California Discovers Federalism

A Founding principle is being used to defend undocumented immigrants in the Golden State

22 min readJul 20, 2018

It’s been called “federalism 2.0” — a move by states to buck the central government and try out their own policies in areas of the environment, immigration, drug policy, and criminal justice reform. California, for example, has been leading the charge on climate change issues, setting the pace for national vehicle emissions standards with its own stricter standards. But more recently, states have been particularly innovative on immigration, given the host of problems that stem from the Federal government’s failure to implement a comprehensive solution.

California is leading the charge of “federalism 2.0”

Joe Mathews, a syndicated columnist and California editor for Zocalo Public Square, came up with a unique legal proposal during the debate over Deferred Action (read: deportation) for Childhood Arrivals: an alternative “California resident” status. While not quite U.S. citizenship (which California can’t grant), residency would be a step towards integration for immigrant children, raised in California, whose national identity and true citizenship differ. Maybe, Mathews suggests, the best way to resolve the discrepancy is to make “Californian” into something more like a nationality — a legal relationship between non-citizen residents and state government. This would imply greater sovereignty for California and, in turn, for other states seeking to reclaim powers delegated to them by the 10th Amendment. Mathew specifically evoked the idea of federalism — referring to it as a “great American tradition” — much as Bob has been doing on this show for the past 10 years.

In great American tradition, let California take undocumented

This is a legal proposal, so let's start with a stipulation. You are monsters. You are rapidly deporting undocumented…

www.sfgate.com

Is it Legal?

While the Constitution gives the Federal government jurisdiction over enforcing national immigration standards, there is no explicit prohibition on states taking action. As David Davenport of the Hoover Institution notes:

“Federalism incorporates the idea that the federal government is not the only player in our constitutional republic, because state and local governments also serve important roles. The 10th Amendment of the Constitution specifically reminds us that powers not delegated to the federal government are reserved to the states or the people.
With Republicans in charge of the White House, both houses of Congress and arguably the Supreme Court, Democrats are rediscovering states’ rights and local government powers, as the out-of-power party in Washington often does. And as usual, California is leading the way in flexing state and local power, notably:
On immigration — The nearly 20 sanctuary cities and counties in California refuse to support the enforcement of Washington’s immigration laws, charting their own course at the risk of some federal funding.”

Mathews joined the show to unpack his proposal, and explain how it would work. He and Bob discussed the broader failures of our immigration system, and work through the logistics of a more federalist approach if the Golden State were to lead the way.

Transcript:

Bob Zadek: Welcome to The Bob Zadek Show, the longest running live libertarian talk radio show on all of radio for 11 years. This morning we will be discussing an interesting subtopic within the painful topic of immigration. It is heartbreaking for me to see the news every night about what the federal government is doing in my name and presumably on my behalf to immigrant families and children at our borders. It breaks my heart, and I wish I had the capacity to change things, but change will come. The media has become very active in encouraging a change.

I’m delighted to welcome to the show this morning Joe Mathews, a journalist who writes for Zocalo Public Square, a blog sponsored and administered by Arizona State University. Joe’s column appears syndicated in many newspapers around the country. The piece that caught my attention for today’s show was in the San Francisco Chronicle. Joe’s thesis in his piece was that California in particular, and perhaps the states in general, should be allowed to create, enforce, and regulate their own immigration policy independent of the Federal government. Welcome to the show this morning Joe.

Joe Mathews: Thanks for having me.

The California “Residency” Permit Plan

Bob Zadek: Now, Joe, you can never summarize a thoughtful piece in one line, so please expand, if you will, the thesis in your piece entitled, “In Great American Tradition, Let California Take Undocumented Immigrants.”

Joe Mathews: Sure. I guess I was inspired by a fellow named Dave Moran, the Research and Policy Director for the California Freedom Coalition, which is sometimes the butt of jokes. It was trying to get initiatives on the ballot for California to leave the union. The Freedom Coalition is the most moderate of his proposals. It actually doesn’t call for secession — it just asked for as much autonomy as possible from the federal government over the long term.

The central idea is that California should be able to determine who is a legal resident. Whereas now the Constitution and the federal government get to decide who citizens are, that’s not true in all sorts of places. I spent a lot of time in Switzerland where the local government gets to decide who the citizens of the country are. But Switzerland is a truly federalist system unlike the U.S.

Could we protect the immigrants we want to protect and make that decision for ourselves? This is what has begun and it is a natural extension of what California has been doing over recent years, regarding everything from in-state tuition to Medicaid eligibility for undocumented immigrant children.

There is something like a driver’s license for undocumented folks and there are a suite of things there, but the idea of the piece was that California should have the ability to determine that certain people are residents and we want them. It would not find that all undocumented immigrants would become residents. There are certainly people in that class that we don’t necessarily want in the country. But there are folks who are part of families with other Americans or that serve in the military, or are from a number of other groups that we would grant residency to. This is not a new idea. The state has a very strange body called The Little Hoover Commission, which is a state body for reform, formed in 2002, that created a Golden State residency program to accelerate the integration of immigrants.

The idea was that anyone who was participating in their local community should be considered a resident with the rights and responsibilities that entails, which includes voting in local elections, as is about to happen in San Francisco, where immigrants will be able to vote in school board elections. I would argue that this could provide protection if you were a resident. If you had a residency permit you could go to the Federal government or sue the Federal government, seeking a resolution to protect at least your own immigrants, or at least the ones you deemed deserve protection because of whatever they have done. So, if a California resident was in another state for example, and the ICE grabbed them for deportation, I would like to have them deported back to California. If they deported them anyways the federal government would have to bear all the costs.

A New “Border”

Bob Zadek: Now, Joe, would the group of immigrants you are protecting under this proposal otherwise be considered by the Federal government to be illegal immigrants and undocumented and therefore subject to deportation? Here they are living in California, under the protection of California residency, a new status you would have created. Now, since they are still now legal with the rest of the federal government, would the government have to now build a wall along the California border with Nevada? Because now all you’ve done is move the wall from the Southern border to California’s Eastern border. If the government says they want to keep out bad actors but California has a different standard, how would the federal government protect the rest of the country from doing a run around the wall?

Joe Mathews: Well, I think the issue is not that there is a wall in California, but we set the walls in different places.

Bob Zadek: But not with Nevada.

Joe Mathews: I think this is a foolish question. I mean, it’s not like the border is the point of entry for people. People mostly come into our country by the airports. They don’t come in illegally jumping around fences. They come in legally. And then they often stay. You know, every time I write about immigration someone says these people knew when they were coming over the border illegally. No, they didn’t come over the border. Almost everyone came for legal purposes and decided to stay. In many cases, they’ve done everything legally, right? They just stayed illegally, but they were in the process of trying to stay here legally. But we have a really broken immigration system with terrible bureaucracies that take way too much time, and which take years to do things that can be done in a matter of days or weeks.

People complain about how the government can’t do anything right in other contexts other than this context. They will tell you that everything’s perfect and if you’re in any violation, it must be the person’s fault, not the government’s fault. The wall is nonsense. I mean, that’s not how we controlled immigration in the past? The way things work in this country is, it’s not even a law. If you drive down to that part of California, you’re not going to be checked right at the border, you’re going to be checked several miles from the border — zones near the border, 100 miles away. I don’t want to bore you with the details. But the people with residency cards, or however we identified them, would not be welcome in other parts of the country. I would hope other states might follow our idea, and we wouldn’t want to have dangerous and violent people in the state either.

If anyone is convicted of a violent felony, even under current laws, they are not welcome here. I think the residency program protects people who haven’t been violent and haven’t committed a serious crime, but have family members who are U.S. citizens or legal permanent residents. People who are veterans of the U.S. military who are not U.S. citizens — and I would include their spouses. Another group is asylum seekers. That is something where there is just a gross violation of law of the Constitution and of all sorts of treaties and basic principles of human rights by the current administration.

And finally, the dreamers would have status. That is, 800,000 people nationwide — a couple hundred thousand of which are in California. 25% of them are in California. That is who we are trying to bring in as residents. This program is about getting to decide, as a state, who our residents are, and who has the right to do what in our system.

It is much better to know who everyone is and to bring people out of the shadows. When people have the status of residency, they might be able to do other things like make a legitimate businesses so they can grow different kinds of financing. I spent a lot of time in South L.A., South Central, and there are tons of very ambitious people who have been here for 10, 15, 20, 30 years, who have businesses they could grow and do more with. The notion that these immigrants are in some ways an economic weight is nuts. I mean, this is being told to us by a president who thinks that putting tariffs on things is anything less than disastrous economic strategy.

Bob Zadek: Now you’ve captured my imagination. What you seem to be describing is California becoming a sanctuary state. That is, California creates a status of California residency, and people who California will permit to have this status, who are otherwise in the country illegally under federal law, do not have to fear deportation. Even if they leave California, if they go to Nevada or to Texas, for example, the worst that could happen to them, under your theory, is that they get deported back to California. Not the worst thing that can happen to somebody, I dare say, because of the weather. Is this a fair characterization of what you are saying? That you are proposing that at the federal government level, they endorse the concept of Sanctuary States. You encourage California to be a Sanctuary State. It will be good for the economy, people will be happier here, and only good will come of it. Is that a fair summary of your proposal?

Joe Mathews: It’s also good for the U.S. citizens who are in the same family as people who are now under fear. It’s also gives protection from an incompetent and abusive ideology such as ICE, which of course predates Donald Trump. In our whole history — less than two decades — we somehow managed to survive without it, and now seems it is pitched as essential by the Trump folks. We just want to protect people from that and we also want to protect families. There are many mixed American adults, younger adults, and children with parents or grandparents who are more likely to be undocumented. So essentially, we were trying to keep families together long before there was this big controversy of separating people who were basically fleeing Central America from their children.

The policy of family separation has been the policy for years. It was aggressively pursued by the Obama administration and the late Bush administration, which is to separate American children from their parents. Not that many years ago the parents of people across the street from me were separated by ICE, who came in the early morning and took the parents away and deported them, leaving behind an 18 year old who is about to start her freshman year at U.C. Riverside with her four year-old brother. So I dug into the case and it turned out that the mother had once been accused of shoplifting and had been previously deported. So they had a second illegal entry. But it strikes me that that is the sort of person that should be protected by California residency program so they can raise their American children, one of whom has gotten into our elite universities. So, she could actually do that and not have to quit to take care of her four-year-old brother.

The Problem of Open-Borders with Welfare

Bob Zadek: Milton Friedman has written a lot about this. Milton Friedman, of course, is a one of those well-known libertarian free market economists.

Joe Mathews: I interviewed him several times when he was alive.

Bob Zadek: Oh, interesting. Well, Milton Friedman thought long and hard about immigration and how an open border policy cannot exist in a welfare society. And I say that with no pejorative. That’s just a statement of fact. United States has reasonably generous welfare benefits, as we all know. And Milton Friedman concluded concluded in a data driven analysis that open immigration and open border-policy cannot exist in a welfare state. It will bankrupt us. Therefore, he said, you are not going to show that we have to scale back the welfare benefits. Well, of course, our society is not quite ready for that. Perhaps never will be. But if you don’t do that, then you have to simply deny welfare benefits to immigrants or else the system will die. You cannot have the two policies. They can’t coexist.

Joe Mathews: I haven’t read his work on that subject. I spent much more time talking to him about tax policy and involvement in the development of Proposition 13.

I would dispute that premise. I actually think societies with really high degrees of welfare need immigration, particularly aging societies like our own, and even more dramatically in a place like Japan. You need younger people to be productive young workers who pay taxes to cover our welfare suite of things which disproportionately go to older people. Most of our welfare goes to health. So, there is very little evidence of open borders bankrupting the country. And I mean, you see it in California where we extended medical care to undocumented kids. There is virtue in that. We want them to be healthy, so that they’re well educated, productive taxpayers who pay for their retirements and all of the benefits that go to older people.

And I think the problem is the sort of the Trump argument which makes it sound like we are in the late seventies and eighties when we had all this immigration into the country. We don’t. We have historically low levels of immigration. We have had, in the last decade a net-zero negative immigration from Mexico, which has been a big source of immigrants, and Latin American immigration is way down.

In California immigration from Asia is more than that for Latin American. Those are still at very low levels and that’s a problem. We actually need more immigrants. We have historically high levels of job openings. We have massive shortages of skilled workers and college graduates. We should certainly should be receiving more immigration amongst people who either are skilled workers, or are college graduates or are very likely to become those folks. I mean that is the conversation we should be having. Racial and ethnic fears are driving the conversation rather than the reality.

It is not logical. People are crossing the border both ways. They are crossing in from Mexico and going back. Latin American birth rates are going way down. Our birth rates here are now well below replacement in California and dropping last year. California had the lowest birth-rate in recorded history, lower than even during the depths of the Great Depression. So California is a place where we have a lot of immigrants, but they have been here for a long time. We could use some more that have the capacity and the desire to become well-educated and productive members of society.

Federalism and the 10th Amendment

Bob Zadek: Joe’s proposal in part suggests an immigration status called “California Residency.” Under this system, undocumented immigrants would be lawfully in the state of California, even if perhaps not welcomed legally in other states. That of course invites a conversation of one of my favorite topics, which is federalism. Federalism is a concept which reminds us that since our country’s founding, we had separate but equal levels of government. The federal government was only assigned certain enumerated responsibilities and powers and all other powers were given to the states.

The 10th amendment of the Constitution is often forgotten. It says that the powers not delegated to the United States by the Constitution, nor prohibited by it to the states are reserved to the states respectively and to the people. In other words, almost all the powers reside in the states or in the people, and only enumerated powers are reserved for the federal government. That seems like a cruel joke when you read it today, given the power of the federal government, but Joe’s suggestion reminds us of the 10th amendment. Why not devolve power back to the states? In this case, why not give California the power to grant residency status to put out the welcome mat for a certain class of undocumented immigrants? Joe suggested that California would set the standard and therefore otherwise illegal immigrants would be welcome in the sunshine, would have driver’s licenses, would have many of the rights of residents, perhaps all of the rights of residents — not citizens — but residents.

And that of course, that brings to mind and invites a discussion of federalism. One interesting sidelight before I turn it back over to Joe, is that the 10th amendment is a rather strange title. Even though it is the 10th amendment and it is part of the bill of rights, as I read it, it doesn’t “amend” anything. It is a reminder. It tells readers of Constitution to not forget about the states because the founders felt that was important.

Is it fair to say that you are simply embracing the concept of federalism and saying why not have at least part of our immigration policy be decided by the states? And, if you are right about welfare, that California can give welfare benefits or some welfare benefits too?

Whether Joe is right, partially right, or wrong, California should become in the words of Justice Brandeis, yet another “innovator of democracy,” which is what the states are supposed to be. So you and I don’t have to agree on whether it’ll work or not. We do agree it ought to be tried.

Joe Mathews: Right. Then, of course, the great irony is there are a lot of liberals and progressives who, in other contexts, have been willing to embrace the 10th amendment. California does have a history of its carve-outs, like policies that date back to powers and exemptions that were granted under President Nixon. California pursued different policies and higher standards around auto emissions, air quality, and the like, in part because of our famous problem of smog here.

We have a lot of different rules. I could tell you lots of funny stories about licensing and occupational issues in the state, which is completely crazy and overdone. We proudly don’t align with other kinds of regulations. In architecture, rules which apply to everywhere else in the U.S. don’t apply here. California has an entirely different set of rules and different tests. Some of that comes from litigation. For example, this is a section quite important when you going to special education for example, and you’re trying to test whether kids have learning disabilities, there are actually specific limits. The result of court case makes it basically illegal to give an IQ test to an African American kid.

Bob Zadek: Joe, what’s interesting is that you mentioned licensing. I’ve done lots of shows on licensing. It’s an issue of great importance to libertarians because it denies economic freedom. But what’s interesting is California, which has had in recent history, very strongly Democratic, progressive administrations pretty much in total control of all branches of state government, is the state with an economic freedom index of 49th or 50th out of 50. So, California in the exercise of it constitutionally-given right of what it can legislate as a state, has failed in many ways. And it’s interesting you mentioned that because it’s been progressives often, who are the proponents of those licensing rules. California has a pretty shameful background in licensing.

Joe Mathews: I would say that in water and healthcare we have had freedom and we’ve tried to be generous. Certainly our extension of medical benefits to undocumented folks is an example of us exercising our rights under federalism. And we do a lot of other things and in a lot of other areas. We have a big fight now. We have had it with both of Obama and Trump on education standards, where we have very much sought to go our own way. I mean there’s good and bad to all of this depending on where you’re coming from.

A Return to the Question of Welfare

Bob Zadek: Now, Joe, you mentioned before the break that you seem to favor allowing those otherwise illegal or undocumented immigrants who have the status of California residency to have somewhat full or at least meaningful welfare and other similar type healthcare benefits.

Why would that be part of your proposal if the assumption is that most immigrants come here not for the purpose of welfare but for the American dream, to live free and to have their children have the possibility of a better life than they had, and to simply live with the ability to preserve their life, liberty, and the pursuit of happiness. That’s the American dream. If that’s why immigrants seek to come here, since they are not coming here for welfare benefits, why do you find it appropriate or necessary or desirable to also offer them some bonus — as if freedom needs a bonus — of welfare benefits?

Wouldn’t you have a policy that’s more acceptable to more people if you had a period of time during which these holders of California residency would not be entitled to benefits, other than perhaps education and perhaps emergency healthcare? Why do you feel it necessary to throw in the bonus?

Joe Mathews: Well, because it’s in one of the reasons that you listed. You want your want children to have health care and health coverage. You don’t want them to be in emergency rooms — that’s more expensive. So, having kids on MediCal is better. More than a third of kids in all of California are on MediCal. I want younger immigrants who are not big users of such benefits, and the legal folks who are eligible and undocumented folks are less so — we made this exception for kids in MediCal, which seems wise.

I want them to be healthy. I want kids to be developed well, and this only works if you integrate kids and make them healthy, and hopefully wealthy members of society, so we can have the investments we need. That’s the basic reason to do it. If you are looking at basic family of three, they get 700 dollars a month in California. I don’t think it’s going too far. I think they need food stamps. They are residents and we can make them eligible or not eligible for certain benefits.

But I would focus on giving families and particularly children what they need to succeed because this really works for the state. These kids will do well and succeed and become taxpayers and that’s what we’re talking about here. So that is the idea. I don’t want to throw money at people and make people dependent. You want supportive benefits that do the opposite. I mean certainly benefits that make people eligible for in-state tuition, which is not any bargain anymore.

Bob Zadek: Isn’t there a danger? Because people respond to the appropriate incentive to incentives and to stimuli? For example, if the deal was that you become a California resident and you have economic freedom and earn money, and you can be hired, you will pay social security and you will be in the economic system. But, for a period of time you will not be in the welfare system. Then wouldn’t that have the effect of eliminating with whatever number it is, but wouldn’t that eliminate those immigrants who are motivated primarily to get welfare benefits? I’m suggesting it’s not a very high number anyway. I have too much respect for immigrants.

Joe Mathews: You could do what you suggested. Of course, life complicated. I mean, the mother who comes as an asylum seeker from El Salvador, who comes with two kids and is working two jobs, and she’s got an older mother that she wants to bring, the older mother might need that welfare. The mother also helps her pick up the kids from school. These things are complicated.

You are talking about freedom and people often find their best solutions, and I would certainly rather have that mother even if she not working even though she gets the benefits of medicare, since she has economic value long term, if those kids are safe and doing homework. We would have to look at whether we could afford these generous benefits. But that is a bigger question. We should make certain those kids do well though if they stick around. That’s where the long-term economic value is to all of us.

Bob Zadek: While those benefits are of course valuable, I would suggest that the system to provide those generous benefits ought to be voluntary, such as by charities and churches and the like. If California has felt that immigrants needed that added benefit, those who felt that way could contribute. Those who didn’t feel that way would not contribute. The fund would be created to be used for the purpose of providing those benefits to immigrants. But forced charity is something that I just find myself just immediately railing against.

Joe Mathews: A very libertarian view. And you’re a libertarian. I’m a squishy moderate and I think that sort of thing would lead to a very different society — a less wealthy one…

Bob Zadek: It may be more wealthy.

Joe Mathews: I don’t think so. I mean, look at the history of our state. It succeeded when the government and the private industry formed a social compact, where the two worked together. That is the story of the place. You have a deeply individualistic way of looking at things and I respect that. But, I think we know a lot more about how human biology works. We are not so individual. We are profoundly parts of other people, like our families, and the geography, the neighborhoods and the communities we live in.

I am talking about state level stuff, but I don’t like our state government, which is why I agree with a lot of libertarian ideas. If it were me I would do what the Swiss do. A very free society that operates at a very local level. The money flows up. I mean know we don’t really live in the state. I mean, this is such a big state, and it is about to be 40 million people.

Federal Minimum Wage Laws

Bob Zadek: We are about to become three states. We may become three states. Oh, never mind that was taken off the ballot. We have a couple of minutes left. We only have time for the one more topic. Minimum wage laws are a big deal in this country. It may be a topic in 2020. We have a federal minimum wage war, with states and cities and localities all have living wage laws which are higher than federal laws. Would you support no federal minimum wage, and just let the states decide just like you would have states decide immigration policy. Anything wrong with that?

Joe Mathews: No. I don’t like the statewide minimum wage laws. I don’t like the statewide ones so much here. Our regional economies are so different. They should be at a regional level, not a state level, and certainly not on a federal level.

“I don’t like the statewide minimum wage laws. I don’t like the statewide ones so much here. Our regional economies are so different. They should be at a regional level, not a state level, and certainly not on a federal level.” — Joe Mathews

I’ve covered that and I read a lot about direct democracy and lead a global forum on direct democracy. I feel like the people in California who reach for that are people who are worried about inequality and what has happened to the middle class. They have not found the tools to do that or figured out how to revive it or their ideology keeps them from thinking about better ways to revive the economy. And so they reach for that in desperation because it’s something they can do. I think that’s an easy one. Ultimately things like wages should be set at the unit of economy, and in this country, our economies are very much regional.

Bob Zadek: How about set at the level of the market and nevermind government at all?

Joe Mathews:Your libertarian bonafides are unchallenged.

Bob Zadek: Just curious.

Joe Mathews: Yeah. If you’re going to do that, which I’m not sure you want to, it should be done at the level of the people who are living in and dealing with the economy in consultation with people who work there and own businesses there. I am a big believer in participatory democracy and I could see in my ideal world regular folks who have some background in economics who would decide regional economic policy and make those decisions based on their knowledge and experience.

Bob Zadek: So, tell our listeners about Zocalo Public Square. What is the mission and how can our friends out there follow your writing?

Joe Mathews: Sure. It’s Zocalopublicsquare.org. We put on free public events — 40 or so a year, mostly in Southern California. We partner with the Smithsonian and we publish essays about what it means to be American. We have published on all kinds of topics. We are very eclectic. We connect people to ideas and to each other.