Officials in Virginia ordered a contractor to remove a giant American flag from a Richmond construction site on the day before the Fourth of July, saying it would be a target for vandals and protesters. “Over the past month we’ve seen buildings and structures around Capitol Square vandalized and flags, dumpsters, a bus and other items set ablaze during demonstrations around the city,” said Dena Potter, spokeswoman for the Virginia Department of General Services. “When we saw the flag, we were concerned that it could become a target, so we told the contractor to remove it.”
Somehow, it became a sign of bedrock conservative principles to refuse to wear a face mask anytime, anyplace, in the middle of a pandemic. Likewise, it’s now a marker of devout progressivism to shriek like banshees at anybody who fails to don a mask even for a stroll along a deserted path. Forget health concerns—masks have become signifiers of tribal affiliation.
The politicization of face masks is stupid enough, but research suggests that polarization in the United States has permeated many seemingly unrelated issues, leaving little of life unpolluted by partisanship. Those few who remain outside the scrum may have to bear heavy burdens in the days to come.
“What if polarization is less like a fence getting taller over time and more like an oil spill that spreads from its source to gradually taint more and more previously ‘apolitical’ attitudes, opinions, and preferences?” writes Pennsylvania State University’s Daniel DellaPosta in an study published last month in American Sociological Review.
DellaPosta has been on this beat for a while, co-authoring a 2015 study finding that “as people congregate with the like-minded, they reinforce their shared views, “producing a stereotypical world of ‘latte liberals’ and ‘bird-hunting conservatives.'” That earlier work helped explain the dynamic by which Americans sorting themselves by lifestyle choices that tend to correlate with politics—rural homes for conservatives and urban dwellings for liberals, for example—tend to become more ideologically representative of their chosen communities.
The new study explores evidence that “many initially apolitical lifestyle characteristics, from musical taste to belief in astrology, can become politicized as signals for deeper beliefs and preferences.”
For his data, DellaPosta crunched data from the General Social Survey, which is overseen by the University of Chicago and has been compiling information about Americans’ opinions since 1972. He found growing evidence not only that Americans are increasingly at odds with one another, but that they’ve chosen partisan sides over things that have no obvious political content.
Some connections seem to accrete almost accidentally, so that sports and beverage preferences become political signifiers.
“You may have heard politicians referring to ‘latte-drinking liberals,’ for example, which captures the idea of the oil spill,” DellaPosta told Penn State News. “Why should something like drinking a latte become associated with your political ideology?”
The connections may start off as loosely linked lifestyle choices, but they become firmer as people come to associate a preference with a tribal choice shared by other fans of that preference. They then adopt a host of new preferences as symbols of their tribal affiliation.
“If every time I go to a football game, I see parking lots full of cars with Trump bumperstickers, I will tend to see football fandom as being associated with Trump support. If I already like football but do not yet support Trump, I might conclude from this that I should naturally support Trump due to my other preferences,” writes DellaPosta.
By the same token, he adds, “once I come around to drinking lattes through this practice’s association with liberalism, I might also proceed to adopt a series of other beliefs and practices associated with latte-drinking—such as driving a hybrid electric car or listening to indie rock.”
That is, many people—enough to mold much of our society—tend not to pick and choose their beliefs through careful consideration, but to purchase the package deal. Their weekend plans come with a party affiliation, and that party affiliation pushes them towards dinner preferences.
And that’s how we got to the point where “wearing a mask is for smug liberals. Refusing to is for reckless Republicans,” as Politico noted. “Prominent people who don’t wear them are shamed and dragged on Twitter by lefty accounts. On the right, where the mask is often seen as the symbol of a purported overreaction to the coronavirus, mask promotion is a target of ridicule.”
The call-outs happen even when those with naked faces are far away from the risks associated with crowds, or when those donning them are in busy indoor spaces where viral transmission is a real concern. Forget about the risks or lack thereof of infection; it might as well be an argument over MAGA caps vs. pussy hats.
As you might guess, it’s not a good thing when politics ooze across the landscape like an oil spill to pollute music choices, restaurant preferences, recreational activities, and sports fandom. This leaves a declining number of activities in which people can engage that don’t carry partisan baggage.
“Cross-cutting cleavages have collapsed to form more encompassing partisan identities with little common ground between them,” notes DellaPosta. “The existence of polarized ‘super-identities’ feeds affective polarization by leading people to simplify the outgroup (e.g., as an evil force unworthy of civil engagement) and attach negative stereotypes.”
Experiments with exposing people to different viewpoints and activities just drive the subjects further into the embrace of their chosen tribe. The sides are so entrenched, now, that there’s not much remaining that people of opposing views can mutually enjoy.
While DellaPosta doesn’t get into it, the remaining cross-cutting alignments in American culture appear to be in the hands of those who have rejected both of the dominant political tribes and their package deals of ideology and culture.
“Not all of us have chosen a side. Some of us dislike them both but are perfectly willing and able to cross the boundaries of culture, lifestyle, and partisanship to socialize and do business,” I wrote last year.
Those of us still willing to break bread or play games with people who think differently may be the best hope for the troubled world in which we live. Libertarians and others who haven’t turned life into a political package deal may need to serve as translators and peacemakers for countrymen who have lost the ability to talk to one another.
In Los Angeles and New York City, law enforcement agencies are still resisting efforts to shine a light on individual officer misconduct by withholding body camera footage and ignoring public records requests from media outlets.
In the middle of a massive nationwide push for more police accountability and fewer police officers on the city payroll, Gothamist reports that the New York Police Department (NYPD) is failing to provide body camera footage requested by the New York City Civilian Complaint Review Board (CCRB).
The NYPD agreed last November to provide police body camera footage to the CCRB, the only agency in New York independent from the police department empowered to review accusations of police misconduct filed by members of the public.
But as of the end of June, Gothamist reports, the CCRB has not received responses to more than 1,100 requests for body camera footage. At least 40 percent of the requests were more than 90 days old. The agreement between the CCRB and NYPD says the board will receive the footage within 25 days of a request.
As a result of the NYPD not doing its job, CCRB investigators are unable to do theirs. The Gothamist reported the contents of a memo from two leaders in the CCRB’s investigation division sent to top staff warning that the situation is untenable: “The struggle for access to [body worn cameras] is the struggle for the future of civilian oversight. In this era of rightfully increased scrutiny of police accountability, we urge the Agency to seize this moment to do everything in its power to obtain unmediated direct access to BWC footage.” The memo goes so far as to say that oversight of police has actually gotten worse under this new regime of body-worn cameras because the CCRB isn’t able to get footage to perform timely investigations.
Gothamist‘s reporting also notes that police unions have contributed to the backlog. The agreement says the NYPD can withhold footage from cases in which officers kill or seriously injure someone until the NYPD has completed its own investigation. Officers are also permitted to review their body camera footage before the CCRB interviews them. Prior to June, police unions were declining to allow officers to be interviewed remotely as a COVID-19 precaution.
On the other coast, changes in California public records laws implemented in 2019 were supposed to open up police misconduct records to the public and media. Prior to 2019, state law exempted police personnel records from public records requests.
Yet law enforcement agencies across the state have looked for ways to resist the new policy, attempting to argue (unsuccessfully) that the law wasn’t retroactive and didn’t apply to records created before the law passed. Some cities even went on a record-shredding spree.
The Los Angeles Times has been seeking discipline records from the Los Angeles Sheriff’s Department (LASD) for hundreds of deputies. The paper requested records for 325 deputies—by name, because the department would not cooperate with any records requests that didn’t include names. The paper has since received records for exactly two officers.
Last week, the Times filed a lawsuit in the Superior Court of California in Los Angeles to force the LASD to hand over these records. According to their coverage, the LASD isn’t just refusing to hand over deputy misconduct records. The department is also withholding information about people who have died in Los Angeles jails and Sheriff Alex Villanueva’s daily schedule.
Villanueva has blamed the delay on staffing issues and a lack of funding to comply with S.B. 1421, the bill that required California law enforcement agencies to release police misconduct records.
That obtaining public records in California continues to be nearly impossible more than a year after the legislature required law enforcement agencies to open their filing cabinets does not bode well for police transparency in New York, which reformed its own police records laws in June.
Even when the law makes releasing records mandatory, law enforcement agencies can all but refuse to comply. If the NYPD’s body camera backlog is any indication, New York police are still capable of avoiding the disinfecting power of sunlight.
Florida is advocating for a dangerous narrowing of due process in its quest to justify surveillance video recorded at Asian massage parlors. The state is arguing that it didn’t violate the Fourth Amendment in letting secretly-installed cameras run for weeks on end—making no attempt to limit recordings to particular activity or suspects—as part of prostitution stings in Palm Beach and Indian River counties, an endeavor that yielded solicitation charges for New England Patriots owner Robert Kraft.
Kraft is one of a number of people still challenging the state’s surveillance methods and intent to use the footage in court, nearly a year and a half after he was charged for allegedly getting handjobs after two massages at Orchids of Asia in Jupiter, Florida.
“They knew that this was never a human trafficking case. Law enforcement knew it,” Kraft’s lawyer, Derek Shaffer, told the court during the Zoom-enabled oral arguments on June 30.
The two women accused of offering Kraft sex acts are also part of the fight against the videos. So is Orchids of Asia owner Hua Zhang, and a number of men charged with solicitation following surveillance at another Chinese-immigrant staffed massage business, East Spa, a bit up the coast in Vero Beach.
Overall, the series of investigations spanned four Florida counties and several businesses, though police only installed (that we know of) cameras at two. At Orchids of Asia, police pretended there had been a bomb threat to get inside and install the cameras.
Not long after, in February 2019, many massage parlor workers, owners, and customers were arrested. State prosecutor Dave Aronbeg and other local law enforcement initially sold it as a “human trafficking” bust of an international crime ring that freed Chinese women from “modern-day slavery.”
But no sex trafficking, forced labor, or assault charges were filed. “There is no human trafficking that arises out of this investigation,” said Assistant State Attorney Greg Kridos at a court hearing last year. Meanwhile, court documents revealed the case was always ridiculously weak, casting legal immigrants and licensed masseuses working at registered, tax-paying businesses as sex slaves because some of them also engaged in sex work—while also reserving the harshest charges for these women.
“The state promptly offered plea deals involving community service and fines to the men who had been secretly, and likely unconstitutionally, surveilled,” notes Aya Gruber in her new book The Feminist War on Crime. “The Asian female Orchids employees, by contrast, were hit with an array of felony and misdemeanor charges related to prostitution and profiteering and faced a maximum of 15 years for the felonies and up to a year for each of the misdemeanors,” which were numerous.
The deal for the men—which also required completion of a course about why prostitution is bad and attesting that they would likely have been found guilty if the case had proceeded—would wipe the charges for them if they completed the mandates. Instead, Robert Kraft, East Spa customer Robert Freels, and others opted to challenge the constitutionality of the surveillance footage.
A court took their side, ruling in May 2019 that the video evidence was not admissible in any of the cases because authorities had obtained it through unconstitutional means.
But Florida appealed right away, sending the matter before the state’s Fourth District Court of Appeals, where it now sits. In its appeal, the state argues that “even assuming a constitutional violation, suppression of the videos was not an appropriate remedy,” since footage ultimately provided “evidence of…prostitution offenses.”
The state essentially argues that a fishing expedition is OK so long as it ultimately yields some fish. But that’s not how it works.
(The state also writes that it hadn’t meant to record footage continually on all cameras for the entire surveillance period, but “after installing the cameras in the spa, Detectives … learned that they could not control entirely which video feeds would be recorded.”)
Florida’s claims about due process aren’t much better. It argues in its appeal that “there was nothing constitutionally unreasonable about this search,” because the Fourth Amendment merely requires “probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
The consolidated cases—Florida v. Robert Kraft, Florida v. Robert Freels et al., and Florida v. Hua Zhang et al.—were argued before the state appeals court on June 30.
Presiding Judge Robert M. Gross did not seem impressed by the state’s textual argument during the hearing, where a three-judge panel heard from lawyers for Kraft, Zhang, Wang, Mingbi, Freels et al., and the state.
“You are getting us off on the wrong foot by focusing on the language of the Fourth Amendment when we should be focusing on the Supreme Court jurisprudence … that is heavily weighted against you,” Gross told Florida Deputy Solicitor General Jeffrey DeSousa.
For more about the case, here’s a podcast I did with Caleb Brown of the Cato Institute last week.
As COVID-19 cases surge in the United States, both daily deaths and the crude case fatality rate continue to decline. There are several plausible explanations for those seemingly contradictory trends, including expanded testing that identifies more mild cases, a younger mix of patients, and improved treatment.
Nationwide, the number of newly identified COVID-19 cases hit a record high of more than 57,000 on July 2, up from fewer than 20,000 on Memorial Day. That number had dropped to 44,530 as of yesterday. During that same period, the number of daily deaths, which peaked at 2,749 on April 21, fell from 636 to 251.
Since there is a lag of about two weeks between laboratory confirmation and death, we can expect to see daily fatalities rise during the next few weeks. But they are still likely to be far below the levels recorded in April and early May. The crude case fatality rate in the United States, which exceeded 7 percent in early March, has fallen to 4.5 percent.
Are these positive trends an illusion created by looking at nationwide averages rather than what is going on in the states where cases are rising dramatically? To some extent, yes. Daily deaths are rising in those states, but not nearly as much as you would expect if COVID-19 were killing patients as frequently as it did earlier in the epidemic.
In Texas, newly confirmed cases rose 13-fold, from 623 to 8,258, between May 25 and July 4 before falling to 3,449 yesterday. The number had risen six-fold as of two weeks ago, and by now that increase should be having an impact on daily deaths. Yet the rolling seven-day average of daily deaths has risen only modestly since Memorial Day, from 26 to 32. Meanwhile, the crude case fatality rate for Texas, which peaked at 3.4 percent on April 30, has continued to fall, reaching 0.5 percent yesterday.
“So far,” The New York Times notes, “the death toll has not climbed much in Texas and other parts of the South and West seeing a surge.” Even taking into account the increase in cases during the last two weeks, Youyang Gu’s epidemiological model projects that daily deaths in Texas will rise to a peak of 64 in mid-to-late August before declining to 52 by the end of September. That’s a substantial increase but not at all commensurate with the spike in cases.
Expanded testing helps explain declining case fatality rates in Texas and across the country. Since the denominator now includes more people with mild or no symptoms, the apparent death rate was bound to fall. Another likely reason why COVID-19 looks less deadly now than it did earlier in the epidemic is that the average age of new patients has fallen dramatically in the states where cases are surging. The median age of people testing positive for the virus in Florida, for example, plummeted from 65 in early March to 35 in mid-June.
This wave seems to be driven largely by young people getting together in bars and at house parties, and perhaps also by low-risk individuals returning to work. It makes sense that people whose own risk of dying from COVID-19 is negligible would be less likely to wear masks and follow physical distancing guidelines. Americans who are most vulnerable to the disease, meanwhile, are apt to be especially cautious, and states presumably have gotten better at protecting them than they were two months ago, when nursing home residents accounted for more than two-fifths of COVID-19 deaths.
Improvements in treatment probably also help explain why COVID-19 patients are faring better now. Medical personnel have “become more knowledgeable about promising treatments and palliative care options to combat the coronavirus and its effects,” the Times notes. “For instance, prone positioning, in which patients are flipped onto their stomachs, can ease respiratory distress by opening up the lungs. Critically ill individuals are also now known to be vulnerable to excessive blood clotting, and may benefit from blood thinners. And the steroid dexamethasone appears to reduce deaths among patients with severe Covid-19, although the data demonstrating this emerged only recently.”
One of the arguments for lockdowns was that delaying cases would reduce the ultimate death toll by buying time for improvements like these. That may indeed be what happened, although the extent to which lockdowns actually reduced virus transmission is a matter of much debate. Cellphone and foot traffic data show that Americans were practicing social distancing before they were legally required to do so and started moving around more before lockdowns were lifted.
Gu’s estimates likewise show that the COVID-19 reproductive number—the number of people infected by the average carrier—was falling before states started imposing lockdowns, although that policy may have reinforced the preexisting trend in some places. As of yesterday, according to his model, the reproductive number in California was 1.1, compared to 1.07 in Texas and Florida.
On the face of it, that comparison does not suggest that California has been especially successful in reducing transmission, even though it led the nation in imposing sweeping legal restrictions on movement and economic activity, which it has been lifting only gradually. California, like Texas and Florida, has seen a spike in newly confirmed cases since mid-June. In all three states, Gu projects, daily deaths will rise gradually until mid-August or so, then fall gradually through September.
Whatever role imposing and lifting lockdowns have played in these trends, the outlook at this point is much less grim than many people predicted. Back in March, the Trump administration was projecting a many as 2.2 million deaths in the United States, which would have made COVID-19 as deadly, adjusting for population growth, as the “Spanish flu” epidemic of 1918. Gu, who has a good track record of predicting COVID-19 deaths, is now projecting about 186,000 by October 1.
As recently as May 4, The New York Times was warning that the United States could see 3,000 COVID-19 deaths a day by June 1, thanks to “reopening the economy.” That is 12 times the current level and four times the number Gu is projecting for late August.
A hand-held 15-minute COVID-19 antigen test has received emergency use authorization from the Food and Drug Administration, announced medical technology company Becton Dickinson (BD) in a press release today. The test works by detecting the presence of coronavirus proteins using specific antibodies embedded on a test strip coated with nasal swab samples, which is then inserted into BD’s proprietary cell phone-sized BD Veritor System platform.
One huge advantage is that the test can detect COVID-19 infections not only in patients showing symptoms but also in pre-symptomatic and asymptomatic people. There are more than 25,000 of the testing machines already located in hospitals, clinics, urgent care centers, retail pharmacies, and doctor’s offices around the country.
Becton Dickinson’s testing machines sell for about $300, and the tests themselves are about $20 each. This compares to at-home molecular diagnostic tests that cost more than $100 and take more than two to three days to obtain results from offsite laboratories. The company says that it will roll out up to 10 million tests by the end of September and that it is working toward the capacity to manufacture 2 million a week.
While BD’s new COVID-19 test is certainly a helpful step forward, much more (and even cheaper) antigen testing is needed to control the pandemic and get people back to work, argued an op-ed last week in The New York Times.
I made exactly the same case back in May: “Testing yourself and your family every day for COVID-19 with a cheap, easy-to-use, 10-minute test could be the game-changer for crushing the epidemic and getting everybody safely back to work and play. Widespread deployment of home antigen testing could make this scenario possible.”
Basically, COVID-19 antigen tests would work much the same way that at-home pregnancy and HIV paper strip tests work now. A fast positive test would enable infected people to voluntarily, quickly self-isolate, and thus break the chains of infection that are fueling the epidemic.
The Times op-ed suggests that fast at-home tests would enable people to act responsibly to protect themselves, their families, their neighbors, fellow bar patrons, and co-workers from this scourge:
Would everyone take a paper-strip test every day? Here market incentives will surely help. Once they are provided to all, employers would likely require their workers to take time-dated pictures of their negative test results before coming to work. Colleges would require students to do the same before coming to class. Restaurants could accept reservations only if accompanied by negative-test pictures. In short, everyone will have an incentive to test themselves daily to participate fully in the economy and return to normal life.
Once paper strips’ efficacy is definitively proved and they are cleared by the F.D.A., Congress can quickly authorize the production and distribution, for free, of a year’s supply to all Americans. Then we’ll have not only a true day-to-day sense of Covid-19’s path. We’ll also have a far better means to quickly contain and end this terrible plague.
How much would such testing cost? The good news is that other companies are working to create antigen tests that cost as little as $1. At that price, daily testing for a year by 300 million Americans would amount to roughly $110 billion. However, weekly testing by nearly everybody would probably be more than sufficient to crush the epidemic, and that would cost around $15 billion. That testing price tag would be a bargain when considering that the Congress has already passed legislation authorizing more than $3 trillion in various forms of coronavirus aid.
President Donald Trump, in the shadow of Mt. Rushmore, warns of the “merciless campaign to wipe out our history.” Joe Biden, from his secure location, urges America to finally live up to the Declaration of Independence. As the Statue Wars enter month two, coronavirus cases increase, and the nation’s couch potatoes flock (shhhh) to the Disney Plus showing of Hamilton, it can be hard to make sense of the mixed up state of summer 2020.
That’s why Nick Gillespie, Katherine Mangu-Ward, Peter Suderman, and Matt Welch spend a good chunk of today’s Reason Roundtable podcast brainstorming new malignancies that America should henceforth declare independence from, in this our wobbly 244th year. Starting with pants.
The gang talks fireworks, patriotic gadgetry, men’s hair fashion, the fragrance of space, and so very much more.
Audio production by Ian Keyser and Regan Taylor.
Music: “Deep Mind,” by Jeremy Black.
Relevant links from the show:
“It’s Not Just Face Masks. Everything Is Now a Political Death Match,” by J.D. Tuccille
“Editorial Notes on Police Brutality,” by Katherine Mangu-Ward
“Post-Pandemic Americans May Be Done With Taking Orders,” by J.D. Tuccille
“Let’s Have Fewer Public Statues,” by Steven Greenhut
“The Next Pandemic Will Be Caused by the National Debt. It Will Crater the Economy,” by Nick Gillespie
“Is the COVID-19 Pandemic Self-Flattening, or Will It Grind Relentlessly on?” by Ronald Bailey
More than two dozen licensing boards in Pennsylvania will no longer be able to use vague “good character” provisions to block individuals with criminal records from getting permission to work in the state thanks to sweeping occupational licensing reforms signed into law last week by Gov. Tom Wolf (D).
The reforms will provide new economic opportunities for Pennsylvanians who have previously been convicted of a crime. Those individuals will now be able to pursue work as barbers, cosmetologists, accountants, and various other fields.
“Arbitrarily denying someone a job license because of outdated rules against
criminal records is wrong,” Wolf said in a statement. He said the bill would benefit “skilled workers, their employers, and the economy for all of us.”
The bill cleared the Democratic-controlled state House and Republican-controlled state Senate with bipartisan support—yet another indication that licensing reform is an area of bipartisan agreement in a political environment where few good things can be described that way.
The new Pennsylvania law will ban 29 licensing boards from using broad and vague language to effectively prohibit anyone with a criminal history from obtaining a license.
“They can be disqualified from earning licenses in specific occupations even if their original charge had no relation to the license,” says Jessica Barnett, a senior policy analyst with the Commonwealth Foundation, a free market think tank. “And many are barred from obtaining a license even after taking the opportunity to be trained while in prison.”
Now, each board will have to draw up a list of specific offenses that will be considered disqualifying. That will allow licensing boards to, for example, keep people with a history of violent crimes from working in certain fields, while ensuring that a years-old nonviolent drug offense doesn’t make it impossible for someone to find a good job. Licensing boards will also be prohibited from rejecting an applicant due to juvenile or expunged criminal records.
Pennsylvania joins more than a dozen other states that have passed similar laws in recent years. While they are primarily economic measures aimed at sweeping aside unnecessary and onerous licensing rules, there’s also an element of criminal justice reform embedded in these licensing reforms. About 600,000 Americans are released from prison every year, and research shows that employment is the best indicator of whether they will end up back behind bars. In states with stricter licensing laws, recidivism rates are unsurprisingly higher.
According to research from The Pew Center for the States, reducing recidivism by as little as 10 percent could reduce state correctional budgets by an average of $15 million annually. And a 2011 study by the Economy League of Greater Philadelphia found in 2011 that securing jobs for only 100 formerly incarcerated people in the City of Brotherly Love would net $55 million in lifetime earnings and more than $2 million in future tax revenues while saving at least that much annually by keeping those same people out of the criminal justice system.
Pennsylvania’s reforms are, as Wolf says, a win-win-win scenario.
Anti-amnesty firebrands, like conservative radio talk show host Rush Limbaugh, have long insisted that they weren’t anti-immigration, they were just anti-illegal immigration. But even as they were saying this, they were also accusing legal immigrants—people who came to American “the right way”—of all kinds of sins, paving the way for President Donald Trump’s all-out assault on literally every category of immigration.
Now the Trump administration is reaching a point where it wants to kick out immigrants for no reason except that they are immigrants.
Most immigration watchers thought President Trump’s new executive order extending his 60-day April immigration pause until the end of 2020 was meant to stop new immigrants from coming into the United States. As I pointed out, the order was halting new green cards for anyone other than the children and spouses of American citizens. It was also imposing a moratorium on new temporary work visas, including H-1Bs for foreign techies, H-2Bs for low-skilled non-agricultural work, J visas for summer jobs, and L visas for intra-company transfers. Bringing in more workers from the outside, the proclamation’s zero-sum logic declared, “present[s] a significant threat to the employment opportunities for Americans,” which the country can’t allegedly afford at a time of high pandemic-induced unemployment.
But now the National Foundation for American Policy’s Stuart Anderson has found that buried in the proclamation is a potential deportation plan for hundreds of thousands of high-skilled foreign workers who’ve been legally living inside America, in some cases for decades. They have high-paying jobs for skills that are in short supply in America, they pay far more taxes than they’ll ever consume in welfare, and they are generally upstanding folks.
Foreign techies have to go through an exceedingly arduous, expensive, and long process to obtain green cards. The wait time for green cards is running over seven decades for many of the 350,000 Indian professionals on H-1Bs—and their 357,000 dependents—in the country currently. That’s because Congress capped employment-based green cards at a meager 140,000 per country per year. And then, just for good measure, it gave every country the same quota for green cards. This means that countries like India, China, and the Philippines, which send America many tech workers, doctors, nurses, and other high-skilled laborers, have access to the same number of green cards every year as, say, Kazakhstan, which barely sends any. The upshot is that a massive backlog has developed for the former countries. But of course, the Trump administration has shown zero interest in a simple fix like eliminating the per-country limit and rolling over the unused green cards from previous years.
So what does the process of acquiring employment-based green cards for foreign techies entail?
The first step involves acquiring a visa to legally work in the country. The only option for the vast majority is an H-1B visa, including foreign international students graduating from American universities. Getting this visa is itself an exceedingly fraught proposition given that only 85,000 are handed out via a lottery every year—less than half the demand. In order to obtain these visas, the employers of these workers have to prove to the Department of Labor (DOL) that they will be working in some pre-approved specialty occupation, will at least get prevailing wages, and that the company isn’t involved in an ongoing labor dispute. H-1Bs are not transferable, which means that H-1B holders need another company to petition on their behalf if they wish to change jobs.
If a company wants to hire an H-1B holder permanently, it has to apply for his or her green card. This means it has to return to the DOL to obtain a “labor certification.” What does this involve? Among other things, it requires proving that there are no qualified Americans to perform the job by advertising in DOL-approved channels, reviewing resumes of all applicants, and then explaining to DOL bureaucrats (if asked to) why this particular candidate is the only one who can perform the said job.
If the DOL issues labor certification, then the employer can file an I-140 form with the U.S. Citizenship and Immigration Service which, if accepted, puts the employee in a line to be eventually approved for a green card. This is the step that is now taking decades for nationals from India, and years and years for many others.
But Anderson maintains that Trump’s new proclamation includes ominous language that potentially opens the door to subjecting the I-140 holder to one or more additional labor certifications while they are waiting to be approved for their green cards. At the same time, the administration might make the labor certification process itself so onerous as to ensure that few could pass it.
Should the administration proceed with its scheme, hundreds of thousands of high-skilled professionals who’ve played by every rule and waited patiently for years for their green cards, raising families and building lives in America, could find themselves ejected from the country. “If a foreign government wanted to come up with a plan to harm America’s technological leadership in the world, this would be the plan,” Anderson says.
To be sure, there are significant statutory hurdles that might prevent the administration from successfully requiring repeat certifications, says Anderson. However, simply attempting to do so will sow fear and panic among foreign professionals and prompt at least those who are in the relatively early stage of the process to self-deport rather than take any risks with their lives and careers.
Nor is this the first attack on foreign professionals by this administration. The denial of new H-1B petitions has increased considerably during Trump’s term and renewal of existing petitions has become much harder. Still, if this new development comes to pass, it will take things to a whole new level. It’ll basically make the ability of these professionals to stay in the United States nearly as precarious as that of undocumented immigrants.
The rap against the latter, of course, was that they were not playing by the rules; they were violating the rule of law. But now the administration is moving the goalposts for those immigrants who have played by the rules. The rule of law, properly understood, is meant to prevent the government from arbitrarily passing irrational and unfair rules whose purpose is not to help ordinary people coordinate their plans but simply harass or control them. But restrictionists have turned this argument on its head to absolve the government of any responsible rulemaking while throwing the book at the undocumented for minor, victim-less transgressions.
But once one set of peaceful foreigners who are here to work came to be regarded as liabilities rather than assets, all immigrants—regardless of whether they are playing by the rules or not—became fair game. Undocumented immigrants were just the lowest hanging fruit. Over the years, restrictionists have found ways to smear every category of immigrants. Family-based immigration got pilloried as chain migration; refugees got branded as national security threats; Latin American asylum seekers got lambasted as “invaders.” And now foreign techies, a once-sacrosanct class of immigrants that even conservatives considered highly desirable, are being branded as economic threats.
They came for the illegals first—but of course they didn’t stop there.
“They want to go back to work, but they also want to stay safe,” says Reason contributor and bartender Jacob Grier. “It’s really hard to do both at the same time if the only option is for people to come into a bar or a restaurant and to gather inside, especially because we know this is where the virus spreads and because, when you’re eating and drinking, you can’t have a mask on. We’re seeing that’s just a recipe for spreading the virus.”
Grier says that the industry is pushing for the freedom to sell cocktails-to-go. Bars and restaurants “want to be able to package a drink up alongside their food—or even by itself—for a customer to take home and drink there.” Another industry-saving tactic would be to expand outdoor spaces for drinking. That “could be done through closing sidewalks, putting out tables, even closing down streets, and creating public social plazas,” says Grier.
“Or, if you want to go all the way, eliminating open container laws entirely, so that it’s no longer a crime to have a drink outside.”
A number of states are loosening alcohol regulations to help alleviate the economic burden of shutdowns. Iowa has become the first state to fully legalize cocktails-to-go while New York, Colorado, and Virginia, among other states, are experimenting with temporary liberalization. Several other states and municipalities are removing restrictions on public drinking.
Grier hopes these moves will help the hospitality industry as they struggle to navigate a difficult landscape.
“We think we will probably see a lot of contraction that will take years to recover from,” says Grier. “Right now I view these laws allowing cocktails-to-go and expanding outdoor spaces as much about damage control as anything else.”
Produced, shot, and edited by Meredith Bragg.
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