the Constitution, is void. This theory is essentially attached to a written constitution, and is consequently considered by this court, as one of the fundamental principles of our society."

A future U.S. House of Representatives v. Obama case may establish a similarly dramatic precedent: Just because you're president and elected by a majority of American voters doesn't mean you get to pick and choose which of the laws passed by Congress you want to enforce. It is no less repugnant that Obama believes he has the power to change law with a mere stroke of the pen.

Quit Playing Politics with Kids

Some 50,000 unaccompanied minors have crossed our borders in recent months, and those capable of helping resolve the crisis won't even talk to each other much less come up with a decent plan. This week, President Obama asked Congress for supplemental appropriations to deal with processing the minors and to discourage more from coming, but House Republicans so far have balked at considering the request. "We are not giving the president a blank check," House Speaker John Boehner declared. Republicans want the administration to do more to stop the flow of kids into the U.S., which is reasonable.

So why don't the two men sit down and work it out? That's their job. Instead, both sides seem more worried about their political bases than they do about solving the problem.

Obama worries that if he pushes too tough of a line by seeking changes to the law that would allow for expedited removal of the kids, he'll alienate Hispanic voters. And besides, GOP recalcitrance to provide money to properly house these kids makes Republicans look mean, which helps Democrats with more moderate voters, especially women, in the months leading up to the midterm elections.

Republican leaders worry that anything that looks like being soft on illegal immigration -- even if it means providing decent beds and meals to little kids -- will enrage the small fraction of the GOP base that stokes the fires on this issue. What's more, releasing these children to relatives in the U.S. while they await deportation proceedings likely encourages more kids to come.

Last year, fewer than 4,500 unaccompanied minors were deported or allowed to leave voluntarily after hearings before immigration judges. Republicans argue -- not without justification -- that the low odds that unaccompanied minors will be sent home send the message to families that all they have to do is get their kids across the border to keep them safe.

But none of these reasons justifies doing nothing. Republicans should take up bills to appropriate money to provide proper shelter to the kids, as well as to hire more immigration judges so that their cases can be adjudicated as required by law. But the administration must do more to close loopholes in current law that allow unaccompanied minors from Central America to be treated differently than Mexican kids -- who are processed expeditiously and sent home with the agreement of their government.

And immigrant advocates need to step up, as well. The huge influx of unaccompanied minors this year virtually guaranteed that the House would not take up sensible changes in law to admit more immigrants legally. Immigration opponents have been claiming for years that our borders are not secure, and this influx -- erroneously -- seems to prove the point. Never mind that illegal immigration is lower now than it has been in decades. Never mind that the Obama administration has, in fact, deported more illegal immigrants than any administration in history.

The kids aren't sneaking across the border; they walk up to border patrol agents and plead: "Apprehend me."

Nonetheless, immigration reform advocates -- as I surely am -- need to make it clear that we want the kids to stop coming. It is dangerous for them and an unfair burden on American taxpayers. And, from a purely pragmatic position, the continued migration makes comprehensive reform far less likely. The anti-reform crowd couldn't have come up with a more effective strategy to derail immigration reform than to send a children's crusade across our southern border.

Solving the border crisis is not rocket science. The long-term solution requires changes to U.S. law that would allow more immigrants and guest workers to come here legally. We need their skills (high and low), they boost our economy, and it is who we are: a nation built by immigrants.

But right now, our elected officials need to quit playing politics.  They need to feed, shelter and care for the kids who are already here in proper, humanitarian fashion -- as required by U.S. law. But they must also discourage more kids from coming, and like it or not, that means sending the new arrivals home as quickly (and humanely) as legally feasible.

Both of these actions require the White House and Congress to work out their differences. It's time to stop playing politics with the kids.

We Don’t Need Section 5 of the Voting Rights Act Anymore

The Senate Judiciary Committee will hold hearings on Wednesday about legislation to negate the Supreme Court’s decision a year ago in Shelby County v. Holder, which struck down the coverage formula for Section 5 of the Voting Rights Act (VRA) of 1965.  One of the witnesses will be Center for Equal Opportunity board member Abigail Thernstrom, a leading expert on the VRA.  CEO chairman Linda Chavez and I have also testified about the Act in the past, and the balance of this email is drawn for a National Review Online column of mine this week.

The announced aim of the bill is to bring back to life Section 5, by coming up with a new coverage formula that achieves much the same thing without relying on data that is more than 40 years old. The first question to ask is: Is this a good idea?

No, it is not. There are other big problems with the bill: It exceeds Congress’s constitutional authority; features for the first time racial classifications that offer protections for “minority voters” that it withholds from “nonminority” voters; contains provisions that have nothing to do with Section 5 (including scary new litigation authority given to Attorney General Eric Holder and his civil-rights-group cronies); encourages racial gerrymandering, segregation, and racial identity politics, with an eye to partisan advantage; has all kinds of pernicious side effects as a result of the “disparate impact” approach that it enshrines; encourages spurious litigation; and burdens localities with bean-counting requirements, to name a few. But it fails to clear even the basic initial hurdle: We just don’t need Section 5 anymore.

Section 5 was an extraordinary provision. It said that nine entire states and parts of seven others could not make any change — no matter how small — in any voting practice or procedure without getting advance permission from the federal government. The federal government had to be convinced ahead of time that the change had no discriminatory “purpose” or “effect.” It basically put the burden of proof on a state or local government to establish its innocence — not only of disparate treatment, but also of anything with a disproportionate racial impact.

Now, this was a good idea in 1965, although even Chief Justice Earl Warren twice called the provision “stringent” in upholding it. At that time, whole swaths of the country were systematically and blatantly denying people the right to vote because of race. But is that still true in 2014?

The answer, of course, is no. The South of 2014 is not the South of 1965. There are no large sections of the country like 1965 Mississippi. I very much doubt, in fact, that there is any single state or local jurisdiction that is like 1965 Mississippi.

But what if there were? Well, then you have Section 3 of the VRA, which allows a judge to put a jurisdiction that denies or restricts voting rights into this kind of “preclearance” receivership. It’s been done. For other instances of racial discrimination, you have Section 2 of the VRA, which applies to the whole country. What’s more, it uses a “results” standard, which means that you don’t even have to prove outright disparate treatment. And of course you have every other part of the VRA to use — federal examiners and observers, no literacy tests, and so forth. Remember that the only provision the Court struck down in the Shelby County decision was the coverage formula for Section 5; the rest of the VRA is untouched.

Indeed, these other provisions are now being used, aggressively, by the Obama administration and liberal civil-rights groups, and there is no evidence that they need more weapons in their arsenals. If they can prove their cases in court, they will win — the way it works with every other civil-rights law — but with Section 5 they have gotten used to winning without having to prove anything, and that’s the only reason for the efforts to bring back Section 5.

That should be the end of the matter. We don’t need Section 5 anymore. If it weren’t for the fact that, once upon a time, we did have states that made Section 5 necessary, and that over the years this unique provision has made life much easier for some lawyers, does anyone really believe that a bill like this would, in 2014, be drafted and given serious consideration? Of course not.

And if you need more on why the bill is indeed a really bad idea, see here and here and here and here and here.

Reefer, Rights, Rand

I have frequently seen it asserted recently that, even though African Americans don’t use drugs more frequently than whites and others, the war on drugs is locking them up at a wildly disproportionate rate. Now, of course one answer is that, even if use rates are the same, it doesn’t follow that the incarceration rates should be the same. People are typically locked up not for using but for dealing. And some kinds of dealing — for example, in open-air markets — are more likely to result in arrests than others. (And I have to note that most criminals are not drug criminals anyway.)

But my point today is just about the drug-use-rate claim. Take a look at table 1.19B here, which appears to be the most recent data from the federal agency that you’d expect to have the best data, namely the Substance Abuse and Mental Health Services Administration. The most relevant column is the one on the far right, since it is for the most recent year (2012) and the most recent use (past month).

As you would expect, the age group that uses “illicit drugs” the most is 18–25, and males use drugs much more than females. But look at the racial groups: Not much uniformity there either. That darn model minority, the Asians, are there again busting the curve for everyone else, with only 3.7 percent using, versus 9.2 percent for all groups, which is also the white total. But blacks are at 11.3 percent, meaning that they use drugs at a rate 23 percent higher than the general population and whites.

Lately marijuana drug-law enforcement has been singled out for particular criticism in this regard, but now look at table 1.24B. Same thing: The 18–25 year-olds are by far the worst, and males smoke much more pot than females. And the racial breakdown is the same, too, so that, for example, blacks use marijuana at a rate that is again 23 percent higher than whites.

My point here is not to defend every aspect of the war on drugs, but just to note one way (there are others) that the case has not been convincingly made that the war has been motivated and implemented with an eye on race.

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As advertised, the Senate Judiciary Committee had its hearings late last month on an execrable bill to negate last year’s Supreme Court decision in Shelby County v. Holder. Michael Carvin and Center for Equal Opportunity board member Abigail Thernstrom did a splendid job in explaining why this legislation is both unnecessary and unwise. 

But the most entertaining part was when Sen. Sheldon Whitehouse (D., R.I.) said, and I paraphrase only slightly: “I’d like to make two points. First, we should advance in the spirit of bipartisanship. Second, the reason we need to advance is because of a 5-4 decision by Republican judges which is typical of other 5-4 decisions by Republican judges lately where they are trying to stack the electoral deck in favor of Republicans. And I’m not alone in feeling this way: Jeffrey Toobin, Linda Greenhouse, and Norm Ornstein all agree with me.” 

Despite this eloquent rhetoric, the hearings suggested that none of the Republicans on the Committee is persuaded that this legislation is a good idea.

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I hope he won’t, but alas Senator Rand Paul (R., Ky.) has announced that he plans to introduce federal legislation to reenfranchise some felons. Senator Paul’s reasons for this are avowedly political (an olive branch from Republicans to African Americans); in my view, it is nonetheless bad policy.  But here is the larger point: Congress has no authority to pass such legislation.  And if Senator Paul proposes it, I am sorry to say that he has shown himself to be someone who —despite his strong claims to the contrary in other contexts — does not take the Constitution seriously. 

The Constitution gives the states the authority to determine who can vote in elections, so long as they do so in a way that does not violate some other provision of the Constitution (for example, gender discrimination in voting). But there is no credible argument that disenfranchising felons violates the Constitution; indeed, the Constitution itself (in Section 2 of the Fourteenth Amendment) expressly contemplates the disenfranchisement of felons. My congressional testimony from a few years ago lays all this out; the Supreme Court confirmed this more recently in an opinion last year written by Justice Scalia that even the entire liberal wing of the Court joined.

Again, if Senator Paul takes the Constitution seriously, he will not introduce federal legislation that requires the reenfranchisement of felons. If he does introduce such a bill, then, with all due respect, voters must draw the appropriate conclusions about him and how seriously he takes his oath of office. I hope he reconsiders.

Now, after I laid all this out on National Review Online, I was gratified that Senator Paul responded to my criticism.  Alas, however, his response was quite unpersuasive.

Senator Paul seems to think that states can decide who votes in state elections but that the federal government has the final say on who can vote in federal elections, but that is just not true.  Again, the U.S. Constitution itself explicitly gives the authority to decide who votes in federal elections to the states, and the recent Supreme Court decision that he cites to the contrary — last year’s decision invalidating part of an Arizona voting law — is, ironically, the same one that I had cited because it confirms what I’m saying and rebuts Senator Paul’s position. See, in particular, the first two paragraphs of part III of Justice Scalia’s opinion, which notes that those guys Alexander Hamilton and James Madison also agree with me.

In fact, the only justice ever to support Senator Paul’s approach was the (idiosyncratic) Justice Hugo Black in Oregon v. Mitchell — using reasoning that was not only not joined by any other justice, but was either explicitly or implicitly rejected by all of them.

Finally, I’ll note that this is so clear, in fact, that even Attorney General Holder, when he called for the reenfranchisement of felons earlier this year, limited his plea to the states and did not call for federal legislation. With all respect, then, does Senator Paul take the Constitution less seriously than Eric Holder?  Senator Paul has yet to introduce a bill, and I sincerely hope that he has reconsidered it.  Doing so would demonstrate real character and real commitment to the Constitution, and I would applaud him for that.

A Crisis Born of Inaction

Legislators who've been dragging their feet on immigration reform hardly need another excuse for doing nothing, but the recent influx of young children across our borders is certainly making things more difficult. Anti-reformers claim the sudden increase in illegal border crossings by unaccompanied minors -- about 48,000 so far this fiscal year -- is proof that the border is far from secure. Pro-reformers point to the humanitarian crisis that has developed with thousands of children being held in holding pens not fit for hardened criminals much less kids. But while the two factions engage in finger-pointing, positions in both camps harden and nothing gets done.

First, it's important to understand what is actually happening, mostly along the 1,200-mile border Texas shares with Mexico. For months, youngsters, some as young as 4 years old, having been crossing into the United States in the hopes they will be allowed to stay. According to recent reports, these kids walk right up to border agents as soon as they see them and turn themselves in. They've been instructed to do so, sometimes by the criminal "coyotes" who extort hundreds, even thousands, of dollars from the kids' parents to get them across the border.

These human traffickers are telling parents their children will be granted a legal right to stay in the U.S. once on our soil. This is absolutely false -- but that word is slow in getting to gullible would-be border crossers.

Most of these children are from Honduras, Guatemala and El Salvador, which means they've traveled at least 1,300 miles to get to the U.S. border. They walk or ride on the tops of trains, sometimes falling to their deaths or incurring severe injury. Some are abused, beaten, robbed, raped. The fortunate ones make it into the U.S. only to end up sleeping on the cement floor of a cell, shoulder to shoulder with dozens of other children.

As tragic as the situation is, we have to figure out alternatives to allowing these children to languish in detention centers or become public wards. First, the Obama administration should be doing more to discourage parents from sending these children across Mexico and into our country. The U.S. has an agreement with Mexico in place that allows us to return unaccompanied minors apprehended at the border. We need similar agreements with the Central American countries contributing the current flow. We also need to secure better enforcement by Mexico of its own borders to keep these migrants from entering and crossing Mexican territory. Vice President Biden is in Guatemala this week, and Department of Homeland Security Secretary Jeh Johnson is headed to the border, too, but the administration must do more.

The government needs to make it absolutely clear that the administration's Deferred Action for Childhood Arrivals does not apply to anyone who entered the U.S. after June 15, 2007. The current crop of border crossers will be picked up, processed and eventually removed from the U.S.

When the system works as it should -- and it's not working now because the numbers are so great -- unaccompanied minors can be held for a maximum of 72 hours by DHS while their status and health are evaluated before being transferred to the custody of the Department of Health and Human Services. If they're lucky, they may be released to relatives in the U.S. or placed in foster homes until their appointed hearing date to appear for removal proceedings. At that point, they will come before an immigration judge, without an automatic right to have a lawyer present, and will likely receive a removal or deportation order. Those subject to deportation orders are barred from entering the U.S. for 10 years, and if they try to do so illegally, they may face criminal prosecution.

The administration should be running public service ads in Guatemala and elsewhere in Central America to discourage parents from sending their children to the U.S. And immigrant advocacy groups in the U.S. need to spread the word in the immigrant community here that unaccompanied minors face tremendous dangers on their trips north and won't be allowed to stay even if they make it.

But most of all, Congress should act. False hopes and fantasies are driving this exodus. Congress needs to get to work and rewrite immigration laws to make it possible for those whose labor we need to come here legally in an orderly fashion. Doing nothing -- which is the default mode now -- won't stem the flow of illegal immigrants, and the current paralysis contributes to the crisis we're seeing on the border now.