SCOTUSBlog on the Ceballos Decision

Basically this decision is outrageous, it severely limits the Constitutional rights of whistleblowers and is completely impractical. SCOTUSBLOG has the scoop.

Today, the Court took that very signifiant step, holding that "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." This apparently means that employees may be disciplined for their official capacity speech, without any First Amendment scrutiny, and without regard to whether it touches on matters of "public concern" -- a very significant doctrinal development.

Or perhaps not quite. In order to issue such a holding, the Court would have had to distinguish or overrule Givhan v. Western Line Consol. School Dist., 439 U. S. 410, 414 (1979), which provided First Amendment protection to an English teacher who had raised concerns to the principal about racism in her school’s employment practices. Citing Givhan, Justice Kennedy writes that "[t]he First Amendment protects some expressions related to the speaker’s job," even when made within the workplace. But, he argues, "[t]he controlling factor in Ceballos’ case is that his expressions were made pursuant to his duties as a calendar deputy.".

So, it appears that if one's duties are to expose wrongdoing in the workplace, such exposure is entitled to no constitutional protection, but that if an employee whose duties do not involve such whistleblowing makes the exact same complaint, then Pickering/Connick analysis still applies. A somewhat odd result, at least on first glance. And odder still: Under today's opinion, if Mr. Ceballos had written a newspaper article complaining about the wrongdoing in question, rather than taking the matter to his supervisor, he would at least be entitled to whatever constitutiional protection Pickering/Connick offers.

I guess the lesson in all this is that if you have a complaint about your workplace you're better off going to the press than to your employer, great idea Justice Kennedy. Furthermore, Jack Balkin makes the argument that employee whisleblowers are screwed no matter which way they go. If they use internal channels they forfeit their first amendment rights and if they go to the press they become workplace pariahs and will probably have to leave their job anyway.

My Published Work on Immigration

Several weeks ago I was asked by the Linfield Review to write an article on immigration. I did, and it was published. I had hoped to link to that article here, but that issue of the Linfield Review seems to have not been posted on the web, so without further ado, I present to you the article, edited for one or two things that I meant to change before I submitted it but forgot.

Since 1886 the statue of liberty has welcomed immigrants to the United States with the famous slogan “give me your tired, your poor, your huddled masses yearning to breath free…I lift my lamp beside the golden door.” Now as the United States debates immigration, with some proposals featuring a giant fence along the Mexican border, that sentiment is threatened. What emerges from the immigration debate that we are currently engaged in will define who we are as a country for a long time to come.

The United States is in a unique position economically and geographically in the world. Very few developed nations share a significant border with a developing nation as we do with Mexico. Immigration from the developing world into the developed world is a common trend worldwide, the United States is somewhat unique because of that 2,000-mile border with a developing country. This situation makes the United States perhaps a more desirable destination for people from Latin America. Other developed nations, which also serve as destinations for immigration from the developing world do not have this geographic situation that may make immigration to the United States in particular so appealing to Hispanics seeking a better life.

There has been much debate over whether immigrants, and particularly illegal immigrants improve or harm the US economy. Some of the arguments are patently false, and need to be dismissed from the discussion, that illegal immigrants don’t pay taxes, and that they are a drain on social services in particular. In fact, illegal immigrants are ineligible for services such as food stamps, Medicaid, or welfare benefits, but do pay taxes on their income, in fact they serve as a major boost to social security since they pay the payroll tax but are ineligible for its benefits. Businesses appreciate the labor that these individuals provide, for they are very hardworking individuals who, unfortunately are not always paid the minimum wage or given the essential protections afforded to most workers. There is some wage loss due to immigration, according to George Borjas, a Harvard economist; immigration from 1980 to 2000 caused an average 4% wage decrease for US-born males. When lower prices, increased productivity, and other benefits of illegal immigrant labor are considered, Borjas estimates that the average American is 1% wealthier because of illegal immigration.

While the opportunities that people find in the United States are certainly greater than they were in Mexico the lives of these individuals hardly transforms from poverty to wealth. The Pew Hispanic Center notes that in 2004 the poverty rate in the United States among Hispanics was 22.5% compared to a 14% national average. That number includes both citizens and non-citizens; you could imagine that the non-citizen and illegal numbers would be far higher. People endure these conditions to enter the United States illegally because conditions are worse in Mexico. After the passage of the North American Free Trade Agreement, the number of Mexicans living in conditions of poverty increased by 19 million. NAFTA is not bad, the agreement has generally improved the Mexican economy, but it lacked provisions to protect low wage workers and small farmers. Some Mexicans employed full time may make as little as $2.50 a day.

Given the apparent minimal effect that illegal immigration seems to have for Americans it is the cultural implications of immigration that make it such a big issue. This is about a perceived threat to the American way of life with millions of people creeping up from the South speaking primarily a foreign language. If this is true then the issue is ultimately about isolation. Many Americans want to seal their culture off from perceived outside threats. This would explain why people are willing to support free movement of goods across borders, but not free movement of people, for tennis shoes from Malaysia bring no apparent cultural change, while socializing with a completely different culture does.

An honest approach to the immigration issue should seek greater integration, for down the road of greater integration lies the best course for the United States. We should welcome immigrants and the good work they do in this country as we have in the past, perhaps make it easier to gain citizenship for those who want it, and pursue policies that help Mexico and Latin America to improve itself, like renegotiating NAFTA and supplying aid directed towards improving infrastructure. Down this path we welcome what it different and take the cultural changes as they come while easing the desperate circumstances that drive people to risk their lives to come here. The slogan on the statue of liberty signals an attitude that built this country into what it is today, we cannot afford to abandon that sentiment now.

Why Don't They Come Here Legally?

The New York Times ran an article today pointing out the absurdity of much of the "illegal immigration" frame that has dominated our public discourse on this issue. George Lakoff points out at the Rockridge Institute that this is more properly a "economic refugee crisis" than it is a "illegal immigration problem". When we think of the issue in terms of illegal immigration it is likely that the discourse revolves arround the fact that so many hispanic immigrants are here without the proper paperwork to be legal. It sets the debate in terms of the immigrants having broken the law. What the New York Times does excellently today is point out that the idea that people should "wait in line" is a false one, for oftentimes there is no line to wait in.

Six years after he came here from Mexico, David E. has a steady job in a poultry plant, a tidy mobile home and a minivan. Some days he almost forgets that he does not have legal documents to be in this country.

David's precarious success reflects the longtime disconnect between the huge number of Mexican immigrants the American economy has absorbed and the much smaller number the immigration system has allowed to enter legally.

Like many Mexicans, David — who spoke in Spanish and whose last name is being withheld because he feared being fired or deported — was drawn by the near-certain prospect of work when he made his stealthy passage across the desert border in Arizona to this town among the cucumber fields of eastern North Carolina.

"If I had the resources and the connections to apply to come legally," said David, 37, "I wouldn't need to leave Mexico to work in this country."
...
By big margins, Mexican workers have been the dominant group coming to the United States over the last two decades, yet Washington has opened only limited legal channels for them, and has then repeatedly narrowed those channels.

"People ask: Why don't they come legally? Why don't they wait in line?" said Jeffrey S. Passel, a demographer at the Pew Hispanic Center, a research organization in Washington. "For most Mexicans, there is no line to get in."

The United States offers 5,000 permanent visas worldwide each year for unskilled laborers. Last year, two of them went to Mexicans. In the same year, about 500,000 unskilled Mexican workers crossed the border illegally, researchers estimate, and most of them found jobs.

"We have a neighboring country with a population of 105 million that is our third-largest trading partner, and it has the same visa allocation as Botswana or Nepal," said Douglas S. Massey, a sociology professor at Princeton.
...
For Mexicans who try to immigrate legally, the line can seem endless. A Mexican who has become a naturalized United States citizen and wants to bring an adult son or daughter to live here faces a wait of at least 12 years, State Department rosters show. The wait is as long as seven years for a legal resident from Mexico who wants to bring a spouse and young children.

Although David E. graduated from a Mexican university, he does not have an advanced degree, a rare skill or family ties to a legal United States resident that might have made him eligible for one of the scarce permanent visas.

Instead, he said, after he despaired of finding work at a decent wage in his home city, Veracruz, he discovered an alternative immigration system, the well-tried underground network of word-of-mouth connections. Contacts he made through the network helped him to make the trek to Arizona, traverse the country in a van loaded with illegal Mexicans and land a job eviscerating turkeys at a poultry plant in Mount Olive three weeks after he arrived.

David has been at the plant ever since, rising to become the chief of an assembly line but still working as much as 12 hours a day on a red-eye shift that ends at 3 a.m.

From time to time he has made inquiries about becoming legal. But he said he was detained twice by the Border Patrol when he first tried to cross into the United States, and with that record, he feared that any approach to the immigration authorities might end in deportation.

Emphasis mine. So great, we're going to demonize people for coming to the United States illegally when there are no channels for them to come here legally. This grossly unfair visa distribution must end. Thanks to Mountain Man at DailyKos for the catch.

The Irony of the DaVinci Code Uproar

I went to see the DaVinci Code today. While it seems to have been largely panned I liked the movie, but that's not what I intend on speaking to here. At the end of April Vatican Officials called for its boycott. Numerous other groups have protested the film as well.

The irony of it all of course is that by reacting as they have to a fictional film, based on a novel that never claimed to be anything else, those who have reacted to this film and are offended by its content serve only to prove its point.

Now is the time for a spoiler alert, if you have not seen the film or read the book you may be well served to stop here. The premise of the film is that in order to justify a patriarchal message the catholic church had suppressed that Jesus Christ was married to Mary Magdalene and had a female child with her. In short, that Jesus christ was human, and that the catholic church would go to any length to prevent this getting out in order to justify a doctrine that serves to oppress women.

The uproar over this movie by the Catholic Church and many other religious groups makes Dan Brown's point more effectively than the book itself. It suggests that some are so determined to prevent free thought and questioning of church doctrine that they will go to extreme radical measures to prevent it. And there lies the point of this movie. Those who have put so much effort into killing this movie should perhaps consider Robert Langdon's (Tom Hanks) ending remarks. "Is it divine? Is it human? Can't the human be divine?" To question doctrine should not be something so actively fought, but considered. The Catholic Church has throughout its history been an organization less than committed to womens rights and equality. The movie is treats the Catholic Church brutally and in many regards with historical honesty. Maybe it should be considered whether it is really worth trying to destroy those ideas that question your doctine or whether it is better to consider the substance of the attack and admit ones past mistakes moving forward with more compassion.

As a side note, fiction is fiction ya know, its not like anyone is claiming this to be a documentary or to be factual. It is an engaging fascinating mystery flick, making a major PR campaign to get out the news that fiction is fiction seems a little odd.

Back In Action

Ok, after a long semester featuring the class from hell I can now restart this blog over the summer and hopefully keep it going into the fall. With the research project that bogged me down this semester out of the way I suspect I can pull it off just fine. Now I hope to once more be able to write about the world's happenings. I missed the isolationist immigration proposals, the new wiretapping revelations, and much more. Now with fewer conflicts over the next three months I will be able to discuss what happens in the world here as I also attempt to transition this into a place for labor related stories in particular. Cwech Blug open for business again.