No More Unearned Privilege for the American Bar Association

November 1, 2019

Since 1953 the American Bar Association has provided evaluations of the “professional qualifications” of nominees to the Article III federal courts. These evaluations are given to the Senate as the Senate considers confirmation of each judicial nominee.

According to the ABA, these evaluations focus “strictly on professional qualifications: integrity, professional competence and judicial temperament” of each nominee. The ABAB claims it “does not consider a nominee’s philosophy, political affiliation or ideology.”

Nothing could be further from the truth.

Just look at the ABA’s recent 11th hour partisan hatchet job on Ninth Circuit U.S. Court of Appeals nominee Lawrence VanDyke.

Submitted just hours before Mr. VanDyke’s confirmation hearing (the timing itself a clear violation of the ABA’s own rules), the evaluation of Mr. VanDyke asserted he was an “arrogant, lazy, ideologue” that “lacks humility” and “does not have an open mind.” Worse, the letter asserted without any foundation, that Mr. VanDyke “would not say affirmatively that he would be fair to any litigant before him, notably members of the LGBTQ community.”

Essentially the ABA asserted Mr. VanDyke was “Not Qualified” for the bench because he was a homophobic bigot.

If the ABA’s evaluation of Mr. VanDyke was not so unfounded and inflammatory it would almost be humorous.

What the evaluation failed to mention was that the lawyer who led Mr. VanDyke’s interview had donated to his political opponent when Mr. VanDyke ran for the Montana Supreme Court in 2014.

In other words, the evaluation was nothing but a politically motivated fact-free hit job from the start.

And this is not the first time the ABA has resorted to such biased partisan tactics. A 2012 Political Research Quarterly study of all formal ABA ratings from 1997 through 2008 found clear statistical evidence that “the ABA ratings reflect a bias in favor of Democratic nominees.”

This ongoing fraud most stop.

The time has come for the White House and the Senate to suspend the unique access that the American Bar Association has in the judicial confirmation process.

This does not mean that the ABA and its members don’t have every right to whatever opinion they want to express about judicial nominations. They have every right as American citizen to formulate opinions on judicial nominees and share those opinions with the public.

But that does not mean that they deserve an official privileged seat at the table. In fact, as the VanDyke case shows, they should be given no privileged role at all.

A Better Way to Manage Public Lands

October 25, 2019

When most Americans hear the phrase “public lands,” they tend to think of national parks, forests, monuments, and wilderness areas.

Utah is blessed with breathtaking examples of such lands, including Arches National Park, Dixie National Forest, Dinosaur National Monument, and High Uinta Wilderness area. Every Utahn I know supports the continued protection of these national treasures.

But the vast majority of public lands in Utah are not parks, forests, monuments, or wilderness areas. In fact, less than one fifth of Utah’s public lands fall into these categories. The vast majority of the public land in our state - about 55 percent - has been designated for “multiple use” by Congress under the control of the Bureau of Land Management.

The Federal Land Policy and Management Act of 1976 charges the BLM with the task of managing this land in a way that “takes into account the long-term needs of future generations for renewable and non-renewable resources, including, but not limited to, recreation, range, timber, minerals, watershed, wildlife and fish, and natural scenic, scientific and historical values.”

This land belongs to all Americans. It should be possible to balance the interests of ranchers, hikers, anglers, energy producers, loggers, bikers, and future generations of all of the above.

Unfortunately, the federal government is not living up to this mandate.

A Byzantine labyrinth of federal regulations has made active management of our public lands next to impossible. Restrictions on road construction, fuel management, and timber production have made the risk of severe wildfires much worse. Harvest volume in our nation’s forests has declined from 10 billion board feet per year in the 1980s to under 3 billion board per year today. Timber sales on BLM land have declined by similar margins.

Steps to manage fire danger, and ensure other enjoyment of the land, has fallen victim to “analysis paralysis” according to one former-Forest Service chief. The National Environmental Policy Act requires years of study for even the simplest maintenance projects, all of which can be blocked in court by just a single interest group unhappy with a management plan.

Not only do these regulations and planning delays increase the risk of severe wildfires, but they are spectacularly inefficient for recreational purposes. The Forest Service only earns 28 cents for every dollar the federal government spends on recreation management and the BLM earns just 20 cents.

There is a better way.
In 1994, the Utah state legislature created the School and Institutional Trust Lands Administration to manage trust land first granted to Utah by the federal government back in 1896. SITLA manages trust lands to generate revenue for Utah public schools and other trust institutions through the leasing, exchange, or sale of these lands. Trust lands are not public lands, but SITLA has navigated responsible ways to preserve public access and use of trust lands for hunting, trapping, and fishing, as well as other forms of public recreation, while still meeting its fiduciary mandate.

SITLA revenue is deposited into the Permanent School Fund endowment. Since 1994, SITLA has generated more than $1.5 billion in revenue for the Permanent School Fund, which now tops $2.5 billion. Earnings from this Permanent Fund totaled $82.7 million this school year. This supplemental education funding is distributed to each public school throughout the state on a per-pupil formula and disbursed under discretionary spending plans developed by parent-teacher councils.

SITLA uses no taxpayer money to manage the 3.4 million acre trust land portfolio, rather, it is entirely self-funded. Last year, for every dollar invested in the management of trust lands, the agency generated $6.98 for trust land beneficiary endowments.

In other words, while the federal government routinely loses hundreds of millions of dollars every year managing our public lands, state trust agencies manage to turn a profit all while preserving the land for future generations.

Not all land is best used for the same purpose. Some land, like that found within Zion National Park, is so unique, beautiful, and pristine that its best use is to be conserved “for the benefit and enjoyment of the people.”

But other land is not as unique and might serve the American people better if it is used for grazing, timber production, watershed maintenance, or renewable energy production. Our nation has a strong tradition of using different public lands in different ways, all to benefit everyone. The Homestead Act, land grant colleges, and the Wilderness Act are all examples of the federal government disposing of diverse lands in diverse ways for the greater good.

This week lawmakers from across the country will be visiting Utah to learn more about the unique and productive ways our state manages its different public lands. I hope and expect that they will leave our state with some ideas about how the federal government can improve its public lands policy.

This oped was first published in the San Juan Record on October 23, 2019.

Preparing for the Drone Era

October 18, 2019

Since the dawn of time, mankind has been fascinated by the possibility of flight. You could say this desire has been etched into our very beings… so much so that ancient Greeks immortalized it in myth, in the story of Daedalus and Icarus.

From Leonardo da Vinci’s early helicopter designs in the 15th century, to the first hot air balloons in the 18th, to the gliders of the 19th, step by step, human beings made great strides in air innovation. And then of course came the Wright brothers’ airplanes in the early 20th century.

Now, we are reaching a new age in air innovation: the age of drones.

And it brings incredible opportunities in nearly every sector imaginable:

In healthcare, drones are being used transport life-saving medicine to remote and rural areas which otherwise would be unreachable.
In agriculture, farmers are using drones to inventory their crops and, map farmland, and to spray pesticides and fertilizer.
In retail delivery, drones can get packages to your door in 30 minutes or less.

The list goes on. From engineering, to firefighting, to disaster relief, and maybe even passenger transport someday, this technology promises to unleash truly unlimited opportunities.

Drones are cheap, efficient, and environmentally friendly… promising huge economic benefits, as well.

The Association for Unmanned Vehicle Systems International estimates that drone integration in the U.S. will create about 100,000 jobs with a net result of $82 billion in the economy by 2025.

And last year, the FAA projected that the number of commercial drones will quadruple over the next five years.

We have reached a pivotal moment.

The question is – how can we best seize it?

How we can we integrate drones – which fly at a much lower altitude than planes – into an outdated model in our national airspace? And how can we do so in a way that does not stifle, but rather empowers innovation?

It is time to once again update the rules of the sky.

That is why I introduced the Drone Integration and Zoning Act, or DIZA, this week.

This bill establishes a regulatory framework for drones based on the principles of local governance and cooperative federalism – giving shared responsibility to both the federal government and states, with distinct roles for them each.

And it does so in four major ways:

First, DIZA balances drone governance between the federal and state governments by designating airspace for each. For airspace below 200 feet, state and local governments are responsible for managing drones by issuing time, place, and manner restrictions. And for airspace above 200 feet, the FAA is responsible for managing uniform drone rules across all 50 states.

Second, DIZA protects the zoning authority for state, local, and tribal authorities to designate commercial drone take-off and landing zones, similar to the authority that state and local governments currently possess for determining the location of airports.

Third, DIZA gives state and local governments an equal seat at the table with the federal government to develop the Unmanned Traffic Management (UTM) system.

This means the federal government must collaborate with state and local governments – not only for coordinating roles and responsibilities, but also to create a process for sharing interoperable data between governments so that drone operators can have a complete picture of the sky.

And finally, DIZA clarifies that a commercial drone delivery company should not be considered an “airline,” as currently considered by the FAA. Receiving an airline certification is not only an expensive process that could chill innovation and market competition, but would also likely prevent state and local governments from responsibly managing commercial drone traffic at low altitudes.

As we reach this moment in history, entrepreneurs across the country stand ready to unleash tremendous opportunity through commercial drones. And we should allow them to do so in the best way possible.

That path will not be found in centralizing power in Washington… but by holding fast to our founding principles.

It will be found in preserving the space and freedom for innovation… and empowering the ordinary, determined, and creative Americans who work so hard to help our nation flourish.

If we do, there’s no telling what new heights we will achieve.

Fairness for American Workers and Immigrants

September 27, 2019

A system of laws should be clear and coherent, meaning that it should not only give adequate notice of what is required to comply with the law, but should in fact be capable of being complied with.

These are not partisan principles – they are simple, yet incredibly important guideposts that should direct the actions of anyone entrusted with crafting a legal system.

Unfortunately, one of the starkest examples of our failure to abide by these principles is in the way we allocate employment-based green cards.

Few ideas are more central to who we are as Americans than the notion that people should be judged and treated based on their own merits as an individual with God-given rights, not on the basis of the color of their skin or where they come from.

As our Founders wrote, “We hold these truths to be self-evident, that all men are created equal…” Those words are as much a part of our national creed in this moment as they were when they were written two hundred and forty-three years ago, and our laws should reflect their enduring truth.

Despite this ideal, section 1152 of the Immigration and Nationality Act provides that the total number of employment-based visas “made available to natives of any single foreign state… in any fiscal year may not exceed 7 percent… of the total number of such visas made available.”

That rather antiseptic language, technical and clinical on its face, is, on closer inspection, deeply out of step with this country’s commitment to nondiscrimination and equal treatment before the law.

In practice, section 1152’s seven percent cap on immigrants from any one country means that, if two immigrants apply for an employment-based visa at precisely the same moment, and have the exact same skills and education, one of them may wait 12 months for a green card while his counterpart languishes in the green card backlog for decades. The only factor that accounts for this gross and unfair disparity of treatment is the fact that the second immigrant happened to have been born in a different country than the first.

This is because, under the per-country cap system, immigrants from larger countries are only eligible to receive the same number of green cards annually as immigrants from smaller countries. As a result, the wait times for immigrants from larger countries have grown and grown, decade after decade, with no end in sight.

This amounts to de facto country-of-origin discrimination – plain and simple – and no amount of legalese or wonkish policy arguments can cover up that fact.

Fortunately, the solution to these problems is not only straightforward, but agreed upon by a broad, bipartisan coalition of senators. We must simply eliminate the per-country caps in order to ensure a fair and reasonable allocation of employment-based green cards. That is exactly what the Fairness for High-Skilled Immigrants Act would accomplish.

Without the per-country caps, our skills-based green card system would operate on a first-come, first-serve basis, ensuring that immigrants are admitted into the United States purely based on their merit, rather than their country-of-origin. This reform would also ensure that the hardships caused by decades-long wait times are eliminated.

The bill also contains key reforms to the current H-1B system to prevent the fraud and abuse that is currently undermining wages for American workers.

First, the bill strengthens law enforcement powers to police the H-1B system by empowering the Department of Labor to conduct annual compliance audits of all H-1B employers.

Second, the bill requires H-1B employers to advertise the jobs it wants to fill to American workers first.

Third, the bill closes the B-1 loophole H-1B employers often use to bring foreign workers here on a temporary basis before transferring them to the H-1B program.

Americans desperately need common sense immigration reform. But it should not be done in one big “comprehensive” bill. Instead, we need to take smaller common-sense reforms that solve specific problems with our current immigration system. If we wait for one big bill that tries to solve everything, it will never come. And the current fraud, abuse, and discrimination in our current system will continue.

The House of Representatives has already passed this bipartisan reform and I hope the Senate will follow soon.

Consumers Deserve Better Antitrust Enforcement

September 20, 2019

Earlier this summer, the Department of Justice and the Federal Trade Commission separately announced that each agency had begun investigating the large tech firms to see if they have violated the antitrust laws.

This is welcome news. The federal government should bring much-needed antitrust scrutiny to these companies.

Unfortunately, it appears that these two government agencies are not cooperating on their investigations. Instead of abiding by a clearance process designed to make sure a single agency is tasked to investigate each specific monopoly investigation, it appears as though the DOJ and FTC are both spending duplicative resources investigating the same companies for the same alleged anticompetitive behavior.

Not only does duplicative antitrust investigations waste taxpayers resources, but it can also undermine the rule of law when the agencies reach differing legal conclusions about the same antitrust law enforcement action.

Just this summer, the FTC and DOJ faced off against each other in the Ninth Circuit Court of Appeals. The FTC was in court defending a district court ruling it had won against Qualcomm ordering the company to end its practice of not selling chips to phone manufactures unless those same companies agreed to license Qualcomm patents. The DOJ argued that the injunction harmed competition by crippling the supply of needed wireless technology for the federal government. What is the federal government’s position on this area of antitrust law? With two agencies taking two different positions it is impossible to tell.

This week, as chairman of the Judiciary Committee’s Subcommittee on Antitrust, Competition Policy, and Consumer Rights, I asked FTC Chairman Joseph Simons and Assistant Attorney General for the Antitrust Division Makan Delrahim if cooperation between the agencies on big tech antitrust enforcement had broken down.

“Yeah I would agree with that,” Simons said.

“I cannot deny that there are instances where Chairman Simons and my time is wasted on those types of squabbles,” Delrahim added.

Later when asked if it would be better if one agency was in charge of federal antitrust enforcement, Simons testified, “Ideally, you really do just want one agency from the federal government doing it for no other reason than the resources that one of us is duplicating on the other could be applied to an entirely different enforcement action or investigation.”

American consumers deserve to have the best antitrust law enforcement possible. One that is not wastefully administered by two separate agencies that come to differing conclusions and prevent more antitrust enforcement actions from occurring.

We need robust investigations and enforcement of the antitrust laws, especially in the tech arena. That objective is likely to be hindered if the agencies are stumbling over each other trying to investigate the same companies for the same conduct. Such efforts will be wasteful and could very well undermine their ability to enforce the antitrust laws. I wouldn’t recommend that they get any additional resources until they demonstrate their willingness to put the interests of consumers above their bureaucratic gamesmanship.

What I Told the Russian Government

September 13, 2019

When the Berlin Wall fell in November of 1989, the whole world hoped it meant a new era of cooperation and friendship with the Russian people. Almost 30 years later, however, our relationship with Russia is almost as strained as it was during the Cold War.

Russia invaded Georgia in 2008 and the Ukraine in 2014, and it continues to prolong humanitarian crises in Libya, Syria, and Venezuela. Russian agents stole emails from the Democratic National Committee, hacked voting machines in some states, and accessed voter data files in others.

If our relationship with Russia is ever going to improve, its aggressive behavior must stop. That is the message I delivered to every Russian official I met with on my trip to Moscow earlier this month.

The message was not always warmly received, of course. But Russian officials did seem to appreciate that a U.S. lawmaker had made the trip to Moscow to deliver it in person. There is appetite on both sides for - and value in – more open and honest dialogue. But the Russians made the prospect for such dialogue more difficult when they denied visas to my colleagues Sens. Chris Murphy (D-Conn.) and Ron Johnson (R-Wis.). I was of course outraged by this affront on my colleagues. But both encouraged me to still make the trip.

According to the Russian Ministry of Foreign Affairs, the visas were denied in response to “unfounded restrictions against a significant number of members of the Federation Council” by the United States. This kind of ‘tit-for-tat’ conduct does not build trust. As Russian officials made clear to me, Russian public opinion supports improved relations with the United States.

If so, Russian President Vladimir Putin is not helping. In addition to the unprecedented election interference in 2016, the Russian government continues to persecute religious minorities, especially Jehovah Witnesses, the LGBTQ community, and other oppressed populations.

Before I left for Russia, I always knew that the Russian Orthodox Church was the favored state church of Russia. But I had no idea just how intertwined that church was with Putin’s government. If the Russian government ever expects the United States to support better relations with Russia, it must first learn to treat its minority populations better.

Better relations with Russia is something we should want, too. That has always been America’s foreign policy, even at the height of the Cold War. In 1981, President Ronald Reagan lifted Jimmy Carter’s Russian grain embargo just three months after taking office. Why would the tough-talking Cold Warrior soften economic sanctions against our enemy? Because Reagan realized the grain embargo was not putting the desired pressure on the Russian government to leave Afghanistan, but was hurting American farmers.

By recalculating America’s policy towards Russia, and stressing realism, strength, and dialogue, President Reagan was able to both further American interests and set the stage for the fall of the Soviet Union.

With that in mind, there are steps America can take to prepare for a better Russia. Today, there are approximately 860 Russian individuals and organizations that have been sanctioned by the United States. Without stopping or pausing these sanctions, we should begin to study them to identify which ones are achieving their desired effect, which ones aren’t working, and which ones may be harming U.S. interests.

Once we have this information, we can then better structure our sanctions regime to push Russian behavior in the right direction.

True friendship can only be built through honest communication. We should never shy from speaking the truth to our potential partners. But if we never try to communicate, then our relationships will remain stagnate.

Making Education More Affordable

August 2, 2019

The 21st century economy has brought incredible new opportunities for young people, but new challenges along with them. Take our higher education system.

Students usually need some form of higher education after high school to get a good job. But unfortunately, our current system mires them into staggering student loan debt. And tuition costs are only continuing to skyrocket each year.

But it doesn’t have to be this way. It’s time that we make higher education work for today’s students and families by making it more affordable, and also by making it easier for them to customize their own education and gain the skills they need to compete in today’s economy.

That’s why I introduced the Higher Education Reform and Opportunity (HERO) Act this week — a bill to bring much needed innovation, transparency, and accountability to our higher education system.

The first title of the bill deals with accreditation reform.

Today’s post-secondary students come from a range of different backgrounds, from the traditional 18-year old high school graduate, to the single mom going back to school, to the laid-off worker who needs to retrain mid-career — and meeting the needs of this diverse population means we need many more options that we had when current federal policies were first written decades ago. But current federal accreditation remains tied exclusively to the static model of the four-year, residential institution, preventing new models from emerging that could meet these needs.

The HERO Act would enable states to respond to these needs by allowing states to create alternative accreditation systems that can accredit any institution that provides post-secondary education. With this new accreditation power, states would be able to authorize innovative new education options like distance learning, competency-based offerings, and certification exams. It would also give states with these alternative systems the flexibility to determine clock hour and minimum program length requirements, allowing short-term workforce development programs and nontraditional education providers to be eligible for federal student aid.

The second title of the bill addresses transparency reform.

When it comes to choosing a good college and major, parents and students are often left to make these life-changing decisions in the dark. They do not have access to easily understandable data on how effective their college of choice is in helping students graduate on time; how burdened by debt they are after obtaining their degrees; and how successful graduates in a particular major are at obtaining jobs that enable them to pay back their loans. This title would require higher education institutions participating in federal student loan programs to publish this information in a way that students can easily access it and make informed decisions about where to attend.

The third title of the HERO Act would provide student loan reform.

Between 1982 and 2007, the average cost of a four-year college education rose by 439%, and costs have only continued to rise in the past decade. The typical solution to the affordability problem has been to increase the amount and types of loans that students can access.

However, this solution has actually contributed to the exponential rise in tuition rates. A July 2017 Federal Reserve Bank of New York study found that “a pass-through effect on tuition of changes in subsidized loan maximums of about 60 cents on the dollar.” This means that for every additional dollar the federal government allows students to borrow, colleges and universities increase their tuition by 60 cents, thus increasing the number of students who “need” loans to “afford” college in the first place.

The HERO Act would address the affordability issue by streamlining the current duplicative menu of student loan programs into one option and creating one repayment period for undergraduate loans and another for graduate loans. Additionally, the act would establish caps on loan amounts, which would help to keep university rate increases in check and lower the amount of debt students need to repay once they graduate from college.

Finally, the fourth title of the bill would provide accountability reform.

Today, many borrowers are not making payments on their student loans — one of the reasons some economists have predicted that student loans are the next financial bubble. The current system, however, doesn’t effectively require universities to lower tuition and verify that their students are able to repay the loans they take out.

The HERO Act would make sure that all parties in higher education have “skin in the game” by requiring schools with poor student loan repayment rates to pay a fine. Universities would have to repay 10 percent of the overall amount of loans made, taking into account loan default rates and the average national unemployment rate. It would thus ensure that colleges have a financial stake in their programs, and motivate them to invest in the success of their students.

Today’s students deserve a more innovative, transparent, accountable, and affordable higher education system that equips them for the challenges and opportunities of the 21st century modern job market. The HERO Act would be a step in just that direction.

If We Can’t Control Spending Now, When Can We?

July 27, 2019

There is a quote that’s long been attributed to St. Augustine, who during his conversion to Christianity famously uttered a prayer asking “Lord, help me be chaste, but not yet.” The idea behind this as old as human nature itself: it’s easier to have the thought of doing something later than to do that thing now, especially when it’s something difficult. And unfortunately, the longer you delay it, the harder it often gets.

Unfortunately, the budget, spending, and debt limit deal that the Senate voted on this week was a prime example of this. This bill blows past budget caps, raises spending, and temporarily suspends the public debt limit for two years – at a point in time when the federal government is already trillions of dollars in debt.

It is understandable why politicians want to support greater government spending. There are simply no easy options for cutting spending; they’re all difficult. And raising spending usually garners praise from both the press and constituents.

But that doesn’t mean we can pretend things are different than they are. We might be able to suspend the debt ceiling and waive the budget rules, but we cannot ignore the laws of mathematics. And the farther we kick the can down the road, the worse off we will be.

How did we get into this situation with our expanding debt? It didn’t always used to be this way.

Historically, during a number of periods of crisis in American history – namely, major wars and recessions – we accumulated more debt as a percentage of our gross domestic product (GDP). But in each of these instances, there was a distinct reason as to why we took on more debt; and once those reasons went away, our debt would go back down.

But in recent years, something different has happened. We have come out of the Great Recession, and have been enjoying one of the longest economic recoveries in history. We are at the very top of the business cycle and have near record-low unemployment levels. We are not in involved in a world war and we’re in a period of relative peace. And it’s expected that we will soon see a moment in history when we’ve never before brought in more money into the federal government’s coffers.

And yet, we have record-breaking deficits and our debt continues to rise.

What has been at the root of this phenomenon? Our government has grown enormously large and become enormously expensive. And for a long time, it has been spending a lot more money than it takes in – lately, to the tune of many hundreds of billions of dollars a year. Americans work months out of every year just to be able to pay their federal taxes, only to be told that our nation is still $22 trillion in debt.

It begs the question, if we can’t control spending now when the economy is performing as well as it possibly can, then when can we? What will happen when we enter a period of true crisis again? To borrow the phrase from John F. Kennedy, “If not us, who? If not now, when?”

And the more we try to delay responding to this problem, the more we are burdening future generations of Americans. If we have to suspend the debt ceiling now, we are essentially transferring the responsibility of financing our current government to our children and grandchildren, for debt accumulated before they were even born.

This is, in other words, a pernicious form of taxation without representation. We fought and won a war over that injustice, and it is not something we should be deliberately forcing on future Americans.

It’s true that there will not be any easy solutions for responding to this building problem. But the budget bill that passed the Senate week – which only paves the way for further deepening our debt – is certainly not the right course of action.

Is it going to be any easier to deal with this problem in the future than it is now? I think not. If not us, who? If not now, when?

That is why I voted against this bill this week, so we can at least start making steps in the right direction.

We Can Solve The Border Crisis with These Changes

July 19, 2019

We are a nation of immigrants. We always have been. And I hope we always will be.

But in order to preserve our nation’s immigrant heritage, we must first make sure that our current immigration laws are not being manipulated and abused.

Unfortunately, that is exactly what has been happening for over five years now, and the resulting crisis has inflicted high humanitarian costs on both Americans and migrants.

Just a few months ago, however, many in Washington and the national media denied that anything was amiss at our nation’s border. CNN’s Don Lemon and DNC Chairman Tom Perez both called it a “manufactured crisis” while Sen. Elizabeth Warren insisted all the suffering was “fake.”

But there was nothing fake about the human pain I saw last week at the border in Texas. I talked to one Guatemalan couple in their late 20s who had travelled more than 1,000 miles through Mexico with their two children. I saw an overflowing facility of single adult males with no room to sleep and no privacy to use the bathroom. And I talked to a ten-year old girl who said she had spent the last two months walking with her family from Ecuador.

None of the journeys these families made were cheap, safe, or easy. Smugglers charge up to $10,000 to guide migrants from Central America to the United States. Even at that price, migrants are subject to robbery, assault, and even rape along the way.

And yet tens of thousands of families are making this journey every month. Why?

It didn’t always used to be this way.

Before 2011, migrant family apprehensions at the border were so rare that the Department of Homeland Security didn’t even have a separate category for it. But then in 2011, Mexico significantly cut back on their own border security enforcement, starting with a decriminalization of illegal entry and disarming immigration law enforcement officers.

A trickle of family migrants turned into a steady stream after President Obama announced through his Deferred Action for Childhood Arrivals (DACA) program that the United States would no longer deport migrant children who managed to evade deportation for at least five years. The month before DACA fewer than 1,000 families were apprehended at the southern border every month. By the summer of 2014, that level reached 15,000.

It got so bad that in June 2014 President Obama sent Vice President Biden to Guatemala to tell families that DACA did not apply to new arrivals. “Do not send your children to the borders,” President Obama told ABC News. “If they do make it, they'll get sent back. More importantly, they may not make it.”
But smugglers told Central American families a different story. They said America’s border law enforcement agencies were overwhelmed. And that the Border Patrol would be forced to release families caught at the border into the United States. And that once these families were released into the United States, the chances that authorities would ever track them down, and have the political will to deport them, would be very small.

And the smugglers have been proven right. As a result, the number of migrant families coming to the border has skyrocketed.

As mentioned earlier, before President Obama announced DACA, fewer than 1,000 migrants traveling as a family were apprehended at the border. This past month, that number was more than 55,000.

The root cause of this migrant surge is economic. According to the Institute for Defense Analysis, people migrating illegally from Guatemala and Honduras can make about 13 to 14 times more in the United States than what they make in their home countries.

But this has been true for decades. And yet the migrant crisis only recently started. Why?

The proximate cause of today’s migrant crisis is the unfortunately correct belief among Central American migrants that if they come to the United States with children, they will be quickly released into our country, and they will most likely be allowed to stay forever.

The American people never consciously passed a law enabling migrants traveling with children to freely enter the United States at will, but thanks to a well-meaning anti-human trafficking law and an activist 9th Circuit judge, that is exactly the policy outcome our government is currently delivering.

For most of American history, all migrants illegally crossing the southern border were simply returned to Mexico. End of story.

But under the Trafficking Victims Reauthorization Act of 2008 (TVPRA), Border Patrol agents must treat migrants from non-contiguous countries (i.e. countries other than Mexico) differently than migrants from Mexico. Unaccompanied minor migrants must be taken into custody and transferred to the Department of Health and Human Services’ Office of Refugee Resettlement within 72 hours of being taken into custody, while families apprehended by the Border Patrol must be transferred to Immigrations and Customs Enforcement within 72 hours.

Ideally, these migrants’ immigration status could be adjudicated while they are still in government custody so they could then be sent to their proper destination after adjudication. Unfortunately, in 2015, a 9th Circuit court ruling, Flores-Figueroa v. United States, held that the government cannot detain any child for longer than 20 days.

As a result of the trafficking law and this Flores decision, families apprehended at the southern border are typically released into the United States mere days after being taken into custody. And virtually all of them are then permitted to stay in the United States indefinitely. According to the Department of Homeland Security, just 1.4 percent of family members detained from Central American countries in 2017 have been returned to their home countries.

This “catch and release” policy, a policy well-known to smugglers and sold to migrant families across Central America, is the driving force behind the humanitarian crisis at our southern border. Until we stop releasing migrant families apprehended at the southern border into the United States, this crisis will only get worse.

We can end this crisis but it will not be easy. We need more beds. We need more funding. We need to change our asylum laws, we need to reform the TVPRA, and we need to fix the Flores loophole.

If we do these things we can solve this crisis, just as we have solved other great problems in our society. But to do that we need a clear understanding of how this crisis began and why it is getting worse in the first place.

Responsibly Providing for the Common Defense

June 28, 2019

When the Founding Fathers declared Independence from England, they understood that providing for the common defense was one of our government’s most important duties. But they also knew from experience under British rule that that bad things happen, especially at the national level, when too few people exercise too much power – especially in matters of war.

So instead of placing this power in the hands of one man where it could be used to unilaterally declare war, the Founders placed it in Congress.

They intended that these most grave decisions – decisions that put American resources and lives on the line – be debated with the utmost care and consideration, by the people’s elected, accountable representatives.

Unfortunately, in recent years Congress has largely been neglecting its duty of actively – and responsibly – authorizing and overseeing our military engagements.

Take the Oversees Operations Contingency, or OCO, account.

While Congress used to budget for emergency supplemental funding for war time emergencies each year, after the September 11th attacks, something changed.

The Bush administration created a fund called the “Global War on Terrorism” account… separate from the base budget. Congress began to rely on this fund year after year for military spending, primarily for operations in the Middle East; and year after year, if failed to integrate it into the baseline budget.

When the Obama administration took over, they changed the name from GWOT to the “Overseas Contingency Operations”, or OCO, and also requested OCO that it be exempted from the defense spending limits set by the Budget Control Act of 2011.

And the practice has continued to this day. OCO has morphed into an unaccountable slush fund for the Pentagon – insulated from scrutiny and unchecked by budget caps. Since 2001, Congress has appropriated about $2 trillion dollars in total for these funds, accounting for 17% of defense spending in that time… with each dollar adding to our rising debt.

Furthermore, these dollars have largely been going to dubious nation-building investments that lack an overall strategy and have no end in sight.

We’ve now been in Afghanistan for 18 years, and in Iraq for 16 years. We have deposed Saddam Hussein, and we’ve killed Osama bin Laden.

We have accomplished much of what we set out to do… but we’ve also been pulled into nation-building thousands of miles away, causing serious harm to those countries and our own credibility in the process.

Unfortunately, this year’s National Defense Authorization Act maintains the broken status quo for OCO – authorizing another $75 billion dollars – and perpetuates the misguided strategy we’ve been undertaking in the Middle East since the beginning of the wars in Afghanistan and Iraq.

It continues funding – in dollars, weapons, and people – missions that have no clear end goal, for problems that were never ours in the first place.

For example, it authorizes almost $5 billion for the Afghanistan Security Forces Fund. And it calls for a stabilization strategy in Iraq, Syria, Afghanistan, Somalia, Yemen, and Libya.

And worse still, Congress never even authorized some of these military engagements in four out of six of these countries in the first place.

This is not responsible budgeting, oversight, strategy, or governance – which is why I voted no on this bill this week.

What we ought to be doing is drawing down our OCO account and integrating this spending into our baseline budget.

And we ought to be actively preparing a strategy that phases out our engagement in the Middle East, instead of perpetuating these indefinite, inefficient, and unauthorized wars.

It’s about time that Congress lived up to its Constitutional duty of once again responsibly budgeting and strategizing to protect the American people. And it’s about time that we live up to the spirit of our founders’ Declaration of Independence and once again give them a say in these matters.