Columns

Michigan Supreme Court must guard Headlee Amendment’s taxpayer protections

December 13 ,2024

Eight states across the country just passed measures to limit property taxes. Georgia and Florida capped the rates at which property taxes could go up. Michigan already has such a limitation, but its protections have been gradually eroded with the acquiescence of the courts.
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Derk Wilcox, Mackinac Center for Public Policy

Eight states across the country just passed measures to limit property taxes. Georgia and Florida capped the rates at which property taxes could go up. Michigan already has such a limitation, but its protections have been gradually eroded with the acquiescence of the courts.

Michigan enacted what is commonly called the Headlee Amendment in 1978. This limits the amount that property taxes may be increased and requires local governments to allow a public vote on any new taxes or tax increases. But local governments have found a way around this.

There has long been a distinction in Michigan between taxes and user fees. While the Headlee Amendment limits taxes, so-called fees are not constrained by the Michigan Constitution. Local governments have been increasing these Headlee-exempt fees without putting them to a vote.

The courts have taken this exception and greatly expanded it. Originally, when a government charged fees, it was only allowed to raise money to cover the costs of administering regulatory activities — overhead, basically. For example, the state could charge a fee to cover the cost of administering driver’s licenses — clerks, forms, recordkeeping and things like that. But those driver’s license fees could not be used to fund road building.

Fees were only supposed to be a minor burden for the user, not a way to shoulder the cost of major public projects. If the money obtained from a fee was used for more than the cost of running a regulatory scheme and issuing a government-required license, it was a tax. Public projects and services were to be funded by taxes, not fees. And after the Headlee Amendment, these taxes had to be voted on by the public.

Recently, however, the courts have allowed local governments to use new or increased fees to fund major projects if those projects were undertaken at the direction of a regulatory agency. For instance, if a state agency orders local governments to build major infrastructure projects in order to comply with a regulation, courts have let local governments charge fees to build this infrastructure — without holding a public vote.

This completely ignores the constitutional requirement for a vote and leaves taxpayers burdened with increasing costs they never had a say in. Instead of fees only paying the overhead cost of the regulators, they pay the much-higher costs of everything that regulators oversee — which is pretty much everything.

So while other states, including the fast-growing economies of Florida and Georgia, are adopting tax-limitation measures like Michigan once had, Michigan has been slowly allowing our own constitutional tax-limitation measure to become an easily bypassed irrelevancy. Making Michigan a high-tax state will only decrease our population and fuels the exodus of our residents and businesses moving to more tax-friendly states.

To help fight this, the Mackinac Center filed a friend-of-the-court brief at the Michigan Supreme Court challenging this erosion of the Headlee Amendment. Voters have a right to have a say in how high their taxes are. We hope the state’s highest court will agree.

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Derk Wilcox is the Senior Attorney at the Mackinac Center for Public Policy and a member of the Mackinac Center Legal Foundation legal team.

Hamas – hemmed in and isolated – finds itself with few options for the day after the Gaza war

December 13 ,2024

In early December 2024, Hamas announced a major concession: It was prepared to cede future governance of Gaza to a unity Palestinian committee, working alongside its chief political rival, Fatah, to create the body.
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Mkhaimar Abusada, Northwestern University

(THE CONVERSATION) — In early December 2024, Hamas announced a major concession: It was prepared to cede future governance of Gaza to a unity Palestinian committee, working alongside its chief political rival, Fatah, to create the body.

Fatah, the party of Palestinian Authority President Mahmoud Abbas, has since expressed hesitancy about such an arrangement – which, in any event, would face stern opposition from Israel and likely the U.S., too. But the fact that Hamas would strike such a deal with a faction it took up arms against for the right to govern Gaza in the first place points to the militant group’s weakened position after more than a year of Israel’s devastating war in Gaza.

Israel’s recent ceasefire agreement in Lebanon has further damaged Hamas’ prospects by curbing Hezbollah’s direct support in Gaza and by extension that of Iran – leaving it even more isolated.

Hemmed in on all sides, Hamas has, from my observations as an expert on Palestinian politics, shifted its calculus for a post-Gaza war world. That it was Egypt pushing for a Fatah-Hamas deal is also noteworthy, as what ultimately transpires in terms of Gaza’s governance will likely hinge on the wishes of the governments in Cairo and Israel, both of which sees Gaza as the backyard of its national security.

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An Egyptian plan for Gaza


Egypt, with tacit support from the United States, has been focused on what a future Palestinian political arrangement in Gaza might look like. To try to address this security and governance vacuum, Egypt convened the leaders of both the Fatah movement and Hamas in early December in hopes of establishing a governing committee to take over Gaza’s governance once the war ends.

In Cairo, Egyptian mediators proposed the establishment of a community support committee to be made up of Palestinian professionals and technocrats not affiliated with Fatah or Hamas. Abbas, who as leader of the Palestinian Authority has governance powers in the West Bank, subject to Israeli approval, would need to approve the committee.

Hamas’ quick acceptance of the Egyptian formula points to a group facing a far different security and organizational environment than it did prior to the escalation of conflict with Israel.

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Shifting regional dynamics


When Hamas launched its attacks on Oct. 7, 2023, it did so knowing it could rely on active military support from its Hezbollah allies in neighboring Lebanon and ongoing financial and diplomatic cover from Iran.

Fast-forward 14 months, the position of Tehran’s so-called “Axis of Resistance” looks far more tenuous. Hezbollah and Israel’s months of tit-for-tat violence along the Israeli-Lebanese border escalated into full-scale warfare that saw Israel expand its brutal military campaign into southern Lebanon. Hezbollah emerged from that fight severely wounded, having lost numerous members of its leadership to Israeli bombs.

The subsequent Nov. 26 ceasefire has effectively taken Hezbollah out of the Gaza conflict.

Meanwhile, Iran, which has exchanged rounds of missile volleys with Israel, has thus far been keen to outsource direct confrontation against Israel to its Hamas and Hezbollah proxies, seeking to avoid a prolonged military engagement with Israel.

With that regional military support curtailed, Hamas also finds itself facing a changed diplomatic landscape.

Since 2012, Qatar has hosted Hamas’ political leadership under an agreement with the United States. The small Gulf nation has since acted as a mediator between Hamas and Israel and the United States, which refuse to negotiate with the group directly.

But in early November, Qatar announced it was suspending its role in mediating Gaza peace talks, citing dissatisfaction with the process, though it has since suggested talks may be regaining momentum and that it was once again mediating.

In any case, U.S. officials have recently pushed Qatar to shutter its Hamas political office, and remaining Hamas political operatives there have reportedly decamped to Turkey.

Qatar is also eyeing a changed U.S. political scene, where an incoming Republican-led Congress and President-elect Donald Trump are likely to exert an even harder line on Hamas having any kind of political base outside of Gaza.

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Decimated, both militarily and politically


Alongside increasing isolation, Hamas has also sustained deep operational damage in the course of the Gaza war.

The recent Israeli killing of Hamas leader Yahya Sinwar caused a vacuum at the very top. That came after Israel had already killed much of the senior military and political Hamas leadership in Gaza, not to mention high-profile political leaders outside of Gaza such as Hamas political leader Ismail Haniyeh, who was assassinated in July in Iran.

It’s not even clear who makes up Hamas leadership in Gaza as of December 2024, aside from Sinwar’s brother, Mohammed, who is a member of the military wing of Hamas. Nor is it clear whether Hamas members outside of Gaza can even communicate with leaders within.

For now, prominent Hamas leader Khalil al-Hayya has been involved in the talks with Fatah in Egypt. However, the executive committee of the Palestine Liberation Organization – of which Fatah is the dominant faction – rejected the Egyptian proposal.

That doesn’t mean the proposal is necessarily dead in the water – just that Egypt will have to work with Fatah leaders to address their concerns.

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A depleted movement eyes the future


While Hamas has been weakened militarily and politically, there is also little chance that Hamas will not remain an ideologically potent force, capable of drawing support from the many Palestinians in Gaza, as well as the West Bank and the broader Palestinian diaspora.

But as a governing entity, Hamas appears to be a spent force for the foreseeable future – something that members of the group readily acknowledge.

The recent Egyptian-hosted Palestinian talks, however fitfully, point to how any long-term future for Gaza – or the Palestinians as a whole – requires a more cohesive Palestinian political leadership.

Indeed, one shortcoming of the latest Egyptian plan is that it does not unite the Palestinians under a unified government, because the governing entity proposed will be responsible only for overseeing the Gaza Strip.

And trust between Hamas and Fatah remains low, as it has ever since Hamas took over the Gaza Strip in June 2007 following a violent confrontation with Fatah.

Yet even if Hamas and Fatah would agree on a unity government, the broader reality is that cannot happen so long as Israel and its international allies, chiefly the United States, oppose it.

For his part, Israeli Prime Minister Benjamin Netanyahu has repeatedly stated that neither the Palestinian Authority nor Hamas will play any role in the day after the war.

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When the war is over


Yet apart from a permanent Israeli military occupation, it’s hard to see what options exist for Palestinians going forward absent some unification in Palestinian politics.

When Hamas won a major victory in Palestinian legislative elections in January 2006, it was in no small measure due to Fatah divisions, corruption, widespread dissatisfaction with what the Oslo peace process had delivered and little sign for future progress toward a Palestinian state.

Almost 20 years later, none of those realities has meaningfully changed.

The devastation in Gaza has only compounded the humanitarian crisis and the difficulty of charting a long-term solution. Yet when the war in Gaza does come to an end, there will be no option but for Arab countries, including Egypt, the U.S. and the wider international community to help Palestinians in the enclave rebuild and seek some measure of security. The Palestinians who live there cannot afford another governance failure.

U.S. secretary of education helps set national priorities in a system primarily funded and guided by local governments

December 13 ,2024

The Department of Education has been a source of political controversy since its creation in 1980 during Jimmy Carter’s presidency. President Ronald Reagan, who was first elected that year, called for it to be disbanded.
:  
Dustin Hornbeck, University of Memphis

(THE CONVERSATION) — The Department of Education has been a source of political controversy since its creation in 1980 during Jimmy Carter’s presidency. President Ronald Reagan, who was first elected that year, called for it to be disbanded.

As a scholar of educational policy and the balance of federal and state roles in American education, I believe that understanding the department and its leader’s responsibilities is especially important today. Every child in the United States is required to attend school in some capacity, and what happens at the federal level can have real-world impacts on students ranging from preschool to grad school.

In addition, President-elect Donald Trump has pledged to dismantle the department.

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The secretary of education


The secretary of education belongs to the president’s cabinet, leads the Department of Education and advises the president about educational policy issues.

They oversee a department with a US$228 billion budget that enforces many civil rights laws and ensures compliance with federal laws such as the Every Student Succeeds Act.

Some of the Education Department’s key responsibilities include administering Title I funding to help schools serving low-income students obtain an equitable education regardless of their socioeconomic status; managing the Individuals with Disabilities Education Act – known as IDEA – to ensure services for students with disabilities; and overseeing the Free Application for Federal Student Aid – or FAFSA – which helps millions of students afford college.

Through the FAFSA, millions of students obtain Pell Grants, which don’t have to be repaid, student loans, which do, as well as part-time work-study jobs.

In the U.S., education is mainly a state responsibility. As a result, the function of schooling largely falls to individual states.

Each state has its own education system, with most designating a significant amount of control to local jurisdictions. Locally elected school boards bear the responsibility for setting many policies and approving budgets for their district.

Federal funding makes up about 14% of K-12 education funding. States and localities foot the rest of the bill, mostly through a combination of taxes on income and property. In some cases, there are other taxes, such as those on tobacco and alcohol sales, or revenue is raised through state lottery systems.

These funding formulas can be complicated and inequitable.

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Secretaries who stood out


Ultimately, the role of the secretary of education is less about wielding substantial power and more about using the position as a platform to influence the national conversation on education.

Education secretaries often act as thought leaders, shaping public dialogue and policies rather than directly implementing sweeping change. Some have garnered more attention than others.

William Bennett, who served as secretary of education during the Reagan administration, became a prominent conservative voice. He advocated for “virtue-based education” rooted in traditional values. Bennett also sharply criticized public education and teachers unions, blaming them for the perceived decline in the quality of American education.

Margaret Spellings commanded more national attention as secretary of education than most people who have held the position during her tenure in the George W. Bush administration. Spellings championed standards-based education with an emphasis on accountability. She played an important role in implementing No Child Left Behind, a federal education initiative that aimed to increase accountability by requiring all public schools to meet consistent standards.

Arne Duncan, who served as education secretary during the Obama administration, also made a lot of headlines. His Race to the Top program encouraged school districts and states to compete for federal funding as a way to drive improvement through competition.
Duncan’s support for school choice and policy reforms, as well as his occasional criticisms of teachers unions, made him a controversial figure – including within his own Democratic Party.

Betsy DeVos, who served during Trump’s first administration, was one of the most polarizing education secretaries in the department’s brief history. Her tenure was defined more by efforts to diminish federal influence in education than attempts to build new initiatives or improve public education.

DeVos also supported the establishment of religious charter schools, which are funded with tax dollars but operated independently of local school systems.

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Student loan debt


The amount of student debt Americans owe has hovered around $1.75 trillion in recent years. Reducing that burden was among the top priorities of Miguel Cardona, President Joe Biden’s education secretary.

In 2023, the U.S. Supreme Court struck down Biden’s plan to forgive up to $20,000 per borrower. In response, the Biden administration announced other student debt relief efforts that included lower loan payments and additional forgiveness; most of them are on hold due to pending court cases.

Ultimately, the courts will determine the legality of these relief efforts – underscoring the limits of the secretary of education’s power. With the scale of this debt, I am certain that student loan debt is likely to remain a big focus for anyone serving as the secretary of education.

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Culture wars battleground


Debates regarding education policies sometimes double as battles over cultural issues, such as LGBTQ rights in schools and whether parents should have more control over what students are taught in classrooms.

Conservative groups such as Moms for Liberty have pushed for laws that restrict discussions of sexual orientation and gender identity and have supported bans on transgender athletes in school sports.

LGBTQ rights organizations, including the Human Rights Campaign, support policies that protect trans children from bullying at school.

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On the chopping block?


The education secretary’s job would go away if Trump were to succeed with his campaign promise to “close up” the department. Doing that would require an act of Congress, but experts question whether such a measure would prevail when Republicans have narrow majorities in Congress.

Even if the department were abolished, many federal education programs could be distributed to other agencies.

The debate over the federal government’s role in education predates the establishment of the Department of Education. I have no doubt that it would continue should there not be a secretary of education anymore.

New set of human rights principles aims to end displacement and abuse of Indigenous people through ‘fortress conservation’

December 12 ,2024

or more than a century, conservationists have worked to preserve natural ecosystems by creating national parks and protected areas. Today the Earth faces a global biodiversity crisis, with more than 1 million species at risk of extinction. This makes it even more important to conserve places where at-risk species can thrive.
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By John H. Knox
Wake Forest University

(THE CONVERSATION) — For more than a century, conservationists have worked to preserve natural ecosystems by creating national parks and protected areas. Today the Earth faces a global biodiversity crisis, with more than 1 million species at risk of extinction. This makes it even more important to conserve places where at-risk species can thrive.

In 2022, governments around the world committed to protect 30% of the entire planet by 2030, nearly doubling the current coverage. They also agreed to respect the rights of Indigenous peoples, whose lands contain large shares of the world’s remaining natural ecosystems.

But such promises have often been broken. Historically, governments and private conservation organizations have typically insisted that only pristine, human-free parks can properly conserve nature. In many places, including U.S. national parks, authorities have forcibly removed people who lived on and cared for those lands for centuries.

I am a lawyer and law professor, and my work has focused on human rights, environmental law and areas where they overlap. From 2012 to 2018 I served as the first United Nations special rapporteur on human rights and the environment. In my work, I have heard many reports of human rights abuses associated with these forced displacements, including murder, rape and torture.

To address this problem, the U.N. Environment Programme convened a series of meetings starting in 2022 that brought together representatives of Indigenous peoples, conservation organizations, rights-based organizations and funders. The result is a set of core human rights principles for conservation organizations and funders, which will be formally announced on Dec. 13, 2024.

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The history of ‘fortress conservation’


Indigenous peoples and others who live on undeveloped lands are on the front lines of battles against illegal mining, logging and poaching. They are generally more effective than governments at preventing deforestation and loss of living species, and they do so far more cost-effectively.

Studies confirm that protecting the human rights of Indigenous peoples results not only in better lives for these communities but also better conservation of the lands where they live.

However, governments often do not recognize Indigenous peoples’ legal rights in their ancestral lands. And Indigenous communities receive only a small fraction of the billions of dollars directed toward climate and biodiversity protection.

Making matters worse, Indigenous people often are evicted from their land in the name of conservation. This practice began in the United States in the late 19th century with the creation of Yosemite and Yellowstone national parks. Among the peoples who lost their homes were the Miwok from Yosemite and the Shoshone from Yellowstone.

Over the following century, the pursuit of what came to be called “fortress conservation” spread around the world. Colonial European powers took this strategy to Africa and Asia; after countries there became independent, international conservation organizations based in North America and Europe continued to push their governments to create national parks on the Yosemite and Yellowstone models. Researchers estimate that millions of people were dispossessed, suffering physical harm and, in many cases, the loss of their cultures.

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Stewards at risk


In recent years, growing evidence that fortress conservation is both morally repugnant and ecologically ineffective has led nations to formally reject it. At an international conference in 2003 in Durban, South Africa, conservationists adopted an action plan that promised to create and manage protected areas “in full compliance with the rights of Indigenous Peoples.”

Nonetheless, many protected areas still prohibit Indigenous peoples from remaining in or returning to their ancestral homes. When they try to return, park rangers treat them as criminals. In some cases the rangers, who are often poorly trained, abuse them further by beating, torturing or even killing them.

In 2019, news reports publicized allegations of abuses against Indigenous communities in parks in Asia and Africa that were supported by the World Wildlife Fund, one of the largest global conservation groups. The increased attention led to multiple investigations, congressional hearings and suspension of millions of dollars in U.N. and U.S. government funding to the organization for projects in the Congo Basin.

Investigators found that rangers in Salonga National Park, the largest park in the Democratic Republic of Congo, regularly punished local residents by beating them with sticks, bayonets and the butts of weapons and engaging in sexual abuse. Investigators there also heard multiple allegations of rape and murder.

The World Wildlife Fund was not accused of encouraging or participating directly in such abuses, but it co-managed Salonga and paid its rangers. An independent panel of experts, on which I served, concluded that the organization had failed to effectively prevent or respond to the violations and had continued to fund the rangers even after learning about the allegations. Since then, stories of similar abuses have continued to proliferate.

In 2024, for example, Human Rights Watch reported on allegations of violent evictions of Indigenous Chong residents by a conservation organization, Wildlife Alliance, that co-manages a conservation project in Cambodia’s Cardamom National Park. And rangers working for African Parks, a private conservation organization that manages more than 20 national parks in 12 African countries, were accused by human rights organizations of beating and sexually assaulting Baka Indigenous people in Odzala-Kokoua National Park in the Republic of Congo.

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Human rights principles for conservation


Conservation is not fundamentally at odds with human rights. Many Indigenous peoples, conservation organizations and others are trying to replace fortress conservation with a truly inclusive approach that safeguards human rights and the environment.

For the past two years, I have worked with people from many different organizations, under the auspices of the U.N. Environment Programme, to clarify human rights principles that we believe should apply in conservation. Our focus is on affecting the behavior of private conservation organizations and funders, who play critical roles but often receive far less scrutiny than governments.

Organizations such as the World Wildlife Fund, the Wildlife Conservation Society and the Nature Conservancy funnel hundreds of millions of dollars in financial and technical support from donors in wealthy nations to protected areas around the world. In many cases, they manage or co-manage parks directly.

The principles that will be announced on Dec. 13, 2024, are not binding, but they reflect and summarize widely accepted human rights standards. They are based on key concepts that urge conservation organizations and funders to:

• Adopt commitments to respect human rights.

• Embed the commitments in their work.

• Institute processes to ensure that they identify and address human rights concerns.

• Avoid causing or contributing to human rights abuses.

• Use their influence to try to ensure that their partners, including government agencies, do not engage in abuses themselves.

In particular, the principles call on conservation organizations and funders to respect the rights of Indigenous peoples, including their right to decide whether to give their free, prior and informed consent for conservation initiatives and projects.

The principles have already been supported by more than 70 organizations and individuals, including the U.N. special rapporteur on the rights of Indigenous peoples and the U.N. special rapporteur on the human right to a healthy environment.

More remains to be done, including creating a regular conference to bring conservation organizations and funders together with Indigenous peoples to jointly address issues of conservation and human rights. But these principles are an important step toward greater protection for nature and the people who live closest to it.

Trump’s plans for tougher border enforcement won’t necessarily stop migrants from coming to U.S. - but their journeys could become more costly and dangerous

December 11 ,2024

The screen fills with images of migrants dodging highway traffic. “They keep coming,” says a narrator. “The federal government won’t stop them yet requires us to pay billions to take care of them. … Enough is enough.”
:  
Katrina Burgess, Tufts University

(THE CONVERSATION) — The screen fills with images of migrants dodging highway traffic. “They keep coming,” says a narrator. “The federal government won’t stop them yet requires us to pay billions to take care of them. … Enough is enough.”

This message might sound familiar, but it isn’t new. It’s a 1994 campaign ad in support of Republican politician Pete Wilson’s run for reelection as California governor.

At the time, California was experiencing its worst recession in decades. Although immigrants living in the state illegally did not cause California’s economic crisis, they were a convenient scapegoat. By blaming immigrants for California’s financial woes, Wilson turned his faltering campaign around and won reelection in November 1994.

Thirty years later, the United States is in a similar political moment, with many Americans worried about the cost of living and immigration.

President-elect Donald Trump has repeatedly – and misleadingly – blamed immigrants for crime, high housing costs and other problems. He is promising to quickly close the U.S. southern border and deport the nearly 12 million immigrants without legal authorization to remain in the country.

As a scholar of migration in the Americas, my research shows that Trump’s approach is unlikely to stop migrants from trying to enter the U.S. but very likely to enrich criminals. Migrants will keep fleeing desperate circumstances under even more treacherous conditions that leave them vulnerable to exploitation by criminal groups.

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Prevention through deterrence


A few months after Wilson’s campaign ad hit the airwaves, the U.S. Border Patrol issued its strategic plan for 1994 and beyond.

In this plan, the Border Patrol proposed a strategy called “prevention through deterrence” that was designed to make illegal entry across the southwest land border so risky that potential migrants would decide to stay home.

By concentrating border enforcement in the urban areas where most migrants were trying to cross, the plan aimed to force them “over more hostile terrain” in the desert and to increase the cost of hiring a smuggler.

Today, illegal migration to the U.S. is far more deadly and expensive than it was 30 years ago, just as the authors of the 1994 Border Patrol plan anticipated.

But the report’s authors believed that potential migrants would forgo the dangers of migrating to the U.S. without authorization, as well as the high costs of getting there. They thought potential migrants would simply stay in their home countries.

They were wrong.

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Fortified borders


The strategy of discouraging migrants from coming to the U.S. by making it more difficult required a large federal investment in border enforcement and cooperation from other countries, especially Mexico.

Over the past 30 years, the Border Patrol’s budget has grown more than sevenfold, and the number of agents stationed along the southwest border has quadrupled.

The U.S. government has also built physical infrastructure to stop migrants from entering the country, including massive walls that extend into the Pacific Ocean.

In more remote areas, drones, surveillance towers and extreme temperatures do the work of border control, often with deadly consequences for migrants.

The U.S. also provided more than US$176 million in funding between October 2014 and Sept. 30, 2023, to support Mexico’s immigration control efforts.

There is some evidence that stricter border enforcement deterred Mexicans from crossing illegally into the United States after the 1990s. The number of migrants apprehended by the Border Patrol along the southwest border plummeted from 1.6 million between October 1999 through the end of September 2000, to 327,577 between October 2010 and the end of September 2011.

But the deterrent effect of increased enforcement did not last. Migrant apprehensions at the southwest border began to rise again in 2012 and spiked to 851,508 between October 2018 and Sept. 30, 2019. After falling briefly during the pandemic, total apprehensions averaged 1.9 million per year between October 2020 and Sept. 30, 2024.

These numbers exceed the historic peaks in 1986 and 2000 – despite the much greater costs and dangers of migrating illegally today.

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Illusory deterrence


In 2023, my research team and I interviewed over 130 migrants in Colombia, Costa Rica and Mexico to understand why they were taking such enormous risks to get to the United States. What we found is that deterrence isn’t working because of shifts in who is migrating and why they are leaving home.

Until 2011, the vast majority of illegal border crossers were Mexicans, mostly young men seeking higher incomes to support their families. As the Mexican economy recovered and fewer young people entered the labor market, Mexican workers had less need to migrate. Those who made it to the United States stayed put instead of going back and forth.

Today, more than 60% of the migrants who cross the U.S. border without legal authorization are from places other than Mexico, including Central America, Venezuela, Ecuador and Haiti. Forty percent of them are parents traveling with children.

Many of these migrants are fleeing chronic violence, rampant corruption, natural disasters or economic collapse.

For these migrants, it is worth the risk of being kidnapped, dying in the desert or being deported to escape a desperate situation.

“If they deport me, sister, I will come back,” a Honduran mother of three told us in Tijuana in June 2023. “If you go back, you die. So you have to go forward, forward, forward all the time.”

They were wrong.

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Increased criminality


While prevention through deterrence has not stopped migrants, it has enriched smugglers, corrupt government officials and other criminals who take advantage of vulnerable migrants on their way to the U.S. border.

“Before I would charge you $6,000,” explained a Salvadoran smuggler to an Associated Press reporter in December 2019. “Now I am charging you double. And depending on the obstacles on the way, the price can go up.”

This doesn’t include the fee to cross the heavily fortified U.S.-Mexico border, which increased from a few hundred dollars in the 1990s to between $2,000 and $15,000 today.

According to one estimate, smuggling revenues in the Americas grew from $500 million in 2018 to $13 billion in 2022. “Criminals have shifted from their primary business, which was drug trafficking,” the director of an anti-kidnapping unit at an attorney general’s office in Chihuahua, Mexico, told a journalist in June 2024. “Now 60 to 70% of their focus is migrant smuggling.”

It’s not just smuggling that is lucrative. As Mexico’s own immigration policy has become more restrictive, migrants have fallen into the clutches of an extensive extortion racket that involves kidnapping migrants once they set foot in Mexico.

Prevention through deterrence is a failed policy with a tragic human cost. It doesn’t stop migrants who are fleeing dire conditions, and it fuels violence and criminality. Drug cartels, armed groups and corrupt officials get rich while insecurity spreads, fueling more migration. It is a vicious cycle that will likely only get worse with stricter enforcement and mass deportations.

Long-standing American principle of birthright citizenship under attack from Trump allies

December 11 ,2024

As President-elect Donald J. Trump prepares to implement sweeping policy changes affecting American immigration and immigrants, one of the issues under scrutiny by his allies appears to be birthright citizenship – the declaration in the 14th Amendment to the Constitution that anyone born on U.S. soil is a U.S. citizen, regardless of their parents’ nationalities or immigration status.
:   By Carol Nackenoff, Swarthmore College
and Julie Novkov, University at Albany State University of New York


(THE CONVERSATION) — As President-elect Donald J. Trump prepares to implement sweeping policy changes affecting American immigration and immigrants, one of the issues under scrutiny by his allies appears to be birthright citizenship – the declaration in the 14th Amendment to the Constitution that anyone born on U.S. soil is a U.S. citizen, regardless of their parents’ nationalities or immigration status.

Some prospective members of Trump’s team, including anti-immigration advisers Stephen Miller and Thomas Homan, have said they intend to stop issuing federal identification documents such as Social Security cards and passports to infants born in the U.S. to undocumented migrant parents, according to The New York Times.

This first step down a path to deny citizenship to some individuals born in the United States reflects a conflict that’s been going on for nearly 200 years: who gets to be an American citizen.

Debates in American history over who gets citizenship and what kind of citizenship they get have always involved questions of race and ethnicity, as we have learned through our individual research on the historical status of Native Americans and African Americans and joint research on restricting Chinese immigration.

Nonetheless, even in the highly racialized political environment of the late 19th century, the U.S. Supreme Court endorsed an expansive view of birthright citizenship. In an 1898 ruling, the court decreed that the U.S.-born children of immigrants were citizens, regardless of their parents’ ancestry.

That decision set the terms for the current controversy, as various Republican leaders, U.S. Sens. Tom Cotton of Arkansas and Marsha Blackburn of Tennessee, as well as Vice President-elect JD Vance, have claimed that they will possess the power to overturn more than a century of federal constitutional law and policy and deny birthright citizenship.

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Citizenship by birth


Most citizens of the U.S. are born, not made. Before the Civil War, the U.S. had generally followed the English practice of granting citizenship to children born in the country.

In 1857, though, the Supreme Court had decided the Dred Scott v. Sandford case, with Chief Justice Roger Taney declaring that people of African descent living in the U.S. – whether free or enslaved, and regardless of where they were born – were not actually U.S. citizens.

After the Civil War, Congress explicitly rejected the Dred Scott decision, first by passing legislation reversing the ruling and then by writing the 14th Amendment to the Constitution, which specified that “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

This broad language intentionally included more than just the people who had been freed from slavery at the end of the Civil War: During legislative debate, members of Congress decided that the amendment should cover the children of other nonwhite groups, such as Chinese immigrants and those identified at the time as “Gypsies.”

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Still barring some people from citizenship


This inclusive view of citizenship, however, still had an area judges hadn’t made clear yet – the phrase “subject to the jurisdiction thereof.” In 1884, the Supreme Court had to interpret those words when deciding the case of a Native American who wanted to be a citizen, had renounced his tribal membership and attempted to register to vote.

The justices ruled that even though John Elk had been born in the U.S., he was born on a reservation as a member of a Native American tribe and was therefore subject to the tribe’s jurisdiction at his birth – not that of the United States. He was, they ruled, not a citizen.

In 1887, Congress did pass a law creating a path to citizenship for at least some Native Americans; it took until 1924 for all Native Americans born on U.S. soil to be recognized as citizens.

The text of the 14th Amendment also became an issue in the late 19th century, when Congress and the Supreme Court were deciding how to handle immigrants from China. An 1882 law had barred Chinese immigrants living in the U.S. from becoming naturalized citizens. A California circuit court, however, ruled in 1884 that those immigrants’ U.S.-born children were citizens.

In 1898, the Supreme Court took up the question in United States v. Wong Kim Ark, ultimately ruling that children born in the U.S. were, in the 14th Amendment’s terms, “subject to the jurisdiction” of the United States, so long as their parents were not serving in some official capacity as representatives of a foreign government and not part of an invading army. Those children were U.S. citizens at birth.

This ruling occurred near the peak of anti-Chinese sentiment that had led Congress to endorse the idea that immigration itself could be illegal. In earlier rulings, the court had affirmed broad powers for Congress to manage immigration and control immigrants.

Yet in the Wong Kim Ark ruling, the court did not mention any distinction between the children of legal immigrants and residents and the children of people who were in the United States without appropriate documentation. All people born in the United States were automatically simply citizens.

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The long reach of Wong Kim Ark


Since the Wong Kim Ark ruling, birthright citizenship rules haven’t changed much – but they have remained no less contentious. In 1900 and 1904, leaders of several Pacific islands that make up what is now American Samoa signed treaties granting the U.S. full powers and authority to govern them. These agreements, however, did not grant American Samoans citizenship.

A 1952 federal law and State Department policy designates them as “non-citizen nationals,” which means they can freely live and work in the U.S. but cannot vote in state and federal elections.

In 2018, several plaintiffs from American Samoa sued to be recognized as U.S. citizens, covered by the 14th Amendment’s provision that they were born “within” the U.S. and therefore citizens. The district court found for the plaintiffs, but the 10th U.S. Circuit Court of Appeals reversed, ruling that Congress would have to act to extend citizenship to territorial residents.

A new debate has ignited over whether Congress has the power to alter birthright citizenship, and even over whether the president, either through an executive order or through directing the State Department not to recognize some individuals as citizens, can change the boundaries around who gets to be a citizen. Efforts to alter birthright citizenship are sure to provoke legal challenges.

Trump is just the latest in a long line of politicians who have objected to the fact that Latin American immigrants who come to the U.S. without legal permission can have babies who are U.S. citizens. Most legal scholars, even those who are quite conservative, see little merit in claims that the established rules can be altered.

At least until now, the courts have continued to uphold the centuries-long history of birthright citizenship, dating back to before the Constitution itself and early American court rulings. But if the Trump administration pursues the policies that key figures have discussed, the question seems likely to reach the Supreme Court again, with the fundamental principle hanging in the balance.