interviews
The Nationalization of U.S. Elections
by Dan Hopkins
December 31, 2020
This interview with Dan Hopkins, Professor in the Political Science Department at the University of Pennsylvania, was conducted and condensed by franknews.
What were the original assumptions in the Constitution about state-level loyalty versus national government loyalty?
It's a good question. The Constitution is now far enough back in our collective memories that I think it's really valuable to start by having some sense of what the U.S. was like at the time. There were some scholars who argued that the Constitution is well understood as a peace treaty between sovereign states about how they were going to govern their affairs.
In 1776 and even in 1787, when the Constitution was drafted, the U.S. was a collection of 13 quite different colonies. It took the Georgia delegation six weeks to travel to Philadelphia in order to participate in the Constitutional Convention. Different colonies had very different economies and different religious heritages. This was a quite diverse country and, thus, the Constitution was designed to protect substantial levels of state-level autonomy. I think it is really important to recognize that at the time, many of the people thought of themselves as Americans, but also to a certain extent, as New Yorkers or Virginians or Pennsylvanians.
When do you start to see a shift towards politics in the U.S. becoming more nationalized?
To some degree, it's an ongoing process that has unfolded in fits and starts over our 200-plus year history. I do think that the Civil War is a critical turning point. In the run-up to the Civil War, you see many more implications of state-level identities. I'm a Georgian, I'm a Virginian. And obviously, the Civil War pitted state against state.
It's generally been the case that the Republican party has been more likely to invoke federalism. Of course, the exemplary issue is the issue of civil rights in the 1950s and 1960s. Even in more recent times, the Republican party has advocated for there being less of a role in the federal government asserting itself to protect the rights of African-Americans, especially, but not only in the South. I think it's fair to say that if you've heard a state rights argument in the last 50 years, it's more likely to be coming from the Republican party.
There's also an element in which as power shifts, we see changes. When the Republicans control the federal office, sometimes it's Democrats who say, "Hey, it's important to let California write its own laws with respect to clean energy or car emissions standards." At the same time, the extent to which we see Republican states moving to block sanctuary cities, for instance, is surprising.
If you're a principled federalist, then presumably cities shouldn't be punished for diverging.
In general, I see very few principled federalists in American politics. I think that all too often in contemporary American politics, federalism is just the clothing we use to dress up certain arguments instead of being a principled approach to a range of policy problems.
What factors contribute to a nationalized political landscape?
I actually think there's a relationship between the transformation of campaign finance, the transformation of voting, and the transformation of what's getting covered in our newspapers. There's a unifying element to all of this.
Let's look at campaign finance first. In many of the most competitive 2020 Senate races, large majorities of money came from out-of-state donations. What does that do to the candidates, and how does that affect the way constituents perceive elections?
I think that the nationalization of the campaign finance structure is an example of our nationalized set of divisions. What we're trying to do is refract these highly nationalized divisions through our federalist system. And the result often distorts representation in critical ways. One of the key facts about campaign finance has been that as late as 1992, two-thirds of all donations to federal candidates, to members of Congress, were coming from within the state that they represent. 20 years later in 2012, only one-third of all dollars were coming from the states that people represented.
The danger is that the representatives and senators increasingly have one constituency where they get their votes, but a separate constituency from where they get their money.
That is not how our system was designed to work. It was not designed for members of Congress to spend four hours a day raising money from people who are not their constituents.
And simultaneously, there has been a collapse of local media. I wonder how the decline of local news plays into this landscape?
When the internet first became a sizable presence, there was a hope that it might actually lead to a proliferation of local news. With the internet there are very, very low production costs, so, theoretically, I could put up a newsletter about my neighborhood. But in fact, as you said, the rise of the internet and the rise of cable television led to this dramatic concentration of our attention on a very, very small number of nationalized news sources. Partly that's because the news media would target us based on where we lived. The Philadelphia Inquirer targeted a set of people who wanted to know about life in and around Philadelphia.
But more recently we instead see that the business model for many media companies is to compete based on who voters are and who readers are and who consumers are, rather than where they live.
Rather than providing me with information specific to Philadelphia, they will identify me as someone who likes the National Football League or cares about politics.
That has led to the fragmentation of our media environment. One of the real losers in this has been people's attention to state and local politics. State and local politics have never been on the top of people's priority lists. It used to be that if I were reading the Philadelphia Inquirer, as a by-product of learning what the Eagle's score was, I also learn a little bit about who my mayor was or who my governor was. And nowadays, since I can go right to ESPN or I can go right to Fox News, I can skip over all that state and local information.
In a world where state and local politicians want to be well-known, they're much more likely to attach themselves to a lightning rod federal issue than they are to actually dive into the challenging, complex issues that face their local community.
Which really allows issues to be manipulated. When we focused on immigration, something I found interesting was how much immigration was used as a campaign tool in Ohio or Maine. It’s easy to make a border terrifying when you don’t live near one. Do you feel like campaigning has changed based on the ability to take issues that don't have anything to do with your constituents, but are made to look like they have everything to do with constituents?
Yeah, absolutely. One of the real challenges with a nationalized political environment is that it encourages attention to issues that are evocative and emotionally charged and often have to do with specific groups of people, but ultimately do not have clear policy effects. I think one prominent example of this is not long after President Trump was elected he attacked football players who refused to stand for the National Anthem. I think it's a very instructive case because he wasn't proposing any policy. This was purely about symbols.
I worry that in the nationalized political environment, it's very hard to put together a political coalition that speaks to auto workers and nurses in the suburbs of Detroit, and retirees in Maricopa County. This is a very diverse country. One of the easier ways to knit together a political coalition is to reach for these divisive, identity-oriented issues, even if that's not actually what's going to motivate the policies that you're proposing.
I do think that there's been a real connection between the way in which our politics has nationalized and the way in which our politics has become more identity oriented.
It's these kinds of identity charged issues that can have an intuitive meaning to people in places from Montana to North Carolina.
Has your work clarified your opinion about how national politics should work? What do you advocate for moving forward in terms of policy and campaigning?
I certainly think that voters do better when they have the information that they need, and I think that we are missing an opportunity to really use our federalist system, because there are so many different kinds of issues that face the different communities in our country.
If we are trying to force all of those issues onto a single divide between Democrats and Republicans, we're going to miss a lot of critical issues.
I think some of the disaffection with contemporary politics stems from the fact that many of us deal with problems in our day-to-day lives that are not represented by the Republican-Democrat divide.
I do want to be wary of nostalgia — or suggesting that some earlier period of history was markedly better. Yes. I worry a lot that today's voters just don't know much about state and local politics, but state and local politics wasn't always vibrant and democratic in previous generations, right? As a social scientist, I think part of my job is to lay out trends. I do think that nationalization is something that we should forecast as being a major part of our politics moving forward.
I also think that there are some policy changes on the edges that I would advocate for that I think would help reinforce the connections between places and voters, and to make better use of our current federalist system. For instance, I think campaign finance matching, so that every dollar you get locally is amplified, is a great idea. I think that could encourage politicians to lay down roots in the specific communities they represent and to spend less time trying to raise money from Manhattan or Dallas.
I think we should also do everything in our regulatory capacity to help promote, protect, and foster high-quality, non-partisan coverage of states and localities.
As a country that is hemorrhaging reporters who cover states and localities I do think that given how many important decisions are made at the state and local level, as a society, we have a real stake in the quality of local news media. There are fewer statehouse reporters, there are fewer city hall reporters, and there are fewer people who are tracking state and local politics to hold our politicians accountable. I think that has been underappreciated, and one of the real dangers in contemporary American democracy.
interviews
On the History of Family Detention
by Peter Schey
August 17, 2020
This interview with Peter Schey, president of the Center of Human Rights and Constitutional Law, was conducted and condensed by franknews.
The Center of Human Rights and Constitutional Law is a nonprofit, legal services group based in Los Angeles, California. We focus on immigrants' rights, international human rights, and prisoners' rights. These are large class action cases that may impact several thousands to hundreds of thousands of people.
We focus on the rights of immigrants and refugees because we feel that those communities are among the most vulnerable and marginalized in the United States. Within that population, we tend to focus on immigrant children, both those who are accompanied and are unaccompanied with parents, who have been detained by the federal government.
I know the Flores Case is central to a lot of that work. Can you walk us through what the Flores case is and its importance?
In 1986, we brought the Flores case, to the federal court in Los Angeles in response to a policy adopted by the Reagan administration that, in effect, detained immigrant children in facilities with no medical assessments, no medical treatment, no education, no visitation, and no case management. There was no effort to detain children in safe and sanitary conditions. Children were held as bait to apprehend their parents.
The Flores case was litigated over the next 10 years, and in early 1997, we arrived at a nationwide settlement in what is commonly called the Flores Settlement.
Unless a minor is a flight risk or a danger, he or she has the right to be held in a non-secure, licensed facility. Children also have the right to bedding, blankets, to adequate temperature controls, drinkable water, edible food, et cetera.
A second part of the settlement is that it creates the right to release for detained children.
What does release mean? Where are they released to?
The settlement specifically provides a hierarchy of relatives that a child must be released to -- a child has a right to be released to any parent in the United States. If there's no parent, children have the right to be released to a grandparent, an uncle, an aunt, or a brother or sister. They also have a right to be released to a licensed group home licensed by a state for the care of dependent children.
There are only three reasons that a child may not be released. One, if the child is a significant flight risk. Two, if the child is determined to be a danger to herself or others. Or three, if the relatives to whom the child may be released, have been vetted and determined not able to provide a safe home for the child. For example, if they have an arrest warrant, or they have a serious criminal history. Other than those three circumstances, children have the right to be released to family members.
Traditionally, have administrations complied with the terms of Flores Settlement?
It covers all detained minors in the United States, whether accompanied or unaccompanied by parents. Various administrations complied with the settlement by promptly releasing any apprehended minor, generally within a day or two after processing their information.
But, in 2014, President Obama adopted the DACA program, and a couple of things happened.
The program allowed hundreds of thousands of young undocumented immigrants who had been brought here as children to surrender to the federal immigration authorities and obtain temporary work permits. Several hundred thousand young immigrants came forward and applied for DACA benefits. Opponents of President Obama and anti-immigrant organizations and elected officials were strongly opposed to the DACA program. They believed that it was an amnesty for undocumented people. Then, in the spring of 2014, there was a surge of immigrants apprehended at the southern border, including accompanied and unaccompanied children. These surges are not that uncommon and seem to occur every two or three years, especially in the springtime. President Obama's opponents initiated a public campaign blaming President Obama's DACA program for the surge. They basically argued that the DACA program was serving as a magnet to induce or encourage unaccompanied minors to enter the United States and parents to bring their children to the United States in hopes of winning DACA status. There were hundreds of newspaper articles and right-wing op-ed pieces that blamed President Obama's DACA program for this spring 2014 surge.
The two were, in fact, completely unrelated. None of these children that were coming in 2014 qualified for DACA. Immigrants are pretty well informed about these things back in their home country - they follow the news through immigrant networks, or their smugglers will provide information. Most immigrants who are planning on entering the United States understand the lay of the land and the policies before they make their entry. There really was no empirical connection between the DACA program and the surge.
Previous administrations had opted to release the families promptly after apprehension. The Obama administration decided to instead set up mass detention camps for accompanied children. They contracted private, for-profit corporations to operate large scale detention facilities in Texas. The cost was hundreds of millions of dollars, and those facilities could detain thousands of families.
How are they able to work within the parameters of the Flores Settlement at these detention centers?
When the Obama administration in 2014 responded to the surge there wasn't much they could do with regards to unaccompanied children - their rights were set by The Flores Settlement as well as by 2008 TVPRA.
We filed motions in the federal court that oversees compliance with The Flores Settlement in Los Angeles. We brought a motion to enforce the settlement, arguing that the lengthy detention of these accompanied children, with their parents, violated the release provisions of The Flores Agreement. The judge agreed with us and issued an order that required the government to come up with procedures to release accompanied children if a parent, designated a relative to whom they wished to have their child released. That is an important note - the Flores Settlement does not require the forced separation of children from their parents. It creates a right to be released that the parent is free to exercise or not exercise. Once we won that court order, the Obama administration figured out a way to come into compliance with the terms of the settlement. They had to figure out how to get kids released fairly promptly.
The way that they did that is through the asylum process. Almost all apprehended families are entitled to an interview that is called a credible fear interview - it's an interview to determine whether they appear to have a credible fear of returning to their home country because of persecution. It's a preliminary assessment of their right to receive asylum in the United States. The Obama administration accomplished these interviews fairly promptly. On average, within a week or two, if the parent has established a credible fear of persecution, the Obama administration would promptly release those parents and their children.
The Obama administration had over a 90% credible fear approval decisions. Therefore over 90% of children were released with their parents within about 20 days. That is how the Obama administration achieved compliance with the right of children to be promptly released. That way, they did not have to set up procedures to identify family members living in the United States, and they do not have to set up procedures to vet those relatives to make sure they could provide a safe home for any child released to them. So they achieved compliance with the settlement through the back door. But the bottom line is the result was that the vast majority of children were released reasonably promptly.
What happened after Trump was elected.
For the first year or two, there's really not much of a change. President Trump strongly opposes the settlement, and repeatedly publicly denounces the settlement. He says that he thinks children should not be released, that they should be detained, and that most of them should be deported. He urges Congress to enact legislation to override the settlement. He sought to terminate The Flores Settlement in federal court in 2018. And in 2019, his administration issued regulations in an effort to terminate the settlement. We blocked all of those efforts successfully.
But because of his restrictive asylum policies, the credible fear approval rate has now dropped from about 90% to about 10%. So the Obama approach of releasing the majority of children promptly no longer exists.
Is there any difference in the actions of officials at the border due to his rhetoric?
Border Patrol, ICE, and the Office of Refugee Resettlement, commonly called ORR, all take heed of what their boss thinks. So, they straddle the fence.
They are releasing unaccompanied children, but instead of doing it promptly within about twenty days, they're often detaining children for much longer.
So when we see the videos of kids in cages, that is due to them dragging their feet?
Yeah, absolutely. The fiasco on the border in 2019 actually was not the fault of the Border Patrol. It's complicated, but Border Patrol agents are supposed to turn over unaccompanied children to the ORR within 72 hours. They can only do that if the ORR has room. In 2019, when there were hundreds of children detained for weeks by the Border Patrol, which has no capacity to detain adults or children for more than a few days, ORR was simply not picking up children.
Why was the ORR not available to take the children?
ORR was not available to take custody of these children because they were at about 97% capacity. The reason they were at capacity was not because of surges, but, again, because they were straddling the fence due to the pressure they felt from the White House to not to release children at all. They couldn't do that because they would be in contempt of court, they'd be in clear violation of the settlement. So instead, they straddled the fence by creating vetting procedures for the relatives that were extremely challenging and took a long time. This way, they remained somewhat in compliance, while trying to appease the wishes of their boss, the president of the United States.
Because of those delays in releasing children, ORR reached 97% capacity in their facilities. If they had just released children in a couple of weeks, they would have been at 50% capacity. But because of the difficult process that they created, they were not moving children out of their custody quickly.
So when a surge of unaccompanied minors being apprehended at the border developed in April and May of 2019, Border Patrol would say to ORR, we have a hundred kids, come pick them up in 72 hours. ORR would just say, we're not going to pick them up because we were at capacity, sorry. That's what created that crisis.
More recently, the detention of accompanied children has increased substantially because the Trump administration has adopted far more restricted policies on who does and who does not qualify for political asylum. They've adopted a policy that states immigrants who are fleeing gang violence are not eligible for asylum. They have also issued a policy that domestic violence does not count as “credible fear.”
The government has also started to assign Border Patrol agents to conduct these interviews, as opposed to professional well-trained asylum officers. As a result, the approval rating for asylum went from over 90% down to about 10%. The mechanism that the Obama administration had used to comply with the settlement and to relatively promptly release accompanied children with their parents, that went out the window. Because now, instead of 90% of kids being relatively promptly released, now you only have 10% of children being promptly released. That creates a huge issue.
What is the legal justification for those changes?
They just made a policy decision. They just instructed their immigration judges and their asylum offices. Attorney General Jeff Sessions just issued opinions and DHS just issued opinions.
In March of this year, we brought an emergency motion to deal with the ongoing detention of accompanied and unaccompanied minors in light of COVID-19, and we won court orders in March, April, May, June, July, every month. We won court orders that basically now require that the government make additional efforts in terms of safe and sanitary conditions and that they reduce and eliminate some of the obstacles in the release of children.
How else has COVID changed things?
They can still apply for protection under the Torture Convention - which the United States is a party to. They do have to question people about whether they face torture, which is a quick interview conducted by Border Patrol. Very few immigrants are found to possess a credible fear that they are being tortured in their country. That has reduced the number of apprehended children because they are deported shortly after they reach the border.
Are there systematic changes that you want to see take place?
We will be urging both the Trump administration and the Biden camp to abolish family camps. We want to go back to what administrations did before the Obama administration- which was to release parents and children as promptly as possible. These people are not flight risks, and they are not a danger to national security.
If they were released with proper instructions as to the consequences of not showing up at their hearings, if they were treated fairly, they will appear for their hearings - their asylum hearings and their deportation hearings. That is a big change we would like to see. It is never going to happen under a Trump administration, maybe under a Biden administration. He was in the administration that began mass family detention in the first place, but hopefully, he has changed his thinking on that.