The Importance of a Growing U.S. Population

A Wall Street Journal columnist, Bret Stephens, has demonstrated the importance of a growing U.S. population and the need for immigration to sustain such growth.[1]

“A decade ago, America’s fertility rate, at 2.12 children for every woman, was just above the replacement rate. That meant there could be modest population growth without immigration. But the fertility rate has since fallen: It’s now below replacement and at an all-time low.”

“Without immigration, our demographic destiny . . . [would leave] us with the worst of both worlds: economic stagnation without social stability. Multiethnic America would tear itself to pieces fighting over redistribution rights to the shrinking national pie.”

However, this “doesn’t have to be our fate. [I]immigrants aren’t a threat to American civilization. They are our civilization—bearers of a forward-looking notion of identity based on what people wish to become, not who they once were. Among those immigrants are 30% of all American Nobel Prize winners and the founders of 90 of our Fortune 500 companies—a figure that more than doubles when you include companies founded by the children of immigrants. If immigration means change, it forces dynamism. America is literally unimaginable without it.”[2]

The importance of immigrants for U.S. vitality was an important conclusion of a recent study of 46 Midwestern metropolitan areas conducted by the Chicago Council on Global Affairs, a nonpartisan organization. In these metropolitan areas immigrants are helping offset population loss and economic strains caused by people moving away and by the retirements and deaths of native-born residents. In at least one of these metropolitan areas (Akron Ohio) immigrants and refugees were filling entry-level jobs for local manufacturing and food-processing companies that have had trouble hiring for those slots. This will become even more important in the future when many of the native-born workers will be retiring.[3]

Another recent study concluded that international immigration is giving a boost to population growth in big urban areas in the U.S. even as local residents flee for places with lower housing costs. The top beneficiaries of international immigration were primarily major coastal cities, led by the Miami metropolitan area.[4]

A more nuanced view of U.S. immigration is taken by Mark Krikorian, the Executive Director of Washington, D.C.’s Center for Immigration Studies, who would “limit immigration to the husbands, wives and young children of U.S. citizens; to skilled workers who rank among the top talents in the world; and to the small number of genuine refugees whose situation is so extraordinary that they cannot be helped where they are.” [5]

He claims that almost all of the arguments for limiting immigration share a common theme: protection. Even those advocating much more liberal immigration policies acknowledge the need to protect Americans from terrorists, foreign criminals and people who pose a threat to public health. Supporters of stricter limits, such as me, seek wider protections: protection for less-skilled workers, protection for the social safety net, and protection for the civic and cultural foundations of American society.”

Krikorian cites a study by the National Academies of Sciences, Engineering and Medicine finding that immigration boosts economic growth in the long term and modestly improves the country’s demographic profile as the native population ages while creating a small net economic benefit. But this net economic benefit involves a redistribution from labor to capital.

In contrast to the U.S., Bret Stephens points out, is Japan. Its birth rate is very low. Its life expectancy is very high. Its immigration is very low. As a result, Japan has an aging, declining population. “Japan’s population shrank by nearly a million between 2010 and 2015, the first absolute decline since census-taking began in the 1920s. On current trend the [current] population [of 127 million] will fall to 97 million by the middle of the century. Barely 10% of Japanese will be children. The rest of the population will divide almost evenly between working-age adults and the elderly.”

Moreover, as “Morgan Stanley’s Ruchir Sharma has noted, lousy demographics mean a lousy economy.. . . In 2016, Japan’s growth rate was 1%—and that was a relatively good year by recent standard. . . . The average rate of GDP growth in countries with shrinking working-age populations is only 1.5%.”

In short, Stephens concludes, “Americans may need reminding that the culture of openness about which conservatives so often complain is our abiding strength. Openness to different ideas, foreign goods and new people. And their babies . . . are also made in God’s image.”[6]

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[1] Stephens, ‘Other People’s Babies,’ W.S.J. (Mar. 20, 2017).

[2] Another example is New York Times columnist, Nicholas Kristof, whose father, Wladyslaw Krzysztofowicz, was born in Romania (now Ukraine) and who came to the U.S. in 1952 with the sponsorship of a Presbyterian church in Portland, Oregon after he had been arrested by the Gestapo in World War II and imprisoned in a Yugoslav concentration camp after the war. (Kristof, Mr. Trump, Meet My Family, N.Y. Times (Jan. 2, 2017).

[3] Paral, Immigration a Demographic Lifeline in Midwestern Metros, Chicago Council on Global Affairs (Mar. 23, 2017); Connors, In the Midwest, Immigrants Are Stemming Population Decline, W.S.J. (Mar. 23, 2017).

[4] Kosisto, International Immigration Gives Boost to Big U.S. Cities, Study Says, W.S.J. (Mar. 23, 2017)

[5] Krikorian, The Real Immigration Debate: Who to Let In and Why, W.S.J. (Mar. 24, 2017) The Center for Immigration Studies asserts that it is “an independent, non-partisan, non-profit, research organization. Since our founding in 1985, we have pursued a single mission – providing immigration policymakers, the academic community, news media, and concerned citizens with reliable information about the social, economic, environmental, security, and fiscal consequences of legal and illegal immigration into the United States.”

[6] Therefore, Bret Stephens asserts that Iowa’s Congressman Stephen King was misguided and mistaken in his tweet about Dutch anti-Muslim politician Geert Wilders who called his country’s Moroccan population as “scum.” King said: “Wilders understands that culture and demographics are our destiny, We can’t restore our civilization with somebody else’s babies.”

 

Assessment of the Status of U.S.-Cuba Reconciliation

Three recent articles in Cuba’s state-controlled media offer the Cuban government’s assessment of the current status of U.S. reconciliation. The lead article was Cuban journalists’ interview of Josefina Vidal, Cuba’s lead diplomat for the negotiations with the U.S. This post will summarize these three articles [1] and then offer an evaluation of Cuba’s assessment.

Current Status of Negotiations

Several days after the failure of the countries to reach an agreement about re-establishing diplomatic relations, Vidal remained optimistic. In the five months since the December 17th announcement of rapprochement and the mutual release of certain prisoners, she thought there had been progress in the process of normalization of relations. The removal of Cuba from the U.S. list of state sponsors of terrorism was to happen by the end of May, as it in fact did on May 29th, and Cuba’s Interests Section in Washington, D.C. has obtained a U.S. banking relation that was necessary for the effective operation of the Section and of a future Cuban embassy. [2]

In addition, for about the last two years, she added, the countries have been discussing and progressing on “technical” matters, including collaboration on infectious diseases, narcotics trafficking, immigration (including the U.S. “wet foot/dry foot” policy under its Cuban Adjustment Act) and their respective enforcement of their own domestic laws with visitors from the other country.

Moreover, said Vidal, the Cuba-U.S. interactions “are respectful, they are professional. We are treating each other as equals, on a foundation of respect and total reciprocity.”

Also supportive of reconciliation of the two countries have been visits to Cuba by U.S. federal and state government officials and U.S. business groups. [3]

 Re-establishment of Diplomatic Relations

Although the parties had not reached agreement on the details of re-establishing diplomatic relations at their negotiations in Washington, D.C. on May 21-22, Vidal suggested that progress had been made on these details, which conceivably could be resolved through direct communications without another negotiating session.

The remaining issues, she said, focused on the future “conduct of diplomats” and “the functioning of a diplomatic mission,” all under the U.N. Charter and the Vienna Convention on Diplomatic Relations, which both parties recognize as establishing or confirming the international law on the subjects. More specifically, Vidal said, “We must talk about the number of people, what kind of staff” the embassies will have or “what type of rank these officials [are] going to have” and “what privileges and immunities.” [4]

These comments by Vidal (and by Jacobson in the footnote) suggest that the provisions of the Vienna Convention provide flexibility and thus room for negotiation on the details of the functioning of the two countries’ embassies and diplomats. Indeed, that assumption is confirmed by the following relevant provisions of the Convention:

  1. Under Article 7, “the sending State may freely appoint the members of the staff of the mission. In the case of military, naval or air attachés, the receiving State may require their names to be submitted beforehand, for its approval.” However, Article 11 provides “the receiving State may require that the size of a mission be kept within limits considered by it to be reasonable and normal, having regard to circumstances and conditions in the receiving State and to the needs of the particular mission” and also “may equally, within similar bounds and on a non-discriminatory basis, refuse to accept officials of a particular category.”
  1. With respect to diplomatic personnel’s travel and conduct, Article 26 states, “Subject to its laws and regulations concerning zones entry into which is prohibited or regulated for reasons of national security, the receiving State shall ensure to all members of the mission freedom of movement and travel in its territory.” However, Article 41 provides, “Without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State. They also have a duty not to interfere in the internal affairs of that State.” In addition, Article 41 states, “The premises of the mission must not be used in any manner incompatible with the functions of the mission as laid down in the present Convention or by other rules of general international law or by any special agreements in force between the sending and the receiving State.”

Vidal’s concern about the “conduct of diplomats” and “the functioning of a diplomatic mission” was an allusion to Cuba’s objection to certain recent covert or secret or “discreet” programs by the U.S. Agency for International Development (USAID) allegedly to promote democracy and human rights in Cuba and to public seminars for Cuban journalists at the U.S. Interests Section in Havana that will be discussed below.

 Future Issues for Discussion and Resolution

According to the Vidal interview, Cuba has presented to the U.S. the following “preliminary list” of other issues that need to be discussed and resolved for full normalization of relations: (a) the U.S. “lifting of the blockade [embargo];” (b) “the return of the territory illegally occupied by the Guantanamo Naval Base;” (c) “an end to illegal broadcasts by Radio and Televisión Marti;” (d) an “end to [U.S.] programs which were originally conceived to promote regime change” in Cuba and which for fiscal year 2016 have requests for funding of $20 million, especially in light of President Obama’s statement at the recent Summit of the Americas that the purpose of U.S. policy regarding Cuba was not regime change; [5] (e) “compensation for our country and our people for the damages caused by U.S. policy [primarily the embargo or blockade] over 50 years; ” and (f) restitution of Cuba’s frozen funds in the U.S.

The U.S., on the other hand, say the Cubans, has identified at least one issue for discussion in the second phase of negotiations: “compensation for the properties [of U.S. nationals] which were nationalized in Cuba at the beginning of the Revolution.” [6]

Moreover, Vidal said, the parties have not yet discussed how these issues would be discussed or resolved: “if a mechanism [such as commissions or groups] will be created;” or whether the issues would be discussed as a whole or separately.

According to the Gomez article in Granma, “the greatest challenge facing Cuba and the United States is establishing a relationship of civilized co-existence based on respect for their profound differences.”

 Conclusion

The Obama Administration and this blogger concur in the need for the U.S. to end the embargo (or “blockade” in Cuba’s view), which requires action by the U.S. Congress. Prior posts have discussed pending bills in the Senate and House of Representatives to do just that and urged U.S. citizens to press both chambers to pass such bills. Another post recommended submitting Cuba’s claim for money damages ($1.2 trillion as of last October) from the embargo/blockade to the Permanent Court of Arbitration where the U.S. can mount counter-evidence and arguments.

With respect to Guantanamo Bay, as discussed in a prior post, Cuba’s continually saying that the U.S. is “illegally” occupying the territory does not make it so and I do not think the U.S. would ever agree to such a legal conclusion. If Cuba continues to assert that contention, as I expect that it will, then the parties should submit the dispute for resolution by the Permanent Court of Arbitration.

The New York Times editorial board and this blogger agree with Cuba’s contention that the U.S. improperly has mounted covert, secret or “discreet” and ill conceived USAID programs to promote regime change in Cuba and that the U.S. should cease any and all such programs. Instead, it should propose joint-programs to the Cuban government for enhancement of Cuban human rights and democracy, and if and only if the Cubans agree, then the programs could proceed. (These issues were discussed in posts of 4/4/14, 4/9, 4/9, 8/12, 8/13 and 8/14).

The U.S. claims for money damages for compensation for Cuba’s expropriation of property owned by U.S. nationals and interests will obviously be discussed, as stated above, and in the likely event that the parties will not agree to the amount of such compensation, that too should be submitted to the Permanent Court of Arbitration.

In this process of working on the many issues that have accumulated over the last 50-plus years, both sides must recognize, as I think they do, the need to build mutual trust during the initial stages of diplomatic relations and, if all goes well, to the possible future relaxation of any restrictions. It does not help the process for bystanders, like Senators Marco Rubio and Bob Menendez, to loft scathing and premature criticisms of the process and to attempt to create new legislative roadblocks and impediments to that process.

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[1] This post is based upon the following: Josefina Vidal discusses recent talks in Washington, Granma (May 26, 2015); Gómez, Seven key points, Granma (May 25, 2015); Cańedo, Cuba-United States after 17D [December 17], Cubadebate (May 25, 2015).

[2] Immediately after the May 21-22 negotiations in Washington, D.C., Assistant Secretary of State Roberta S. Jacobson, the U.S.’ lead diplomat, shared Vidal’s optimism. Jacobson said, “This round of talks was highly productive. . . . We have made significant progress in the last five months and are much closer to reestablishing relations and reopening embassies. . . . [W]e have gotten much closer than we were each time we talk. . . . I remain optimistic that we will conclude, but we still have a few things that need to be ironed out and we’re going to do that as quickly as possible.” On the other hand, according to Jacobson, “I’m also a realist about 54 years that we have to overcome.”

[3] These visits have included congressional trips in January, February (Senate and House), and May, and a visit by a major business delegation in March.

[4] Assistant Secretary Jacobson in her comments after the latest round of negotiations concurred that the Vienna Convention established the parameters for the functioning of the countries’ embassies and conceded that “there [is] a range of ways in which our embassies operate around the world in different countries. We expect that in Cuba, our embassy will operate within that range and so it won’t be unique. It won’t be anything that doesn’t exist elsewhere in the world. There are various circumstances in which embassies operate in somewhat restrictive environments. . . .[W]e have confidence that . . . our embassy will be able to function so that our officers can do their jobs as we expect them to do worldwide, but in highly varying locations around the world. So I have every expectation that it will fall within the range of other places where we operate.”

[5] Cuba correctly points out that USAID, on the one hand, proclaims on its public website that its Cuba programs “Provide humanitarian assistance (basic foodstuff, vitamins and personal hygiene supplies) to political prisoners and their families; Promote human rights and fundamental freedoms, as well as support for independent civil society by strengthening leadership skills and providing opportunities for community organizing; and Facilitate information flow to, from and within the island” and that through four named private “partners” it has spent and will spend a total of $14.2 million for these programs for the three fiscal years ending 9/30/15 and an additional $20 million in Fiscal Year 2016.  USAID, on the other hand, has carried out these programs unilaterally, without the prior knowledge or consent, of the Cuban government. In addition, the U.S. Department of State at its Interests Section in Havana has hosted seminars for journalists and a Public Information Center with a lending library and Internet-enabled computers available to Cubans and others. Assistant Secretary Jacobson said at the May 22nd press conference, “[W]e have continued to request funds from Congress for various activities in support of the Cuban people [and] that those programs have changed over time since they began in 1996” and they might be changed in the future.

[6] A prior post discussed the issue of Cuba’s compensating U.S. owners of property expropriated in the Cuban Revolution. Moreover, the U.S. already has identified at least the following additional issues for further discussion and negotiation: extradition of persons for crimes in their home country (2/24/15 post) and Cuban human rights and democracy (posts of 3/27, 3/28, 3/29, 3/30 and 4/1), and such discussions already have been commenced.

 

 

 

 

 

 

 

 

The Sanctuary Movement Case

After 19 years of practicing corporate litigation with prominent law firms in New York City and Minneapolis, I was a tabula rasa in what turned out to be important topics for me. I had no knowledge of, or interest in, international human rights law in general or refugee and asylum law in particular. Nor did I have any knowledge of, or interest in, Latin America in general or El Salvador in particular. At the same time I was struggling with the question of how to integrate my newly re-acquired Christian faith with my professional life.

In 1985 all of this started to change.

My senior partner at Faegre & Benson asked me to provide legal counsel to the firm’s client, the American Lutheran Church. The problem: how should the ALC respond to the news that the U.S. Immigration and Naturalization Service had sent undercover agents into worship services and Bible study meetings at Lutheran and Presbyterian churches in Arizona that were involved in the Sanctuary Movement?

As I soon discovered, that Movement was a loose association of Christian congregations that declared themselves sanctuaries or safe spaces for Salvadorans and Guatemalans fleeing their civil wars in the 1980s. The news about the “spies in the churches” was revealed by the U.S. Government in its prosecution of some of the Movement’s leaders for harboring and transporting illegal aliens, some of whom were later convicted of these charges.[1]

In the meantime, the ALC and my own church, the Presbyterian Church (U.S.A.), decided to join together to sue the U.S. Government over the “spies in the churches.” Eventually the U.S. District Court in Phoenix agreed with the churches that the First Amendment’s “freedom of religion” clause[2] provided protection against certain government investigations.

The court said that the churches “in the free exercise of their constitutionally protected religious activities, are protected against governmental intrusion in the absence of a good faith purpose for the subject investigation. The government is constitutionally precluded from unbridled and inappropriate covert activity which has as its purpose or objective the abridgment of the first amendment freedoms of those involved. Additionally, the participants involved in such investigations must adhere scrupulously to the scope and extent of the invitation to participate that may have been extended or offered to them.”[3]

I should add that the courtroom work in this case was done by two lawyers at the Phoenix firm of Lewis and Roca–Peter Baird[4] and Janet Napolitano.[5]

This case marked a turning point in my legal career as will be evident in subsequent posts.


[1]  One of the founders of the Sanctuary Movement was Rev. John Fife of Tucson’s Southside Presbyterian Church. He was one of those convicted in 1986 in the criminal case.  Six years later he was elected the national leader (Moderator) of the Presbyterian Church (U.S.A.)..(Wikipedia, John Fife, http://en.wikipedia.org/wiki/John_Fife.)

[2]  “Congress shall make no law . . . prohibiting the free exercise [of religion].” (U.S. Const., Amend. I.)

[3]  Presbyterian Church (U.S.A.) v. U.S., 752 F. Supp. 1505, 1516 (D. Ariz. 1990), on remand from, 870 F.2d 518 (9th Cir. 1989).

[4]  Peter Baird, http://www.lrlaw.com/files/Uploads/Documents/Baird%20Bio.pdf; Phoenix veteran attorney Peter Baird dies, Phoenix Bus. J.(Aug. 31, 2009), http://www.bizjournals.com/phoenix/stories/2009/08/31/daily19.html.

[5]  Napolitano now, of course, is the Secretary of the Department of Homeland Security. (Wikipedia, Janet Napolitano, http://en.wikipedia.org/wiki/Janet_Napolitano.)