Sheila Kennedy

Public Affairs Month

April 24, 2018

IU Northwest sponsored several lectures during its recent Public Affairs Month. I was asked to participate; here is the talk I gave, slightly edited for length. (Regular readers will notice considerable repetition of themes I revisit often.)

Americans talk a lot about civic engagement. What we don’t talk much about is civic literacy, and why effective engagement requires that we understand how our government is supposed to function.

In fact, in the wake of the last election, we are just beginning to understand the extent to which civic engagement depends upon two characteristics of the American polity that are currently in dangerously short supply: a basic understanding of the American constitution and legal system—what I call civic literacy—and the old-fashioned but essential virtue of civility.

Over the past several years, America’s political environment has become steadily more toxic. Partisan passions and previously suppressed bigotries have erupted, overwhelming reasoned analysis. Cable television and the Internet allow people to choose their news; it encourages citizens to indulge in confirmation bias and construct their own preferred realities. During the 2016 election cycle, voters often seemed more interested in scoring points than engaging in substantive conversation. Civility was scorned as “political correctness” and racist and misogynist expression was excused as “telling it like it is.”

As discouraging as today’s incivility is, I am firmly convinced that a significant amount of the rancor and partisan nastiness we see comes less from actual differences of opinion and more from a tribalism that is abetted by civic illiteracy—widespread ignorance of the history and basic premises of American government. Clearly, in our age of high-stakes testing, schools are shortchanging civic education.

Why does civic literacy matter?

For one thing, when citizens don’t understand America’s foundational values and legal system, they don’t share a standard by which to evaluate the promises of candidates or the performance of public officials. During Donald Trump’s campaign for President, for example, he promised to uphold “Article 12” of the Constitution—an article that doesn’t exist. He said he would “make all Muslims register,” which would be a blatant violation of the First and Fourteenth Amendments. He was going to institute a national “stop and frisk” program that would have violated the 4^thAmendment, and he accused Clinton of planning to unilaterally “get rid of” the Second Amendment—something she couldn’t legally do. (There’s a constitutionally-prescribed process for changing the constitution.) Since the election, his ignorance of such constitutional basics as separation of powers, Executive pardons, and freedom of the press have become even more obvious. Recently, he suggested that Congress could pass a law to overturn a Supreme Court decision that the line-item veto was unconstitutional.

Competent citizens would recognize situations in which a public official is betraying a total lack of familiarity with the Constitution and legal system he is sworn to uphold. Clearly, millions of Americans didn’t recognize that incongruity and unfamiliarity. Citizens’ ignorance is especially corrosive in a country as diverse as the U.S., because commitment to our Constitutional system is what unites us—it is what makes us Americans, rather than a collection of constituencies contending for power.

Only 26 percent of Americans can name the three branches of government. Fewer than half of 12th graders can describe federalism. Only 35% can identify “We the People” as the first three words of the Constitution. Only five percent of high school seniors can identify or explain checks on presidential power.

We can’t fix what we don’t understand.

Productive civic engagement is based on a basic but accurate understanding of the “rules of the game,” especially but not exclusively the Constitution and Bill of Rights– the documents that frame and constrain policy choices in the American system.

Pundits and politicians have spent the last thirty plus years denigrating both government and public service to citizens who are increasingly ill-equipped to evaluate those criticisms. With the current administration, we are paying the price for our neglect of civic education—not to mention our unwillingness to defend the importance and legitimacy of government and collective action supporting the common good.

The American Constitution was a product of the 18^thCentury cultural, intellectual and philosophical movement known as the Enlightenment. Many people know that the Enlightenment gave us science, empirical inquiry, and the “natural rights” and “social contract” theories of government, but what is less appreciated is that the Enlightenment also changed the way we understand and define human rights and individual liberty. Very few students—even graduate students—enter my classroom with any knowledge of the ways in which this enormously consequential period of intellectual history shaped the United States.

Students are taught in school that the Puritans and Pilgrims who settled the New World came to America for religious liberty; what they aren’t generally taught is how those settlers definedthat liberty. Puritans saw liberty as “freedom to do the right thing”—freedom to worship and obey the rightGod in thetruechurch, and their right to use the power of government to ensure that their neighbors toed the same line. The Founders who crafted our constitution some 150 years later were products of an intervening paradigm shift brought about by the Enlightenment, which ushered in a dramatically different definition of liberty: personal autonomy. Liberty became your right to do your ownthing, free of government interference, so long as you did not harm the person or property of someone else, and so long as you were willing to accord an equal liberty to others.

America’s constitutional system is based on an Enlightenment concept we call “negative liberty.” The Founders believed that fundamental rights are not given to us by government; instead, they believed that rights are “natural,” meaning that we are entitled to certain rights simply by virtue of being human (thus the term “human rights”) and that government has an obligation to respect and protect those inborn, inalienable rights.

Contrary to popular belief, the Bill of Rights does not grant us rights—it protectsthe rights to which we are entitled by virtue of being human against infringement by an overzealous government. The American Bill of Rights is essentially a list of things thatgovernment is forbidden to do.For example, the state can’t dictate our religious or political beliefs, search us without probable cause, or censor our expression—and government is forbidden from doing those things even whenpopular majorities favor such actions.

In our system, those constraints don’t apply to private, non-governmental actors. As I used to tell my kids, the government can’t control what you read, but your mother can. Public school officials can’t tell you to pray, but private or parochial school officials can. If government isn’t involved, neither is the Constitution. Private, non-governmental actors are subject to other laws, like civil rights laws, but since the Bill of Rights only restrains what government can do, only government can violate it. I’m constantly amazed by how many Americans don’t understand that. (It’s quite obvious that Donald Trump doesn’t.)

Unlike the liberties protected against government infringement by the Bill of Rights, civil rights laws represent our somewhat belated recognition that if we care about human rights, just preventing government from discriminating isn’t enough. If private employers can refuse to hire African-Americans or women, if landlords can refuse to rent units in multifamily buildings to LGBTQ folks, if restaurants can refuse to serve Jews or Muslims, then society is not respecting the rights of those citizens and we aren’t fulfilling the obligations of the social contract that was another major contribution of Enlightenment philosophy.

The Enlightenment concept of human rights and John Locke’s theory of a social contract between citizens and their government challenged longtime assumptions about the divine right of the kings. Gradually, people came to be seen as citizens, rather than subjects. This new approach helped to undermine the once-common practice of assigning social status on the basis of group identity. It also implied that citizens have an affirmative responsibility to participate in democratic decision-making.

The once-radical idea that each of us is born with an equal claim to fundamental rights has other consequences. For one thing, it means that governments have to treat their citizens as individuals, not as members of a group. America was the first country to base its concept of citizenship on an individual’s civic behavior,rather than gender, race, religion or other identity or affiliation. So long as we obey the laws, pay our taxes, and generally conduct ourselves in a way that doesn’t endanger or disadvantage others, we are all entitled to full civic equality, no matter what our race, religion, gender, sexual orientation or other identity. When our country has lived up to that guarantee of equal civic rights, we have unleashed the productivity of previously marginalized groups and contributed significantly to American prosperity. And I think it is fair to say that—despite setbacks, and despite the stubborn persistence of racial resentment, religious intolerance and misogyny, we have made substantial progress toward creating a culture that acknowledges the equal humanity of the people who make up our diverse nation.

That brings us back to civic engagement, because in addition to equality before the law, respect for rights also requires democratic equality—an equal right to participate in the enterprise of self-government. We now recognize—or at least give lip service to—the proposition that every citizen’s vote should count, but on this dimension, we not only aren’t making progress, we’re regressing, as anyone who follows the news can attest.

One element of civic literacy that gets short shrift even among educators is the immense influence of systems in a society—an appreciation of the way in which institutions and conventions and laws shape how we understand our environments. Right now, a number of longstanding, systemic practices are obscuring the degree to which American democracy is becoming steadily less democratic—and the extent to which we are denying citizens the right to participate meaningfully in self-government.

Vote suppression has been on the rise, especially but not exclusively in Southern states that have not been required to get preclearance from the Justice Department since the Supreme Court gutted the Voting Rights Act. Thanks to population shifts, the current operation of the Electoral College gives disproportionate weight to the votes of white, rural voters, and discounts the franchise of urban Americans. (Estimates are that each rural vote is worth 1 1/3 of each urban vote). Unequal resources have always been a political problem, but ever since Buckley v. Valeo, which equated money with speech,and especially since Citizens United, which essentially held that corporations are people, money spent by special interests has overwhelmed the votes and opinions of average citizens. The outsized influence of the NRA is a recently prominent example.

The most pernicious erosion of “one person, one vote” however, has come as a consequence of gerrymandering, or partisan redistricting. There are no “good guys” in this story—gerrymandering is a crime of opportunity, and both parties are guilty.

Those of you in this room know the drill; after each census, state governments redraw state and federal district lines to reflect population changes. The party in control of the state legislature at the time controls the redistricting process, and its legislators draw districts that maximize their own electoral prospects and minimize those of the opposing party. Partisan redistricting goes all the way back to Elbridge Gerry, who gave Gerrymandering its name—and he signed the Declaration of Independence—but the process became far more sophisticated and precise with the advent of computers, leading to a situation which has been aptly described as legislators choosing their voters, rather than the other way around.

Academic researchers and political reformers alike blame gerrymandering for electoral non-competitiveness and political polarization. A 2008 book co-authored by Norman Orenstein and Thomas Mann argued that the decline in competition fostered by gerrymandering has entrenched partisan behavior and diminished incentives for compromise and bipartisanship.

Mann and Orenstein are political scientists who have written extensively about redistricting, and about “packing” (creating districts with supermajorities of the opposing party) “cracking” (distributing members of the opposing party among several districts to ensure that they don’t have a majority in any of them) and “tacking” (expanding the boundaries of a district to include a desirable group from a neighboring district). They have tied redistricting to the advantages of incumbency, and they have also pointed out that the reliance by House candidates upon maps drawn by state-level politicians has reinforced what they call “partisan rigidity” –the increasing nationalization of the political parties.

Interestingly, one study they cited investigated whether representatives elected from districts drawn by independent commissions become less partisan. Contrary to the researchers’ initial expectations, they found that politically independent redistricting did reduce partisanship, and in statistically significant ways. Even when the same party maintained its majority, elected officials were more likely to co-operate across party lines.

Perhaps the most pernicious effect of gerrymandering is the proliferation of safe seats.The perception that some seats are “safe” for one party or another breeds voter apathy and reduces political participation. After all, why should citizens vote, or get involved, if the result is foreordained? Why donate to a sure loser? (For that matter, unless you are trying to buy political influence for some reason, why donate to a sure winner?) What is the incentive to volunteer or vote when it obviously won’t matter? It isn’t only voters who lack incentives for participation, either: it becomes increasingly difficult for the “sure loser” party to recruit credible candidates. As a result, in many of these races, voters are left with no genuine or meaningful choice—the perception of inevitability ends up creating the reality, because if everyone in a safe district were to vote, it probably wouldn’t be safe.

Ironically, the anemic voter turnout that gerrymandering produces leads to handwringing about citizen apathy, usually characterized as a civic or moral deficiency. But voter apathy may instead be a highly rational response to noncompetitive politics. People save their efforts for places where those efforts count, and thanks to the increasing lack of competitiveness in our electoral system, those places often do not include the voting booth.

If the ability to participate meaningfully in self-governance is a bedrock of democracy, partisan game-playing that makes elections meaningless should be seen as an assault on both democracy and the American system.

Safe districts do more than disenfranchise voters; they are the single greatest driver of governmental dysfunction. In safe districts, conventional wisdom has convinced us that the only way to oppose an incumbent is in the primary–and that almost always means that the challenge will come from the “flank” or extreme. When the primary is, in effect, the general election, the battle takes place among the party faithful, the so-called “base”—and they tend to be the most ideological voters. So Republican incumbents are challenged from the Right and Democratic incumbents are attacked from the Left. Even where those challenges fail, they create a powerful incentive for incumbents to “toe the line” in order to placate the most rigid elements of their respective parties. Instead of the system working as intended, with both parties nominating candidates they think will be able to appeal to the broad middle, the system produces nominees who represent the most extreme voters on each side of the philosophical divide. If you wonder why Republicans in Congress aren’t standing up to President Trump, the answer is that they are in effect being held hostage by that party “base”—a small group of empowered, rigidly ideological voters intent on punishing any deviation from orthodoxy and/or any hint of compromise.

Of course, vote suppression and civic ignorance aren’t the only reasons for a lack of civic engagement. There are other challenges to equal political participation. Poverty is one. A citizen working two or three jobs just to put food on the table doesn’t have much time for civic engagement, and in Indiana, that’s a lot of people.

Poverty and the growing gap between rich and poor threatens social stability and democratic decision-making in a number of ways, but one clear effect is that people engaged in a daily struggle for subsistence are unable to participate fully in the political activities that characterize democratic societies, and as a result, the national political conversation is skewed. The voices of the poor aren’t heard.

Poverty and inequality are huge problems in America right now, but they certainly aren’t our only challenges. Climate change, the loss of jobs to automation, the worrisome tribalism and racism that is tearing at our national fabric, inadequate funding of public education, the multiple, obvious flaws in our justice system…a majority of Americans realize that these and other major problems—far from being solved or even addressed—are being exacerbated by an administration that ranges from inept to corrupt.

Let me end by acknowledging that the 2016 election has also had positive consequences: for one thing, this administration’s bumbling is reminding the American people of the importance of competent government, and the damage that can be done when those in office have no idea what they are doing. The election has also rebutted—pretty conclusively— the widespread belief that any successful businessperson or celebrity can run the government. People who would never go to a dentist who hadn’t gone to dental school or filled a cavity were nevertheless perfectly willing to turn the nation and the nuclear codes over to someone who had absolutely no experience with or knowledge of government. We shouldn’t be surprised by the result.

Most important, however, the election unleashed more civic engagement and political activism than I’ve seen in my adult life.

The question is, can this impressive wave of civic engagement turn the tide? Can engaged Americans reverse the declines in civility and civic literacy, and reinvigorate the American idea?

Reviving America’s democratic norms, turning back the assaults on the rule of law and equal access to the ballot box, fixing the gerrymandering that feeds apathy and makes too many votes meaningless…the list of needed repairs to the system is long, and it will require political action and persistent civic engagement by an informed,civically-literate citizenry.

I’m hopeful, but the jury is still out.

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Everything You Ever Wanted To Know About Privilege

April 23, 2018

Caveat: This post won’t address recent debates over the nature of White privilege or Male privilege. It’s focused instead upon two longstanding legal doctrines: Executive Privilege and Attorney-Client Privilege, both of which are currently relevant to the prospects of the Trump administration.

I am indebted for this discussion to my colleague (and former co-author) David Schultz, who teaches both law and public policy at Hamline University and the University of Minnesota Law School. David recently used his blog to address those issues. As he introduces the topic,

The limits of two privileges–executive and attorney/client–may determine the fate and future of the Trump presidency. But if Donald Trump and his attorney Michael Cohen think that they can stand on the absolute nature of these two privileges as final fire walls that prevent prosecutors and attorneys from gaining access to potentially incriminating evidence, the law is clearly against them.

The way in which Executive Privilege is most likely to be asserted would be an effort by Trump to quash subpoenas issued by the Special Prosecutor. The Supreme Court considered a similar claim in U.S. v. Nixon, and that precedent isn’t helpful to Trump. (The Nixon case raised the issue whether a president had to comply with subpoenas from a special prosecutor; at that time, the object was the infamous tapes.)

Nixon asserted executive privilege, which he claimed was absolute. The Court rejected the claim, ruling that the Privilege “cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice. The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.”

Of course, it is the attorney-client privilege that Trump and his supporters insist was violated in the raids on Cohen’s office, home and hotel room. However, as David writes,

Similarly, Trump and the White House might seek to invoke attorney/client privilege as a means of protecting some conversations he had either with White House Counsel or his personal attorney Michael Cohen. Attorney/client privilege protects communication made between privileged persons in confidence for the purposes of obtaining or providing legal assistance for the client. As the Court said in cases such as Upjohn v. United States,449 U.S. 383 (1981), this privilege encourages clients to talk frankly with their attorneys, allowing the latter to obtain the information needed to provide appropriate legal advice. Clients would be hesitant to seek legal advice if they generally knew their conversations would not be confidential.

A well-known exception to attorney/client privilege is the crime-fraud exception. Communications between lawyers who collude with their clients to break the law are not protected. In this case, the government evidently gave the court evidence sufficient to support an allegation that the crime-fraud exception applied. (There was also evidence that Cohen rarely acted as a lawyer–that he did little or no legal work, but was actually a “fixer” and business partner for Trump and occasionally others.) The mere fact that a business partner –or a partner in crime–has a law degree isn’t enough to privilege the communications.

As David concludes,

Finally, there is another privilege that Trump may invoke–the right of a president not to be burdened by civil law suits in office because actions such as Clinton v. Jones, 520 U.S. 681 (1997). Here, President Clinton was facing a sexual harassment suit by Paula Jones arising out of his actions as governor of Arkansas. He argued that the civil case against him should not proceed because it would impede his duties as president. In effect, separation of powers gave the presidency was a temporary immunity or privilege against civil lawsuits. The Court against rejected this claim, asserting that the presidency did not provide the type of immunity Clinton asserted.

Collectively, Nixon, Zolin, and Jones stand for the proposition that presidents are not above the law. They cannot invoke executive or attorney-client privilege to hide from criminal or civil liability. These privileges are not absolute and at some point–which appears now–Trump and his attorney are confronting this reality, and the law will win.

It can’t happen soon enough….

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The Call Of Moral Duty

April 22, 2018

I empathize with Michael Gerson, George W. Bush’s former speechwriter who is now a columnist for the Washington Post. Closer to home, I’m sympathetic to conservative blogger Paul Ogden. Despite significant policy disagreements with them, I respect these longtime conservatives, because they are two of the few–very few–who have remained intellectually honest during the Trumpification of the GOP.

People like these remind us that there is an intellectually respectable conservative philosophy, and that its basic tenets haven’t changed even if the party that used to espouse them has.

In a recent column for the Post, Gerson confronts the conflict between political philosophy and a desire to exercise power.

Is it time for anti-Trump conservatives to recognize that they have lost the political and policy battle within the GOP and to accommodate themselves as best they can to an uncomfortable reality?

This is the argument of the Ethics and Public Policy Center’s Henry Olsen, one of the most thoughtful political analysts on the right. On issues such as trade, immigration and the Muslim travel ban, he argues, Republican critics of President Trump are dramatically “out of step with conservative[s].”

As Gerson sees it, this is a call to put aside differences on some policies in order to work together on the implementation of other goals upon which there is broad agreement within the conservative movement. In the abstract, that’s normal political realism; even within a particular faction of the same party, policy differences will exist and need to be negotiated.

As Gerson recognizes, however, these aren’t normal times.

If Trump were merely proposing a border wall and the more aggressive employment of tariffs, we would be engaged in a debate, not facing a schism. Both President Ronald Reagan and President George W. Bush played the tariff chess game. As a Republican presidential candidate, Mitt Romney endorsed the massive “self-deportation” of undocumented workers without the rise of a #NeverRomney movement.

But it is blind, even obtuse, to place Trumpism in the same category. Trump’s policy proposals — the details of which Trump himself seems unconcerned and uninformed about — are symbolic expressions of a certain approach to politics. The stated purpose of Trump’s border wall is to keep out a contagion of Mexican rapists and murderers. His argument is not taken from Heritage Foundation policy papers. He makes it by quoting the racist poem “The Snake,” which compares migrants to dangerous vermin. Trump proposes to ban migration from some Muslim-majority countries because Muslim refugees, as he sees it, are a Trojan-horse threat of terrorism. Trump’s policy ideas are incidental to his message of dehumanization.

So how do we split the political difference on this one? Shall we talk about Mexican migrants as rapists on every other day? Shall we provide rhetorical cover for alt-right bigots only on special occasions, such as after a racist rally and murder?

Gerson continues his analysis: Republicans criticize media bias, but Trump is trying to delegitimize criticism as “fake news” and mainstream journalists as “enemies of the people.” Politicians being investigated can be expected to push back, but Trump is trying to discredit all federal law enforcement and he deliberately cultivates citizen distrust of a mythical“deep state.”

We have seen similar damage in the realm of values and norms. In the cultivation of anger and tribalism. In the use of language to inflame and demean. In the destruction of a common factual basis for politics, making policy compromise of the kind Olsen favors impossible.

As Gerson says, these choices are not a dialectic requiring synthesis. They’re alternatives demanding a choice. Instead of capitulating to the party’s white nationalists in hopes of policy victories and partisan dominance, Gerson counsels elected leaders to “remind Americans who they are and affirm our common bonds,” and to work for an

agenda of working-class uplift, not an agenda of white resentment — which will consign Republicans to moral squalor and (eventually) to electoral irrelevance. For principled conservatives to hear the call of moral duty and stand up for their beliefs until this madness passes. As it will.

People join political parties for all sorts of reasons. Both parties are mixtures of policy wonks, rigid ideologues and political theorists along with rank and file folks influenced by their parents, co-workers or friends.

Trumpism confronts the dwindling number of intellectually-honest Republicans with a difficult choice: whether to swallow hard and continue to be obedient soldiers in a debased, white nationalist GOP, or remain true to the conservative philosophy that led them to join the party in the first place, even at the cost of antagonizing old friends.

The call of moral duty is clear.

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These Are The People Running Our Country..

April 21, 2018

This is truly terrifying.

Ed Brayton at Dispatches from the Culture Wars reports on one of those “best people” Trump promised us. This time it’s a communications person in the Department of Health and Human Services.

As a fringe right-wing political commentator, Ximena Barreto claimed that “African-Americans are way more racist than white people,” labeled Islam “a fucking cult” that has “no place” in the United States, pushed the false Pizzagate conspiracy theory, and attacked the “retarded” 2017 Women’s March. In December, she became a deputy communications director at the Department of Health and Human Services (HHS)…

Brayton buttresses this description with specifics of the time, place and rhetoric employed. Click through to see the rest, but here’s a taste:

During her November 30, 2016, Periscope, Barreto said that Islam advocates for “killing other people and abusing women; that’s not a religion, that’s a fucking cult. Like, I’m serious. Like, that’s not religion.” She also said during a June 12 video that Islam is “just a cult. All the practices are cult-like, all that they do.”

During a December 4, 2016, Periscope video, she wondered aloud whether there are members of the Muslim Brotherhood in the U.S. government — a common conspiracy theory among anti-Muslim right-wing media. After someone asked if there’s a Muslim Brotherhood plan in the United States, she replied: “Well, how many of them are in the government already, you know? Like in Congress?”

In a May 25 post on the now-defunct website Borderland Alternative Media, she suggested that practicing Islam should not be allowed in the United States.

Even if her appalling bigotries weren’t disqualifying, her obvious ignorance should have been.

As disquieting as it is to know that these are the sorts of people being hired by our federal government agencies, the fact that so many judicial nominees are only marginally better is far more terrifying. Employees can be replaced; judges are lifetime.

Just last week, one of those nominees–Wendy Vitter, still the wife of “diaper” Dave Vitter—refused to say whether she agreed with the Supreme Court’s unanimous ruling in Brown v. Board of Education.

Even the extremely conservative Neil Gorsuch answered that question without equivocation during his confirmation hearing last March. Gorsuch called Brown a “seminal decision that got the original understanding of the 14th Amendment right.” He added that Plessy was a “dark, dark stain” on the Supreme Court’s history.

As an article from Slate points out, we should be less worried about the clowns than the judicial nominees we don’t hear about.

For 10 minutes in December, the public was agog at the spectacle of Sen. John Kennedy of Louisiana, in his grits ’n’ biscuits twang, shredding a Trump judicial pickto ribbons over his lack of courtroom experience. Kennedy’s evisceration of federal district court nominee Matthew Spencer Petersen was a good show, as shows go, serving to highlight the ways in which some of Trump’s judicial selections were unprepared, entitled, and rushed through the vetting process. Petersen withdrew his nominationnot long after video of his abject performance went viral. The White House also pulled backtwo nominees: Jeff Mateer, who has referred to transgender children as a part of “Satan’s plan,” and36-year-old Brett Talley, who has never tried a case and once defended the “original KKK.”

Slate points out that these are “shiny objects,” and that the judges with real credentials who are being confirmed are the ones likely to affect the jurisprudence.

These nominees are not jokes, and they are not cartoonish bumblers. They are highly effective and respected thinkers with agendas not unlike that of Trump’s Supreme Court nominee Neil Gorsuch. They will create a judicial branch that is hostile to women’s rights, workers’ rights, voting rights, LGBTQ protections, and the environment. And they will do so capably and under the radar. We giggle at the Trump judges at our peril.

I’m not giggling. I’m drinking.

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The Immigration Debate

April 20, 2018

Last night, I spoke to the Lafayette chapter of Indiana’s ACLU. They asked that I address immigration. This is the talk I delivered.

It’s tempting to dismiss Trump’s emphasis on immigration—and especially his wall– as both stupid and racist: Stupid, because most people who are here illegally have flown in and overstayed their visas—something a wall would neither address or prevent—and illegal entries from Mexico, which were already diminishing, have declined some 45% since Trump’s election (along with tourism from pretty much everywhere); racist, because that wall he wants is only between us and Mexico, not us and Canada. And he’s made it clear he’d put out the welcome mat for those blond immigrants from Norway….

In fact, a significant element of racism infects the entire immigration debate. My own son-in-law is an immigrant; he’s been in the U.S. on a green card for nearly 40 years, and in all that time, he has encountered exactly zero anti-immigrant hostility. He’s not from Norway, but he is a very pale Brit who hasn’t entirely lost his cute English accent.

Trump’s emphasis on immigration is of a piece with his appeal to White Nationalists generally, but in all fairness, this administration didn’t invent the debate over immigration, nor is it the first to stoke the tribalism that infects that debate. I know facts are out of fashion these days, but it is instructive to look both at our history and the actual impact of immigration.

In a January column on the subject, David Brooks of the New York Times recognized that—when you look at that history and those facts, they point to one inescapable conclusion. Here’s what he wrote:

The case for restricting immigration seems superficially plausible. Over the last several decades we’ve conducted a potentially reckless experiment. The number of foreign-born Americans is at record highs, straining national cohesion, raising distrust. Maybe America should take a pause, as we did in the 1920s. After all, that pause seemed to produce the cohesive America of the 1940s that won the war and rose to pre-eminence.

Every few years I try to write this moderate column. And every few years I fail. That’s because when you wade into the evidence you find that the case for restricting immigration is pathetically weak. The only people who have less actual data on their side are the people who deny climate change.

There has always been a nativist streak in America. If you go to the East Side Tenement Museum in New York, you’ll see that Ellis Island was first established to keep “undesirables” from entering the country. The poem we all quote on Lady Liberty—the “give me your tired, your poor, your masses yearning to breathe free”– was Emma Lazarus’ response to the Chinese Exclusion Act. The Know-Nothing Party (which today’s GOP seems to want to emulate, if not eclipse) was formed largely by people who feared that Irish Catholic immigrants would take jobs from God-fearing Protestant “real Americans.”

The persistent inability of Congress to pass immigration reform is one of the reasons the Executive Branch has been exercising more policy authority—Obama’s efforts to protect the Dreamers, for example, were a response to continued inaction by the legislative branch.

What are the facts—as opposed to the xenophobic fears—about immigration and immigrants?

Immigrants themselves make up about 14% of the U.S. population; more than 43 million people. Together with their children, they are about 27% of us. Of the 43 million, approximately 11 million are undocumented, and as I noted previously, after Trump took office, Customs and Border Protection reported a 36% drop in crossings from Mexico. Since 2007, individuals who flew in and overstayed their visas have outnumbered those who cross the border illegally by 600,000.

What anti-immigrant activists are calling “chain migration” is actually family re-unification and it applies only to close relatives; of the people granted permanent residency in 2016, about two-thirds fell into that category.

Immigrants made up 17% of the U.S. workforce in 2014, and two-thirds of those were here legally. Collectively, they were 45% of domestic workers, 36% of manufacturing workers, and 33% of agricultural workers. Those percentages help to explain why state-level efforts to curb immigration have come back to bite them: in Alabama a few years ago, as many of you will recall, the state passed a draconian new immigration law, and crops rotted in the fields. Farmers couldn’t find native-born residents willing to do the work, despite offering to pay more than minimum wage.

Despite the hateful rhetoric from the Rightwing fringe, most Americans consider immigration a good thing: in 2016, Gallup found 72% of Americans viewed immigrants favorably, and as many as 84% supported a path to citizenship for undocumented persons who met certain requirements. Another poll showed that 76% of Republicans supported a path to citizenship, and it’s worth noting that such support was higher than the 62% who supported a border wall.

What about the repeated claims that immigrants are a drain on the economy? The data unequivocally shows otherwise. As the Atlantic and several other sources have reported, undocumented immigrants pay billions of dollars into Social Security for benefits they will never receive. These are people working on faked social security cards; employers deduct the social security payments and send them to the government, but because the numbers aren’t connected to actual accounts, the worker cannot access their contributions. The Social Security system has grown increasingly—and dangerously– reliant on that revenue; in 2010, the system’s chief actuary estimated that undocumented immigrants contributed roughly 12 billion dollars to the program.

The Institute on Taxation and Economic Policy estimates that approximately half of undocumented workers pay income taxes, but all of them pay sales and property taxes. In 2010, those state and local taxes amounted to approximately 10.6 billion dollars.

The most significant impact of immigration, however, has been on innovation and economic growth. The Partnership for a New American Economy issued a research report in 2010: key findings included the fact that more than 40% of Fortune 500 companies were founded by immigrants or their children. Collectively, companies founded by immigrants and their children employ more than 10 million people worldwide; and the revenue they generate is greater than the GDP of every country in the world except the U.S., China and Japan.

The names of those companies are familiar to most of us: Intel, EBay, Google, Tesla, Apple, You Tube, Pay Pal, Yahoo, Nordstrom, Comcast, Proctor and Gamble, Elizabeth Arden, Huffington Post. A 2012 report found that immigrants are more than twice as likely to start a business as native-born Americans. As of 2011, one in ten Americans was employed by an immigrant-run business.

On economic grounds alone, then, we should welcome immigrants. But not only do we threaten undocumented persons, we make it incredibly difficult to come here legally. If there is one fact that everyone admits, it is the need to reform a totally dysfunctional and inhumane system. Based upon logic and the national interest, it’s hard to understand why Congress has been unwilling or unable to craft reasonable legislation. Of course, logic and the national interest have been missing from Washington for some time. And compassion went with them.

Which brings me to DACA, and the willingness of this administration and Congress to use the Dreamers as hostages and pawns.

On September 5^thof last year, Trump terminated the Deferred Action for Childhood Arrivals (DACA) program. As you all know, Dreamers are children who came to the U.S. with their parents; most of them know no other home. A significant number speak only English. There was no particular reason, other than his fixation on immigration—nothing had happened that required or justified an out-of-the-blue termination of a program that huge majorities of Americans favored. At the time, Trump announced that it was the responsibility of Congress to pass legislation by March 5 to avert the crisis he had just caused. That has not happened.

In January, a federal court entered a preliminary injunction requiring the U.S. Department of Homeland Security to receive and adjudicate DACA renewal applications from young people who previously received protection under the program. A second court entered a similar injunction weeks later, and on February 26, the Supreme Court declined the federal government’s highly unusual request to hear their appeal—and bypass the U.S. Court of Appeals.

So where are we?

Since its inception, more than 800,000 young people have applied for and received DACA status. Thanks to the injunctions, these individuals can apply for additional two-year work permits and protection from deportation. But the injunctions don’t protect other DACA-eligible individuals. According to the Migration Policy Institute, the overall total number of individuals who may have been eligible to apply for DACA or who may have become eligible by aging into the program or obtaining additional education was slightly more than 1.8 million.

Now, because Trump ended DACA, they are locked out of protection.

There are also an estimated 120,000 individuals among that 1.8 million who were unable to apply because they weren’t yet 15 years old when Trump ended DACA.

In addition to potentially DACA-eligible individuals who either did not—or could not—apply under the program before its termination, there are an additional 285,000 Dreamers who came to the United States at a similarly young age as DACA recipients and have lived here for even longer, but who were entirely cut out of DACA from the beginning, because the program excluded otherwise eligible individuals who were 31 or older as of June 15, 2012, when the program was announced.

The irony is that these older Dreamers have the longest and deepest ties to U.S. families and communities, since they arrived here as children at least 20 years ago. Bipartisan legislation, such as the Dream Act of 2017 and the USA Act of 2018 would get rid of the age cap entirely, remedying this situation, and would extend protection to Dreamers who, years ago, arrived in the country before the age of 18. They are currently excluded from DACA because they arrived after their 16th birthday.

It is so obvious where justice lies for these children that even our broken Congress was able to come up with a bipartisan bill—but despite his promise to sign whatever Congress came up with, Trump rejected it. Meanwhile, the media is filled with heartbreaking stories about families being torn apart, by the deportation of longtime residents who have been important, law-abiding assets to their communities—despite Trump’s rhetoric about focusing on the “bad hombres” among them.

Law is important. There should be consequences for ignoring it. But we can protect the rule of law without destroying families, sending children “back” to countries they know nothing about, and spitting on American ideals.

Over the past several months, we have seen escalating reports of horrible behavior by ICE and Homeland Security. Let me just share one such report, from a Washington Post article a few weeks ago, about the increasing practice of separating children from their mothers:

There is no allegation that the little girl, known in court filings only as S.S., is a terrorist, nor is there any suggestion her mother is one. Neither was involved with smuggling, nor contraband, nor lawbreaking of any other variety. Rather, S.S.’s 39-year-old mother presented herself and her daughter to U.S. officials when they crossed the borderfrom Mexico four months ago, explaining they had fled extreme violence in Congo, and requesting asylum.

A U.S. asylum officer interviewed Ms. L, as the mother is called in a lawsuit filed on her behalf by the American Civil Liberties Union, determined that she had a credible fear of harm if she were returned to Congo and stood a decent chance of ultimately being granted asylum. Despite that preliminary finding, officials decided that the right thing to do was to wrench S.S. from her mother, whereupon the mother “could hear her daughter in the next room frantically screaming that she wanted to remain with her mother,” the lawsuit states.

The Trump administration has said that it is considering separating parents from their children as a means of deterring other families, most of them Central American, from undertaking the perilous trip necessary to reach the United States and seek asylum. Now, without any formal announcement, that cruel practice, ruled out by previous administrations, has become increasingly common, immigrant advocacy groups say. In the nine months preceding February, government agents separated children from their parents 53 times, according to data compiled by the Lutheran Immigration and Refugee Service.

Make no mistake: Ms. L and S.S. could have been placed together in a family detention center. There has been no explanation of why the determination was made to separate them; nor is there any allegation that Ms. L. is an unfit parent.

This administration sees nothing wrong with calling DACA children criminals despite the fact that their parents brought them here when they were too young to legally form criminal intent. It sees nothing wrong with separating children from their parents while their applications for asylum are pending. It sees nothing wrong with arresting and deporting upstanding, otherwise law-abiding unauthorized immigrants who have lived and worked here for decades are the parents of U.S.-born children.

This profoundly corrupt administration has no concept of the rule of law, no compassion for the people whose lives it is ruining, no understanding of the long-term damage it is inflicting on this country, and no competence for managing the affairs of state. The longer the “party over country” Republicans in Congress facilitate this President, the more damage is done to America at home and abroad.

If there isn’t a “blue wave” in November, the damage may be irreversible.

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