Dara Lind | Vox

The nerdiest article you’ll read about the baseball lockout

2022-03-08T14:38:50-05:00

Max Scherzer #31 of the Los Angeles Dodgers pitches against the Atlanta Braves in the first inning of Game Two of the National League Championship Series at Truist Park on October 17, 2021. Scherzer is one of the chief negotiators for players trying to forge a new bargaining agreement. | Kevin C. Cox/Getty Images

There might not be a 2022 baseball season in America.

In early December, Major League Baseball’s collective bargaining agreement with the players’ union expired before any serious negotiations began about a new one.

Instead of extending the old agreement until a new contract could be ratified, MLB — which is to say, the owners of the 30 major league teams — decided to institute a lockout, essentially ceasing all baseball operations until there is a new bargaining agreement

Since then, negotiations have continued on and off, without major breakthroughs. By mid-February, players would normally have started spring training. When there wasn’t a contract at the end of February, the deadline the league had set in order to allow the season to start on time at the beginning of April, Major League Baseball Commissioner Rob Manfred announced he was canceling the first week or so of the 2022 season.

In the week since that announcement, the two sides appear to have moved even further apart on key issues, raising serious questions about when, or whether, the season will start at all.

It’s the highest-profile work stoppage in professional US sports in the nearly 20 years since the National Hockey League locked out players in the mid-2000s. And it’s happening at a moment when a range of industries are seeing increasingly empowered workers (and unions).

But the MLB lockout should be of special interest, even to people who aren’t into sports, because of baseball’s unique legal status. For over a century, Major League Baseball has been formally exempt from federal antitrust law, making it an explicitly legal monopoly. And baseball’s labor relations have long been entwined with that monopoly status — and with the federal courts.

The time Sonia Sotomayor saved baseball

Major League Baseball won its antitrust exemption after getting sued by a startup league in the 1910s. The judge hearing the case tried to sit on it for a year because he worried it would hurt baseball if he had to rule. (That judge, Kenesaw Mountain Landis, became the first commissioner of baseball a few years later.) The case ultimately made it to the pre-New Deal, reactionary Supreme Court, which ruled that baseball wasn’t subject to congressionally enacted laws because it didn’t engage in interstate commerce.

Over the next decades, the court’s view of interstate commerce expanded immensely, but the baseball exemption stood.

Twice, the Court heard challenges to the antitrust exemption, and twice it let the exemption stand. Both times, a key part of its argument was that if Congress had wanted to pass a bill subjecting baseball to antitrust law, it would have done so — and because it didn’t do this, Congress had essentially endorsed the exemption. (This argument is, frankly, a bit weird, since in the late 1950s, MLB pushed Congress to pass a law codifying the antitrust exemption, and Congress didn’t.)

The second and final time the court heard a challenge to the antitrust exemption, in 1972, it was in a labor relations case. Curt Flood, an outfielder, sued the league over the “reserve clause” — which gave contract rights to a player’s current team indefinitely, preventing him from seeking more money elsewhere or from vetoing a trade to a different team. After Flood lost the suit, the players’ union switched tactics and successfully got rid of the reserve clause, ushering in the era of free agency, when a player could run out his current contract, then force teams to bid against each other to maximize earnings from his new one.

The rise of free agency has changed public perceptions of sports unions. Often, labor fights in sports are perceived as millionaires versus billionaires because the top players are making so much money. But even though baseball has never had an official salary cap, there’s never been the arms race on player salaries that Econ 101 would predict.

If you want to know why there’s labor strife in baseball right now, this is as good an answer as any: While revenues for major league teams (i.e. owners) are at record highs, the amount of money paid to players in the last few years has gone down.

In the past, major league owners engaged in explicit collusion to keep offers to players low. The league ultimately paid out a settlement to the union after losing three straight arbitration cases regarding collusion in 1985, 1986, and 1987. The losses were so embarrassing that Atlanta Braves owner Ted Turner famously told his peers, “We have the only legal monopoly in America, and we’re fucking it up.”

Then, in early 1995, owners tried to force the union to accept a salary cap. When the National Labor Relations Board (NLRB) ruled against MLB in the dispute and the union lifted its ban on players negotiating with teams, MLB immediately banned all teams from signing players. The about-face prompted the NLRB to kick the labor dispute to federal courts in an attempt to save the 1995 season.

The judge who got the case, Sonia Sotomayor, was initially characterized in the press as not being a baseball fan — a description at which she took umbrage (Sotomayor was and remains a Yankees fan).

She issued a very quick and elegant injunction forcing the league and players to restart play under the old collective bargaining agreement, an act that White Sox fan President Barack Obama, when nominating her to the Supreme Court, would later characterize as “saving baseball.”

What’s at stake in the negotiations and why it matters

In the years since then, owners have quietly implemented a “soft” salary cap by forcing teams with a payroll over a certain amount to pay a fraction of that payroll as a “tax” to the league.

This “competitive balance tax” is the key issue in the current negotiations: The owners want to make it even more expensive for teams to go over the threshold, thus making it a “harder” salary cap.

Even though the league and players are still far apart on where they want the threshold to be, some owners feel that the league is already giving in too much by offering too high a threshold.

The problem, as the players (and a player-sympathetic baseball media) see it, is that the status quo incentivizes anti-competitive behavior from owners. The balance tax encourages richer teams as well as poorer ones to keep their costs down. Meanwhile, revenue-sharing subsidizes teams that bring in less money, either because they’re in a smaller market or just because the team isn’t worth paying to watch.

Put them together and it’s awfully easy to make money owning a baseball team without bothering to improve the product — which is to say, paying for better players.

This is the explanation usually given in sports media for the current rift between management and players: that professional baseball players are inherently competitive guys who’ve gotten angry as they see owners making money without trying to compete (and have a convenient foil in Manfred, a commissioner who often seems kind of indifferent about baseball).

But that understates just how impressive it is that players are so united.

When Manfred canceled Opening Day, players around the league spoke out and blamed him by name — including Mike Trout, a future Hall of Famer who is best known for not saying anything controversial (or really even interesting). Hall of Fame inductee David Ortiz reportedly convened a meeting of Dominican players and urged them to hold the line.

One of the union’s chief negotiators is pitcher Max Scherzer, who shortly before the lockout signed a $130 million three-year deal with the New York Mets. The superstars are forgoing their own salaries for as long as the lockout continues to fight for a deal that’s going to help people who aren’t millionaires. That’s an impressive feat of union organizing, but there are also other factors in play.

The other key issue is the future of free agency. In recent years, teams have learned to maximize the amount of time before a player can become a free agent by waiting until a couple of months into the season to bring stars up from the minors. By doing this, teams don’t just buy themselves an extra year of a rookie-contract bargain on a young star. They shorten the amount of time the player will have on a more lucrative contract before his skills decline. In theory, for more physically punishing positions, a player could already be on the downslope of his career when he first becomes a free agent — so he’ll never capture the value he generated at the top of his game.

Given the professionalization of youth sports over the last few decades, the fact that college athletes still can’t get paid for playing, and the fact that even the most promising baseball players spend a few years in the minor leagues (where un-unionized players are underpaid and even underfed by their teams), a baseball player could have put decades of uncompensated labor into a major league career in the hope of winning one big contract to make it all worth it.

That might be what the millionaires see when they look across the negotiating table at the billionaires: the people who benefit from years of free and cheap labor from people promised a big payday later, and are now balking at the prospect of paying out.

This article is adapted from Vox’s The Weeds newsletter, a weekly briefing to understand policy and its impact, from housing to health care to, yes, baseball! If you’re not a subscriber yet, you can sign up at vox.com/weedsletter.

The hidden lesson in the new free Covid-19 tests

2022-01-21T16:59:21-05:00

A woman receives a package with a rapid Covid-19 test in Gentbrugge, Belgium. In the US, free tests by mail are starting to roll out. | Philippe Francois/Belga Mag/AFP via Getty Images

This is an excerpt from the newsletter for The Weeds. To sign up for a weekly dive into policy and its effects on people, click here.

This week, the Biden administration rolled out a plan to send up to four free Covid-19 tests to every household in America.

But you probably already knew that. At times, there were over 700,000 concurrent visitors to the page on the USPS site — more than every other .gov page combined.

The enthusiastic response was remarkable because it was unusual. There are at least three different ways the Covid-19 test rollout succeeded where people expect government to fail:

It highlighted the failures of industrial and regulatory policy that have led to widespread shortages in at-home Covid-19 tests, and delays in results coming back from test sites.
It brought back memories of new government websites being unable to handle high traffic volume (e.g. Healthcare.gov).
It was quick and simple: The only information people needed to provide was their street address.

The execution wasn’t perfect (a flaw affecting some apartment dwellers led the government to limit some buildings to a single four-test order) but that didn’t dampen the enthusiasm. Which tells us something about how difficult Americans expect it to be to interact with the government, especially when trying to get the assistance the government has promised them.

Emotional labor, but for government

There are a few ways to think about these bureaucratic struggles. One, coined by Annie Lowrey in a 2021 Atlantic feature, is the “time tax” — the amount of time and energy that people waste interacting with the government. But my preferred term, popularized by the academics Donald Moynihan, Pamela Herd, and Hope Harvey is “administrative burden” — which refers not only to the concrete loss of time and money, but to the cognitive and psychological burdens of having to learn and comply with government rules.

It’s hard to say just how much administrative burden there is. There’s no attempt to synthesize information about it even at the federal level, let alone the state and local governments that are responsible for implementing most safety-net programs. The best way to understand it is to look at all the labor involved to access a specific program: unemployment benefits in North Carolina, for example.

The one overarching truth is that administrative burdens particularly harm people already marginalized because they’re most in need of assistance and because they’re most likely to have difficulty jumping through all the hoops. Maybe they don’t have a computer, maybe they don’t speak English or understand legalese, or maybe they have to forgo shifts at work just to go to the right office to submit a form.

By extension, any restriction on who is eligible for benefits increases administrative burden, not only for people who apply and are found ineligible but also those who have to do more work to prove eligibility in the first place. The Covid-19 test webpage could be easy because there were no restrictions; it didn’t need to ask about anything besides your address.

There’s also a second-order way that making programs universal fights administrative burden: When politically empowered, privileged Americans are inconvenienced by something, they’re more likely to make noise and get it to change.

But there is little if any political incentive to reduce the burden on people who politicians don’t typically listen to or need to court, such as noncitizens or people disenfranchised due to criminal records.

If you work in government or as a service provider — or if you are or know someone who’s been further marginalized by the hassle of administrative burden — I’m really curious to learn more about what you’ve seen. You can email weeds@vox.com. It’s always good when The Weeds can talk about policy not only from the perspective of its designers, but also its users.

The Supreme Court will finally take up DACA’s fate next term

2019-10-08T11:59:11-04:00

The Supreme Court is finally going to decide the fate, after its next term starts in October, of the hundreds of thousands of immigrants currently protected from deportation by the Deferred Action for Childhood Arrivals program created by President Barack Obama in 2012.

The Court agreed to hear the DACA case Friday, on its last day before summer recess. It will hear oral arguments in the case at some point after the next term starts in October, with a decision likely coming sometime in the first half of 2020 — possibly as late as the end of June.

That timeline matters a lot to the approximately 600,000 immigrants who have managed to retain their DACA protections over the past two years, since the program has been in limbo since President Donald Trump attempted to wind it down in 2017. They have had to time their applications for DACA renewal to maximize their time protected, waiting long enough to apply so that they’re protected for as long as possible if the Supreme Court decrees that no new renewals can be issued, but not so long that DACA might be ended first.

The DACA case will be one of the most hotly anticipated of the Court’s next term. And with the Supreme Court having shown in 2018 (in the travel ban case) that it was willing to defer to the Trump administration’s immigration policy, but having shown in 2019 (in the census citizenship-question case) that it wasn’t willing to look the other way when the administration lied about why it was making decisions, it is genuinely unclear which way the Court will rule.

DACA — and the immigrants protected by it — have been in limbo for two years

From 2012 to 2017, DACA was open to applications from unauthorized immigrants who came to the US under the age of 16 and before June 2007; who were under age 31 as of 2012, when Obama created the program; and were at least 15 when they applied. If they applied and passed background checks, they were given a two-year grant of protection from deportation and a work permit.

In September 2017, Trump ordered the Department of Homeland Security to stop taking new applications and to wind down the granting of renewals for people already covered under DACA. The first was successful. (Tens of thousands of immigrants who were younger than 15 when Trump suspended applications in 2017 would now be eligible for DACA if it were fully reinstated.)

The second Trump order — ending renewals for current DACA recipients — was thwarted in January 2018, when a California judge put a hold on Trump’s plans. That ruling was appealed, and it, as well as several other lawsuits against DACA (none of which have gone the administration’s way), is what the Court is agreeing to hear next term.

The Trump administration tried to accelerate this timeline by getting the Supreme Court to hear a DACA case last spring. The Court refused. It tried to push the Court to take up the case last fall, for the term that just ended, but for months, the Court didn’t grant the petition. Now it finally has.

In the meantime, immigrants have been able to keep applying for renewals. Now they have to try to predict when the Court might rule — and see if it makes sense to reapply now, even if they only applied for their last renewal a year ago, or wait and see how long it takes for the Court to rule.

The worst-case scenario for Trump at SCOTUS is a census-case-style do-over — but like the census case, this one might not have time

The legal question at the heart of the DACA case is whether the Trump administration violated the Administrative Procedure Act by ending DACA without proper consultation and comment from inside and outside the government.

The Trump administration definitely didn’t check the APA boxes that an agency has to check when creating a new regulation. But the Obama administration didn’t do that in creating DACA, either. So the question is essentially whether it’s illegal to skip steps in ending a program just because steps were skipped in creating it — and because there is now a group of people (DACA recipients themselves) who would be harmed by ending it, several judges have found that it is.

A related question is whether the Trump administration’s stated reason for ending DACA — that it was worried the program was unconstitutional, even though DACA had never been successfully challenged in court — was the true reason for ending it. If that sounds familiar, it’s because that was also the key question in the census citizenship case that the Supreme Court decided Thursday, in which it ruled against the administration for attempting to add a citizenship question to the census based on a pretext.

As with the census case, if the Court rules against the administration on DACA, it will likely just tell the administration to go back and try again but do it legally this time. But just as the Census Bureau is now running up against deadlines to finalize forms in advance of next spring’s census, the Trump administration might run up against another deadline — the presidential election — in trying to end DACA again.

Congressional Republicans have lined up behind Trump on most immigration issues, but they were panicked when he tried to end DACA because the program’s recipients are highly integrated, highly sympathetic immigrants. If the Supreme Court rules in June 2020 that the Trump administration has to make a new effort if it wants DACA killed, some Republicans might not find it worthwhile. And, of course, it’s not at all certain that the administration would be able to pull together a new rationale in time before January 2021 — or that Trump would still be in office afterward.

It’s possible, in other words, that DACA remains in its zombie form until someone else is president. But it’s impossible to judge how likely that is. And that leaves DACA recipients in limbo still.

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4 winners and 3 losers from the second night of the Democratic debates

2019-06-28T15:33:33-04:00

A field of 20 Democratic presidential candidates was split into two groups of 10 for the first debate of the 2020 election. | Joe Raedle/Getty Images

It’s over. After two grueling nights, all the Democratic presidential candidates have had their say. (Well, not all — not Seth Moulton, not Joe Sestak, nor any of the three other candidates whom the Democratic National Committee deemed “not as important as Eric Swalwell.”)

But 20 candidates have said their piece, in the final event of its kind until [checks calendar] next month. And on night two, the two arguable frontrunners (Joe Biden and Bernie Sanders), two candidates who’ve been nipping at their heels (Kamala Harris, Pete Buttigieg), and two agents of chaos (Marianne Williamson, Andrew Yang) all came to play.

It was, all told, a less substantive night than night one. There was no detailed discussion of the nuances of immigration policy, and the Medicare-for-all debate remained near surface level. At times, the proceedings devolved into incoherent shouting with no understandable contributions from anyone. But there was one moment amid the chaos that stood out as an instantly historic moment in a presidential debate — more on that below — no matter who winds up winning this primary in the end.

Here’s who ended the night ahead, and who fell behind.

Winner: Kamala Harris

There was a common thread to almost every standout moment during the debate on Thursday: Kamala Harris.

Known for her pointed Senate questioning of Trump officials, Harris employed this prowess at the debate, calling out her fellow candidates for engaging in a “food fight,” confronting former Vice President Joe Biden about his work alongside segregationists, and explaining how executive action could overcome congressional roadblocks.

On issues as varied as medical bills and the migrant crisis, Harris demonstrated an ability to marry descriptions of policy with an accessible story of a person it could affect.

In her remarks toward Biden, this approach was particularly effective, because the personal experience she spoke to was her own:

It was hurtful to hear you talk about the reputations of two United States senators who built their reputations and career on the segregation of race in this country. And it was not only that, but you also worked with them to oppose busing. And there was a little girl in California who was part of the second class to integrate her public schools and she was bused to school every day. That little girl was me.

Harris has served as a prosecutor for most of her career and was elected to the Senate in 2016. Prior to the Thursday debate, she was likely known to many voters for her fierce scrutiny of William Barr and Brett Kavanaugh in Senate hearings. Her turn Thursday night suggests those standout performances were far from a fluke.

—Li Zhou

Winner: Pete Buttigieg

Almost every breakout moment belonged to Harris, but insofar as anyone else stood out, it was Pete Buttigieg.

Mayor Pete’s meteoric rise from obscurity to the top tier (or at least the second tier) of Democratic candidates has been somewhat complicated in the past week or so by another South Bend controversy over police violence toward minorities, a simmering issue that has dogged Buttigieg throughout his campaign.

His big challenge came when host Rachel Maddow asked him point-blank about the ongoing lack of minority representation in the Indiana city’s police force. Most politicians, notable for large egos and an inability to admit error (cough Biden cough), would have spun it, so it was striking that Buttigieg began his answer with a simple confession: “I couldn’t get it done.”

He went on to talk about the pain in his community, what he has managed to accomplish, and what he plans next, but it was that simple confession that stuck. It is thoughtful self-awareness, meant as a contrast to the belligerent certainty more common in politics these days — very much Mayor Pete’s brand. (Some of my colleagues find it Ivy League irritating; your mileage may vary.)

His other big moment came when he was asked to name his first priority in office. He cited “democracy reform,” without which nothing else is possible. That is, to a first approximation, the correct answer, narrowly beating out “call New Zealand.”

Thursday night, Buttigieg needed to remind primary voters why they took such a shine to him in the first place — his calm, sensible intelligence — and he largely succeeded. He’s likely angling for VP at this point, but he’s still in the running.

—David Roberts

Winner: the National Rifle Association

The Democratic primary and debates have been defined by some bold proposals that demonstrate how far the party has moved to the left: Medicare-for-all, wealth taxes, the Green New Deal.

But as Thursday’s debate showed, that boldness hasn’t quite extended to gun control. On that issue, Democrats are still fighting on terms that gun lobbyists have set (and this was before Joe Biden uncorked the line “Our enemy is the gun manufacturers, not the NRA”).

The main ideas put forward on the debate stage on Thursday — universal background checks and an assault weapons ban — are the exact same policy proposals that the party has been pushing for decades. The original background check bill, which universal checks would try to patch up, passed in 1993. The assault weapons ban is basically a retread of a 1994 ban that has since expired.

Even the boldest idea on the stage — a mandatory buyback program for assault weapons, proposed by Rep. Eric Swalwell (D-CA) — is fairly limited in its scope. Swalwell was also clear his assault weapons ban would leave out “pistols and rifles and shotguns,” making it, essentially, an extension of the assault weapons ban.

These ideas would likely do little to address gun violence. Recent studies suggest universal background checks, on their own, don’t have a big impact on gun deaths. An assault weapons ban could make some mass shootings less deadly, but there are big questions about how it would be enforced (with a buyback or not), and it wouldn’t address the 70-plus percent of firearm homicides that involve a handgun.

Bold gun control policies should be having a moment right now. The NRA is in chaos, as its leadership is caught in a civil war. The Parkland, Florida, activists have forced guns into the spotlight for more than a year now. A recent Morning Consult poll found that Democratic voters put gun violence second only to climate change as the issue they wanted to hear about in the first debates.

The 2020 Democratic primary has so far been all about big, bold ideas — except when it comes to guns.

—German Lopez

Winner: the first night’s debaters

The Democratic presidential candidates had a really good debate … on Wednesday night.

The first night felt like a debate about ideas. And candidates agreed with each other as often as they disagreed (Elizabeth Warren endorsed “Bernie’s” health care plan; other candidates stood with Julián Castro on decriminalizing migration).

Thursday night’s debate had a lot more talk about people: Donald Trump, for one, but also each other.

Maybe it was the fact that both of the 2020 race’s frontrunners — Bernie Sanders and Joe Biden — were onstage Thursday night, while the closest thing Wednesday night had to a frontrunner was Warren (who has Big Plan Energy herself). The Biden-Bernie center of gravity created attractive targets for the lesser-known candidates onstage, making the debate explicitly a referendum on Sanders’s proposals or Biden’s record rather than one in which candidates were discussing the ideas themselves. Marianne Williamson, far off to one side of the stage, may have been the only candidate running against the idea of a plan, but the field as a whole seemed less excited to discuss proposals.

The more enthusiastic vibe of Wednesday night gave off a sense of a Democratic Party trying to figure out what it stood for, together. Thursday night was about candidates trying to elbow each other out of the way and make the case for themselves.

Obviously, debates are as important for the latter as the former. But with 20 candidates on the stage and six more months until the first primary, it’s totally plausible that this debate won’t actually matter to the race. The first debates, in a way, mattered much more as expressions of the field than expressions of individual candidates. And Wednesday’s debate simply gave a better sense of what the Democratic Party might stand for, other than being against Trump and in favor of somebody else.

—Dara Lind

Loser: Joe Biden

Honestly, Joe Biden did not need to do much to win, or at least break even, in Thursday’s debate. He is solidly in the lead in nearly every poll nationally, in Iowa, and in New Hampshire. He has enormous name recognition and a massive lead among older voters.

His goal was to do no harm. He did not achieve his goal.

For most of the debate, he did … fine. No memorable answers, but no fumbles either. And there were no obvious candidates who stole his thunder. Nothing had happened that would disrupt his standing as frontrunner.

Then Kamala Harris took her shot and the night went to hell for Biden. She directly contrasted Biden’s record as an opponent of school busing with her childhood as a beneficiary of school busing, and made the night about both Biden’s past and the divide between him and the party’s future.

A few days ago, when controversy first raged between Biden and Sen. Cory Booker (D-NJ) over Biden’s comments about working with segregationist senators, Harris joined in Booker’s condemnation, telling CBS’s Face the Nation that “I would not be a member of the United States Senate if those men that he praised had their way.”

But it’s one thing to echo an attack on a Sunday morning show. It’s another to make it to your target’s face, as Harris did in the debate, directly connecting Biden’s opposition to busing to her childhood experience as a beneficiary of Berkeley, California’s busing program.

It was that connection, to Biden’s policy record rather than just his chummy attitude to his colleagues, that made the attack on him so piercing.

Biden didn’t have much to say to that. He ended his feeble reply to Harris on an almost too-poignant metaphor for his own fading relevance:

“My time’s up. I’m sorry.” — Joe Biden
— Matt Viser (@mviser) June 28, 2019

And reports suggested that his campaign saw the exchange as a disaster:

A source close to the Biden campaign tells me his staff is “freaking out” about his poor performance tonight.
— Olivia Nuzzi (@Olivianuzzi) June 28, 2019

(His deputy campaign manager, naturally, denied this.)

Biden’s biggest weakness is and always has been a sense that his party has left him behind, that he is a relic of an earlier, less progressive era in Democratic history. Thursday night made that sense stronger than ever.

—Dylan Matthews

Loser: Eric Swalwell

The most important question to ask Eric Swalwell about his candidacy is just, “Why?” Swalwell is a safe-seat Democratic Congress member from California. He doesn’t have the veteran credentials of Seth Moulton, the blue-collar roots and appeal of Tim Ryan, the raw charisma of Beto O’Rourke, or the independent wealth of John Delaney, the other congressmen in the race.

But perhaps dismissing him is unfair — candidates lumped in with the pack can certainly break out. It was not clear before Wednesday night that the race needed Julián Castro, but he made a compelling case, when given a chance, that he could advocate for unauthorized immigrants in a way that few other candidates were willing to do. Bill de Blasio, similarly, broke out by expressing a progressive message with the credibility of someone who’s actually run a sizable executive branch.

Swalwell could’ve had a moment like that Thursday night. He didn’t. His answers on policy were mostly pablum, and insofar as he had a memorable moment, it came when he yelled at Pete Buttigieg to fire his police chief in the wake of an officer-involved shooting. The whole scene was vaguely Trump-ish: tough-guy boss talk, not a serious interjection into a sensitive debate about police violence. It didn’t make Buttigieg look weak; it made Swalwell look desperate.

The question for Swalwell remains: why? What reason is there for anyone to back you over any number of other candidates? On Thursday night, at least, we didn’t hear an answer.

—Dylan Matthews

Loser: the moderators

This is a selection from the rush transcript of the night’s debate. The chaos onstage was such that only Bernie Sanders is identified as a speaker, of the five people who were speaking at the time.

>> As the youngest guy on the stage, I should contribute.

>> Part of Joe’s generation, let me respond.

>> Before we move on from education —

>> Please, please.

Sanders: It’s generational. Who has the guts to take on Wall Street, to take on the fossil fuel industry, to take on the big money interest who have unbelievable influence over the economic and political life of this country.

On the page, this looks like Samuel Beckett dialogue. Live, it sounded the way that I described the McLaughlin Group as a child: “the guys yelling at each other.”

Maybe there wasn’t more pushing around of moderators than the previous night’s debate, but it certainly seemed that way. Possibly that’s because several candidates succeeded in talking about totally different issues than the moderators asked about. Sometimes, the resulting moment was among the best of the debate — Kamala Harris turning a policing question into her attack on Joe Biden for opposition to busing, for example — but sometimes, it was Marianne Williamson launching into a riff on “chemical policies” in the midst of an answer about constraining health care costs.

Thursday night, it felt like the candidates were driving the debate, for better or worse, and more frequently worse than better.

The first time Harris stepped in to direct traffic and control the flow of debate — right after the exchange above — it seemed like a bravura move on her part. The second time, it seemed like she was rescuing the moderators because somebody had to.

—Dara Lind

Trump: “I have asked the lawyers if they can delay the Census.” The law: They can’t.

2019-06-27T14:42:06-04:00

President Donald Trump really wants the 2020 census to ask everyone in the United States if they are a US citizen. | Mark Wilson/Getty Images

President Donald Trump really wants the 2020 census to ask everyone in the United States if they are a US citizen. The Supreme Court ruled on Thursday that the rationale provided by his administration in adding the question was a fake pretext, casting doubt on whether there’s enough time to actually put the question on the forms.

But Trump wants it anyway. And if his Twitter feed is any indication, the administration will continue to fight for it:

Seems totally ridiculous that our government, and indeed Country, cannot ask a basic question of Citizenship in a very expensive, detailed and important Census, in this case for 2020. I have asked the lawyers if they can delay the Census, no matter how long, until the…..
— Donald J. Trump (@realDonaldTrump) June 27, 2019

Trump and his “lawyers” have some opportunity to fight for the reinstatement of the citizenship question. Thursday’s Supreme Court ruling gave the agency the chance to offer a more honest explanation of why the Commerce Department decided to ask about citizenship on the census, rather than saying it was necessary to enforce the Voting Rights Act (which the justices dismissed as a fig leaf).

But in order to successfully reinstate the question, they’ll need to offer an explanation that passes court muster in this case and win a separate case in Maryland examining whether the citizenship question was added out of a racist intent to marginalize Latinx voters.

The problem is that it’s mid-2019, and the census takes months of preparation. The Commerce Department set a deadline of June 30 — this coming Sunday — to finalize the forms and send them to the printer. A Census Bureau official has testified that in an emergency, with “extraordinary effort,” the bureau could finalize the forms as late as October and still print them in time for the census to begin in spring. But that still doesn’t give the administration much time.

That’s why Trump is now asking “the lawyers,” apparently, if the census itself can be delayed.

I am not a lawyer, just a journalist who knows how to use the internet (shoutout to Cornell for hosting a website that posts the entire US Code section by section). But I can tell the president that he cannot, in fact, delay the census.

Not only does the Constitution require a decennial census, but the federal Census Act is extremely clear on when that census must take place.

Title 13 of the US Code, section 141, is extremely clear on this point:

(a) The Secretary [of Commerce] shall, in the year 1980 and every 10 years thereafter, take a decennial census of population as of the first day of April of such year, which date shall be known as the “decennial census date”…

If Trump wants the lawyers to get the citizenship question reinstated, they should probably get cracking in coming up with the alternative rationale the Supreme Court asked for — not trying to find a way around an unusually clear provision of federal law.

The Supreme Court’s census ruling, explained

2019-06-27T17:01:44-04:00

On Thursday, the Supreme Court made an unexpected decision on the lawsuit over the Trump administration’s efforts to add a question asking about United States citizenship to the 2020 census. It didn’t uphold the citizenship question — the decision it was expected to make. But it didn’t bar the question from being added either.

Instead, in a partly unanimous opinion (with several different splits along the way) written by Chief Justice John Roberts, the Court said the Trump administration’s Department of Commerce couldn’t add the citizenship question for now. The administration’s justification for adding the question, enforcing the Voting Rights Act, was a pretext — essentially a lie offered after the fact to justify adding the question — rather than a real reason for making the decision.

But it gave the administration the opportunity to try again by offering more genuine reasons for wanting to add one.

The question is when it will be able to do that.

The census lawsuit has been rushed through the legal process because forms have to be finalized well in advance of the census next spring. The Trump administration has said that it needs to finalize those forms by Sunday, June 30.

Now it has to make a choice. It can stick to its timetable and let the citizenship question drop. Or it can push back its own deadline — and trust that with “extraordinary effort,” as one official testified, it can wait as long as October to finalize the forms and still be ready to start taking the Census on April 1, 2020.

The second option would buy them a few more months to take Roberts up on his offer to find a different rationale — while fighting a different lawsuit in Maryland over the Census question. But even if the administration blows through its own deadline and aims for the “extraordinary effort” October deadline instead, it would need victories in both cases within four months.

Adding a citizenship question is legal — but the Commerce Department lied about why it wanted one

In February 2018, the Trump administration announced that it would add a question to the 2020 census, which every household in the United States is legally required to fill out, about whether each member of the household was a US citizen.

The Department of Commerce, which administers the census, said it was adding the question at the request of the Department of Justice. Specifically, Commerce said, the DOJ wanted better citizenship data so it could enforce the Voting Rights Act by guaranteeing that minority citizens weren’t having their votes diluted or marginalized.

That explanation didn’t wash to voting rights advocates. Instead, they and immigration advocates worried that the citizenship question could be used to allow states to draw legislative districts based on the number of citizens in a district rather than the number of residents, which would hurt Latinos. Furthermore, they worried, having an official government form in the age of Trump ask people if they were US citizens would make immigrants and their families afraid to return the form — leading to an undercount in the census that made America appear whiter than it really was.

With these concerns in mind, a coalition of blue states and advocacy groups sued the administration over its decision to add the citizenship question. The Trump administration has faced many lawsuits over its use of executive power. What set the census case apart is that it actually went to trial rather than pushing for a quick preliminary ruling — meaning the plaintiffs had opportunities to gather evidence that they don’t have in faster cases.

And the evidence bore out the plaintiffs’ suspicion that the Voting Rights Act wasn’t the real reason the Trump administration wanted the citizenship question asked.

This is the key passage of Roberts’s decision:

The record shows that the Secretary began taking steps to reinstate a citizenship question about a week into his tenure, but it contains no hint that he was considering VRA enforcement in connection with that project. The Secretary’s Director of Policy did not know why the Secretary wished to reinstate the question, but saw it as his task to “find the best rationale.” Id., at 551. The Director initially attempted to elicit requests for citizenship data from the Department of Homeland Security and DOJ’s Executive Office for Immigration Review, neither of which is responsible for enforcing the VRA. After those attempts failed, he asked Commerce staff to look into whether the Secretary could reinstate the question without receiving a request from another agency. The possibility that DOJ’s Civil Rights Division might be willing to request citizenship data for VRA enforcement purposes was proposed by Commerce staff along the way and eventually pursued.

Even so, it was not until the Secretary contacted the Attorney General directly that DOJ’s Civil Rights Division expressed interest in acquiring census-based citizenship data to better enforce the VRA. And even then, the record suggests that DOJ’s interest was directed more to helping the Commerce Department than to securing the data.

Given all this, Roberts found, the VRA rationale was “pretextual” — it was clearly a fig leaf added after the fact to defend against lawsuits like this one, rather than the underlying reason Commerce Secretary Wilbur Ross wanted a citizenship question.

Roberts made it extremely clear that Ross might have legal and constitutional reasons for wanting to add the question — and he averred that given the evidence available to him, choosing to add the question was a legitimate choice to make. But he scolded the Trump administration for essentially lying about its process:

administrative law, after all, is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public. Accepting contrived reasons would defeat the purpose of the enterprise. If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case.

The Trump administration has to pick between its own census deadlines and the citizenship question

Under normal circumstances, the Supreme Court wouldn’t have issued a ruling in this case for several more months, or longer. It agreed to skip part of the usual appeals process in order to give an answer on the citizenship question in time for the Commerce Department to finalize and start printing forms. Commerce said that needed to happen by June 30, this coming Monday.

But it turns out the Supreme Court decided that this opinion shouldn’t be the last word — that it couldn’t let the citizenship question get added under the current circumstances, but that the Trump administration could come up with more evidence that would explain its real rationale and submit it for court approval.

So now, the Trump administration has a choice.

It can stick with the June 30 deadline and just leave the citizenship question off the census, accepting defeat.

Or it can push back its own deadline and keep trying to add the question.

The Commerce Department has acknowledged that in an emergency, with “extraordinary effort,” it could finalize the census forms as late as October 30 and still run the census in time in 2020. So in theory, it could spend some time gathering new evidence, issue a new decision adding the question to the census, and then get the courts to review that decision and uphold it as correct.

But it would have to do all that within four months, tops. The existing case took a year to adjudicate at trial, and another five months from the initial ruling to Thursday’s SCOTUS decision.

Because the deadline is hard and fast, the courts probably could rule as quickly as they needed to. But it’s not clear what kind of case the administration could make in that time. If the rationale it spent all of 2017 putting together was found to be pretextual, it’s not clear that it would be able to be more honest and more persuasive in the course of a few weeks.

Even if Trump does come out with another rationale, there’s still another lawsuit to be dealt with

What makes the near future even more complicated is that there’s a separate ongoing lawsuit over the decision to add a citizenship question, and the Supreme Court’s ruling today doesn’t touch on it at all.

Earlier this week, judges in the Fourth Circuit Court of Appeals ordered another judge, in Maryland, to reopen the case in a lawsuit over the census there, in order to determine whether the new evidence showed that the census question violated the Equal Protection Clause of the 14th Amendment. That’s not a question the Supreme Court considered in this case — despite a last-minute plea from the Trump administration on Tuesday night for the court to preemptively rule on it and stop the Maryland case from proceeding.

The judge in Maryland has promised to issue an emergency ruling by Friday on whether to stop the Commerce Department from finalizing census forms with the citizenship question on them — though it’s no longer clear whether that will be necessary, as the Commerce Department will already have to blow through its June 30 deadline if it wants to keep fighting to add the citizenship question. The case will then continue throughout the summer.

If the Trump administration can’t come up with a new rationale for adding the citizenship question to satisfy the New York case, the Maryland case won’t matter; blocked is blocked. But even if it does come up with a new rationale, it will have to prevail in both cases — or at least get the Supreme Court to side with it in both of them. And it will have to do so as quickly as humanly possible.

The damage may have already been done

The key argument against adding a citizenship question to the census was that it would intimidate people, especially Latinos, from responding to the decennial count. The census is supposed to be an “actual enumeration” of everyone living in the US at the time, and demographers aren’t allowed to use modeling to make up the difference if they believe that some groups haven’t responded as frequently to it.

But even if a citizenship question isn’t ultimately reinstated, that doesn’t mean the fear of an undercount is going away. Even before Trump, it was harder to get immigrants to respond to the census than citizens — and the fear of Trump was already expected to exacerbate that challenge, even before the citizenship question was proposed.

Last year, a bureau researcher flagged to a census advisory committee that focus groups and field tests were having serious problems getting immigrants to complete the survey.

During one field test, a respondent fled her home when she started getting worried about the questions. Another family moved abruptly after an interview with a census employee, and others halted the questions or deliberately lied.

Three years ago, researchers said, they hadn’t had problems like this. But now, one respondent told an interviewer, “the possibility that the census could give my information to internal security and immigration could come and arrest me for not having documents terrifies me.”

The government can’t actually do that. Federal law strictly prohibits the Census Bureau from sharing information. But under Trump, it’s really hard for any government official to persuade immigrants, or even US-born Latinos, that she can be trusted to protect them.

Even though the 2000 and 2010 censuses didn’t ask about citizenship, experts and advocates were still worried that immigrants (particularly unauthorized immigrants) would be intimidated out of filling out a government form or speaking to a government interviewer.

In 2000, the Clinton administration agreed not to conduct any immigration raids during the time the census was in the field, to reduce the amount of anxiety being stirred up in immigrant communities. In some neighborhoods, census takers put up signs saying “NO INS. NO FBI. NO CIA. NO IRS.”

In 2010, when immigration enforcement under President Barack Obama was at its most aggressive, Immigration and Customs Enforcement made no such reassurances (and, indeed, continued to conduct raids in some areas while census takers were trying to conduct follow-up surveys). But the Census Bureau itself made a big push to reach out to Latinos, especially Spanish speakers, to reassure them that the census was for them and that it was important for them to fill out.

The effort appears to have worked. A survey conducted by the Pew Research Center at the time found that foreign-born Latinos were enthusiastic about the census and extremely confident that their data wouldn’t be used against them; US-born Latinos (who were by definition US citizens), on the other hand, were distrustful.

Mark Hugo Lopez, director of the Pew Hispanic Trends Project, hypothesizes that this was a result of the Census Bureau’s huge promotional push on Spanish-language media — something much more likely to target foreign-born Latinos than American-born ones.

Advocates are worried that the Trump administration has created an atmosphere way too fearful for a few radio ads to fix. The Census Bureau’s November presentation quoted one researcher: “The politics have changed everything recently.” Immigrants — not just unauthorized immigrants but some types of legal immigrants as well — are highly anxious about their security under Trump and leery of interacting with any government officials as a result. And if US-born Latinos were skeptical of the government in 2010, they are likely to be even more skeptical now.

Corrected to reflect that June 30 is a Sunday.

Supreme Court stops Trump’s census citizenship question — for now

2019-06-27T14:52:53-04:00

In a surprising ruling, the Supreme Court has just prevented the Trump administration from adding a citizenship question to the 2020 census — at least, for now.

The opinion — which was partly unanimous, with several different splits among other justices in other sections of the case — in the case Department of Commerce v. New York, written by Chief Justice John Roberts, partially upheld a January ruling from Southern District of New York Judge Jesse Furman. Furman ruled that the Trump administration’s decision to add a citizenship question to the census violated US law by being “arbitrary and capricious,” since the Trump administration’s stated reasoning for adding the question (to help enforce the Voting Rights Act) was shown at trial to be an after-the-fact rationalization.

While Roberts rejected most of Furman’s arguments, he believed that Furman was correct to send the citizenship question back to the Census Bureau for further explanation of why it was needed, preventing it from being added to the census forms for now.

The decision is surprising because the court’s conservative majority was expected to side with the administration and allow the citizenship question to move forward. But it’s not clear what this does to the timing of the 2020 census — whose forms were supposed to be finalized before Monday.

Read the opinion here.

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4 winners and 3 losers from the first night of the Democratic debates

2019-06-27T12:47:14-04:00

Former HUD Secretary Julián Castro, Sen. Cory Booker (D-NJ), and Sen. Elizabeth Warren (D-MA) during the first night of the Democratic presidential debate on June 26, 2019, in Miami. | Joe Raedle/Getty Images

On Wednesday night, the Democratic candidates debated for the first time. Well, some of them — 10 of the 25. Another 10 will go tomorrow night. There is no exit. Hell is other candidates.

But as preposterously large and byzantine as these carnivals are, and as low as the stakes can feel this early in the process, the opening act was surprisingly informative.

A major candidate, one who was expected to shake up the entire presidential race as early as November of last year, crashed and burned, beset at all sides by candidates who seemed better informed on everything from immigration to war powers.

Another held her own and solidified her position near the top of the pack.

And three long shots broke out of obscurity to give themselves new life, which could help with fundraising and give them a sliver of a chance that no one thought they had as of 8:58 pm Eastern Wednesday.

Here’s who held or gained ground, and who fell behind, on round one of the seemingly infinite rounds of Democratic debates.

Winner: Elizabeth Warren

Elizabeth Warren entered Wednesday’s debate as the clear frontrunner onstage. That dynamic became even more apparent in the first few minutes, when the other candidates — one after the other — were asked to respond to three of her biggest policies: debt-free college, higher taxes for top earners, and Warren’s plan to break up the big tech companies. The question on a higher marginal tax rate was technically based on a plan from Rep. Alexandria Ocasio-Cortez, but Warren’s signature campaign plan is a wealth tax on ultramillionaires and billionaires.

Warren’s performance wasn’t a breakout, but it was solid. She stuck to her core message throughout the night: advocating for dramatic, structural change to eradicate corporate corruption and redistribute wealth from the top to America’s middle and lower classes. She also may have won some new fans with her full-throated endorsement of fellow progressive Bernie Sanders’ Medicare for All plan, something she hasn’t been clear about on the stump so far.

On Wednesday, Warren was unequivocal: She’s in favor of getting rid of private insurance, saying health insurance companies are too focused on their bottom line. As she closes in on Sanders’s second-place slot in the polls, she is focused on winning over Bernie’s base. That answer could get her one step closer.

Warren certainly was quieter on issues like immigration and foreign policy, and didn’t jump into the fray as much as some other candidates. But she exited Wednesday’s debate with her frontrunner status intact — a good spot to be in.

—Ella Nilsen

Winner: Julián Castro

It’s impossible to win a debate in which you’re onstage with nine other people — and you’re not even facing half your opponents in the race. If you’re a lower-tier candidate, it’s awfully difficult to make an impression at all — much less set the terms of debate by getting other candidates to respond to what you say.

Castro did just that.

He got the first question of the night on immigration, a subject on which he’s one of the only candidates to have released a full campaign plan. And he used it to his advantage by connecting the border crisis and the desperation of people trying to enter the United States to the most radical proposal in that plan: repealing Section 1325 of Title 8 of the US Code, which makes it a federal misdemeanor to cross into the US without papers.

To be clear: What Castro is proposing isn’t quite opening the borders. Being in the US as an unauthorized immigrant would still be a civil offense, just as it is now, and could still lead to deportation. But entering illegally would no longer be criminally prosecutable — which means, among other things, that it would be impossible to reanimate the “zero tolerance” prosecution policy that allowed the Trump administration to separate thousands of children from their parents at the border over a handful of weeks in 2018.

Then he challenged other candidates to endorse the idea of repeal, turning the whole segment into a referendum on a policy that is closely associated with him.

To people who don’t know immigration policy intimately, talk of “Section 1325” might have sounded obscure (and certainly out of sync with the passion with which candidates yelled over each other about it). But make no mistake: It was radical.

—Dara Lind

Winner: Bill de Blasio

New York City Mayor Bill de Blasio isn’t especially popular in his hometown. And his presidential campaign has barely registered with Democratic voters.

But damned if he didn’t make the most of his national political debut. It is a daring strategy to run aggressively leftward in a field that includes Elizabeth Warren and Bernie Sanders, but if anything, he managed to position himself as more progressive than Warren on Wednesday night.

“This is supposed to be the party of working people,” he declared, in a moment that recalled Howard Dean’s promise to represent the “Democratic wing of the Democratic Party” in 2003. “Yes, we are supposed to be for a 70 percent tax rate on the wealthy, and free public college for our young people. We are supposed to break up big corporations when they are not serving our democracy.”

I don’t think even Sanders has explicitly called for 70 percent top marginal rate. But de Blasio did.

He laid into Beto O’Rourke for promising to keep private insurance, declaring that it’s “not working for tens of millions of Americans when you talk about the premiums and the out-of-pocket expenses — how can you defend a system that is not working?”

And he was able to emphasize that unlike his senator rivals on the left wing of the primary, he is the chief executive of a massive city, one with nearly 14 times more people than Vermont. And in that capacity, he has delivered a $15 minimum wage, universal pre-K, and the end of stop-and-frisk.

It would be folly to predict a viable de Blasio candidacy based on just one good debate performance. But it was a very good debate performance, regardless of how you feel about de Blasio’s record as mayor.

—Dylan Matthews

Winner: Cory Booker

Booker’s performance did not jump out to me as especially charismatic or impressive. But I’ve also followed Booker for years, and lived briefly in Newark shortly after he left the mayorship, so I’ve seen and heard him more than most. And it appears that normal people without much contact with Cory Booker really liked what they saw:

Booker's clearly winning this pic.twitter.com/kvkX2xdtXa
— Patrick Ruffini (@PatrickRuffini) June 27, 2019

And fair enough! Booker got the most airtime of any candidate. If you look at the Google Trends data, Booker searches surged after his comments about gun violence:

First of all, I want to say my colleague and I have been hearing this on the campaign trail, but worse is I hear gunshots in my neighborhood. I think I’m the only one, I hope I am, that had seven people shot in their neighborhood just last week. Someone I knew was killed with an assault rifle at the top of my block last year.

For millions of Americans, this is not a policy issue, this is an urgency. For those that have not been affected, they will learn about reading, writing, and arithmetic and how to deal with an active shooter in school, and all they have to offer is thoughts and prayers. In my faith, people say “faith without works” is dead. We will find a way. The reason we have a problem is we let the corporate gun lobby frame this debate. It is time we have bold actions and a bold agenda. I will get that done as president of the United States because this is not about policy. This is personal.

It was an unusually visceral, passionate response to an issue often treated with platitudes and vague expressions of sympathy, and one that Booker had credibility to offer. Newark really does struggle with gun violence. It really is an issue Booker knows well. And he has the rhetorical chops to express a pretty conventional version of the Democratic gun control platform in a way that feels vital and urgent.

—Dylan Matthews

Loser: Beto O’Rourke

It’s hard to nail exactly one thing that Beto O’Rourke did wrong here. His most memorable moment was when he awkwardly broke into Spanish in his first answer, but Cory Booker had his own awkward Spanish moment later on, making it a bit of a wash (more below).

The bigger problem for him was the constant stream of moments where he appeared to be outclassed, when his opponents, including seeming nobodies who shouldn’t be threats to him, went directly at him and came away looking better.

First came Julián Castro, who directly attacked O’Rourke for declining to endorse repeal of Section 1325, which criminalizes unauthorized entry into the United States. It was an aggressive, specific attack from a fellow Texan that left O’Rourke flat-footed, without a real response — and gave Castro a memorable moment through which to distinguish himself. “If you did your homework on this issue, you should know we should repeal this,” Castro insisted to O’Rourke, and it was hard to avoid the conclusion that O’Rourke really hadn’t done the homework.

Then came Bill de Blasio, who savaged O’Rourke for promising to protect private insurance, with its sometimes exorbitant deductibles and premiums.

Then came de Blasio again, when O’Rourke pledged to intervene abroad to prevent atrocities, asking:

What about the War Powers Act being a part of that equation, with deep respect to the congressman? … My dad served in the Pacific in the World War II in the US Army, Battle of Okinawa, and had half his leg blown off and came home with scars both physical and emotional and did not recover. He spiraled downward and ultimately took his own life. That battle did not kill him, but that war did. Look, in a humanitarian crisis … we should be ready, Congressman, to intervene — god forbid there is genocide — but not without congressional approval. We have not challenged presidents, and [we have] let them get away with running the military without congressional approval.

“I will not take war lightly because of what it did to my father” is a hard point to counter, and O’Rourke didn’t really try. He just nodded and moved along.

O’Rourke is not an unintelligent man, and he’s not an empty suit. He has real plans on immigration and climate change. But if he entered the night as one of the most prominent 2020 contenders, he ranked as the second most notable contender from the state of Texas on Wednesday night’s stage.

—Dylan Matthews

Loser: the Iran deal

For the past four years, Democrats have been nothing but unanimous in their overall support for the Iran nuclear deal. Tonight was the first time some cracks showed in that unanimity.

NBC’s Lester Holt asked the candidates to raise their hands if, as president, they would rejoin the 2015 nuclear deal as originally negotiated. Every candidate on the stage raised their hands — except Booker. “We need to get into a deal, but I’m not going to have a platform to say I’m going to rejoin the deal,” he explained. “When I’m president of the United States, I will do the best I can to secure the country and the region and if I have an opportunity to leverage a better deal, I’m going to do it.”

Then two other candidates — Sen. Amy Klobuchar (D-MN) and Rep. Tulsi Gabbard (D-HI) — also said they would try to get more concessions out of Iran than Barack Obama did four years ago. Klobuchar went so far as to call the accord “imperfect.”

It was a stunning moment. The deal, which lifted sanctions off Iran in exchange for limits on its nuclear program, was long pointed to as major diplomatic achievement, and one achieved by a Democrat, no less. But during the debate, three Democrats effectively said they could improve on Obama’s signature achievement.

The deal still enjoyed the support of most Democrats onstage. But Democratic enthusiasm for the Obama-era agreement is seemingly not as strong as it once was, if tonight’s debate is any indication.

—Alex Ward

Loser: awkward Spanish

Beto O’Rourke and Cory Booker took a moment during their precious speaking time to say some lines in Spanish.

The idea of speaking Spanish during a presidential debate makes sense for a party that’s trying to both appeal to Latino voters and portray itself as the defender of American diversity against Trumpian nativism. And practically, because the debate was carried by NBC and its sister channel Telemundo and co-hosted by Noticiero Telemundo anchor José Díaz-Balart, it made some logical sense.

But some viewers, themselves native Spanish speakers, complained these overtures were often so painful to hear. By the end of the immigration segment of the debate, people were cringing whenever a candidate dropped into Spanish.

Glad I'm not the only one who is totally loving but also hating the Spanish 🤣 #DemDebate https://t.co/245XvQnHUN
— Marcela E. García (@marcela_elisa) June 27, 2019

The reality is that using Spanish for a few moments during the debate might be a useful first step, but it isn’t the full strategy for what the candidates hope or need to achieve. Latino voters are improving their turnout numbers, but they are still notoriously difficult to get to the polls. Most Latino US citizens (especially those born in the US) speak fluent English; Latinos whose parents were also born in the US may not speak Spanish at all. And furthermore, many of the Democratic candidates’ campaign websites had poor translations of their policies into Spanish.

Signals like the ones during the debate only land if they feel authentic — but the awkward pronunciation during the debate made the whole thing seem more than a little pander-y: the candidates and moderators performing what they thought “Latino outreach” ought to look like.

It was made even more awkward when Castro delivered the best zinger on this front — noting that “on January 20, 2021, we’ll say ‘adios’ to Donald Trump.” It felt more natural than other candidates’ performative Spanish.

Democrats will need Latinos if they want to beat Trump in 2020. But “speaking Spanish” is often lazy shorthand, a substitute for real Latino outreach. And Wednesday night’s debate was a reminder that sometimes, speaking another language makes you seem more culturally awkward — not less.

—Dara Lind and German Lopez

Why Julián Castro started a Democratic debate fight over repealing “Section 1325”

2019-06-26T23:20:22-04:00

Democratic presidential hopeful former US Secretary of Housing and Urban Development Julián Castro speaks during the first Democratic primary debate of the 2020 presidential campaign season in Miami on June 26, 2019. | Jim Watson/AFP/Getty Images

Julián Castro really wants to make sure that his fellow Democratic presidential candidates, and the voters watching the first 2020 Democratic presidential debate, know what “Section 1325” is.

It’s the section of Title 8 of the United States Code that makes it a misdemeanor for immigrants to enter the United States without papers.

Castro wants to get rid of it — so that being an unauthorized immigrant in the US would still be a civil offense but no longer a federal crime.

And he’s pushing the rest of the Democratic field to join him.

Elizabeth Warren already has endorsed repeal of the “illegal entry” provision. Even moderate Tim Ryan implied he’d be open to repeal during Wednesday’s debate. Beto O’Rourke, who has an aggressive immigration plan of his own, was the only candidate who refused.

In a Democratic primary that has shown the party has shifted leftward on several issues since the Obama administration, this exchange was still remarkable. In fiscal year 2016, immigration offenses — illegal entry and reentry chief among them — made up a majority of federal criminal prosecutions. In 2019, as a result of Castro’s hectoring on the debate stage, the Democratic presidential field debated, for several minutes, whether it should be a crime at all.

Illegal entry has been a crime for 90 years, but only recently has prosecution for it become common

Decriminalizing migration isn’t exactly the same as opening the borders. People coming to the US without papers could still be deported if they were caught and brought before an immigration judge. But it would make unauthorized immigration purely a civil offense, instead of a criminal one.

The distinction matters a lot. Criminal prosecution of illegal entry was what gave the Trump administration the power to separate thousands of families in 2018. It referred thousands of parents for criminal prosecution for illegal entry — advertised as a “zero tolerance” approach — and thus separated them from their children to send them to criminal custody.

If you’re an unauthorized immigrant in the US, you’re committing a civil violation: being present in the US without a valid immigration status. That’s breaking a law, but it’s not a crime, in the same way that violating the speed limit isn’t a crime. If you’re arrested, you can be deported — a huge change to an immigrant’s life, but not technically a criminal punishment.

But if you cross the US-Mexico border between ports of entry without papers, you are committing a federal misdemeanor: illegal entry. And you can be jailed and fined in addition to getting deported.

In one respect, this system has been on the books since 1929, when illegal entry was first made a misdemeanor. But for most of the 20th century, it was kind of irrelevant. Most people who came into the US without papers weren’t tracked down and deported. Presidents generally decided that it wasn’t worth it to spend US attorneys’ time prosecuting endless misdemeanor illegal entry cases. Those who were caught crossing the border were generally informally returned.

Under the Bush administration, however, as an independent immigration enforcement system began to develop and mature, both civil immigration cases (in separate immigration courts) and widespread criminal illegal entry prosecutions became common.

The result swamped federal criminal courts along the border. For the past several years, immigration offenses — illegal entry and reentry — have been the most common crimes for which people are convicted in US federal criminal courts. (In fiscal year 2016, immigration offenses made up a majority of all federal criminal prosecutions.) And the courts along the border where entrants are prosecuted are routinely the busiest in the country.

More recently, the Trump administration’s attempts at “zero tolerance” prosecution of illegal entry were the legal basis for its widespread separation of families in 2018: Children were separated because their parents were being transferred to criminal custody for prosecution.

Castro’s proposal isn’t quite “open borders” — but President Trump is likely to describe it that way

Under the Castro proposal, the only plan any candidate has put out that fleshes out the idea, family separation wouldn’t be possible because criminal prosecution wouldn’t be possible.

Under that plan, an immigrant crossing into the US without papers, whether he was seeking asylum in the US or coming for some other reason, would not be committing a federal crime. If caught by Border Patrol agents, she’d be detained for a brief amount of time, but if she didn’t raise any red flags, she’d be released into the US (with a case management system to check up on her whereabouts) pending an immigration hearing. If she didn’t qualify for some form of legal status like asylum, she’d still ultimately be ordered deported from the US.

Proposing that illegal entry no longer be a federal crime is the policy equivalent of the “no human is illegal” slogan — a way to combat hawkish attitudes toward the “rule of law” by challenging the idea that migration ought to be a matter of crime and punishment to begin with. But it’s also a key justification for reversing the past few decades of border crackdown, by unpinning immigration enforcement — at least when it comes to unauthorized immigrants themselves — from crime.

Both of those draw strong contrasts not only with President Trump but with the trends in enforcement that preceded Trump (many of which peaked under President Obama).

Trump is highly likely to describe whoever faces him in the 2020 general election as “weak” on the borders and immigration. It’s been his single most common attack on Democrats as president.

The question is whether, if the eventual Democratic nominee has endorsed repealing Section 1325, the American people will agree.

Elizabeth Warren has endorsed the most radical immigration idea in the 2020 primary

2019-06-27T21:46:26-04:00

Sen. Elizabeth Warren addresses the crowd at a Democratic Party state convention on June 22, 2019, in Columbia, South Carolina. | Sean Rayford/Getty Images

While Elizabeth Warren famously has plans for everything, the Democratic senator and presidential candidate hasn’t unveiled a full immigration proposal yet. But she has endorsed the most radical immigration idea already out there in the 2020 Democratic presidential primary (ahead of her appearance in the first debate on Wednesday night): making it no longer a federal crime to cross the border and migrate to the US without papers.

In an interview with HuffPost’s Roque Planas on Tuesday, Warren said she supported repealing the provision of US law that makes “illegal entry” into the US a federal crime, which has been on the books since 1929 but has only been routinely enforced in the 21st century.

Former San Antonio mayor and Obama Housing and Urban Development secretary Julián Castro first made the idea of repealing “1325,” the provision in chapter 8 of the US code that makes illegal entry a misdemeanor, a centerpiece of his immigration platform. Warren even went a little further than Castro in saying she’d also support getting rid of the companion law that makes illegal reentry — coming back to the US without papers after deportation — a felony.

Decriminalizing migration isn’t exactly the same as opening the borders. People coming to the US without papers could still be deported if they were caught and taken before an immigration judge. But it would make unauthorized immigration purely a civil offense, instead of a criminal one.

The distinction matters a lot. Criminal prosecution of illegal entry was what gave the Trump administration the power to separate thousands of families in 2018. It referred thousands of parents for criminal prosecution for illegal entry — advertised as a “zero-tolerance” approach — and thus separated them from their children to send them to criminal custody.

Illegal entry has been a crime for 90 years, but only recently has prosecution for it become common

But if you cross the US/Mexico border between ports of entry without papers, you are committing a federal misdemeanor: illegal entry. And you can be jailed and fined in addition to getting deported.

In one respect, this system has been on the books since 1929, when illegal entry was first made a misdemeanor. But for most of the 20th century, it was kind of irrelevant. Most people who came into the US without papers weren’t tracked down and deported. Presidents generally decided that it wasn’t worth it to spend US attorneys’ time prosecuting endless misdemeanor illegal-entry cases. Those who were caught crossing the border were generally informally returned.

Under the Bush administration, however, as an independent immigration-enforcement system began to develop and mature, both civil immigration cases (in separate immigration courts) and widespread criminal illegal entry prosecutions became common.

Under the Castro proposal, the only plan any candidate has put out that fleshes out the idea Warren has endorsed, family separation wouldn’t be possible because criminal prosecution wouldn’t be possible.

Under that plan, an immigrant crossing into the US without papers — whether he was seeking asylum in the US or coming for some other reason — would not be committing a federal crime. If caught by Border Patrol agents, she’d be detained for a brief amount of time, but if she didn’t raise any red flags, she’d be released into the US (with a case management system to check up on her whereabouts) pending an immigration hearing. If she didn’t qualify for some form of legal status like asylum, she’d still ultimately be ordered deported from the US.