Town Meeting Warrant Articles, Spring 2017

Sanctuary Community Bylaw

This petition would prohibit the Amherst police from enforcing our country’s immigration laws.  It would ban officers from “taking law enforcement action on the basis of actual or perceived immigration status” and from detaining a person in response to a detainer request or an Immigration and Customs Enforcement (ICE) warrant. It would require police officers to ignore an entire category of crime. I gave an overview of my reasons for opposing this petition during my 8-minute interview on WGBY’s Connecting Point. To watch the segment, click here.

When the police arrest a person, ICE determines whether the person is the subject of a removal order issued by an immigration judge. If there is probable cause to believe that removal proceedings are under way or a judge has already issued a final order of removal, an ICE supervisor will issue an arrest warrant or a warrant for removal. ICE will then give the warrant to the local police together with the detainer. Under President Obama, there was no need for a warrant.  Now there is.

President Obama deported 2.7 million people, only a very small percentage of whom had been the subject of detainers according to this report from the Transactional Access Records Clearinghouse (TRAC) at Syracuse University. TRAC notes that although detainers began under President George W. Bush, their “usage increased rapidly and continued to grow when President Barack Obama assumed office.”

The basis for immigration detainers is the statute that governs immigration, the Immigration and Nationality Act of 1952. In 1990, Congress amended section 1325(a), which reads:

“Any alien who (1) enters or attempts to enter the United States at any time or place other than as designated by immigration officers, or (2) eludes examination or inspection by immigration officers, or (3) attempts to enter or obtains entry to the United States by a willfully false or misleading representation or the willful concealment of a material fact, shall, for the first commission of any such offense, be fined under title 18 or imprisoned not more than 6 months, or both, and, for a subsequent commission of any such offense, be fined under title 18, or imprisoned not more than 2 years, or both.”

Much has happened since 1990, but the foregoing provision of the law remains the same. And there is nothing ambiguous about it: An alien (i.e. a person who is not a citizen or national of the United States) who enters this country without examination or inspection by an immigration official commits a crime. The first offense is a misdemeanor, the second one a felony. As a properly enacted federal statute, this part of the Immigration and Nationality Act is the supreme law of the land, and it will remain so pending the repeal of the statute (or of the Supremacy Clause of the Constitution of the United States).

Many Americans are immigrants. I am one myself, in fact.  I came here from the U.K. in 1995, and in February 2002 was proud to take the oath of citizenship, which included this solemn promise: “That I will support and defend the Constitution and laws of the United States of America.” The sanctuary community proposal is the exact opposite of supporting the laws of the United States. It makes a mockery of the very principle of the rule of law and the principle of federalism. As President Obama’s Department of Justice argued in 2010:

Although states may exercise their police power in a manner that has an incidental or indirect effect on aliens, a state may not establish its own immigration policy or enforce state laws in a manner that interferes with the federal immigration laws. The Constitution and the federal immigration laws do not permit the development of a patchwork of state and local immigration policies throughout the country.

That was the position of the Obama administration, and the Supreme Court agreed. Justice Kennedy wrote the Court’s opinion, joined by Chief Justice Roberts and Justices Breyer, Ginsburg, and Sotomayor. Immigration is a federal matter, not something where the States and municipalities get to pick and choose which parts of the Immigration and Nationality Act should be enforced or ignored. This is settled law.

As for the advocates’ claim that enforcing detainers would deter victims from reporting crimes and witnesses from testifying, although the evidence is not compelling they may have a point. When Prince William County, Virginia, instructed its police officers to determine the immigration status of arrestees, officials were mindful of the potential chilling effects on relations with the Hispaic community. Accordingly, the police underrtook outreach sessions during which they emphasized that they would protect crime victims and witnesses regardless of their immigration status.  The subsequent University of Virginia report noted that when the policy went into effect in 2008 there was a “a palpable chill,” but that “the chilly relations… warmed fairly rapidly” (p. xvi). However, the report also stated:

“[I]t is possible that the policy has discouraged reporting of crimes by victims and witnesses who are illegal immigrants, or even by persons who are connected in some way to illegal immigrants” (p. 86).

Possible is not the same as proven. But granting for the sake of argument that if the police comply with detainers some people will be less likely to report crimes, should the police, therefore, ignore ICE detainers? No.  First, because ignoring detaners would do nothing to remove the other factors that deter some people from reporting crimes, e.g. language barriers and cultural antipathy toward the police.  Secondly, as with all public policy decisions there are trade-offs. The possible chilling effect on reporting is a detriment, but it is outweighed by the benefits, notably the normative effect of enforcing our immigration laws consistently and effectively; in other words, restoring respect for the rule of law.

Update: I spoke and voted against this article. For the video of my remarks, click here and start watching at the 1:42:50 mark..

Impeachment of the President of the United States

This petition alleges that President Trump is violating the Foreign Emoluments Clause of the Constitution of the United States, and on that basis it seeks his impeachment. This is simply not a valid basis for impeachment, as Professor Seth Barrett Tillman explains here. As Professor Tillman has pointed out, George Washington, our first President, was of the firm opinion that the Foreign Emoluments Clause does not apply to the President. I know that President Andrew Jackson had a different opinion. With all due respect to Old Hickory, I believe that George Washington was right, and that the Constitution does not prohibit the President from accepting gifts from foreign governments without the consent of Congress.

There are several other reasons for opposing this petition, but in the interest of brevity I present only one. The petitioner co-authored an op-ed explaining why he is seeking the President’s impeachment and removal from office: “Where Trump runs afoul of the foreign-emoluments clause is that, first and foremost, he is a businessman with significant financial interests and governmental entanglements all over the globe.”

Many people wish that Donald Trump had not won. I get that. But the Constitution of the United States provides as follows: “The President, Vice President, and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.” art. II, sec. 4.

Being “a businessman with significant financial interests and governmental entanglements all over the globe” is not treason, not bribery, and not a high crime or misdemeanor. Not even if you wish really, really hard.

Update: I spoke and voted against this article. To hear my remarks click here and go to the 2:02:55 mark.

Carbon Fee and Dividend Program

This petition calls for a federal and state carbon fee and dividend program, in order to “steadily increase the price of fossil fuels” and–the theory goes– thereby reduce carbon emissions. The petitioners claim that “most economists agree, from conservative to liberal, that the most effective way to cut carbon pollution is to enact a fee that steadily increases the price of fossil fuels.”

I don’t know about “most economists,” but the economists at the U.S. Energy Information Agency seem to have a different opinion. On the subject of the price elasticity of the demand for gasoline, this EIA report from 2014 (when President Obama was still in office) carries a headline that sums up the findings quite succinctly: “Gasoline prices tend to have little effect on the demand for car travel.” Raising the price of gas does not reduce consumption, says the EIA.

At present in Massachusetts, gas is about $2.25 per gallon. The state gas tax is 26.54 cents per gallon and the federal gas tax is 18.4 cents per gallon, which translates to a tax of about 20% per gallon. If the EIA is correct, you would have to hike the tax dramatically to reduce car travel even slightly.

On the one hand, I sympathize with the petitioners’ avowed goal, i.e. safeguarding our climate. But they do tend toward hyperbole. For example, one of their “whereas” clauses states that “the Greenland and Antarctic ice sheets are melting thus increasing ocean levels.” Well yes, ocean levels are increasing. According to the International Panel on Climate Change (IPCC) 5th assessment report (pp. 1668-1169) in the 100+ year period 1901-2010 global mean sea levels rose by about 19 cm (7 inches) and between 1993 and 2010 seas were rising by about 3.2 mm (0.12 inches) per year. One-tenth of an inch per year is an increase, all right, but hardly dramatic let alone catastrophic.

Yes, I know that the NASA Earth Science News Team states that “when all the Amundsen Sea sector of the West Antarctic Ice Sheet is totally gone, the average global sea level will rise four feet.” But I also know that glaciologist Eric Rignot has said that the process in the Amundsen Sea sector is “unstoppable” and that “a conservative estimate is it could take several centuries for all the ice to flow into the sea.” I take the word “unstoppable” to mean that not even a carbon-fee-and-dividend program is going to stop it.

Similarly the petitioners cite British Columbia (BC), which introduced a carbon fee in 2008 and, they claim, “reduced fuel usage, and thus carbon emissions significantly.” According to the Canadian government, the figure for motor gasoline sales in BC in 2006, two years before the carbon fee, was 4,581.5 thousand cubic meters. The figure for 2015, seven years after the fee, was 4,656.9. That is an increase, not a reduction. To be fair, sales dipped to 4,336.8 thousand cubic meters in 2013. But now they are back up. Unless the statistics bureau of the Canadian government is just plain wrong, in BC the program has not led to a decline in gas consumption.

All that said, human use of fossil fuels does release CO2, which is undoubtedly a greenhouse gas. Of the various gases that make up our planet’s atmosphere, CO2 represents approximately 0.04% of which human activity (mainly the combustion of fossil fuels) accounts for approximately 4%. The EPA states that in 2011, of all the fossil-fuel/industry-related CO2 emissions on earth, our share in the United States was about 16%.

So if the U.S. as a whole stopped using fossil fuels completely, the amount of CO2 would decline by about 0.0064%. That is not very much, really, no matter how you slice it. And given what we know about the price elasticity of demand for gas–including the demand for gas in British Columbia, home of the carbon fee–it seems clear that increasing the price is not going to even reduce consumption never mind eliminate it.

If we want to reduce the amount of CO2 in the atmosphere by an amount that would have an effect on the climate, why devote time and effort to a measure whose impact on the climate (as opposed to its impact on taxpayers’ disposable income) would be approximately zero?

I decided not to speak against this warrant article, and abstained from voting on it.

Background Checks

This petition seeks “legislation for Universal Background Checks for weapon ownership” and asks our Senator and Representative in Congress to “reintroduce the assault weapon ban.”

I suspect that by “weapons” the petitioners mean firearms, and that they do not really want background checks for citizens who buy other kinds of weapons, e.g. crossbows, longbows, knives, batons, and the multitude of other objects that can constitute weapons in the eyes of the law, including (and I am not being facetious) footwear. If by “assault weapon” they mean fully automatic rifles that can discharge numerous rounds with one squeeze of the trigger (a.k.a. machine guns), I am with them: We should certainly not repeal the 1986 law that bans the sale of machine guns. But that law is still in full force and effect, so I am not sure why anyone needs to reintroduce it.

Update: The petitioners withdrew the article.

“American Anti-Corruption Act”

This petition supports a bill that would “make all candidates for the same office compete in a single, open primary in which all registered voters may participate,” which has little, if anything, to do with corruption, so far as I can tell.

Open primaries are not very democratic, and making them compulsory is not democratic at all. I believe that the members of each political party should be free to decide who gets to choose their party’s standard-bearers. If the members of the Democratic Party want to confine their party primaries to registered Democrats, that should be up to them. If they want Independents and Republicans to have a say, that’s fine too. But taking that choice away from the party members by mandating open primaries strikes me as unfair and, in the language of First Amendment jurisprudence, compelled association.

I asked whether the new version of the bill would contain the foregoing provision. The petitioners said no, there is no bill yet, and that they were just asking for a vote in favor of a set of principles. I abstained from voting on this article.