2013 Hinckley Journal - Hinckley Institute of Politics - University of ...

Hinckley Journal
of Politics
2013
Volume 14
Copyright © 1998 by the Hinckley Institute of Politics
and the University of Utah

The Hinckley Journal of Politics is published annually by the Hinckley Institute of Politics for students, public officials,
university officials, and the public. The opinions expressed herein are not necessarily those of the University of Utah,
the Hinckley Institute of Politics, the Student Media Council, or the editorial board. Please direct your correspondence
to the Journal Editors, Hinckley Institute of Politics, 260 South Central Campus Drive, Room 253, Salt Lake City, Utah
84112, (801) 581-8501, or email: info@hinckley.utah.edu.

Hinckley Journal of Politics – 2013 editorial board
Director
Associate Director
Editor
Editor
Managing Editor
Managing Editor
Faculty Editor
Production Editor
Faculty Advisors
Student Board Members
Printing
Kirk L. Jowers
Jayne Nelson
Rosalie Ann Staes
Logan Froerer
Courtney McBeth
Rochelle McConkie Parker
Luke Garrott, Department of Political Science
Ellesse S. Balli
Ella Myers, Department of Political Science
James Curry, Department of Political Science
Bradley Call
Jacob Rush
Tianna Tu
Rosie Neville
Basil Vetas
Amelia Marstaller
David May
Harrison Hawkes
Nelson Warr
Cameron Rowe
Matthew Kirkegaard
Elle Barker
Molly Wheeler
Megan Gessel
Kendahl Melvin
Sun Litho
Online Publishing
Funding
J. Willard Marriott Library
Student Media Council
Hinckley Institute of Politics
III

table of contents 2013, vol. 14
STUDENT PAPERS
Thirty-Five Years of Revolution: An Analysis of the Infrapolitical Tactics
of the Revolutionary Association of the Women of Afghanistan.......................Melissa Moeinvaziri.........................1
Land Exchanges and Public Lands Bills in Utah..................................................Matthew Kirkegaard.......................15
Electoral Reform in Utah and the United States:
Steps to Representative, Accountable, and Competitive
State and Federal Government...................................................................................Oakley B. Gordon........................21
Unlimited Talent: The Benefits of High-Skilled Immigrants...........................................Nicolas Tang.......................33
Immigration Federalism: The Case of Immigration Enforcement
by Non-Federal Agencies....................................................................................Eduardo Reyes Chávez.......................41
Suggested U.S. Policies to Promote Growth in Africa.............Inaugural Price Think Tank Students.......................53
PUBLIC OFFICIAL CONTRIBUTIONS
A Thriving Metropolitan Area With a “Small Town” Feel:
My Vision, as Mayor, for Salt Lake County........................................................Mayor Ben McAdams.......................59
Utah Can Model Federal Immigration Reform............................................Utah Senator Luz Robles.......................61
Tort Reform in Utah: Disclosure and Apology...................................Lieutenant Governor Greg Bell.......................63
V

a word from the director
As the director of the Hinckley Institute of Politics, I am pleased to introduce the 2013 Hinckley Journal of
Politics. This edition marks the 14th year the Hinckley Institute has featured exceptional research papers
written by undergraduates at the University of Utah. We are proud to say that this year’s Hinckley Journal continues
the outstanding tradition of previous editions in terms of academic excellence in writing and research quality.
In this edition, you will find articles on topics relevant to Utah, the nation, and the world. Each piece offers
enlightening perspectives on matters such as revolutionary tactics used by women in Afghanistan, public land
bills in Utah, state and federal electoral reform, and U.S. policies addressing African growth. This edition also
examines the timely issue of immigration reform from a state and national perspective and considers the value of
high-skilled immigrants in the United States.
In addition to student contributions, we are grateful for the articles submitted by Lieutenant Governor Greg Bell,
Salt Lake County Mayor Ben McAdams, and State Senator Luz Robles; each offers compelling insights on some
of our state’s most pressing issues, ranging from building a thriving community to initiating needed tort reform.
This compilation could not have been produced without the diligent efforts of its 2013 student editors,
Rosalie Ann Staes and Logan Froerer. Additionally, we recognize Managing Editors Courtney McBeth and
Rochelle McConkie Parker, Faculty Editor Luke Garrott, Faculty Advisors Ella Myers and James Curry, Production
Editor Ellesse Sorbonne Balli, student editorial board members, and Hinckley Institute staff.
Through the various opportunities provided by the Hinckley Institute, University of Utah students can apply
the theories and concepts they learn in the classroom to real world experiences. To date, the Hinckley Institute
has placed and supported nearly 5,500 interns in political offices throughout the State of Utah, in Washington,
DC, and in more than 35 countries on six continents. Interns are required to complete research papers based
on issues pertinent to their internships and, therefore, reflect on practical ideas and draw conclusions about the
significant political questions of the day. The Hinckley Journal represents some of the best and most compelling
of these papers.
We hope that you enjoy reading the 2013 Hinckley Journal of Politics and appreciate your continued support of
the Hinckley Institute of Politics.
Sincerely,
Kirk L. Jowers
Hinckley Institute of Politics
VII

editors’ notes
Hinckley Journal of Politics’
Mission Statement
The Hinckley Journal of Politics strives to publish scholarly
papers of exceptional caliber, promoting the
intellectual talents and understanding of University of
Utah undergraduate students in the fields of politics,
government, international relations, and humanitarian
aid. Contributing articles should address relevant issues
by analyzing key problems and potential solutions.
Papers should adhere to the highest standards of political
research and analysis. The Journal covers local,
national, and international issues, and embraces diverse
political perspectives. With this publication the Hinckley
Institute hopes to encourage reader involvement in
the world of politics.
general comments and
acknowledgments
It has been an honor and a pleasure to serve as editors
for the 14th edition of the Hinckley Journal of Politics.
First and foremost, we thank the student authors and
the public officials who have contributed to this year’s
Journal. Without their contributions, the Journal would
not be possible. The Journal is one of many wonderful
opportunities the Hinckley Institute provides for our
undergraduate students, and we thank the countless
supporters of the Hinckley Institute who make these
opportunities attainable. We are indeed appreciative of
the generosity of the Hinckley family for their vision of
the need for student involvement in practical politics
and the principle of citizen involvement in government.
We thank the Hinckley staff for their dedication to
students. We thank our Managing Editors, Faculty Editor,
and Faculty Advisors, and the Hinckley Journal of Politics
editorial board for their work in reviewing and
editing the published student papers. Finally, we
commend all students who are involved in the political
process, whether as interns, campaign volunteers, or
scholars. We hope you will find the articles within the
Journal insightful and timely.
political science-related topic is acceptable. The scope
can range from University issues to international issues.
Papers should adhere to submission guidelines found
on the Hinckley Journal website: www.hinckley.utah.edu/
hinckley-journal/
Review and notification procedures
Submissions will be reviewed by the Journal editors,
members of the editorial board, and faculty advisors.
Submission of a paper does not guarantee publication.
Papers that do not adhere to submission and style guidelines
will not be considered for publication. Acceptance
to the Journal is competitive. The editors will notify
potential authors when the decision has been made as
to which papers have been selected for publication.
Submission guidelines for
public officials
The Journal will consider for publication essays written
by national, state, and local public officials. Officials
should contact the editors for additional information.
correspondence may be sent to
University of Utah
Hinckley Institute of Politics
260 South Central Campus Dr., Room 253
Salt Lake City, UT 84112-9151
Phone: (801) 581-8501
Fax: (801) 581-6277
Email: info@hinckley.utah.edu
General submission guidelines
The Hinckley Journal of Politics welcomes submissions
from University of Utah students of all academic
disciplines as well as from Utah’s public officials. Any
VIII

about the Hinckley Institute of Politics
The Hinckley Institute of Politics at the University of
Utah is a bipartisan institute dedicated to engaging
students in governmental, civic, and political processes;
promoting a better understanding and appreciation of
politics; and training ethical and visionary students for
service in the American political system. Robert H. Hinckley
founded the Hinckley Institute of Politics in 1965 with
the vision to “teach students respect for practical politics
and the principle of citizen involvement in government.”
Since its founding, the Hinckley Institute has provided a
wide range of programs for students, public school teachers,
and the general public including internships, courses,
forums, scholarships, and mentoring. The Hinckley Institute
places emphasis on providing opportunities for practical
experience in politics.
INTERnSHIP PROGRAM
A nationally recognized program and the heart of the
Hinckley Institute, the Hinckley internship program
places more than 300 students every year in political
and government offices, non-profits, campaigns, and
think tanks. The Institute provides internship opportunities
to students from all majors for academic credit in
Washington, DC, at the Utah Legislature, in local offices
and campaigns, and in more than 35 countries.
campaign management minor
The Hinckley Institute of Politics offers an undergraduate
minor in Campaign Management designed to provide
undergraduate students the opportunity to learn the
theory and practices that will allow them to be effective
participants in election and advocacy campaigns. Students
are required to complete a political internship and
an interdisciplinary series of courses in areas such as
campaign management; interest groups and lobbying;
voting, elections, and public opinion; media; and other
practical politics.
Public forums and events
The Hinckley Institute hosts weekly Hinckley Forums
where several political speakers address public audiences
in the Hinckley Caucus Room. Hinckley Forums
enable students, faculty, and community members to
discuss a broad range of political concepts with local,
national, and international politicians, ambassadors,
activists, and academics. Past guests include Presidents
Bill Clinton and Gerald Ford; Senators Orrin Hatch,
John McCain, Harry Reid, and Joe Lieberman; Utah
Governors Michael Leavitt, Jon Huntsman, Jr., and Gary
Herbert; and many other notable politicians and professionals.
The speeches are broadcast on KUER 90.1 FM
radio and KUED TV.
Scholarships and loans
The Hinckley Institute provides more than $730,000 in
internship and academic scholarships to students
through the Robert H. Hinckley, Abrelia Clarissa Hinckley,
Anne and John Hinckley, Senator Pete Suazo, Robert
F. Bennett, Dan Jones Future Leaders, and Scott M.
Matheson scholarship funds, as well as through donations
from the Li Ka Shing Foundation. The Hinckley
Institute is also the University of Utah’s representative
for the Harry S. Truman Scholarship and the James
Madison Fellowship—two of America’s most prestigious
scholarships.
Huntsman seminar for teachers
The Huntsman Seminar in Constitutional Government
for Teachers is a week-long seminar sponsored by the
Huntsman Corporation. The primary focus of the
seminar is to improve the quality of civic education in
Utah schools by bringing Utah educators together with
political experts and visiting politicians to discuss current
events in Utah and American politics. The Huntsman
Seminar is truly a unique opportunity for teachers to
gain an in-depth understanding of local and national
political issues.
Department of political science
The Department of Political Science and the Hinckley
Institute have a strong tradition of working together to
provide students with opportunities to enrich academic
studies with experiences in practical politics. The
Institute’s programs complement the academic offerings
of the Political Science Department. Courses are available
in five subfields of the discipline: American Politics,
International Relations, Comparative Politics, Political
Theory, and Public Administration. If you have questions
about the Department and its programs, contact the
office at 252 Orson Spencer Hall, (801) 581-7031.
IX

obert h. hinckley
believed the time was right for an institute of politics at
the University of Utah. So in 1965, through a major
contribution of his own and a generous bequest from
the Noble Foundation, Robert H. Hinckley established
the Hinckley Institute of Politics to promote respect for
practical politics and to teach the principle of citizen
involvement in government.
man of vision and foresight, a 20th-century pioneer,
A a philanthropist, an entrepreneur, and an untiring
builder of education and of the American political
system—all are apt descriptions of Robert H. Hinckley,
a Utah native and tireless public servant. Robert H.
Hinckley began his political career as a state legislator
from Sanpete County and a mayor of Mount Pleasant.
Hinckley then rose to serve as the Utah director for the
New Deal program under President Franklin D. Roosevelt.
Hinckley’s dream was to make “every student a
politician.” The Hinckley Institute of Politics strives to
fulfill that dream by sponsoring internships, scholarships
forums, mentoring, and a minor in Campaign Management.
Today, almost 50 years later, Hinckley’s dream is
a reality. More than 5,500 students have participated in
programs he made possible through the Hinckley Institute
of Politics. Many of these students have gone on
to serve as legislators, members of Congress, government
staffers, local officials, and judges. All participants have,
in some measure, become informed, active citizens.
Reflecting on all of his accomplishments, Robert H.
Hinckley said, “The Hinckley Institute is one of the most
important things I will have ever done.”
Hinckley went on to serve in various capacities in
Washington, DC, from 1938 to 1946 and again in 1948.
During those years he established and directed the Civilian
Pilot Training Program, served as Assistant Secretary
of Commerce for Air, and directed the Office of Contract
Settlement after WWII. In these positions, Hinckley
proved himself to be, as one of his colleagues stated,
“One of the real heroes of the Second World War.” Also
in 1946, Hinckley and Edward Noble jointly founded
the American Broadcasting Company (ABC), and over
the next two decades helped to build this company into
the major television network it is today.
Spurred by the adverse political climate of the ‘40s,
‘50s, and ‘60s, Hinckley recognized the need to demonstrate
that politics was “honorable, decent, and necessary,”
and to encourage young people to get involved in the
political process. After viewing programs at Harvard,
Rutgers, and the University of Mississippi, Hinckley
X

XII

Thirty-Five Years of Revolution: An Analysis of the Infrapolitical Tactics
of the Revolutionary Association of the Women of Afghanistan
By Melissa Moeinvaziri
Much of the literature on Afghan women examines their victimization under repressive cultural and political practices.
The stereotypical view of an Afghan woman is a fully veiled, demure creature who has been battered by the men and
regimes that govern her country and life. Yet, the Revolutionary Association of the Women of Afghanistan (RAWA)
has been struggling for a revolution for 35 years. My examination of RAWA seeks to shatter this myopic stereotype,
and to recognize these women for more than the token quality of their gender, but for their endurance and prowess as
resistance activists. I argue that RAWA’s ability to not only survive, but also to thrive, is due to their astute use of
infrapolitics. That is, RAWA has adapted their political tactics to counteract the particular oppression of each regime
they have encountered from 1977 up to today. Such adaptability includes shifting from highly visible political action
such as protests to clandestine political action embedded in humanitarian work. RAWA’s revolution is one that will
be satisfied by the changing of regimes—they have survived countless—but a revolution that will be realized when
ideologies change and democracy, secularism, social justice, and women’s rights are realized in Afghanistan.
There comes a point, it seems, in every struggle, the weight bearing
down and the road stretching long, that small changes and reforms
no longer sustain hope—when changes to the status quo will only
result in a more deformed reality. This is the point when the seeds of
revolution are planted in the worn soil of the mind.
Perhaps this moment is the moment of resolve for
both the individual and collective psyche. This, of
course, is not the point in which spontaneous revolts
will erupt in the streets. No. Revolutions are delicate
things. The soil is exhausted. It has been tilled, torn,
and abused many times. The seeds need protection
and constant nurturing. But beyond this point are
whispers soft as rain. Ideas flow feeding parched
minds. People gather. Hidden arbors of discussion,
assembly, and organization shelter the seeds of
revolution.
Just as the story after a revolution does not end
with a regime’s overthrow, the story before the
revolution does not begin with an explosive, revolutionary moment. Resistance
often stretches far into the hidden past of an oppressed people. Can
you imagine 35 years of resistance Not 35 years of resistance under the
cold-calm of a solitary dictator, but 35 years of constant invasion and endless
war—a struggle against foreign occupations, civil war, warlords, and religious,
“I don’t fear death; I fear remaining
silent in the face of injustice…I say
to those who would eliminate my
voice: I am ready, wherever and
whenever you might strike. You can
cut down the flower, but nothing
can stop the coming of the spring.”
cultural, and political oppression. This has been the struggle of the Revolutionary
Association of the Women of Afghanistan (RAWA).
In what follows, I examine what has allowed RAWA to survive as an
organization for over 35 years in war-ravaged Afghanistan. Using James
C. Scott’s (1990) discursive theory, I explore how
RAWA’s methods of resistance contribute to their
-Malalai Joya, 2009
continued existence. In order to fully understand
RAWA’s resistance methodology, I examine it over
four time periods: 1) Soviet influence and occupation,
1977-1989; 2) Jehadi 1 civil war, 1989-1996; 3) Taliban
era, 1996-2001; 4) U.S. invasion and Northern Alliance
era, 2001-present. I argue that what has led
to RAWA’s long and successful existence is their
ability to shift when necessary, from highly visible
forms of political action, such as protests, to more
clandestine forms of political action, what Scott
1
Because my analysis is a discursive one, keenly aware of the use of language, I will
use terminology employed by RAWA to describe actors of Afghanistan’s recent history.
Rather than describe the various fundamentalist factions fighting the Soviets
as Mujahedeen (freedom fighters), I will call them Jehadi to express the negative
connotation expressed by RAWA. I will also use RAWA’s translated spelling of Persian
words.
1

Thirty-Five Years of Revolution
Melissa Moeinvaziri
(1990) terms infrapolitics, embedded in RAWA’s humanitarian work. RAWA
has also been skilled in using the means of their oppression—cultural norms
or political and religious mandates, such as the burqa—to help disguise and
simultaneously advance their work. Such highly developed resistance tactics
build a strong case that the women of Afghanistan are sophisticated political
activists, not merely “victims.”
Discourse Theory
Discourse theory is centered on power relations and the interactions between
the dominant and subordinate groups of a society. It holds that the history
and experiences of actors within a power-stratified society are foundational.
One’s place in society—based on a myriad of factors such as gender, socioeconomic
status, religion, race, national origin, and beliefs—and how
that place is viewed and treated by others has a significant impact on the
choices made by individuals. Further, discourse theory engages in interpretive
epistemology. That is to say, discourse theory rejects the notion that
there is an objective, grand theory of truth; rather, truth is the subjective
construction of one’s position in society, and, often, the means of producing
knowledge are controlled by those in power or a privileged position.
Another significant aspect of discourse theory is its emphasis on language,
hence the term “discourse.” The language that exists between a dominant
group and a subordinate group—how it is constructed, by whom, for whom
it is intended, and with what purpose—is a central component of the theory.
In his theory, as articulated in Domination and the Arts of Resistance: Hidden
Transcripts (1990), Scott breaks down the linguistic interactions between
the dominant and subordinate into three categories: public, official, and the
hidden. The public transcript is the public performance. Scott uses the
image of a performance throughout his work; thus, the public transcript is
what is said on the stage where actors from both the
dominant and subordinate groups interact. As Scott
points out, the public transcript can be quite misleading
because the dominant and subordinate groups
are acting and the play is the reaffirmation of the
dominant group’s power. If one were to base one’s
entire understanding of a society on the public transcript,
one would believe that the dominant group
held its higher position with ease and little resistance
from, and perhaps even the support of, the subordinate
group. While this is clearly not the case,
as will be explained, one would believe such a farce
due to the highly ritualized interactions that take
place between the two groups in public. Within
the public transcript both groups “tacitly conspire
in misrepresentation” (Scott, 1990, p. 2). The subordinates
disguise their true feelings toward the
dominants out of necessity and the dominant group members put on a show
of power to keep their power intact.
There are numerous techniques used by the dominant group to keep up
the interaction displayed in the public transcript. The method of concealment
is the use of deception and propaganda to maintain control of the
public transcript and to “conceal” anything that would distract from the
image of their authority (Scott, 1990, p. 50). Similarly, there is an effort by
the dominant group members to create an appearance of unanimity among
their ranks. The aim of unanimity is to keep any dispute or splintering
among the elite away from the public stage, lest the subordinates pick up
on such weakness and take advantage of it (Scott, 1990, p. 55). Finally,
the dominant group members will distort the public discourse to their
advantage with the use of euphemism and stigma. As Scott (1990) puts it,
“Whenever one encounters euphemism in language it is a nearly infallible
“Unfortunately, false portrayals
such as euphemisms and stigmas
are written into history as truth via
the official transcript. The official
transcript is the lasting legacy of
the public transcript as produced
by the dominant group. Often it is
portrayed through public events,
historical documentation, and
archives, which have generally been
run, written, and kept by the
dominant.”
sign that one has stumbled on a delicate subject” (p.53). The subjugation
of one group by another is undoubtedly a delicate subject; therefore, the
dominant group will use terms such as “pacification” to describe a brutal
armed attack, “liberation” for an unwelcome occupation, “collateral damage”
to explain the death of innocents, and “honor” to justify horrendous actions.
Stigma, on the other hand, is the exact opposite. With stigmatization the
dominant group members can label threats to their power—threats that
may be considered justified by a suppressed group—as negative and unfavorable
(Scott, 1990, p. 55). Unfortunately, false portrayals such as euphemisms
and stigmas are written into history as truth via the official transcript.
The official transcript is the lasting legacy of the public transcript as produced
by the dominant group. Often it is portrayed through public events, historical
documentation, and archives, which have generally been run, written,
and kept by the dominant. Focusing only on the official transcript provides
one with seemingly convincing evidence “of willing, even enthusiastic
complicity” by the subordinate group (Scott, 1990, p. 86).
What both the public and official transcripts obscure is the discourse
of subordinates that takes place “off-stage” away from the dominant group.
This discourse is known as the hidden transcript. The hidden transcript
includes spoken language, action, and practices that take place off the public
stage. It is within the hidden transcript of the subordinate group that a
negation of the dominant ideology can be articulated and patterns of
resistance formulated (Scott, 1990, pp. 118-119). Scott (1990) points out,
“The essential point is that a resistant subculture…among subordinates is
necessarily a product of mutuality” (p. 119). That is, when individuals feel
anger at the dominant group, it is the hidden transcript that takes this “raw”
anger and through shared experiences, mutual feelings, and discussions of
a possible new order forms it into the “cooked” indignation of the subordinates
as a whole (or at least a faction of them). It is the hidden transcript,
“the discursive practices offstage [that] sustain resistance”
(Scott, 1990, p. 191, original emphasis).
Articulation of any transcript occurs in what Scott
terms the social site. The social sites of the hidden
transcript of the subordinates are those locations where
“unspoken riposte, stifled anger, and bitten tongues
created by relations of domination find…full throated
expression”; it follows that the hidden transcript will
be least hindered when the “control, surveillance and
repression of the dominant are unable to reach” (Scott,
1990, p. 120). Finally, Scott emphasizes that social sites
themselves are an “achievement of resistance; they are
won and defended in the teeth of power” (Scott, 1990,
p. 119).
While the hidden transcript is “produced for a
different audience and under different constraints”
than the public transcript, there are times when, as
a display of resistance, the subordinate groups find ways to interject the
hidden discourse onto the public stage (Scott, 1990, p. 140). It is fear of
retaliation that restrains the subordinate group from openly expressing the
hidden transcript on the public stage, yet “if it is possible to declare the hidden
transcript while disguising the identity of the person declaring it, then much
of the fear is dissipated” (Scott, 1990, p. 140). Two key methods of doing this
are to disguise the message or the messenger. The former case is when the
subordinate relaying the message is identifiable, but the message or insubordinate
act is ambiguous; the latter case is when the act itself is explicit, but the
actor is disguised. Furthermore, disguise can be accomplished in the form of
anonymity. One crucial form of anonymity is mass defiance; mobs or crowds
are another way of disguising the individual to produce anonymity (Scott, 1990,
p. 150). This quasi-public display of ideological resistance by subordinates is
“disguised, muted and veiled for safety’s sake”; by recognizing these guises
2

The Hinckley Journal of Politics 2013
“that the powerless must adopt outside of the safety of the hidden transcript,
scholars can, discern a political dialogue with power in the public transcript”
(Scott, 1990, pp. 137-138).
The concepts of disguised messages, messengers, and anonymity are
tied to Scott’s concept of infrapolitics. Infrapolitics is political resistance
that, “like infrared rays [is]…invisible… [and is] a
tactical choice born of a prudent awareness of the
balance of power” (Scott, 1990, p. 183). Infrapolitics
emerge out of necessity—when open resistance
would be swiftly and brutally subdued, jeopardizing
the entire resistance movement. Infrapolitical acts
would be considered by contemporary liberal democracies
to be apolitical (Sparks, 1997). In the liberal
democratic paradigm, the term “political” refers to
open and public acts from voting and campaigning to protest and rallies.
However, under repressive regimes, such open political action is rarely a
viable option. Liberal democratic theories assume that subordinate groups
have political rights and channel through which to express grievances.
Infrapolitics is a strategy well suited to those without political rights.
Under tyrannical regimes, infrapolitics is political life. According to Scott,
“Before the recent development of institutionalized democratic norms, [the]
ambiguous realm of political conflict was…the site of political discourse”
(Scott, 1990, p. 200). Furthermore, as Scott notes, “In many respects
[infrapolitics] is conducted in more earnest, for higher stakes, and against
greater odds than political life in liberal democracies” (Scott, 1990, p. 200).
In addition, Scott observes that infrapolitics “extends to…organization” as
well as to substantive actions. The “elementary [organization]…of infrapolitics
have an alternative, innocent existence” that lends to their disguise,
such as informal networks of kin, neighbors, friends, and communities
(Scott, 1990, p. 200).
Scott makes it clear that behind every undisguised, open display of
resistance is a series of infrapolitical tactics that made open resistance
possible. Infrapolitics are the tactics that keep the hidden transcript alive;
it is the political “twin-sister” to open resistance, “who shares the same goals,
but whose low-profile is better adapted to resisting an opponent who could
probably win any open confrontation” (Scott, 1990, p. 184). It keeps up a
hidden spirit of resistance and dismisses any notion that the subordinate
group accepts the propaganda of its subordination; rather infrapolitics
demonstrates that subordinates are prudently surviving and biding their
time until the moment is right for open resistance.
Methods
“Infrapolitics emerge out of necessity—when
open resistance would
be swiftly and brutally subdued,
jeopardizing the entire resistance
movement. ”
In my examination of RAWA’s infrapolitical tactics, I have employed a case
study methodology. I selected this method to allow for an in-depth examination
of the public, official, and hidden transcripts of both the subordinate
group (i.e., RAWA) and dominant groups (i.e., the Soviets, Jehadis, Taliban,
and the U.S.) involved in the discourse surrounding RAWA. In efforts to
be true to the discourse, I have made an effort to rely on primary evidence
as much as possible.
In the age of the Internet, gathering evidence on RAWA’s hidden transcript
took me beyond Scott’s definition. Much of RAWA’s discourse is expressed as
news stories, publications, photographs, songs, poems, mission statements, etc.
and is archived on the website rawa.org. In addition to RAWA’s website, I
gathered secondary evidence from two books published on RAWA, both of
which contain in-depth interviews: With All of Our Strength, by Anne E. Brodsky
(2003), and Meena: Heroine of Afghanistan, by Melody E. Chavis (2003). Evidence
of RAWA’s public and official transcripts came from newspaper articles, interviews,
quotes, official statements released by the group, and, when possible,
recorded dialogue between RAWA and a dominant group.
Evidence for the four dominant groups came in various forms and
ranged from non-existent to overwhelming. With these groups, I focus
primarily on their public and official transcripts to try to understand their
outward reactions to RAWA and RAWA’s response to such action. Unfortunately,
without access to Russian-language archives, finding official or
public transcripts of the Soviets proved to be nearly
impossible. As they never formed a long-lasting
cohesive body, official transcripts for the Jehadi
factions is lacking, yet quotes from individual leaders
and newspaper articles were readily available. For
the official transcripts of the Taliban and U.S., I relied
on their websites (the official website of the Taliban,
who recognize themselves as the Islamic Emirate of
Afghanistan, shahamat-english.com, and the U.S.
State Department’s website, state.gov). For public transcripts surrounding
these two dominant groups, I drew from the upsurge of news stories,
scholarly articles, and interviews beginning in 2000 through today.
Background
Although Afghanistan’s history spans thousands of years, for the study of
RAWA it is sufficient to begin in the late 1970s. It was in 1977 that a bright,
young university student, Meena Keshwa Kamal, 2 along with several other
students, founded the Revolutionary Association of the Women of Afghanistan
(RAWA)—the first documented women-run, women-oriented organization
in Afghan history. At the time the “sole purpose and aim [of
RAWA] was the advancement and equality of Afghan women” (Brodsky,
2003, p. 43). Their primary method to achieve their goals was women’s
education. While some Afghan women at this time had access to education,
particularly urban elites like the women who founded RAWA, Shaima, a
senior member 3 of RAWA explains why their mission was “revolutionary”:
At the time [in 1977] women’s education was not revolutionary in the
sense that [it was] during the Taliban…But we always thought deeper
than just giving women education. We thought the purpose was giving
women a consciousness—political, social, cultural—giving them that
consciousness meant a revolution. (Brodsky, 2003, p. 106)
As turmoil mounted within Afghanistan, and factions vying for control
in 1978 eventually led to the Soviet invasion and occupation on December
28, 1979, RAWA realized it could not ignore the gravity of these events.
“RAWA believed that the struggle for women’s rights could not be separated
from national liberation,” Shaima stated (Brodsky, 2003, p. 53). If women’s
liberation was to be achieved, RAWA wanted it to arise from the people
through education and an expanded consciousness, not by force through
foreign regimes. Thus RAWA added the cause of national liberation to their
agenda. Knowing that left-wing communists in Afghanistan only paid lip
service to the cause of women’s liberation and that right-wing religious
fundamentalists would do anything to suppress women, RAWA also took
up the causes of democracy and secularism.
On February 4, 1987, RAWA was hit with what would be their greatest
test of strength and endurance: their beloved leader, Meena, had disappeared.
It was soon discovered that Meena, along with her two body guards, had
been assassinated. Reports of who was responsible for the murders vary,
but RAWA itself states that, Meena was assassinated “by Afghan agents of
the then KGB in connivance with [the] fundamentalist band of Gulbuddin
2
Keshwa Kamal was an Indian pseudonym used by Meena to travel abroad more
easily. Her real last name is kept secret for security reasons.
3
The term “senior member” is used to refer to a woman who has been with RAWA
since its earliest days, rather than age or position within the organization.
3

Thirty-Five Years of Revolution
Melissa Moeinvaziri
Hekmatyar” (“About RAWA”, n.d.). It is difficult to concisely articulate what
Meena meant to the women of RAWA. For many members and supporters,
who live in self-imposed austerity so resources could be given to RAWA, the
only item “that interrupted the starkness of [their] rooms” was an image of
Meena (Brodsky, 2003, p. 27). In reading the few books written about RAWA
or their website, it became apparent to me that Meena’s genuine compassion
for those she worked for, her passion, endurance, and unwavering commitment
inspired many to join and support RAWA. Without her, it would be difficult
to continue. Yet, realizing that without RAWA there would be no nonviolent,
democratic voice to oppose the Soviets and fundamentalists, the women
“carr[ied] on with the ideals [for which Meena died]” (Chavis, 2003, p. 157).
RAWA’s Principles
The ideals for which Meena was martyred include freedom, secular democracy,
and social justice (i.e., women’s rights and human rights). I find it best
to articulate these principles in RAWA’s own words:
By FREEDOM we mean political, economic and cultural freedom and
independence for our country. By FREEDOM we also mean the right
to individual freedoms of expression, belief, congregation, profession
and travel, etc.; freedom of the press, freedom to form political parties
and unions, freedom to elect and be elected, and
all such other inalienable rights of citizens. The
FREEDOM that we demand implies a total halt
to all forms of inquisitory policing of thought,
freedom of terror and torture, and guarantees
for the safeguarding of the human dignity of
individuals. We further believe that in the context
of fundamentalism-ridden Afghanistan, in order
to attain the above mentioned freedoms it is
first and foremost necessary to put forward the
demand for DEMOCRACY, the prime condition
for which is secularism, (i.e. the separation of
religion from the State). It is only in a secular
State where there can be talk of the above mentioned
freedoms. All the above freedoms are infringed upon under the
pretext of religious injunctions. According to our understanding, it is
only under DEMOCRACY that the religious beliefs of the people retain
their pristine spiritual value and are not unscrupulously abused to
further political ends, and human rights—including freedom of religious
belief—can be guaranteed and safeguarded. We believe that conventional
democratic political institutions in the absence of SOCIAL JUSTICE
are flawed and worthless. We can talk of democracy and democratic
institutions in Afghanistan only when the agrarian issue is resolved in
the interests of peasants who comprise the absolute majority of the
people and factors perpetuating the distance between the rich and the
poor are done away with. Democracy can take roots only when the
means for work and gaining an honest livelihood are available for all
and are not under the dominance of or in the monopoly of the few;
where there is religious freedom; where there is no national or ethnic
oppression of minorities, and where the human rights of women as half
of the societal corpus are respected. Such are the pillars of SOCIAL
JUSTICE, without which democracy would ring hollow. (“About RAWA”,
n.d., original emphasis)
Organizational Structure
RAWA’s sophisticated organizational style—democratic, non-hierarchical,
and collectively based—contributes to their ability not only to preach, but
also to practice these aforementioned principles. It may be asked whether
“For four decades RAWA has been a
constant voice for social justice,
democracy, secularism, and
women’s rights. They have endured
what few equally long-lasting
organizations have—continual war,
two foreign invasions, and severe
cultural, religious, and political
restrictions.”
RAWA can speak on behalf of Afghan women. There has certainly been
criticism of RAWA for attempting to do so, yet RAWA’s membership
policy is open to all Afghan women. RAWA only allows Afghan women
to be full-fledged members; 4 all others who are interested in helping—
men and foreigners—are known as supporters and have limited access
to RAWA. RAWA’s membership is also unhindered by education, wealth,
location, or ethnic identity. 5 Although they do not put great emphasis
on exact numbers, it is estimated that RAWA is made up of approximately
2,000 members.
RAWA has seven standing committees; three of these operate in both
Pakistan and Afghanistan: education, social (humanitarian), and finance.
The three more outwardly-oriented committees operate only in Pakistan:
publications, foreign affairs, and culture. The only committee that
operates solely in Afghanistan is the reports committee, which is responsible
for taking videos and photography and writing reports of the crimes
against humanity committed by the fundamentalists. RAWA also has
a Leadership Council made up of 11 women who are elected every two
years with write-in ballots submitted by the rest of the membership; the
goal was to create a leadership structure that was democratic, collective,
and non-hierarchical (Brodsky, 2003). The Leadership Council meets
periodically throughout the year (the meeting times and locations are
only known to the 11 members) and communicates
via letters, phone calls, and email the rest of
the time. Their main responsibilities include
overseeing the operation of activities and to write
the organization’s standpoints, and political and
social policy statements, with input from all the
members (Brodsky, 2003, pp. 151-159).
For four decades RAWA has been a constant
voice for social justice, democracy, secularism, and
women’s rights. They have endured what few equally
long-lasting organizations have—continual war, two
foreign invasions, and severe cultural, religious, and
political restrictions. As my research will show, such
endurance is not a product of mere luck or foreign
saviors; it is result of a sophisticated organizational structure and the ability
to adapt their resistance strategy to whichever regime holds power.
Oppression and Resistance
In this section I explore the type of restrictions RAWA faced during each
of the four time periods: Soviet influence and occupation, Jehadi civil war,
Taliban rule and U.S. invasion and Northern Alliance rule. I show the
various tactics used by the dominant groups to maintain control of the
public transcript as well as their grasp on power. Most importantly, I examine
RAWA’s shifting infrapolitics in action; that is, how their tactics shifted from
highly visible and outward resistance to clandestine, seemingly apolitical
resistance within and across all four time periods. As discussed in the
methods section, I do not have the same amount of information for each
historical period.
4
“Every freedom-loving and honorable compatriot women or girl who has
reached the age of 17 can become a member of RAWA by accepting its aims
and duties and it organizational regulations and implementing them in practice”
(Brodsky, 2002, p. 174).
5
While RAWA was founded by university educated women from Kabul, now
women from any background can become a member and serve in a variety of
committee and leadership positions.
4

The Hinckley Journal of Politics 2013
Soviet Influence and Occupation (1977-1989)
Because of its people I love my country
My people who will rise up to join in protest
Even after their cities run red with blood and fire.
-Meena, “The Great Love,” date unknown
Before the Moscow-directed coup d’état of April 1978, RAWA’s activities
were confined to struggle for women’s rights and democracy (“About RAWA”,
n.d.). In this way, RAWA had positioned themselves outside the dominant
left-right ideological debate raging in Afghanistan. As one male RAWA
supporter stated, “There was a higher share of women in the left, but the
left was all ideological goals and women’s rights were instrumental, not an
aim. Meanwhile, on the right, women had no place worth mentioning”
besides having their honor and dignity “protected” and being ushered away
from school and employment back to the home (as quoted in Brodsky, 2003,
p. 43). As Mohmand (2012) argues, Afghan women were treated instrumentally
during this period by both sides. In advocating for women’s rights
and democracy, RAWA realized that they would receive hostility from both
the left-wing communists and right-wing fundamentalists.
RAWA’s early activities, from 1977 until 1979, were minimal and “under
the radar.” Meena organized small, clandestine groups of women met to
discuss the organization’s principles and to think of ways in which they
could aid all women, but especially the poor women, of Afghanistan. They
began by holding secret literacy classes for illiterate women they knew. At
this point, information about RAWA was mainly spread by word of mouth.
Soon they began to distribute fliers called Shabnameh, night letters, which
were not meant for recruitment, but to spread opposition against the corrupt
regime. RAWA had yet to organize openly—there was never a time in
Afghanistan that they felt safe to do so. Thus women met in communal
bath houses and wore the burqa, despite being modern women who did
not normally veil themselves, 6 in order to protect their identity. All of these
aforementioned tactics—small, seemingly informal and innocent gatherings;
the anonymous distribution of the Shabnameh; wearing burqas; information
spread by word of mouth, and literacy classes—demonstrate sophisticated
infrapolitics. RAWA employed these disguise tactics to be able to physically
move themselves as well as their hidden transcript through an increasingly
hostile public arena.
From April 1978, when pro-Soviet Union Khalq
party staged a coup against government, to December
1979, when the Soviets invaded, thousands of
people were jailed, tortured, and killed, particularly
men, intellectuals, and those associated with opposition
groups. Several members of RAWA were
imprisoned and tortured, some up to eight years.
“After the Soviet occupation of Afghanistan in December
1979, RAWA became directly involved in the
war of resistance” (“About RAWA”, n.d., original emphasis). RAWA’s involvement
in the resistance early on included open resistance, such as marching
in student led protests in Kabul. However, even the act of openly demonstrating
was conducted with some level of infrapolitics. RAWA employed
the tactic of disguise, by not directly organizing the demonstrations and by
not identifying themselves as RAWA members; thus, they became anonymous
women in a crowd of many. RAWA also directly supported certain factions
of Mujahedeen by smuggling weapons, aiding fighters on the front line and,
in accordance with their original mission, teaching literacy classes to women
6
The veil was made optional in 1959 by King Zahir (Chavis, 2003, p. 195).
on the front line as well (Brodsky, 2003, pp. 60-63).
In 1981, RAWA began its influential publication Payam-e Zan (Women’s
Message). Payam-e Zan documented the atrocities of the Soviet regime
and the fundamentalists, published inspirational poems, political essays,
declared RAWA’s stance on issues, and reported on the overall condition of
Afghanistan and Afghan women. The magazine also acted as an educational
tool through which literacy classes and political awareness were cultivated,
and it was an important vehicle for recruitment (Brodsky, 2003).
Due to a worsening security situation—threats, disappearance, arrests,
and torture—in 1981 and 1982 many RAWA members, including Meena,
fled across the border to Pakistan to better continue their operations. By
the time they arrived, nearly 2 million Afghan refugees had already fled to
Pakistan. RAWA eventually settled in the border town of Quetta, where
they engaged in more seemingly “apolitical” resistance tactics. RAWA
become engaged in what outwardly appeared to be solely humanitarian
projects such as a handcraft center that provided vocational training for
women and in 1984, two large boarding schools, Watan (homeland) schools
and in 1986 the Malalai Hospital—all of which served the Afghan refugee
population. RAWA’s smaller projects in Afghanistan, mobile health clinics
and small scale income generating projects are clearly infrapolitical. These
projects aimed to give women a political and cultural consciousness and
sustained hope in the resistance effort. After Meena’s death was made public
in August of 1987, RAWA once again began to hold public demonstrations
in Pakistan protesting the atrocities in Afghanistan 7 (Brodsky, 2003).
Jehadi Civil War (1989-1996)
“In advocating for women’s rights and
democracy, RAWA realized that they
would receive hostility from both the
left-wing communists and right-wing
fundamentalists.”
Sister, rise up after your freedom,
Why are you quiet Rise up because henceforth
you have to imbibe the blood of tyrannical men.
-Forugh Farrokhzad, “To My Sister,” date unknown
Upon the 1989 departure of the Soviet Union power was given to a Soviet
backed puppet regime, and the Jehadi continued their struggle to take
control of the country. On April 28, 1992—a day that RAWA refers to as
the “Black Day”—the Jehadi factions took control of Kabul. For the next
four years the fundamentalist factions fought each other for political control,
igniting a civil war. It was during this time “when many stopped referring
to these fighters and party leaders as Mujahedeen,
freedom fighters, but instead called them Jehadi and
warlords” (Brodsky, 2003, p. 99). From 1992-1996
it is estimated that at least 50,000 people were killed
and 100,000 wounded in Kabul alone, more than
half of the city was destroyed; and people throughout
the country were subjected to robbery, kidnapping,
murder, and rape (Brodsky, 2003; “Info on
Afghanistan”, n.d.).
The reports collected from RAWA from 1992 up through the Taliban
era are thorough, graphic, and well documented on their website. While
“the Jehadis did not officially ban women from school, work, or leaving their
houses alone…their lawlessness and criminality had the same result”
(Brodsky, 2003, p. 100). The robbery, kidnappings, murders, and rapes
7
These included February 4, the day of Meena’s death; March 8, International
Women’s Day; April 28, “Black Day” the day the Jehadis began bombing Kabul
in 1992; December 10, International Human Rights Day; and December 28, the
day the Soviets invaded Afghanistan. All events are held annually when possible
(“Some RAWA past events”, n.d.).
5

Thirty-Five Years of Revolution
Melissa Moeinvaziri
committed by various Jehadi groups—whether in control of a particular
region or fighting to control it—forced the Afghan people to resort to
begging or selling off their children to those better able to support them.
Many women, who had lost all of their male relatives, were left with the
option of prostituting themselves or allowing their children to starve, and
young girls, many of whom were raped by Jehadi forces, committed suicide
to maintain their and their family’s honor (“Archived Reports”, n.d.;
Mohmand, 2012).
While they were the dominant group in Afghanistan, the Jehadi factions
utilized numerous tactics described by Scott to keep a hold of their power.
Concealment was used when hiding their atrocious treatment of women.
If the Jehadis took responsibility for rapes, kidnappings, and random murders
they committed, their claim to legitimacy through Islamic fundamentalism—which
upholds the honor of women—would be in question. Even
years after their rule, Jehadi factions (i.e., the Northern Alliance) who are
now attempting to take power under the current U.S. established government,
attempt to uphold their image through concealment and denial of their past
wrong doings (Congressional Committee on International Relations, 2001).
In addition, other abhorrent acts committed by the Jehadis, such as the
destruction of Kabul, were euphemized with terms such as “freedom fighting.”
Furthermore, stigmatization of RAWA was frequently used by Jehadi
factions. Whereas the Soviets targeted RAWA simply for being a resistance
organization, the Jehadi factions found numerous ways to explicitly attack
RAWA’s credibility and reputation. There is a misconception, even today,
among many Afghans (and even critics in the West), that RAWA is somehow
left-of-center or even communist (Thurpkaew, 2002, online RAWA, 2002
p. 157). At the height of the war of resistance, there appeared to be only
two choices for Afghans: pro-Soviet communist or pro-Mujahedeen, implying
the latter equated with being pro-Afghanistan. Since RAWA resisted
the notion of fundamentalist Islam espoused by the Jehadis—who for a
time were viewed as freedom fighters—they were
often branded as pro-Soviet. Another reason for
this branding was Meena’s husband, Dr. Faiz Ahmed,
who founded and worked with an alternative, leftist
resistance organization. One RAWA member noted:
“The world over women are [sic] painted with their
husband’s opinions” (Chavis, 2003, p. 90). It was
difficult for many regular Afghans to believe that a
husband and wife could hold differing political
“Many women, who had lost all of
their male relatives, were left with
the option of prostituting themselves
or allowing their children to
starve.”
opinions and work for different organizations which had separate activities
and aims. This difference was easily exploited by RAWA’s enemies.
Furthermore, many of the rumors against RAWA arose out of sexism.
It was impossible for many Afghans to believe that women, without the
guidance and patronage of men, could organize and sustain such a strong
resistance movement. Other women’s organizations that existed during the
Soviet era were off-shoots of already established men’s organizations; 8 thus
a women’s organization like RAWA was doomed to be misconstrued as the
underling of other various male-run organizations, whether communist,
fundamentalist, or Western.
An incident in Pakistan, in December of 2000, where fighting broke out
between RAWA, other female demonstrators, and a Jehadi faction, highlights
the vast array of contradictory stigmas placed on RAWA. The following
are several headlines and quotes from articles that covered the incident:
• “the violent supporters of RAWA ransacked the camps of the Jehadi
organizations”
• “RAWA Denies Backing Opposition Against Taliban: …RAWA
defended itself against accusations that is was supporting the
opposition Northern Alliance”
• “Attempting to demolish the Kashmir Freedom Movement, the
fundraising camp for Jehadis was set on fire and the Holy Qura’n
was destroyed…Thousands of women and children staged [the]
rally…the attackers were reported to be supporters of the Northern
Alliance”
• “Violence by Westernized Women in Capital”
• “Demonstrators were the agents of the U.S.” (RAWA, 2000)
The shift in regime led to a shift in RAWA’s infrapolitical tactics and
mission. “After the fall of the puppet government and the invasion of the
fundamentalists bands into Kabul, RAWA focused more…on women’s rights,
human rights and exposition of the fundamentalists barbaric actions” (RAWA,
n.d., Social Activities, online). RAWA describes their activities in Afghanistan
(during the Jehadi rule, as well as today) in these terms:
Our work inside Afghanistan consists mainly of support to female
victims of war and atrocities committed by belligerent groups. Our
workers contact families and particularly women who either themselves
or their family members have been victimized by the fundamentalists,
[h]ighlighting their misadventures via reports published in Women’s
Message [Payam-e Zan], alerting international sentinels of human rights
such as Amnesty International and similar organizations to human
rights violations against women. (“Social Activities”, n.d.)
During this time RAWA retreated away from more open resistance, such
as the demonstrations they employed for a time under the Soviet occupation,
and began to use infrapolitical methods in both Afghanistan and Pakistan.
This shift back to small scale, humanitarian projects was also promoted by
a lack of resources. After the Soviets had left, “international sources of
funding for Afghan refugees shrunk until RAWA
could no longer even sustain the cost of Malalai
Hospital…RAWA shifted its medical aid back to
small clinics” (Chavis, 2003, p. 161). In Afghanistan
mobile clinics were founded and clandestine literature
courses for women were taught by RAWA
members; in Pakistan RAWA continued to help
Afghan refugees by setting up schools and medical
clinics. RAWA also continued the struggle of education.
They tried to attract and teach as many young orphans as possible,
yet RAWA was competing against well-funded fundamentalist madrassas,
which instilled in young boys the principles of fundamentalist Islam (Chavis,
2003). The evidence suggests that this time RAWA kept a low profile in
Afghanistan. There is very little written in any of the books about RAWA
and on RAWA’s own website about their activities during this time.
Taliban (1996-2001)
They made me invisible, shrouded and non-being A shadow, no existence,
made silent and unseeing Denied of freedom, confined to my cage Tell me
how to handle my anger and my rage
-Zieba Shorish-Shamley, “Look into My World,” 1998
8
For example, the Democratic Organization of Afghan Women (DOAW), arguably
one of the first women’s organizations in Afghanistan, was founded in 1965;
yet it was not an independent organization like RAWA. DOAW was a branch of
the communist People’s Democratic Party of Afghanistan (PDPA).
By 1996, the Taliban, “a movement made up of Afghan madrassa students…
under the control of Mullah Mohammad Omar” took control of Kabul and
brought an end to the worst of the Jehadi fighting (Brodsky, 2003, p. 101).
However, a hell-like reality persisted for the Afghan people under the rule

The Hinckley Journal of Politics 2013
of the Taliban; instead of all-out war waged through rockets and landmines,
war was carried out through the implementation of ultra-fundamentalist
interpretations of Islamic law. Restrictions against women included being
forced to wear the burqa in public and being barred from leaving the home
without a mahram (close male relative), working, attending school, going
to the hospital or interacting with men who were not close relatives. The
inhumane crimes committed against women, children, and men included
“harsh and unpredictable physical punishment” for breaking any of the
aforementioned edicts, and the continued kidnapping, raping, and murdering
women at will (Brodsky, 2003, p.101).
The Taliban, like their Jehadi predecessors, engaged in numerous techniques
described by Scott to retain their control over much of Afghanistan.
The following are euphemistic quotes from various Taliban officials gathered
by the U.S. Bureau of Democracy, Human Rights, and Labor (2001b):
• It’s like having a flower, or a rose. You water it and keep it at home
for yourself, to look at it and smell it. It [a woman] is not supposed
to be taken out of the house to be smelled.
• Syed Ghaisuddin, Taliban Minister of Education, when asked why
women needed to be confined at home, 2001
• If we are to ask Afghan women, their problems have been solved.
• Qudratullah Jamal, Taliban Minister of Culture, 2001
• We have enough problems with the education of men, and in those
affairs no one asks us about that.
• Qari Mullah Din Muhammad Hanif, Taliban Minister of Higher
Education, 2001
• If a woman wants to work away from her home and with men, then
that is not allowed by our religion and our culture. If we force them
to do this they may want to commit suicide.
• Mullah Nooruddin Turabi, Taliban Minister of Justice, 2001
• We do not have any immediate plans to give jobs to (women) who
have been laid off. But they can find themselves jobs enjoying their
free lives. Moulvi Wakil Ahmad Mutawakel, Taliban Minister of
Foreign Affairs, 2001
Despite their outwardly harsh treatment of women and their euphemistic
talking points early on, today the Taliban seems to opt for concealment
of their former treatment of women and restrictions on women’s rights as
well. In the entirety of the Taliban’s website (on
which they refer to themselves the Islamic Emirate
of Afghanistan; another concealing tactic), there is
“The bravery of RAWA members
was also exemplified, just as it was
during the Jehadi civil war, by their
clandestine reporting and and
documentation of the brutal crime
carried out against Afghans. ”
only one article on women; yet it does not declare
the Taliban’s views on women, but, instead, critiques
the U.S. government’s bombing of women and children
(Islamic Emirate of Afghanistan, 2011). Their
silence on their views on and past treatment of
women is a telling one. They are concealing their
views and treatment of women, which they know
to be considered harsh even among Afghans, to show
themselves in a more favorable light—at least better than the U.S.
The Taliban also continued the Jehadi tactic of stigmatizing RAWA, as well
as oppressing them through euphemized Islamic justice. In reference to the
previously mentioned December 2000 demonstration in Pakistan, the Taliban’s
secretary of the Afghan Embassy in Pakistan, Habibullah, was quoted as saying
that RAWA was an agent of the Indian intelligence, that RAWA was at the same
time supported by Northern Alliance leader Ahmed Shah Masood and that
RAWA was also paid by foreigners to chant anti-Taliban slogans. He also went
on to say that the Taliban regime had “given all the rights to women in the light
of Islam” (as quoted in RAWA, 2000, p. 59).
In response to the Taliban take-over of Kabul, RAWA stated:
Under Taliban control, even if the number of rapes and murders perpetrated
against women falls, Taliban restrictions—comparable to those
from the middle ages—will continue to kill the spirit of our people while
depriving them of a humane existence. We consider Taliban more
treacherous and ignorant than Jehadis. According to our people, ‘Jehadis
were killing us with guns and swords but Taliban are killing us with
cotton.’ (“Afghan Women”, n.d.)
Under the Taliban, RAWA’s mission did not drastically change from
when the Jehadis were vying for power: “The focus of RAWA’s political
struggle has been against the fundamentalists’ and the ultra-fundamentalist
Taliban’s criminal policies and atrocities against the people of Afghanistan
in general and their incredibly ultra-male-chauvinistic and anti-woman
orientation in particular” (“Info on Afghanistan”, n.d.). Likely, while their
mission remained the same, their tactics had to retreat further into the
infrapolitics. While the Jehadis would boast about the high employment
of women during their rule, giving the de facto impression that women
were free to move about and attend work, schools, and hospitals, the Taliban
did not tolerate women’s free movement. A woman outside the home
automatically garnered unwanted attention. RAWA’s tasks became even
more difficult under such repression. Yet, RAWA did not stop sending
educated women back into Afghanistan to continue their work in schools
and medical clinics, as well as to continue their own education. When asked
why RAWA sent women to Afghanistan from Pakistan, one student replied,
For the experience of living in Afghanistan. To known the real pain
and suffering. So we could experience the underground life under the
Taliban…RAWA thought I could teach, take RAWA’s message to classes…
It was good and useful because I could study and I was able to teach
others. (Brodsky, 2003, p. 148)
Disguising their identities and activities was crucial at this time. As Brodsky
notes, in Afghanistan it was critical that most people not know that RAWA
was running a school. As another RAWA member noted, “If the Taliban
caught me inside Afghanistan they would definitely torture and kill me,
stone me as a quote-unquote prostitute” (Pollitt, 2000). The threat of
physical harm, and stigmatization in addition, made infrapolitical tactics
not only prudent, but also necessary. However, it should be noted, that fear
was not what made RAWA members act “under the radar”; the same RAWA
member continued by stating, “But I can do it. I’m ready for anything.
Someday we will die but maybe it will be a prouder
death than from some natural cause” (Pollitt, 2000).
The bravery of RAWA members was also exemplified,
just as it was during the Jehadi civil war, by
their clandestine reporting and documentation of
the brutal crime carried out against Afghans. In
2001, a BBC documentary, Beneath the Veil, aired
footage of the 1999 public execution of Zarmeena,
a mother of seven who had been accused of killing
her husband. This footage, which was seen by millions
of people around the world, was secretly filmed
by RAWA, with the knowledge that if they were caught, they too would be
executed (Brodsky, 2003, p. 14).
Finally, one year into the Taliban rule, RAWA initiated one of their most
crucial infrapolitical projects. “In the context of a regime that sought to
take Afghanistan back centuries in time, RAWA moved technologically in
the other direction, creating a website and gaining access to email, and thus
nearly instantaneous contact with the rest of the world, for the first time”
(Brodsky, 2003, p. 101). RAWA’s website has proven to be one of their most
innovative and useful social sites.
7

Thirty-Five Years of Revolution
Melissa Moeinvaziri
U.S. Occupation and the Northern Alliance (2001-Present)
My country resists the invaders who bring their own ruin!
My country is tired of injustice and will sallow no more!
My country will never surrender to occupation!
-Meena, “The Great Love,” date unknown
When the air raids on Afghanistan began in October 2001, the Western
world believed the U.S. and its allies were going to bring peace, democracy
and, of course, women’s rights to Afghanistan. In November 2001, the U.S.
government stated:
The United States Government, which has been the largest individual
national donor to Afghan humanitarian assistance efforts, believes the
Taliban’s oppression of women must come to an end. The U.S. Government
supports a broad-based government representative of all the
Afghan people and which includes women in post-Taliban Afghanistan.
Only Afghans can determine the future government of their country.
And Afghan women should have the opportunity to play a role in that
future. (Bureau of Democracy, Human Rights and Labor, 2001a)
Furthermore, in the same month, First Lady Laura Bush claimed the
U.S.-led intervention would lead to the emancipation of Afghan women:
“a world-wide effort to focus on the brutality against women and children
by al-Qaeda terrorists and the regime that supports it in Afghanistan, the
Taliban…the fight against terrorism is also a fight for the rights and dignity
of women” (as quoted in Mohmand, 2012). Both of these statements, one
from the official transcript and one from the public, aim to give the impression
that the U.S. was coming into Afghanistan, not only to fight terrorism,
but to fight for and “liberate” Afghan women. Both of these statements
condemn the Taliban government, yet like numerous other official and
public transcripts articulated by the U.S. post-September 11th, they fail to
mention the U.S.’s support for the equally ruthless Jehadi factions. There
is a silence, a concealment, of the U.S.’s past role in bringing Afghanistan
to its current, war-ravaged state. Furthermore, the U.S.’s discourse surrounding
Afghan women reeks of savior mentality. While there is talk of
having Afghan women “play a role in [Afghanistan’s] future” and the “rights
and dignity of [Afghan] women,” there is little talk of partnering with
existing women’s organizations and supporting them, rather than guiding
their liberation.
It must also be acknowledged, that women’s issues are not separate from
the decade-long war waging in Afghanistan; the war—the civilian causalities,
the displacement both within the country and those forced to flee—takes
a greater toll on women than the lack of rights alone.
Unfortunately, it is difficult to find exact, reliable
numbers of Afghan civilian deaths and injuries caused
by U.S. and allied attacks since the start of the occupation
in 2001; I do not believe this is an accident, but
one aspect of concealment on the part of the U.S.
Despite the harsh conditions that many Afghan
women still face, the U.S. is deploying domination
tactics in efforts to conceal and euphemize the situation,
and furthermore to stigmatize RAWA. As just noted, I was unable to
find the number of Afghan civilian deaths from 2001 to the present; estimates
span huge ranges, and vary greatly from source to source. In contrast, the
number of U.S. troops killed, is readily available information: from October
7, 2001 through May 14, 2012 1,966 U.S. troops died in Afghanistan (Livingston
& O’Hanlon, 2012). While some discrepancy is understandable, it
appears there is an aspect of concealment on the part of the U.S. in not
providing somewhat coherent estimates of Afghan civilian casualties. Further
evidence of concealment is found in the public transcript of the media. It
is rare that incidents of small numbers of Afghan causalities are reported
in the U.S. mainstream media, beyond the off-hand mention of a car bomb
in this province or that city. Yet stories on RAWA’s streaming news feed (by
far the most updated and well maintained portion of rawa.org) report daily
incidents of civilian deaths, especially those due to U.S. and coalition air
raids and other attacks; these same stories prove difficult to find in any U.S.
news.
Furthermore, I would argue that this concealment involves dehumanization.
By merely mentioning an incident and not the number of civilians
killed, their names, or anything about their lives, the dominant power—the
U.S. in this case—is attempting to not only conceal their wrong doing, but
make the subordinates at home (i.e., U.S. civilians) less critical of their
actions and thus maintain a hold on their dominant position of power. For
instance, not a single mainstream media news source in the U.S. mentioned
the names of the 16 civilians massacred in March 2012 by Staff Sergeant
Robert Bales. 9
The ways in which the U.S. has euphemized the war in Afghanistan are
quite obvious. As in most wars of occupation, the terms “liberation”—as
with women’s rights in Afghanistan, as previously mentioned—and “collateral
damage”—when it comes to civilian deaths—are ubiquitous. While
the U.S. has euphemized their efforts in Afghanistan, sources in the U.S.
first began to stigmatize RAWA, once they made it known they would not
support an invading regime, and today the U.S. has silenced RAWA’s critical
voice in mainstream media. From 2000, with the release of BBC’s Beneath
the Veil, through September 11, 2011, which turned the world’s gaze on
Afghanistan, up until approximately 2002, RAWA was the “media darling”
of the U.S. mainstream media; today, however, RAWA is rarely if ever
mentioned in articles regarding Afghan women. Even articles that specifically
address Afghan women activists will—perhaps deliberately—leave
out any mention of RAWA. Often times an anonymous “activist” will be
quoted or a representative of a more moderately spoken organization will
be interviewed.
Some media sources in the U.S. have been critical and wary of RAWA’s
use of the term “revolutionary,” stigmatizing it as “radical” and “leftist.”
Much of this is a throwback to communist-era red scare tactics and completely
ignores RAWA’s definition of the term. In fact, RAWA’s use of
“revolutionary” to mean education and awareness of rights for women is a
notion that most Westerners support, it has likely been RAWA’s unabashed
criticism of U.S. policies in Afghanistan and their no-compromise, antimoderate
stance toward fundamentalists that has caused them to be branded
as radical leftists or hardly mentioned in U.S. media post-2002. RAWA’s
activities since the U.S.-led invasion have not changed much (as one might
believe if women in Afghanistan were truly
liberated) (Thurpkaew, 2002; RAWA, 2002, p.
157).
Despite the U.S.’s claim that women’s rights
would be fully restored a few years into the
invasion, many scholars and women in Afghanistan
find that this is not the case. During a 2011
interview entitled “The Condition of Women
Are [sic] Worse,” a member of RAWA, Reena,
noted the following when asked what she and RAWA thought about the
U.S. using women’s rights as a pretext to invade:
Well, using women’s rights seemed very ridiculous from the very start.
We have always said that Bush, that America itself brought back to power,
the Northern Alliance warlords. [The Northern Alliance is] never going
to be doing something beneficial for women. The conditions of women
“Despite the U.S.’s claim that women’s
rights would be fully restored a few
years into the invasion, many scholars
and women in Afghanistan find that
this is not the case.”
9
In their honor the names of the dead and wounded are listed in the appendix.
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The Hinckley Journal of Politics 2013
are worse, as we have seen now….It was very ridiculous that Mr. Bush
and Laura Bush wanted to help the Afghan women and people. If they
did, they wouldn’t have installed these criminals. They wouldn’t have
given them so much power…. But, [the U.S. is] not really helping [the
women, the people] with such fundamentalists in power, as proven after
10 years of the occupation, and of the rule of these warlords. (Kolhatkar,
2011)
Early on, RAWA and its supporters could see that life under the U.S.-led
occupying forces was going to be little improvement over the Taliban, because
it was supporting some of the brutal Jehadi factions responsible for countless
crimes against the Afghan people from 1992 to 1996. RAWA was one
of the only groups to condemn the Interim Authority, a 30-member council
headed by Hamid Karzi; they pointed out that members of the Northern
Alliance, who are well represented in the interim government, committed
some of the most atrocious crimes against women and other Afghan citizens
(Reilly, 2002; Brodsky, 2003). Their website bluntly stated:
The U.S. ‘War on terrorism’ removed the Taliban regime in October
2001, but it has not removed religious fundamentalism which is the
main cause of all our miseries. In fact, by reinstalling
the warlords in power in Afghanistan,
the U.S. administration is replacing one fundamentalist
regime with another. The U.S. government
and Mr. Karzai mostly rely on Northern
Alliance criminal leaders who are as brutal and
misogynist as the Taliban. RAWA believes that
freedom and democracy can’t be donated; it is
the duty of the people of a country to fight and
“Today, the situation has not
improved much for women; in fact,
the situation may be regressing in
many aspects.”
achieve these values. Under the U.S.-supported government, the sworn
enemies of human rights, democracy, and secularism have gripped their
claws over our country and attempt [sic] to restore their religious fascism
on our people.” (“About RAWA,” n.d.)
To RAWA, the Northern Alliance is still an enemy of women’s rights and
justice in Afghanistan. For instance, in April of 2002 an armed Northern
Alliance fighter entered a bookstore where Payam-e Zan was being sold; he
threatened the shopkeeper and demanded he reveal who brought the
magazines (Brodsky, 2003, p. 178).
Sahar Saba, a RAWA representative who served on the foreign affairs
committee noted in an interview “People think that everything changed
after the Taliban collapsed…Most of those who are now in the government…
are responsible for violating the very basic rights of women…There is no
guarantee of security for women. Even if they say she can go out, they
would not because who can guarantee…what will happen” (Reilly, 2002).
In addition to the continued repressive and uncertain policies of the former
Jehadi warlords—who it is said are only different from the Taliban because
of their western suits—women once more face the horrors of open combat.
As Saba noted, “The U.S. bombs are still falling which is a big concern for
Afghan women—because they are again the victim” (Reilly, 2002). In fact
there are RAWA teachers and students who had stayed in Afghanistan under
the Taliban to run the underground schools, yet fled when U.S. bombs
began to fall on their neighborhoods and Northern Alliance forces marched
back into the city (Brodsky, 2003, p. 270).
Today, the situation has not improved much for women; in fact, the
situation may be regressing in many respects. The following except from
a Human Rights Watch article describes a few of the improvements to
women’s situations and many of the setbacks:
Indeed, over the past 10 years there have been significant improvements
for Afghan women and girls. Official restrictions ended on access to
education, work, and health care. Millions of girls went to school for
the first time. Women joined government, won elected office, and
became police officers and even soldiers. A new constitution in 2004
guaranteed women equal rights, and a 2009 law made violence against
women a crime. Underneath the surface of these changes, however,
deep-seated problems persist. Women in public life have suffered
harassment, threats, and sometimes murder. Forced marriage, underage
marriage, and domestic violence are widespread and too widely
accepted. About 400 women and girls are imprisoned at present for the
“moral crimes” of sex outside of marriage and simply running away from
home, often to flee abuse. While education is more accessible, more
than half of girls still don’t go to school. Every two hours an Afghan
woman dies of pregnancy-related causes. (Barr, 2012)
In addition, “A report last fall [2011] from Oxfam found that 87% of
Afghan women reported experiencing physical, psychological or sexual
abuse or forced marriages” (Colson, 2012).
There are countless reports, articles, and other pieces of the public
transcript surrounding women’s condition in Afghanistan; unfortunately
many of them document its deterioration (Colson, 2012; Mohmand, 2012).
Even the official transcript of women’s rights in Afghanistan has taken a
turn for the worst in recent years. Despite having signed the “Declaration
of Essential Rights of Afghan Women” 10 in 2002
(Goodwin, 2002), in early 2012 Afghanistan’s President
Hamid Karzi endorsed a “code of conduct” for
women issued by a council of clerics that endorses
some restrictions in place during the Taliban’s rule
(“Hamid Karzai backs restrictive code for women,”
2012). One the one hand, “It prohibited a traditional
practice of giving a girl to another family to resolve
a dispute…. It spoke against forced marriage. It
confirmed women’s rights to inherit and own property,” but on the other
hand it stated that “women should not travel without a male chaperone.
Women should not mix with men while studying, or working, or in public.
Women must wear the Islamic hijab. Women are secondary to men” (Barr,
2012, emphasis added).
After the U.S. invasion some things improved. While RAWA began their
website in 1997, the U.S. invasion and those first couple of years of media
attention gained RAWA a large audience and most likely numerous donors
as well. All of the major books written on RAWA were published after 2002
(although Anne Brodsky began her work with RAWA in 2000). Such attention
and funding gave RAWA the ability to carry out more of their projects:
for instance, Malalai Hospital which closed in 1994 due to a lack of financial
support, reopened shortly after the U.S. invasion. Also a majority of the
publications sent to me by RAWA were published post-2001 and many of
the articles on RAWA’s website seem to be published after the U.S. invasion
as well. This could indicate that reporting became easier after the invasion
or RAWA became more Internet savvy at this time.
However, much has remained the same for RAWA. The security situation
on Afghanistan, as previously discussed, is still fragile for RAWA, due
to the fact that former Jehadi members (such as the Northern Alliance)
which RAWA has been highly critical of are the ones in power. Thus RAWA’s
activities have had to remain largely infrapolitical. For example, although
RAWA has held some events openly in Kabul, such as presentations for
International Women’s Day and commemoration on the anniversary of
Meena’s death (“Some RAWA past events”, n.d.), security is still a pressing
concern, and most of their Afghanistan operations—the schools, health
clinics, income generating projects—still operate in secret. It is crucial to
note that all of photos from public events, such as International Women’s
10
The Declaration “guarantees equality between men and women, equal protection
under the law, equal right to education in all disciplines, freedom of movement,
freedom of speech, and political participation” (Goodwin, 2002)
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Thirty-Five Years of Revolution
Melissa Moeinvaziri
Day held in Kabul show functions being carried out inside buildings—within
a more secure, social site—while photos of the same events held in Pakistan
show large throngs of women demonstrating outside in public. The evidence
shows that the U.S occupation has not improved the ability of RAWA to act
openly, that is, as a “normal” organization working for women’s rights would
act.
Discussion: Shifting Infrapolitics
Infrapolitics emerge out of necessity, when open resistance would be swiftly
and brutally subdued, jeopardizing the entire resistance movement. In
order to keep such resistance alive, RAWA and other subordinate groups
disguise their resistance to the point that it may not seem to outsiders like
dissent at all. A disguised message—a mumble under one’s breath in the
presence of an elite or a obscure piece of writing—or a disguised messenger,
a woman under a burqa—may never be noticed in the public transcript or
recorded in the official transcript, but this does not in any way diminish
the fact that such an act is an act of deliberate resistance. Even a disguised
act is still an act that takes courage and dignity; according to Scott (1990)
“dignity is at once a very private and a very public attribute” (p. 113).
Based on the aforementioned evidence, I have
organized my discussion of RAWA’s infrapolitics
into four main tactics: 1) their gathering together
and taking action within the hidden transcript; 2)
their humanitarian projects, that while appearing
to be apolitical to many, are actually infused with
an acute political consciousness; 3) their employment
of disguise tactics such as wearing burqas for anonymity,
using certain fundamentalist-mandated oppression to stay inconspicuous;
4) and finally their organizational style and structure. What is
exceptionable about RAWA is their ability to oscillate between the first two
tactics depending on the political climate and to incorporate the latter two
into all of their work. I believe it is this unique formula that has allowed
RAWA to thrive for 35 years.
From Hidden to Public and Back Again
In this section I argue that RAWA has the prudent ability to shift between
the first two infrapolitical methods. As Scott (1990) notes, “The discursive
practices offstage sustain resistance” (p. 191). This is especially true for
RAWA, which began as an organization created within the hidden transcript.
Nearly all meetings and literacy classes, to this day, within Afghanistan are
held off the public stage and in secrecy. If it were not for the concealed and
secure social sites RAWA constructed—both physically and through their
website—there is little chance that RAWA as an organization would have
survived. The intimacy and safety created for members not only provided
security, but also produced a social site in which common experiences could
be aired and comfort given so that individual women would know that they
were not alone, but part of a community of women who understand their
experiences in a war-torn country under women-oppressive regimes. A
space filled with the aforementioned discourse is exactly what Scott is
referring to when he states discursive practices offstage sustain the hope
behind resistance. While women are often isolated from anyone who is not
part of their family in Afghanistan, the spaces created by RAWA brought
women into a place where grievances could be aired and resistance discussed.
Such sites are where raw anger becomes cooked indignation. In this case
indignation is a sort of awareness, a consciousness. As RAWA members
put it, they were giving women a consciousness, a political consciousness
that made women aware of their rights; a cultural consciousness that showed
women that neither their culture nor their religion were necessarily tools
“What is exceptionable about RAWA
is their ability to oscillate between...
tactics depending on the political
climate.”
of oppression; and finally, a consciousness of education that gave women
confidence in their own abilities (Brodsky, 2003, pp. 105-116). Shaima, a
senior member of RAWA, discussed what education meant for Afghan
women:
The first important issue was to educate women. From the first days we
learned that they suffered in that way because of lack of education. If
not educated…then they aren’t able to change anything in their lives…
[Also] from the very first days we talked about…that we couldn’t limit
[education] to just literacy classes; that would not bring the change that
we wanted nor the consciousness. School education was not enough
(Brodsky, 2002, pp. 44-45).
Members of RAWA were experts in maintaining a social site to foster their
hidden transcript which was propagated through the education of hundreds
of women, as well as young girls and boys.
From the clandestine social site that hid their resistance and consciousbuilding
discourse, RAWA easily moved into their more outward, yet equally
disguised tactic of humanitarian projects. According to Scott (1990), “So
long as we confine our concept of the political to activity that is openly
declared we are driven to…miss the immense political terrain that lies
between quiescence and revolt” (p. 199). One of RAWA’s most meaningful
resistance tactics, which lies in the terrain between
quiescence and revolt, is their humanitarian projects.
Education, as noted, has been an essential part of
RAWA since its founding. While liberal democratic
theorists may not understand education and learning
to be overtly political acts, RAWA gives women
an education infused with political consciousness,
and giving them political consciousness is revolutionary
in and of itself. It sustains resistance and the hope for revolution driven
by Afghan women. Furthermore, many of the children who were raised in
RAWA’s Watan schools, orphanages, and other classes have become dedicated
members and supporters themselves. The rest of RAWA’s public projects
all appear outwardly to be innocent acts of charity for women, free of a
political resistance agenda. These include distribution of emergency aid
items such as food, blankets, cooking oil, and medical care, including medical
clinics and hospitals, and income generating projects (RAWA, n.d., “RAWA:
voice of the voiceless,” n.d.). Just as the children who were raised and
educated by RAWA come to respect or even support RAWA, the same
respect and support is hopefully developed in those RAWA aids through
their humanitarian services.
To maintain their struggle for resistance, RAWA shifted between these
aforementioned tactics: actions with the hidden transcript; seemingly
apolitical, humanitarian work; and when circumstances allowed—in
Pakistan and early in the Soviet occupation, and at times under the U.S.
occupation—RAWA shifted to open resistance performed on the public
stage, such as protests, demonstrations, speaking tours, and documentation
of human rights abuses though publications and their website. The shifting
nature of RAWA’s political tactics are apparent to those within the organization.
As Nadia, a senior member of RAWA, observed,
At different points, as a result of many years of war, RAWA had to
change its policy. For example, during the Soviets our policy and
struggle was along with the rest of the population as part of the resistance.
During the fundamentalists this changed: it was not resistance alongside
others, but we were a women’s organization alone and had to change
our struggle and standpoints accordingly. During the Taliban, we didn’t
see much difference between them and the Jehadis before them; the
struggle was the same, but the methods had to change. For example,
we increased our home-based schools for girls and for women. But
generally we have never had activities in Afghanistan that we wanted—
activities that could be open and expanded enough to each everyone
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The Hinckley Journal of Politics 2013
who needs our help Now in this situation there is another period of
change. (Brodsky, 2003, p. 102)
Infrapolitics in Organization and the Art of Disguise
Here I discuss RAWA’s infrapolitical methods as they are utilized within
the organization’s structure and especially through their various disguise
tactics. Scott (1990) notes that infrapolitics “extends to…organization” as
well as to substantive actions. Furthermore, he states, “Informal assemblages
of market, neighbors, family and community…provide both a structure
and cover for resistance” (Scott, 1990, p.200). RAWA utilizes infrapolitics
in its organization in both ways: structure and cover.
First, RAWA’s structural organization is a perfect example of resistance
born from and maintained by infrapolitics. While RAWA is a formal
organization, it began as and thrives off of tight-knit, informal networks of
women—family members, teachers, students, neighbors. As the organization
grew and become more sophisticated it maintained a wide-spread,
non-hierarchical, community-based structure (Brodsky, 2003).
Second, Afghan culture provided excellent cover for the infrapolitical
organization of women. It is not only normal but expected that women,
typically related through extensive kinship networks, would frequently visit
one another in the privacy of their homes—a perfect place for harboring
the hidden transcript. The “elementary [organization]…of infrapolitics
[has] an alternative, innocent existence” (Scott, 1990, p. 200), that lends to
their disguise; and what could be more innocent than commonplace Afghan
familial gatherings “Always, the age-old women’s culture of Afghanistan
that oppressed also sustained them…RAWA turned every common women’s
custom into a tool of liberation” (Chavis, 2003, p. 65). While long lasting
gatherings of men may draw suspicion, it was quite normal for women to
gather and chat with family members over long periods. Early on, before
the rise of the Jehadis, women would spend hours
at public bath houses where they could talk and
exchange resistance literature, again, with little suspicion.
Even the Jehadi-imposed practice of having
a mahram automatically provided RAWA women
with security guards and a use for male allies. “Paradoxically,
RAWA benefits in some small ways from
a culture that undervalues and also underestimates
women…. The cultural assumptions that dismiss
women as inconsequential, against which they
struggle…have actually worked in their favor”
(Brodsky, 2003, p. 178).
The publication of Payam-e Zan is also another
interesting use of disguising the messenger, or anonymity. While the messages
within the magazine where not at all hidden and their name and logo
appeared on the magazine, it still was a tactic of anonymity because individual
women were rarely identified by name. In fact the entire collective
of RAWA itself—and the women’s discursive practice of referring to it as a
single whole, instead of individual women themselves—is a tactic of anonymity.
One of the most intriguing anonymity tactics—because Afghan women
literally don a disguise and veil themselves—is the burqa. Donia, a woman
whose mother was an early RAWA member, describes a memory of Meena
from the days when RAWA still operated in Kabul,
I remember she would wear a burqa, at the time all the members of
RAWA wore them. For me it was so strange the first time I saw her
wearing [a] burqa because I knew she hated them…. So one day I asked
her why she was wearing it and she said, “If I don’t wear it I will be
recognized and killed.” (Brodsky, 2003, p. 72)
Although most modern and educated women, like Meena, originally rejected
the burqa as an outdated form of oppression for women, they adopted the
attire to carry out their clandestine work, by hiding their identities and
carrying contraband. While wearing a burqa, “they were not only anonymous,
but they appeared to be their own opposites”: conservative, obedient, traditional,
harmless women (Chavis, 2003, p. 66).
Finally, RAWA’s website is another practice in anonymity. Web pages
prove to be a curious blending of hidden and public transcripts. While it
is available for the entire world to view (unlike a conversation in a truly
hidden, private social site, like a home), it is a true reflection of the discourse
taking place in the hidden transcript because it is unhindered by the public
discourse of the dominant; that is, what RAWA posts on its website is posted
independent of (while often in reaction to) the oppression of the dominant
group. As previously mentioned, it is one of RAWA’s greatest strengths as
a resistance organization and also demonstrates their amazing ability to
adapt, not only to the oppression they face, but also to fast paced technological
change occurring outside Afghanistan’s borders.
Theoretical Limitations
“Although most modern and
educated women, like Meena,
originally rejected the burqa as an
outdated form of oppression for
women, they adopted the attire to
carry out their clandestine work, by
hiding their identities and carrying
contraband.”
Scott’s discourse theory, particularly his notion of infrapolitics, gives a
near-perfect framework with which to analyze RAWA’s resistance tactics.
While the definition of resistance may be expanding in mainstream political
thought, it has still been a long-held belief that to resist is to act openly—
to march and demonstrate, to revolt, to take up arms. What Scott offers in
his description of a hidden transcript—the pre-explosive beginning to open
resistance—is a rare look into the type of resistance that does not make it
into the history books. In using discourse theory to examine the hidden
transcript and infrapolitical tactics of RAWA we come to see actions that
may have once been overlooked as inspiring methods of political resistance.
Scott nicely captures the flow from articulated anger or grievance
at an oppressive situation to the “cooked” indignation
that leads to methodical, prudent action.
Furthermore, by examining the most oppressive
scenarios imaginable—scenarios where there
is no political outlet for grievances—he gives
political credibility to the world’s most oppressed
people who do not have the luxury of open political
expression protected by rights. The women
of RAWA are one of those groups. In 1997 when
their website was first launched, it said, “Welcome
to the website of the most oppressed women in
the world.” To rely only on liberal democratic
notions of political resistance would be to miss
such a wide range of RAWA’s political resistance strategy. Because of
Scott’s concept of infrapolitics, we are able to examine RAWA’s every
move as political, no matter how disguised.
In many ways, however, Scott’s somewhat narrow definition of infrapolitics
fails to fully capture what I believe to be RAWA’s rich infrapolitical
tactics. Scott specifically argues that infrapolitics are subtle, unorganized,
pre-open resistance actions, but RAWA’s tactics are not completely pre-open
resistance. He describes resistance movements that adhere to a very linear
framework: discourse within the hidden transcript leads to infrapolitics,
which leads to an explosive moment where the hidden transcript is finally
expressed in the public, which leads to open resistance. RAWA, in contrast,
fluidly moves between activity within the hidden transcripts to humanitarian
projects to public demonstrations.
Furthermore, Scott never examines examples of formal organization.
He limits his analysis to pre-organizational cases, which is problematic for
me in studying a group such as RAWA that has continued to utilize the
hidden transcript, infrapolitical tactics, and methods of disguise, despite
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Thirty-Five Years of Revolution
Melissa Moeinvaziri
being formally organized. Scott’s argument for infrapolitics within both
hidden and public transcripts climaxes with his explanation of that explosive
hidden-meets-public transcript moment. For an organization like
RAWA whose resistance has yet to culminate in a singular “explosive moment,”
Scott’s framework can be somewhat limited. Also it should be noted that
Scott’s work, Domination and the Arts of Resistance: Hidden Transcripts,
was published in 1990, well before the age of the Internet. This explains
why RAWA’s use of a publicly exposed hidden transcript in their website
was unfathomable to Scott. Overall, Scott’s work provides a framework that
made all of RAWA’s resistance tactics politically relevant, and RAWA’s ability
to shift between open and disguised resistance, their humanitarian projects,
and organization style add layers of depth to Scott’s original analysis.
Conclusion
Revolution is a delicate thing. It grows in the hidden-away spaces of
oppressed groups. As feelings of anger, frustration, and hopelessness fester,
resistance is cultivated, indignation burns, and revolution takes root. Prudence
and cunning, patience and disguise are principles that keep the
revolution of oppressed people alive. Without legitimate channels to express
their indignation, those who foster revolution in these hidden places run
a greater risk and struggle against greater odds, yet they have so much more
to gain.
The revolution being cultivated by RAWA has been 35 years in the
making. This is not a revolution that will overthrow one ideological regime
and replace it with another. No, RAWA’s revolution seeks through incremental,
steadfast action lasting change that will give women not only
security and peace of mind, but the status of human beings. The aim is not
to be “liberated,” “honored,” or “taken care of ” but to be educated, equal
and able to make decisions about their own lives and about their country
as well.
During their 35-year history RAWA faced four major regimes that all
engaged in domination tactics to keep RAWA from achieving its goals: the
Soviets, the Jehadis, the Taliban, and the U.S./Northern Alliance. These
four regimes made use of numerous tactics in efforts to keep a hold of power:
concealment of any cracks in their display of control or news that would
discredit them and euphemism in describing their own actions and stigmatization
of RAWA.
To cope with harsh oppression, RAWA, utilized disguise and anonymity
(in both hidden and public social sites) as part of their infrapolitical
strategy. RAWA’s tactics are infrapolitical in that they do not always appear
to be “normal” politics, and they rarely occur out in the open. RAWA
applied infrapolitics in the following four ways: 1) in gathering together
and acting the hidden transcript; 2) through seemingly apolitical humanitarian
projects, 3) by employing disguise tactics such as wearing burqas for
anonymity, using certain fundamentalist-mandated oppression; and 4)
through their organizational style and structure. However, what makes
RAWA’s strategy unique is their ability shift between the first two tactics
and to incorporate the latter two into all of their work.
There is a reason why in 1977 a 20 year-old girl, bright and dark eyed,
chose the word “revolutionary”—as I read her story and the story of the
women of RAWA I now know why. They saw beyond the horizon into a
tomorrow where women of their country would need the hope of a sapling
revolution to stay alive.
Appendix
“No One Asked Their Names”
A list of the dead and wounded victims of the March 11, 2012, massacre in
Kandahar, Afghanistan.
The dead:
Mohamed Dawood son of Abdullah
Khudaydad son of Mohamed Juma
Nazar Mohamed
Payendo
Robeena
Shatarina daughter of Sultan Mohamed
Zahra daughter of Abdul Hamid
Nazia daughter of Dost Mohamed
Masooma daughter of Mohamed Wazir
Farida daughter of Mohamed Wazir
Palwasha daughter of Mohamed Wazir
Nabia daughter of Mohamed Wazir
Esmatullah daughter of Mohamed Wazir
Faizullah son of Mohamed Wazir
Essa Mohamed son of Mohamed Hussain
Akhtar Mohamed son of Murrad Ali
The wounded:
Haji Mohamed Naim son of Haji Sakhawat
Mohamed Sediq son of Mohamed Naim
Parween
Rafiullah
Zardana
Zulheja 11
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About RAWA. (n.d.). Retrieved March 8, 2012, from http://www.rawa.org/rawa.
html
Afghan women: Under the tyranny of the fundamentalists. (n.d.). Retrieved March
8, 2012, from http://www.rawa.org/women.php
Archived Reports. (n.d.). Retrieved March 8, 2012, from http://www.rawa.org/
report.htm
Barr, H. (2012, March 8). Are Afghan women better off after a decade of war
Human Rights Watch. Retrieved May 31, 2012, from http://www.hrw.org/
news/2012/03/08/are-afghan-women-better-after-decade-war
Brodsky, A. E. (2003). With all our strength. New York, NY: Routledge.
Bureau of Democracy, Human Rights and Labor. (2001, November 17b). Quotes
by and about women in Afghanistan: Report on the Taliban’s war against
women. U.S. Department of State. Retrieved May 31, 2012, from http://www.
state.gov/j/drl/rls/6186.htm
11
(“No one asked their names,” 2012)
12

The Hinckley Journal of Politics 2013
Some RAWA past events. (n.d.). Retrieved March 8, 2012, from http://www.rawa.
org/events.htm
Sparks, H. (1997). Dissident citizenship: Democratic theory, political courage, and
activist women. Hypatia, 12(4), 74-110.
RAWA. (2000). Afghan women challenge the fundamentalists. Quetta, Pakistan:
RAWA.
RAWA. (2002). RAWA in the world media. Quetta, Pakistan: RAWA.
RAWA. (2012, March 8). Afghan women’s freedom from the clutch of fundamentalism,
occupation and patriarchy is only possible with their own struggle!:
RAWA’s statement on the International Women’s Day. Retrieved March 8,
2012, from http://www.rawa.org/rawa/2012/03/08/afghan-women-s-freedom-from-the-clutch-of-fundamentalism-occupation-and-patriarchyis-only-possible-with-their-own-struggles.html
RAWA. (n.d.). RAWA: The voice of the voiceless. Quetta, Pakistan: RAWA.
Reilly, K. (2002, March 29). Left behind: An interview with RAWA’s Sahar Saba. In
these times. Retrieved May 31, 2012, from http://www.inthesetimes.com/
issue/26/11/feature1.shtml
Thurpkaew, N. (2002, August 26). What do Afghan women want; A dramatic and
militant feminist group has captured the West’s imagination. But does it offer
what the women of a shattered country need most The American Prospect.
Info on Afghanistan. (n.d.). Retrieved March 8, 2012, from http://www.rawa.org/
afg-info.htm
Islamic Emirate of Afghanistan. (2011, January 26). The Afghan women and the
American literacy program. Shahamat-english.com. Retrieved May 31, 2012,
from http://shahamat-english.com
Bureau of Democracy, Human Rights and Labor. (2001, November 17a). Executive
summary: Report on the Taliban’s war against women. U.S. Department of
State. Retrieved May 31, 2012, from http://www.state.gov/j/drl/rls/6183.htm
Chavis, M. E. (2003). Meena: Heroine of Afghanistan. New York, NY: St. Martin’s
Giffin.
Colson, N. (2012, April 11). Afghanistan: The quagmire of U.S. occupation in
many places outside Kabul, the Taliban and other warlords are in total
control of local militias. Retrieved May 31, 2012, from http://www.rawa.org/
temp/runews/2012/04/11/afghanistan-the-quagmire-of-u-s-occupation.html
Congressional Committee on International Relations. (2001). Afghan people vs. the
Taliban: The struggle for freedom intensifies (Serial No. 107-59). Washington,
DC: U.S. Government Printing Office.
Faramarz, A. W. (2012, April 20). Afghan textbooks skip decades of violence:
Schools get history books that miss out all the bad bits. Retrieved May 31,
2012, from http://www.rawa.org/temp/runews/2012/04/20/afghan-textbooks-skip-decades-of-violence.html
Goodwin, J. (2002, April 29). An uneasy peace. The Nation.
Hamid Karzai backs restrictive code for women: Afghanistan’s president endorses
‘code of conduct’ which activists say is a giant step backward for women’s
rights (2012, March 6). Retrieved March 8, 2012, from http://www.rawa.org/
temp/runews/2012/03/06/hamid-karzai-backs-restrictive-code-for-women.
html
Kolhatkar, S. (2011, September 10). AWM’s Sonali Kolhatkar interviews a member
of RAWA: The conditions of women are worse. Retrieved May 31, 2012, from
http://www.rawa.org/rawa/2011/09/10/awm-s-sonali-kolhatkar-interviewsa-member-of-rawa.html
Livingston, I.S., & O’Hanlon, M. (2012, June 20). Afghanistan Index. The
Brookings Institute. Retrieved June 26, 2012, from http://www.brookings.edu
Mohmand, R. Y. (2012). Afghan women and the United States’ policy in Afghanistan.
Unpublished Master’s thesis. [University of Colorado]. (UMI 1509637)
No one asked their names, (2012, March 19). Al Jazeera. Retrieved March 20, 2012
from http://blogs.aljazeera.com/blog/asia/no-one-asked-their-names
Pollitt, K. (2000, May 14). The way we live now: Questions for Sajeda Hayat and
Sehar Saba; Tearing at the veil. The New York Times Magazine.
Scott, J. C. (1990). Domination and the arts of resistance: Hidden transcripts. New
Haven, CT: Yale University Press.
Social Activities. (n.d.). Retrieved March 8, 2012, from http://www.rawa.org/s.
html
13

Land Exchanges and Public Lands Bills in Utah
By Matthew Kirkegaard
Public land debates are some of the most divisive in Utah and throughout the American West, where vast portions of
states are publicly owned. Disagreement often arises over whether to set land aside for recreational, scenic, and ecological
purposes or open it to extractive development, such as for oil and gas. Different agencies with divergent mandates
only cloud the situation. Among possible solutions, especially when dealing with school trust lands, which checker state
maps, are land exchanges and county lands bills. By examining numerous studies, a wide range of perspectives, and
past examples, this research seeks to weigh the merits of these approaches. Ultimately, the paper suggests land exchanges
and county lands bills provide balance in conserving Utah’s land while providing for economic growth and public
education funding. These methods should be used as important land management tools, providing more benefits than
disadvantages to Utah’s land and people.
Among the many current proposals to address Utah’s contentious
public lands issues, the idea of reconciling often opposing economic
and conservation-based concerns through land exchanges or public
lands bills merits deep analysis. These methods, often referred to as “county
lands bills” since they tend to take place at the county level, attract praise
and suspicion from both environmental and economic stakeholders, making
them intriguing topics of study. This paper analyzes land exchanges and
county lands bills as they have been implemented in Utah.
In 2008, approximately 80% of Utah’s total land area was publicly owned,
belonging to both federal and state agencies, according to Utah State
University (Allen, 2008, para. 1). Some major federal agencies include the
Bureau of Land Management (BLM), the U.S. Forest Service (USFS), the
National Parks Service (NPS), and the U.S. Fish and
Wildlife Service (USFWS). At the state level, agencies
include the School and Institutional Trust Lands
Administration (SITLA) and the Department of
Natural Resources (DNR). While most of these
agencies’ land is held contiguously, individual sections
of SITLA lands are scattered throughout the
state, making up roughly 7% of Utah’s land area
(SITLA, “What are Trust Lands,” 2009, para. 2).
SITLA is also unique in its mandate to “manage the
lands and revenues generated from the lands in the
most prudent and profitable manner possible, and
not for any purpose inconsistent with the best interests of the trust beneficiaries”
(Utah State Legislature, 2012, p. 1). In Utah, revenue from school
trust lands comes primarily from oil and gas, coal, and other mineral
extraction (Western Land Commissioners Association, 2010). This management
mandate starkly contrasts with the explicit multiple use policies of
“Scattered ownership patterns and
conflicting mandates across the
state generally characterize public
lands in Utah. Exchanges and lands
bills have arisen, in turn, as
attempts to solve problems like
these on Utah’s public lands.”
other agencies such as the BLM, whose mandate includes the protection of
“natural, cultural, and historical resources” along with “energy development,
livestock grazing, recreation, and timber harvesting” (BLM, “Who we are,
what we do,” 2012, para. 2). These scattered ownership patterns and conflicting
mandates across the state generally characterize public lands in Utah.
Exchanges and lands bills have arisen, in turn, as attempts to solve problems
like these on Utah’s public lands.
Land exchanges are rather simple in theory; parties agree to exchange
land for their mutual benefit based on their differing interests. In Utah,
examples of these interests include outdoor recreation, habitat preservation,
lasting conservation designations, profit maximization, economic development
opportunities, fiduciary duties (on trust lands), and a general consolidation
of ownership. Exchanges begin to get
more complicated when they involve immense
amounts of land, since much of the land in question
usually is appraised before a transfer is finalized. For
the purposes of this paper, I will focus on large scale
land exchanges involving thousands of acres, indeed,
often tens or hundreds of thousands, though smaller
exchanges would certainly be possible and deserving
of further study. The involvement of federal land
and its corresponding agencies further muddies the
waters because Congress generally must pass a law
in order for exchanges of federal land to be authorized.
While exchanges are essentially simple ideas, in practice, they become
far more complex.
In Utah, there have been numerous examples of exchanges, both successful
and otherwise. The Utah Schools and Land Exchange Act of 1998
is perhaps the most famous example of a completed exchange, which traded
15

Land Exchanges and Public Lands Bills in Utah
Matthew Kirkegaard
SITLA inholdings within the then newly created 1.7 million acre Grand
Staircase-Escalante National Monument (Flinders et al., 2002, p. 1) and
other national monuments and parks for more developable land and
$50,000,000 (Blaeloch, 2009, p. 28). Not only did this exchange resolve
significant conflict over trust lands, it was also the largest land transaction
since the Louisiana Purchase in the continental U.S. (Bryner, 2001, p. 573).
Most recently, the Utah Recreational Land Exchange Act of 2009 traded
SITLA properties in important recreational and wildlife habitat areas to the
BLM for lands with the potential for energy development (Grand Canyon
Trust, 2012, para. 3). Conversely, the failed Federal-Utah State Trust Lands
Consolidation Act of 2002, which attempted to trade trust lands out of the
vast, rugged, and wild San Rafael Swell landscape of eastern Utah, illustrated
the fragility of exchange agreements when the bill collapsed in Congress
amidst allegations of fraud and claims that the deal disproportionately
benefitted SITLA (Blaeloch, 2009, pp. 59-66).
County lands bills are substantially more complicated than basic twoparty
land exchanges due to the increased number of stakeholders directly
involved and impacted, such as water conservancy districts, state agencies,
federal agencies, county governments, pro-development entities, environmental
organizations, and Congress (Blaeloch, 2009, pp. 9-22). County
lands bills also carry with them a stronger intent than simple exchanges: to
strike a long-term compromise between development and conservation
that will guide the county and its land use long into the future. The singular
successful example of a county lands bill in Utah was the Washington
County Growth and Conservation Act of 2008, which designated extensive
areas of the county as wilderness and National Conservation Area while
allowing the federal government to sell thousands of acres of land for
development near cities, such as St. George (Canham, 2009, para. 5). The
deal was widely viewed as a model compromise between lands designated
for conservation and development.
On both sides of the often vitriolic debate about
public lands in the West, there are numerous concerns
and criticisms regarding both land exchanges
and county lands bills. The conservation community
has expressed reservations about compromising
sensitive land to create wilderness or other conservation
designations, encouraging the sale of public
lands for development as a bargaining chip for conservation,
and not allowing wilderness designation
bills to “rise or fall on their own merits” (Blaeloch, 2009, p. 84). For example,
the Sierra Club, one of the largest environmental organizations in the United
States with 1.4 million members and volunteers gives a less than emphatic
endorsement of public land exchanges (Sierra Club, “Sierra Club Fact Sheet,”
2012, para. 1). The Sierra Club’s “Public Land Exchange Policy” advises
that public land should only be traded when circumstances “meet the highest
environmental standard” and instead expresses preference for “public
acquisition of land by purchase” (Sierra Club, “Sierra Club Conservation
Policies, 2001, para. 5). The organization lists alternatives to public land
exchanges, such as “protective regulations, deed restrictions, protective
easements, [and] purchase of development or transfer of ownership to a
private land conservancy” (Sierra Club, 2001, para. 5). Don Steuter, Conservation/Mining
Committee Chair of the Grand Canyon Chapter of the
Sierra Club, went a step further saying, “Since land exchanges always have
a downside when conservation is concerned, they should only be used as
a last resort” (Steuter, “Canyon Echo,” 2002, p. 7). Despite this tough talk,
it should be noted the Utah Wilderness Coalition, for which the Sierra Club
was an Executive Committee member organization (Utah Wilderness
Coalition, 2004, para. 1), did support The Utah Recreational Land Exchange
Act (Grand Canyon Trust, 2012, para. 4). Other environmental/conservation
organizations that also supported the exchange included The Nature
“County lands bills are substantially
more complicated than basic
two-party land exchanges due to
the increased number of stakeholders
directly involved and impacted.”
Conservancy, Utah Open Lands, the Southern Utah Wilderness Alliance,
the Utah Rivers Council, and the National Parks Conservation Association,
to name a few (Grand Canyon Trust, 2012, para. 4).
Like those in the conservation community, those concerned with economic
development also have fears of compromise, albeit from the opposite
point of view. At the Utah State Legislature’s Natural Resources, Agriculture,
and Environment Committee hearing on the plans from Emery, San Juan,
and Piute Counties to present county lands bills to Congress—modeled
after Washington County’s successful bill—Rep. John Mathis (R-Vernal)
was uncomfortable with “locking up” Utah’s land from development (Loomis,
2011, para. 4). The proponents of the county lands bills in question, such
as former Emery County Commissioner Randy Johnson, argued that they
were not “locking up” any lands with significant mineral potential, but state
lawmakers still had “reservations about creating wilderness in areas that
may contain resources that no one yet knows about, such as rare earth
minerals” (Loomis, 2011, para 10). Fear of locking up resources hearkens
back to the designation of the Grand Staircase-Escalante National Monument
by President Clinton on September 18, 1996, simultaneously hailed
by some as a “bold stroke” and decried by others as “the mother of all land
grabs” (Larmer, 2004, pp. 4-17). The monument’s creation halted exploration
and extraction of coal deposits on the Kaiparowits Plateau valued at
as much as $1 trillion, then under lease by the Dutch company Andalex
Resources (Veravanich, 1996, p. 6). State officials estimated that a proposed
Andalex Resources mine “could have generated 1,000 jobs, $1 million in
revenue annually for Kane County, and an additional $10 million annually
in federal and state taxes” (Veravanich, 1996, p. 10). Although another
situation such as this is unlikely in any of the county lands bills proposed,
this massive economic loss in favor of environmental protection and land
conservation lives on in the memory of many Utahns. In this way, both the
conservation and extractive development communities fear the compromise
inherent in land exchanges and county lands bills.
Conservationists fear irreversible development;
developers and their supporters fear permanent
conservation designation.
Perhaps the largest drawbacks to land exchanges
and lands bills are the many valuation controversies
that seem to arise without fail. For example, although
the Utah Recreational Land Exchange Act became
law in 2009 and is often characterized as a “win/win”
for both the BLM and SITLA, the exchange has yet to be completed due to
the BLM’s lack of funding for its half of the appraisal costs (Engelhorn, 2012,
para. 1). Since the exchange has a five-year deadline, if the BLM is unable
come up with the money soon, the exchange deal and the resulting legislation
all may have been for naught (Engelhorn, 2012, para. 4). Valuation
problems cannot only stall exchanges, but they also have the potential to
bring them down entirely, as was the case in the Federal-Utah State Trust
Lands Consolidation Act of 2002. Unlike the Utah Recreational Exchange
Act, this bill did not require formal appraisals of all land by third parties
and instead amounted to a “handshake agreement” between SITLA and
Terry Catlin, a BLM realty specialist (Blaeloch, 2009, pp. 61-62). Disagreements
then surfaced regarding, among other things, the appraisal of lands
with endangered species present and the appraisal of minerals which SITLA
was to acquire, with one area in particular “containing oil shale deposits
[BLM Appraiser James Kohler] estimated to be worth $44 million to $64
million” (Blaeloch, 2009, p. 62). When the valuation controversy received
media attention, attempts at repairing the deal failed, as did the entire bill
after a short time (Blaeloch, 2009, p. 62). However, had the exchange been
completed, it was concluded “that the U.S. would lose between $97 million
and $117 million in the exchange” (Blaeloch, 2009, p. 62). As clearly
demonstrated by these two cases, concerns regarding the appraisal of lands
16

The Hinckley Journal of Politics 2013
proposed for exchange have proven to be significant roadblocks to exchanges
in the past and will continue to be prominent obstacles in the foreseeable
future.
Despite the challenges associated with land exchanges and county lands
bills, there are a host of benefits to be considered as well. In terms of
conservation, land exchanges have the potential to create continuity of
management within conservation designations, such as when SITLA inholdings
were traded out of the Grand Staircase-Escalante National Monument
as well as other national parks and monuments in Utah (Blaeloch, 2009, p.
28). This means that unique landscapes like the San Rafael Swell or the
Greater Canyonlands country of southern Utah can be set aside primarily
for conservation without the burden of the checkerboard-like land ownership
often caused by scattered trust lands inholdings. Furthermore, the
burden of SITLA’s revenue generation mandate can also be lifted from these
lands (Utah State Legislature, 2012, p. 1). Of course, there are also obvious
conservation benefits that result from exchanges
and public lands bills. Through the Utah Recreational
Exchange Act, the BLM will acquire from
SITLA about 46,000 acres in “Wilderness Study
Areas, critical wildlife habitat areas and important
recreational lands” (Grand Canyon Trust, 2012, para.
3). The Washington County lands bill designated
hundreds of thousands of acres as wilderness, about
half of it “overlaid on nearly all of Zion National Park, a little more than
120,000 acres” (Blaeloch, 2009, p. 77). The removal of inholdings and the
new designation of wilderness or other protected areas are long-lasting
conservation achievements that should not be overlooked.
Economic benefits are also substantial. County lands bills aim to open
up some public land for development, with the intent to spur economic
activity. Exchanges and lands bills allow SITLA to trade its trust lands out
of areas where making revenue is difficult and into more lucrative, developable,
and often mineral-rich portions of the state. Money earned from trust
lands is then distributed to its beneficiaries, most significantly the Common
School Fund, which directly funds Utah’s public schools (SITLA, “Who gets
the money,” 2009, para. 3). In addition to the direct and indirect economic
benefits of development, investment in education is necessary if future
economic gains are to be made. The education advocacy group, Prosperity
2020, estimates approximately “two-thirds of all jobs in Utah will require
postsecondary training beyond high school by 2018” (Prosperity 2020, 2012,
para. 6). While developed land certainly produces economic benefits, so
does land that is set aside for conservation due to its recreational opportunities
and potential to draw tourists. In 2011 alone, just fewer than 5 million
visitors came to national monuments and national recreation areas within
Utah while another 6.3 million visited national parks within the state,
according to the Utah Office of Tourism (2011). According to the Outdoor
Industry Foundation, “active outdoor recreation” in Utah “contributes $5.8
billion dollars annually to Utah’s economy,” supporting “65,000 jobs across
Utah” (Outdoor Industry Foundation, 2006, p. 5). While neither exchanges
nor lands bills directly produce these visitation nor recreation results, they
can rearrange land ownership so as to stimulate the positive economic
effects which come with conservation while providing for extractive development
elsewhere. These methods, through consolidation of lands with
similar characteristics, have great potential to produce profitable “win/win”
economic scenarios where both developed and conserved lands could
generate enormous revenue and create jobs.
Finally, there are major trust-building benefits to lands bills and land
exchanges in that they bring nearly all interested parties to the table, including
state and county governments, federal agencies, and civil society, while
also providing long-term plans for land use in the future. Both provide a
sort of what University of Utah Professor Dan McCool (2001) calls a “public
“Despite the challenges associated
with land exchanges and county
land bills, there are a host of
benefits to be considered as well. ”
lands peace process...directed at preserving public lands and providing
realistic economic alternatives to rural people affected by land preservation
decision” (p. 618). The five key components of this “peace process” are
“collaboration, give-and-take bargaining, incentive partnerships, new governing
structures, and brainstorming” (McCool, 2001, p. 614). By McCool’s
definitions, county lands bills and exchanges fit four of these five criteria.
Although they do not create new governing structures, they are collaborative
in that they allow for communicating “in a mutually respectful atmosphere
in an effort to resolve problems” and they incorporate give-and-take
bargaining and incentive partnerships, at the very heart of any land exchange
(McCool, 2001, p. 614). Brainstorming, defined by McCool (2001) as the
“spontaneous and free exchange of ideas,” is utilized to a lesser extent, generally
in the first planning stages of an exchange or lands bill where almost
any idea can be brought to the table (p. 617). These methods, in a form of
“public lands peace process,” can avoid animosity and differences of opinion
associated with public lands issues by preserving
“the nobility of the preservation project” while offering
a collaborative, inclusive process for public land
management (McCool, 2001, p. 614; Rasband, 1999,
p. 557). Exchanges could be used more effectively
as part of a pre-conservation designation process,
rather than post-designation hostility mitigation
techniques (such as the case of the Utah Schools and
Land Exchange Act of 1998 after the designation of Grand Staircase-Escalante
National Monument), encouraging effective management in the future and
ensuring, by local support, the longevity of any agreements put into place.
The significance of the trust built through exchanges and lands bills, cannot
be overstated.
When a land use and management plan extending long into the future
is generated from an exchange or a lands bill, all parties benefit from the
resulting predictability and stability. The environmentalist can be assured
that a new wilderness area created out of a county lands bill or land exchange
will protect that area in perpetuity; the developer can be assured that there
is space for growth in the future. SITLA can continue to make its land
profitable for Utah’s schoolchildren; the BLM can continue to maintain the
diverse recreational opportunities available for the public. Moreover, these
sorts of efforts often originate in the communities they affect, usually at the
county or state level, such as the trade out of SITLA inholdings in the Utah
Schools and Land Exchange Act of 1998, the Washington County lands bill,
and the Utah Recreational Lands Exchange Act (Blaeloch, 2009 pp. 27-28,
75-76). The local roots, solidity, and permanence of land exchange or lands
bill approach are some of their greatest positive attributes.
Land exchanges and lands bills should continue to be important in land
management and planning in Utah, perhaps taking on an even more
prominent role. As previously mentioned, only one county in the state has
completed a lands bill, though other counties are currently developing and
considering similar bills. Although this analysis has focused on Utah,
another intriguing possibility involves expanding this sort of thinking to
the rest of what former Utah Governor George H. Dern (1926) called the
public land states of Arizona, California, Idaho, Nevada, Montana, New
Mexico, Oregon, Washington, Wyoming, North Dakota, and South Dakota,
most of which have similar land ownership and management situations to
Utah. Further study in this area is needed and would surely prove enlightening,
especially into quantifying the economic value of ecosystem services
provided by protected public lands and how this may be factored into
appraisals for land exchanges.
The examination of land exchanges and lands bills provided here has
only scratched the surface of the exceedingly complex field of land management
in the American West. However, it seems that if exchanges and lands
bills are effectively executed, sensitive to all parties, and based on principles
17

Land Exchanges and Public Lands Bills in Utah
Matthew Kirkegaard
of open collaboration with those involved, their benefits generally outweigh
their disadvantages. Today, many thousands of acres of trust lands remain
in areas with little resource exploitation potential, but immense ecological
and recreational value. Both of these facts seem to call for land exchanges
or individual county lands bills. These land management methods have
the potential to become “public lands peace processes,” provide for extractive
development, generate economic activity from protected lands, preserve
the “nobility” of large-scale land conservation, and increase funding for
public schools (McCool, 2001, p. 614) (Rasband, 1999, p. 557). Carefully
constructed public compromises enable exchanges and lands bills to serve
their intended purposes while ensuring all parties are beneficiaries of the
results of the process. Arguments against exchanges or lands bills are
minimal if both conservationists and those in favor of natural resource
development can concede that some compromise is in fact necessary.
In short, these measures produce acceptable, though not optimal, results
for all stakeholders, conserving land and ecosystems that otherwise would
be without protection while ensuring stability and opportunity for development
interests in endeavors that, through trust lands, will simultaneously
help to fund Utah’s schools. The lasting benefits of education funding,
economic growth, conservation, expanded recreational opportunities,
contiguous land management, and long term stability produced by
exchanges and lands bills are simply too substantial to ignore.
References
Allen, C. (2008). The public land debate. Research Matters, Utah State University.
Retrieved from http://research.usu.edu/researchmatters2008/htm/
Blaeloch, J. (2009). Carving up the commons. Seattle, Washington: Western Lands
Project. Retrieved from http://www.westernlands.org/download/Carving_
up_the_Commons.pdf
Bryner, G. (2001). Effects on the Communities and the Land: What does the
Grand Staircase-Escalante mean for land protection in the West Resource
development and ecological protection. Journal of Land, Resources, &
Environmental Law, 21(567).
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the-public-land-debate-
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Retrieved from http://digitalcommons.unl.edu/usblmpub/34/
Gaul, P. (2002, October 9). Beauty for oil: Utah land swap clears House. Environmental
News Service. Retrieved from http://www.ens-newswire.com/ens/
oct2002/2002-10-09-04.html
Government Printing Office. (1998). Utah Schools and Lands Exchange Act of
1998: Report (to H.R. 3830). Retrieved from http://books.google.com/books/
about/Utah_Schools_and_Lands_Exchange_Act_of_1.htmlid=gzS5KHffW_
EC
Grand Canyon Trust, (2012). The Utah Recreational Exchange Act. Retrieved
from http://www.grandcanyontrust.org/utah/trust-lands_actions.php
Larmer, P. (2004). Give and take: How the Clinton administration’s public lands
offensive transformed the American west. Paonia, Colorado: High Country
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Loomis, B. (2011, June 16). Utah lawmakers balk at county wilderness plans. The
Salt Lake Tribune. Retrieved from http://www.sltrib.com/sltrib/politics/52014509-90/wilderness-county-committee-areas.html.csp
McCool, D. (2001). Moving forward: Grand Staircase-Escalante National
Monument. Journal of Land, Resources, & Environmental Law, 21(613).
McUsic, M. House Committee on Resources, Subcommittee on National Parks
and Public Lands. (2000). Statement of Molly McUsic on H.R. 4579 - The
Utah West Desert Land Exchange. Retrieved from http://blm.gov/pgdata/etc/
medialib/blm/wo/Communications_Directorate/2000_congressional.
Par.7091.File.dat/061300
Canham, M. (2009, March 30). Washington County lands bill may be the
wilderness model. The Salt Lake Tribune. Retrieved from http://www.sltrib.
com/ci_12032209
Outdoor Industry Foundation, (2006). The active outdoor recreation economy: A
$730 billion contribution to the U.S. economy. Retrieved from http://www.
outdoorindustry.org/pdf/UtahRecEconomy.pdf
Clinton, W. The American Presidency Project. (1998). Statement on signing the
Utah Schools and Land Exchange Act of 1998. Retrieved from http://www.
presidency.ucsb.edu/ws/index.phopid=55201
Cooper, J. (2000, May 21). Fairness, professionalism marked Utah-U.S. land
exchange. Deseret News. Retrieved from http://www.deseretnews.com/
article/761165/Fairness-professionalism-marked-Utah-US-land-exchange.
htmlpg=1
Prosperity 2020. (2012). Retrieved from http://www.prosperity2020.com/research/
Rasband, J. (1999). Utah’s Grand Staircase: The right path to wilderness
preservation University of Colorado Law Review, 70(483).
Schuster, B. (Director) (2012). Emery County Land Bill [Web series episode].
Dowsett, D. (Executive Producer), The County Seat. Salt Lake City: ABC.
Retrieved from http://www.youtube.com/watchv=rVxAeUADtbQ
Dern, G. H. (1926). School land titles in public land states: Address of Governor
George H. Dern of Utah, before the Governors’ Conference at Cheyenne,
Wyoming.
Sierra Club. (2001). Sierra Club Conservation Policies: Public land exchange policy.
Retrieved from http://www.sierraclub.org/policy/conservation/landexchange.
aspx
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Sierra Club. (2012). Sierra Club Fact Sheet. Retrieved from http://charlottesierraclub.files.wordpress.com/2012/04/2012-sierra-club-fact-sheet.pdf
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about/who_gets_the_money.html
SITLA, (2009). What are Trust Lands Retrieved from http://trustlands.utah.gov/
about/about_utah_trustlands.html
Steuter, D. Grand Canyon Chapter. (2002). Land exchanges: Trading conservation.
“Canyon Echo,” 38(6), Retrieved from http://arizona.sierraclub.org/echo/2002/
NovDec02Echo.pdf
U.S. Congress. (2009). Utah Recreational Land Exchange Act of 2009. Retrieved
from http://npl.ly.gov.tw/pdf/7036.pdf
U.S. Congress, Senate. (2002). S. 2745 Federal-Utah State Trust Lands Consolidation
Act. Retrieved from http://thomas.loc.gov/cgi-bin/query/zc107:S.2745.
IS:-
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Act of 2008. Retrieved from http://www.gpo.gov/fdsys/pkg/BILLS-
110s2834is/pdf/BILLS-110s2834is.pdf
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Utah State Legislature. (2012). Trust Lands Management Act (53C-1-102).
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veravanich.pdf
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agiweb.org/legis105/conoco.html
19

Electoral Reform in Utah and the United States:
Steps to Representative, Accountable, and Competitive State and Federal Government
By Oakley B. Gordon
In a state and nation in which faith in government is eroding, and politics are dominated by either partisan supermajorities
(in Utah) or ideological stalemate (in Congress), there is an increasingly clear need to reform the system at its
roots. The adoption of a more competitive, accountable, and representative electoral system would help address the
problems which are endemic to our current legislative process. Specifically, three-member districts, in which representatives
are elected through a modified form of single transferable voting, would best fit the needs of our state and nation.
The new voting method would cause both legislatures to more closely represent the electorate, while the relatively small
number of seats per district would maintain high levels of accountability and local representation.
With a Congress plagued by partisan deadlock and a state legislature
dominated by a single party, voters in Utah and America
suffer from dysfunctional electoral systems. At the center of
these systems, enjoying “safe” districts in which reelection is all but guaranteed,
are the legislators and their leaders, who have few systemic incentives
to compromise and serve the electorate at large. Through gerrymandering,
incumbents are able to exploit the structural weakness of the system to both
secure their own reelection and ideologically distance the legislative bodies
farther away from the views of the voters. The result is a system which is
hardly representative, accountable, or contestable.
The shortfalls of our electoral system can be seen in the 2012 election
of our state and national legislatures. In Utah, Republicans
received 64% of the total vote in contested
races of the Utah State House of Representatives.
With this share of the vote, however, Republicans
won 77% of the contested House seats (State of Utah,
2012). On the Congressional level, Democratic
candidates for the U.S. House of Representatives
received, in total, 550,000 more votes than Republican
candidates, yet the GOP was able to retain its majority in the House
(Thinkprogress.org, 2012). This is not, by any means, a condemnation of
the Republican Party; Democrats can and have enjoyed unfair results in
their own favor. Instead, these results show a fundamental problem with
state and national legislative elections, which can only be addressed by
changing the very electoral system in which our representatives are selected.
While electoral systems are rarely changed, they are usually only established
in statutory ink, rather than constitutional stone. Consequently,
many different electoral systems have been used throughout America’s
history. This article makes a case for changing the electoral system once
more. Specifically, it argues for reforming the elections of the Utah State
“While electoral systems are rarely
changed, they are usually only
established in statutory ink, rather
than constitutional stone.”
House of Representatives and the United States House of Representatives.
Both institutions are elected through the same plurality-based singlemember
district system, creating unrepresentative results on both levels
and a common need for similar reform.
The U.S. Senate, being elected in a constitutionally different manner and
addressing separate representative prerogatives, is not discussed in this
article. While the U.S. Senate has evolved from an indirectly elected to a
directly elected body, the prerogative of senators remains to represent their
states at large, rather than according to ideological or geographical divisions
therein. With each state electing their two senators on different years, no
fair alternative to at-large representation of each state in the U.S. Senate
exists. Furthermore, the very nature of Senate rules
suggest that both the Founding Fathers and their
successors meant for the Senate to be a place for
majority consensus building, rather than lively
debate between minority interests (Federalist Papers
62, 1788). This is seen in the constitutional requirement
of a two-thirds vote in the Senate for many
actions, as well as the development of the filibuster
and the three-fifths vote required to invoke cloture. Thus, both before and
since the Seventeenth Amendment, the role of the Senate has always been
more to pacify, rather than represent, the multitude of passions in the
electorate. The Utah State Senate, as somewhat analogous to its federal
counterpart, is a body of deliberation, meant to cool the fervor of the
electorate. The Senate is an “additional impediment…against improper
acts of legislation” (Federalist Papers 62, 1788). Therefore, proportionality,
the main criterion by which this article judges electoral systems, is of less
concern for both the state and federal senates. This article will, therefore,
focus solely on the United States and Utah Houses of Representatives, the
democratic cornerstones of our national and state governments, tasked by
21

Electoral Reform in Utah and the United States
Oakley B. Gordon
history and their very names to represent the members, opinions, and
convictions of the electorate.
The premise of this article is that the electoral system used to select
our representatives should produce results which more closely reflect
the electorate, enable voters to hold their government accountable, and
produce incentives for all parties to win as many votes as possible. The goal
is to determine what changes to our electoral system will best satisfy these
goals. This article will first define three different voting methods for reference.
Then, representation, accountability, and contestability will be defined
and quantified. Finally, a comprehensive set of changes will be proposed,
including an alteration to the conventional form of the suggested voting
method.
VOTING METHODS
The three types of voting methods considered by this article are pluralitybased
single-member district systems (SMD), party-list systems, and single
transferable voting systems (STV). A voting system is the method through
which voters express their preferences and by which those preferences are
translated into results. Voting systems, as used by this article, should not
be confused with the machines and logistics with which ballots are cast and
counted physically nor with campaign regulations and traditions which
together make up an electoral institution as a whole.
Single Transferable Voting
The final voting method considered by this paper is single transferable
voting. In brief, it is a mirror of the party-list system. Unlike the party-list
system, however, single transferable voting is candidate-centric rather than
party-centric. This allows voters to express favor for candidates from different
parties and independent candidates based upon the merits of the
individual rather than the party. In the party-list system, a party is awarded
more seats as their share of the vote increases. An individual, however, can
only receive zero or one seat, which raises the question of how to avoid
extra votes being wasted on a candidate who already has enough votes to
be elected. Single transferable voting provides a clever solution by using
ranked ballots and transferable votes.
Figure 1. Single Transferable Voting
Single-Member Plurality-Based Elections
In an SMD election, each voter is represented by one, and only one, representative.
Each voter casts one vote for only one candidate. The candidate
receiving the most votes is elected. This is the system which is used in the
Utah State Legislature, as well as in Congress. Closely related systems, in
which voters may cast multiple votes or in which a majority is required to
elect the winner, are more rare but can be considered part of this category
as long as only one representative is elected per district. The election of
most executives, such as governors and mayors, can also be classified as
SMD elections.
Party-List Systems
In a party-list system, each voter casts one vote for one party, rather than a
candidate. The seats are then awarded to the parties in proportion to the
share of the vote which they received. The method by which the results are
rounded, in order to give each party a whole number of seats, is important
and merits brief discussion, because different methods of rounding, each
seemingly fair, can yield different results. The two most intuitive types of
rounding are largest-remainder methods and quotient methods, the formulas
of which are given below. 1
1
Rounding in Party-List Systems: Largest-Remainder and Quotient Methods
Variables
V: Total votes cast
vi: Votes received by a party
N: Total number of seats being elected
ni: Seats awarded to a party
D: Controllable variable
Largest-Remainder Method of Rounding in Party-List Systems
ni = vi x N/V, rounded down; the parties with the largest remainders
(vi x N/V - ni) are each awarded one of the surplus seats
Quotient Method of Rounding in Party-List Systems
ni = (vi x N) / (V + D), rounded; “D” is adjusted such that Σ ni = N
Figure 2. Ballots cast in Examples 1, 2, and 4
In Examples 1, 2, and 4, 24 hypothetical voters cast ranked ballots indicating
their preference of Candidates A, B, C, D, E, and F, from most-preferred to
least preferred. For the sake of explanatory simplicity, this set of ballots has
a high level of overlap between the voters’ preferences, resulting in only nine
permutations of candidates. This table shows the number of voters who
ranked the candidates in the same order.
Voters (24 Total) Ranking of Candidates A, B, C, D, E, and F on ballot
(most-preferred, next-preferred, … least-preferred)
1--------------------------------------------------- F, D, B, E, C, A
2--------------------------------------------------- E, A, B, C, D, F
5--------------------------------------------------- D, E, B, F, C, A
1--------------------------------------------------- C, D, B, F, A, E
1--------------------------------------------------- C, B, F, D, E, A
1--------------------------------------------------- C, A, B, F, D, E
4--------------------------------------------------- A, B, F, D, E, C
5--------------------------------------------------- B, F, D, E, C, A
4--------------------------------------------------- A, E, B, C, D, F
Under the quotient method, results can either be rounded up, down, or to the
nearest whole number. Rounding down is generally preferred because it favors
larger parties, thereby creating an incentive for smaller parties to unite. In practice,
the D’Hondt method of rounding, which produces the same results as the
described quotient system, is used instead (Balinski and Young, 2001).
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The Hinckley Journal of Politics 2013
Example 1. Electing One Candidate with Single Transferable Voting
Premise: 24 voters elect one candidate from a selection of six candidates
(Candidates A, B, C, D, E, and F). Their ranked ballots are shown in Figure
2. The quota of votes required to be elected is set at 13 (a simple majority).
Step One: All votes are distributed to their most-preferred candidates. No
candidate has reached the quota of 13 votes, so no candidate is elected.
Step Two: Candidate F, who has the least amount of votes, is eliminated.
His vote is transferred to his supporter’s next-preferred candidate, Candidate
D. No candidate has reached the quota of 13 votes, so no candidate is elected.
Step Three: Candidate E, who has the least amount of votes, is eliminated.
His votes are transferred to his two supporters’ next-preferred candidate,
Candidate A. No candidate has reached the quota of 13 votes, so no candidate
is elected.
Step Four: Candidate C, who has the least amount of votes, is eliminated.
Each supporter of Candidate C has their vote transferred to their nextpreferred
candidate. Thus, Candidates A, B, and D each receive a transferred
vote. No candidate has reached the quota of 13 votes, so no candidate is
elected.
Step Five: Candidate B, who has the least amount of votes, is eliminated.
All votes counting toward B have Candidate D listed as their next-preferred
candidate. Therefore, Candidate D receives six transfer votes, for a total of
15 votes. Candidate D has crossed the quota and is elected.
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Electoral Reform in Utah and the United States
Oakley B. Gordon
Example 2. Electing Four Candidates with Single Transferable Voting
Same Title
Premise: 24 voters elect four candidates from a selection of six candidates
(Candidate A, B, C, D, E, and F). Their ranked ballots are shown in figure
2. The quota of votes required to be elected is set at five, the smallest whole
number of votes that can be obtained by no more than four candidates.
Step One: All votes are distributed to their most-preferred candidates.
Candidates A, B, and D all receive at least five votes in this manner, and are
elected thusly.
Step Two: Candidate A is the furthest above quota, so his surplus of three
votes is transferred to his supporter’s next-preferred candidates. Half of his
supporters list Candidate B as their next-preferred candidate, while the other
half list Candidate E as their next-preferred candidate, so each receives half
of the transferred surplus. No additional candidate reaches the quota from
the transfer, so no fourth candidate is yet elected.
Step Three: Candidate B is now the furthest above quota, so his surplus of
three votes is transferred to his supporter’s next-preferred candidates. All
votes counting toward Candidate B list Candidate F as their next-preferred
candidate, so Candidate F receives the entirety of Candidate B’s surplus. No
additional candidate reaches the quota from the transfer, so no fourth
candidate is yet elected.
Step Four: No candidate is now above the quota, so the candidate with the
fewest votes, Candidate F, is eliminated. All votes counting toward Candidate
F list Candidate D as their next-preferred candidate, so Candidate D receives
the entirety of Candidate F’s votes. No additional candidate reaches the
quota from the transfer, so no fourth candidate is yet elected.
Step Five: Candidate D is now the furthest above quota, so his surplus of
three votes is transferred to his supporter’s next-preferred candidates. Of
the nine votes counting toward Candidate D, eight list Candidate E and one
lists Candidate B as their next-preferred, so Candidate E receives 89% of
Candidate D’s surplus, while Candidate B receives 11%. This transfer brings
Candidate E to the quota, electing him as the fourth and final winner.
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The Hinckley Journal of Politics 2013
In this system, voters rank the candidates from most-preferred to leastpreferred.
From the number of votes cast and the number of seats to be
elected, a required quota of votes needed for victory is determined. Each
voter’s ballot is cast for his or her most-preferred candidate. If any candidate
reaches the quota, then the candidate is elected. A victorious candidate’s
surplus of votes is then transferred to their voters’ next-preferred candidates.
For instance, if a candidate has twice as many votes as needed to win a seat,
then half of each of the ballots counted toward the candidate are transferred. 2
If there are no surpluses to transfer, then the candidate with the least amount
of votes is eliminated and their ballots transferred entirely to their voters’
next-preferred candidates. Surpluses are transferred and candidates are
eliminated until the set number of winners has been reached.
The quota ensures that each candidate who is elected represents a given
and unique share of the electorate (e.g., a quota of 34% of the votes cast
would ensure that each elected candidate represents one third of the electorate).
The quota is directly related to the number of seats being elected. For
instance, a quota of 34% of the votes cast would elect only two winners
because votes could be transferred until two candidates are elected, but no
more than two candidates can represent separate and unique shares of 34%
of the vote. Reversely, a given number of seats can be produced by an
interval of possible quotas. To elect one candidate, the quota can be set at
any value greater than half of the votes cast (i.e., a majority). To elect two
candidates, the quota can be set at any value greater than one third of the
votes cast and less than or equal to one half of the votes cast.
In summary, single transferable voting does two things. First, it ensures
that each elected candidate represents a unique and equal share of the
electorate. Thus, the elected candidates together represent the electorate
at large in an accurate manner. Second, it minimizes wasted votes. This is
to say that, by ranking more than one candidate on their ballot, voters need
not worry about casting, and thereby wasting, their ballot either for candidates
who already have enough support from other voters or for candidates
who are not popular enough to be elected. If a voter’s most-preferred
candidate does not need or cannot be helped by their support, then their
vote will be transferred down the list until it reaches a candidate whom it
can help.
Excluded Systems
Not discussed in this article are highly disproportional systems, such as
those in which multiple representatives are elected by majority, rather than
proportional, vote. Complex hybrid systems, such as mixed-member parallel
and mixed-member compensatory systems, are also not discussed because
the complex nature of these hybrid systems makes them difficult to analyze
and compare. The complexity of hybrid systems is not necessarily
disqualifying, for the adoption of single transferable voting in local and
national elections around the world demonstrates that voters can function
under more complex systems. Indeed, it is the simplicity of many systems
that yields unfair electoral results. Simple plurality elections, especially of
multiple representatives in the same district, are perhaps the least complex
voting systems, yet also the most unfair. But while simplicity is not sought
by this paper, parsimony is. This paper sees hybrid systems, whether the
at-large/district-tiered system of the Salt Lake County Council or the
2
As transfers are made from one victorious candidate to another, it is possible for
the sum of all surpluses to approach, but fail to ever reach, zero. This produces an
infinite loop, in which smaller and smaller transfers are made between victorious
candidates. This can be avoided by only transferring surpluses greater than or
equal to one. For example, if the quota to be elected is 34 votes, then no candidate
would have their surplus transferred unless they had 35 or more votes.
party-list/district system of the German Bundestag, as the results of
abandoning the search of a better voting system by instead fusing two
imperfect ones together. In addition to being conceptual failures, these
hybrid systems can fail to correct their component system’s weaknesses. In
the case of Salt Lake County, electoral districts are inflated by the at large
seats, and in the case of national mixed-member legislatures, compensatory
party seats fail to offset the disproportionality of district elections (Carey
& Hix, 2011). Therefore, this paper will only consider systems if the same
method of election is used to elect all members of the representative body.
In the following sections, the criteria by which we can judge prospective
electoral systems will be discussed. Having considered the advantages and
disadvantages of different options, a detailed prescription for a new electoral
system for Utah and the United States will be made.
CRITERIA AND DETERMINANTS OF A DESIRABLE
ELECTORAL SYSTEM
This article argues that three criteria should be considered when creating
and adopting a new electoral system: first, and most importantly, proportionality;
second, accountability; and third, contestability. This means that
the seats awarded should represent the votes cast, that majority coalitions
should be voted into and out of power easily, and that parties should have
an incentive to strive for as many votes as possible. Together, these criteria
can be used to judge the merit of an electoral system. This article places
the strongest importance upon proportionality due to the especial lack and
need thereof in Utah and American politics. This section will define, justify,
and quantify the three criteria. The remainder of the section will discuss
the causes of proportionality. The next section will then examine how
legislative elections of the Utah and U.S. House of Representatives can be
altered to increase the proportionality of their results, while maintaining
or raising their levels of accountability and contestability.
Definitions and Justifications
Our primary criterion, proportionality, is a measurement of how closely the
seats allocated by an election match the votes cast. In other words, proportionality
is how similar the views in government are to the views of the
people. Proportionality is a direct correlate of democracy; measured
continuously, a fully proportional representative body is fully democratic.
Categorically, as put by John Stuart Mill (1861), the difference between
“representation of all and representation of the majority only” is the difference
between “true and false democracy”:
In a representative body actually deliberating, the minority must of
course be overruled; and in an equal democracy (since the opinions
of the constituents, when they insist on them, determine those of
the representative body) the majority of the people, through their
representatives, will outvote and prevail over the minority and their
representatives. But does it follow that the minority should have no
representatives at all Because the majority ought to prevail over the
minority, must the majority have all the votes, the minority none Is it
necessary that the minority should not even be heard Nothing but
habit and old association can reconcile any reasonable being to the
needless injustice. In a truly equal democracy, every or any section
would be represented, not disproportionately, but proportionately. A
majority of the electors would always have a majority of the representatives;
but a minority of the electors would always have a minority of the
representatives. Man for man they would be as fully represented as the
majority. Unless they are, there is not equal government, but a government
of inequality and privilege: one part of the people rule over the
25

Electoral Reform in Utah and the United States
Oakley B. Gordon
rest: there is a part whose fair and equal share of influence in the representation
is withheld from them; contrary to all just government, but,
above all, contrary to the principle of democracy, which professes
equality as its very root and foundation. (Mill, Chapter 7)
Our secondary criteria are accountability and contestability. Accountability
means the ability of voters to understand how their vote will ultimately
impact the resulting government. A system with high accountability is one
in which factions have coalesced into several political parties, each of which
appeals to a wide range of voters. With few parties, voters better understand
how their ballot will affect the resulting governing coalition in the legislature.
An unaccountable system is fractious, with many parties appealing to narrow
selections of voters. With a fractured party system, voters have difficulty
predicting how their ballots will affect the legislative coalition and, therefore,
are less able to hold their government accountable (Strom, 1990). For
example, in a system with five parties, requiring coalitions to achieve
majorities in government, it would be difficult for a voter to vote for or
against the governing coalition because it would be hard to know how each
party would align itself in the new government.
Finally, contestability is our final criterion. In a broader sense, it refers
to the very foundation of democracy as a system of electorally contested
power. In our narrower sense here, it means the incentive each party, whether
majority or minority, has to increase its share of the total vote. If an increase
in the number of votes received will clearly result in an increase in the
number of seats won, then the system has high contestability. A good
democratic system is one which encourages and rewards those who seek
and receive a greater share of the vote. For instance, a gerrymandered “safe”
district is less contestable, because neither side has an incentive to engage
more voters; the majority party is already expecting victory and the minority
party knows that swaying even a significant share of the electorate is
unlikely to yield a victory on Election Day. Democracy is based upon
competition and participation, but neither can exist without a contested
campaign over an uncertain outcome.
Quantification
Quantifying proportionality, accountability, and contestability can, for the
purposes of this article, be problematic. Starting with proportionality, we
have two choices. First, we can use the common Gallagher Index (Gallagher,
1991), 3 which uses a least-squares method to determine how closely the
share of votes received by the parties matches the share of seats won by the
parties. Alternatively, we could create a formula predicting whether or not
the electoral system will select the Condorcet set, adjusted by the number
of seats elected. 4 In a single-winner election, the Condorcet candidate is the
candidate who would defeat any other candidate in a one-on-one election.
A single-winner election can be “spoiled” if a third candidate receives votes
from those who support the Condorcet candidate (e.g., a conservative
district may elect a liberal if two conservatives are on the ballot). Regardless
of how many votes or first-place ranked ballots a winner receives, the best
winner is always the Condorcet candidate, who would have defeated the
winner if no other candidates had been on the ballot. Protecting against
the spoiler effect is a key aspect of proportionality.
3
Gallagher’s Index of disproportionality is the square root of .5 x Σ(vi/V – ni/N)2
4
A Condorcet-based metric of proportionality could be created with the following
formula: (the probability of electing the Condorcet set) x N/(N + 1). This would
provide a score between zero (completely disproportional) and one (completely
proportional). It would also account for the diminishing returns to proportionality,
discussed in the next section, as the number of seats is increased.
The Condorcet candidates in a multiple-winner election are those
candidates, who, as a set equal in size to the number of seats elected, better
represent the electorate at large than any other set of winners. The Gallagher
Index works well in systems which are party-centric, but it fails to adequately
account for independent candidates and preferences of voters for specific
candidates within parties (Tideman & Richardson, 2006). A Condorcetbased
metric works well for candidate-centric systems, but cannot be used
to quantify system-wide proportionality when districts are used.
To measure accountability, one would use an inverse measurement of
political fragmentation, the number of political parties per seat (Laasko &
Taagepera, 1979). As discussed above, a fractured party system makes it
difficult for voters to vote against or in favor of majority coalitions. In a
two-party system, a vote for the party in power will help keep that party in
power, while a vote for the opposition will help shift power to a new party.
In coalitions, resulting from multiple parties, it is hard to give blame or
credit to a party within the coalition, or to predict what role a party will
play in forming the next coalition or opposition. Therefore, as the number
of parties increases, the accountability of the system decreases.
Contestability, however, would need to be determined logically, rather
than mathematically. If a stable equilibrium of seat distribution between
parties occurs in which no party can reasonably expect to gain more seats
by expanding its vote share, then there is low contestability. If both majority
and minority parties, however, have a reasonable expectation to increase
their own number of seats by contesting a seat held by another party, then
there is high contestability.
Unfortunately, for our purposes, all three criteria must be considered
on a conceptual level, rather than a quantifiable one. Proportionality cannot
be compared absolutely between systems in which voters face entirely
different types of decisions, such as whether they must choose between
parties or candidates. Similar barriers face attempts to make quantifiable
comparisons of the accountability and contestability of different systems.
Therefore, we are limited to logical, rather than strictly mathematical,
examinations of what increases or decreases proportionality, accountability,
and contestability.
Determinants of Proportionality
The remainder of this section will examine the factors which determine
proportionality so that the next section may prescribe a more proportional
system. Our dependent variable, the expected proportionality of an electoral
system, is an effect of several predictors. Variables outside of the system
itself, such as voter rationality, type of voting machine, and even campaign
regulations, are assumed to be constant for the purposes of this paper. This
leaves us with four systemic independent variables when examining individual
elections: the number of candidates and parties, the number of voters,
the voting method, and the number of seats being elected.
The number of candidates and parties can be eliminated from our
variables because we can assume that rational actors will follow systemic
incentives to seek or not seek office or to join a coalition or party prior to
the election, as predicted by Duverger’s Law (Duverger, 1963; Riker, 1977).
Thus, the number of candidates and parties will not have independent
variance, but can instead be predicted to be the same when all other independent
variables are the same. Finally, we can assume that the number of
voters in an election will always be sufficiently large enough for any variance
in voter quantity to have a negligible effect upon proportionality. The
addition of each voter comes with diminishing losses to proportionality
because the increase in voters leads to an increased overlap of ideology and
opinion between voters, thereby allowing one representative to speak for a
larger share of the electorate. Consequently, a body of 100 legislators could

The Hinckley Journal of Politics 2013
be expected to proportionally represent the full political spectrum within
an electorate of 10,000 voters almost as well as it could represent the full
political spectrum of an electorate of 1 million voters. With the number of
candidates, parties, and voters eliminated from our model, we are left with
only the voting method and the number of elected seats as our independent
variables for predicting proportionality of electoral systems.
Aggregation of Proportionality
Before determining which number of seats and voting method will optimize
proportionality for both Utah and the United States, we must first appreciate
one more level of complication concerning electoral systems and the
proportionality of their results. The electoral systems of the Utah and the
United States Houses of Representatives are not conducted as at-large elections.
Instead, each is an aggregation of many district elections (75 in the
House election in Utah and 435 in Congress). The proportionality of a
legislative electoral system is a comparison of the aggregate votes cast and
the aggregate results determined. To examine the proportionality of the
United States House of Representatives, for instance, one would compare
the number of votes cast for each party nationwide to the number of congressional
seats won by each party. This reveals that the 2012 elections of
both the Utah State House of Representatives and the United States House
of Representatives favored Republicans over Democrats, relative to the
number of votes received by each party. Aggregate proportionality will not
always be the same as the proportionality of its districts, unless there is only
one at-large district.
In some cases, disproportionality at the district level sums to a greater
level of disproportionality at the aggregate level. In an extreme hypothetical
example of an election of 100 legislators in single-member districts, one
party receives a bare majority of the vote in 51 districts and no votes in the
remaining 49 districts, while the second party receives all other votes cast.
All 100 districts have high proportionality, with 75% of the voters having
cast their ballot for the legislator who represents them. Yet, at the aggregate
level, 51% of the legislators were elected by only 25% of the electorate.
Aggregation allows us to create a definition of gerrymandering and
understand how and why it is a problem for Utah and Congress. We can
define gerrymandering as the act of intentionally drawing district boundaries
to increase the odds of disproportionality being greater on the aggregate
level than on the district level. Therefore, if proportionality is seen as a
virtue of representative government, then gerrymandering is a malicious
attempt to undermine it.
The aggregate proportionality of an electoral system will not always be
less than its districts’ average proportionality. To allow for such a possibility,
one must consider that if voters did not support a winner in their own
district, they supported and feel represented by a winner from another
district. Under this surrogate interpretation of representation, voters for
losing candidates in different districts can be considered as exchangeable
for the purposes of calculating aggregate representation. The resulting
aggregation will show a more proportional result for the entire legislature
than if candidates of the same party were not treated as interchangeable.
The surrogate model can even yield aggregate results which are more proportional
than any of the district results. For example, if two parties compete
for 100 seats under an SMD system, with “Party A” winning an exceptionally
bare majority in 50 districts and “Party B” winning an exceptionally
bare majority in the remaining 50, then the district proportionality will be
low, with only 50% of all voters supporting the candidate who represents
them. On the aggregate level, however, the proportionality is high, with
the ratio of seats between parties being perfectly proportional to the support
of each party in the electorate.
While results can be as proportional or more proportional on the
aggregate level as compared to the district level, the electoral system itself
can only be considered proportional if it is expected to return proportional
results for a wide range of voter preferences and wide range of geographical
distributions of voter preferences. In the last example above, two parties,
each with half of the total vote share, receive half of the seats. Yet in this
seemingly proportional electoral system, the aggregate proportionality
decreases with small changes to the votes cast. Furthermore, changes in
the electorate have different effects upon the seats awarded depending upon
which district has the shift of voters. For instance, a shift of a small number
of voters from Party A to Party B could: have no impact on the legislature,
if the voter shift occurs solely in districts in which Party B already had a
majority; or have a moderate impact on the legislature, if the voter shift
occurs in a district which would have otherwise elected a candidate from
Party A; or deliver the entire legislature to Party B, if the voter shift occurs
in every district which would have elected Party A. Thus, a districted
electoral system may be able to produce proportional results on the aggregate
level in certain circumstances, but that does not mean that the system
can create proportional results for different sets of voter preferences or for
different distributions of voters across its electoral districts.
With district magnitude (seats per district) and voting method already
established as the determinants of district proportionality, we add the
number of districts as our third and final determinant of the proportionality
of the electoral system as a whole. These three factors can be changed
to the benefit or detriment of a democracy. The following section will
discuss how each should be changed to improve our political culture on
the state and national level, while considering the potential impact of such
changes on accountability and contestability.
SUGGESTED CHANGES TO LEGISLATIVE ELECTORAL
SYSTEMS
In the previous section, this article established three criteria (proportionality,
accountability, and contestability) upon which an electoral system should
be judged and three shared determinants of the same criteria (voting method,
district magnitude, and number of districts). This section will propose
specific qualities and quantities of each determining variable to create a
better electoral system for both the Utah and the U.S. Houses of Representatives.
First, the ideal district magnitude (seats per district) shall be
determined by examining proportionality, accountability, and contestability
under varying magnitudes with given voting methods. With the
total number of seats in both legislative bodies as a given, the district
magnitude will determine the number of districts for both houses. With
the ideal district magnitude and the number of districts determined, a
voting method will be chosen from the three candidates: single-member
district (SMD), party-list voting, and single transferable voting (STV).
Finally, having concluded that STV elections in low-magnitude districts
are best for the needs of the state and nation, a unique alteration to regular
STV voting will be proposed. The alteration is tailored to address losses of
functionality when the number of candidates greatly exceeds the number
of seats in STV systems.
District Magnitude
When determining the proposed district magnitude, four ranges should be
considered: single-member districts, two-member districts, low-magnitude
(three to five) districts, and high-magnitude (eight or more) districts. Because
we can expect the proportionality, accountability, and contestability of
districts in the same range to be equal, and all other variables held constant,
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the high-magnitude districts considered by this article will be statewide
at-large elections of either the state legislature or the congressional delegation.
Proportionality increases with district magnitude, as each new representative
brings voice to a fraction of the district that had not been
represented. Accountability, however, decreases as district magnitude
increases, due to a proliferation of smaller parties as narrower fractions of
the electorate gain control of seats. Contestability has a much less simple
relationship with district magnitude.
First considering single-member districts, we must realize that the three
of our voting methods are all the same when electing one person. In a
traditional SMD election, such as the ones used to elect our members of
Congress and state representatives, whichever candidate receives the most
votes wins the seat. In a party-list system in which only one person is elected,
the process of calculation is more difficult, but the result is the same. In
such a situation, the one-to-one relationship between party and candidate
means we can treat the two as one and the same. In the party-list candidate
of one seat, each voter would cast a vote for one candidate, as they would
in an SMD election. Rather than give the seat to the candidate with most
votes outright, either a largest-remainder method or a quota method would
be used to determine which candidate receives the seat. Under the former
method, no candidate would receive the seat under the initial allocation of
seats (100% of the vote would be required), but the candidate with the most
votes (the largest remainder) would receive the seat in the second allocation.
Under the quota method, the quota would be adjusted until the candidate
with the most votes, and only the candidate with the most votes, received
the seat. Single transferable voting also mimics SMD when one seat is at
stake, but it acts as an instant runoff, rather than a simple plurality election,
as candidates are eliminated and votes are transferred until one candidate
has a majority of the vote. Therefore, SMD is not so much its own system,
but rather an intersection of other voting systems when district magnitude
is one.
Single-member districts have the highest accountability. The political
system becomes dichotomous as parties join together to defeat their rivals
in each district (Duverger, 1963; Riker, 1977), until only two or three parties
remain. Therefore, it is easy for a voter to understand how their vote helps
or hurts the incumbent representative and overall legislative majority, which
keeps the government tightly accountable to its people. The proportionality
of single-member districts, however, is exceptionally low. Using either
the Gallagher Index to measure the party-based aggregate proportionality
or the candidate-based Condorcet metric introduced earlier in this article,
proportionality is low when district magnitude is one. The 2012 election
of the Utah House of Representatives, for example, scores 13 on the Gallagher
Index, a high value which means that Republicans received about
13% more of the total seats than they proportionally earned (State of Utah,
2012). Such disproportional results are expected in single-member district
systems, and are only exacerbated by gerrymandering. Therefore, we must
reject a district magnitude of one and, by extension, the SMD system.
Two-member districts retain the accountability of single-member districts
because it is unlikely for the party system to fracture merely by
dividing districts in half or merging them together by groups of two. They
are also much more proportional than single-member districts. In fact,
increasing district magnitude from one to two produces the largest marginal
increase in proportionality (Carey & Hix, 2011). Gerrymandered districts
in SMD, designed to give one party a safe majority in each race, can return
one candidate from each party in two-member districts. Depending on the
exact voting method, assuming that no third parties or independent candidates
become competitive, one party would have to cross at least the
two-thirds threshold of total votes to win both seats in a two-member
district. A district of this magnitude, one would imagine, would become
very stable. Each party would win one seat in each district, while the other
party won the other. The number of votes required to win both seats in a
district would most likely be too high to warrant the effort of a party running
two candidates, thus resulting in a stable equilibrium. But this hypothetical
equilibrium is precisely why two-member districts fail to meet our crucial
third criterion, contestability. A system should not promote stalemate;
rather, it should encourage competition. Additional seats need to be within
grasps of the parties, so that they constantly seek out, appeal to, and engage
new voters. That is the lifeblood of democracy, and why one-member and
two-member districts are a poor choice with any voting method.
The arguments against two-member districts can be made against all
districts with a magnitude of an even number, albeit less strongly. With an
odd number of seats in a district, the central seat is always contested between
left and right. No stalemate is reached, because both sides must constantly
compete for the odd seat. The fate of the odd seat itself is controlled by the
median voters, while the remaining seats are safely in the hands of either
side. This keeps moderate centric voters relevant, engaged, and ultimately
in charge as partisans court their favor.
Having eliminated single-member districts as too disproportional and
evenly-numbered districts as too uncontested, the remaining issue of district
magnitude is whether to keep districts small or to expand them as widely
as possible, thereby doing away with them completely in favor of at-large
elections. The question is one of balancing increasing proportionality and
decreasing accountability. Here we can turn one last time to Carey and Hix
(2011), who find, through a survey of the world’s democracies, that smaller
districts balance the two criteria better than large ones. They find that there
are diminishing gains to proportionality as district magnitude increases,
but that losses to accountability are almost linear. The diminishing returns
to proportionality can be attributed to the decreasing share of the electorate
which is not represented in the legislature by existing legislators. For each
additional seat, there are fewer unrepresented voters to whom the new
legislator can bring voice. Therefore, once a degree of proportionality has
been achieved, at a magnitude of two or three, the costs of increased magnitude
begin to outweigh the benefits.
From these considerations, we can conclude that three-member districts
are ideal, followed by five-member districts, then, arguably, four-member
districts. These magnitudes allow us to meet our criteria for proportionality,
accountability, and contestability. Additionally, they allow representation
to remain somewhat local, thereby preserving our tradition of keeping the
government close to the people.
Districting
With ideal district magnitude settled at three, we can address the second
determinant of our electoral system’s overall quality: the number of districts.
If we assume that the number of seats in the Utah House of Representatives
(75) and the size of each congressional delegation (four, in Utah’s case) are
given, then the number of districts becomes a given as well. For the Utah
State House of Representatives, 25 districts would be created, each with
three seats and an equal number of voters.
On the congressional level, however, districting would become more
complicated because not all delegations are divisible by three. We must
accept that neither every state nor every district will be able to have solely
three-member districts. A system can, however, be established to keep each
congressional district magnitude as close to our desired value as possible.
First, in each state with fewer than six members of Congress, the entire
delegation will be elected together in an at-large district. Thus, the only
instances in which the least-desirable district magnitudes—one and two—
are used are when states only have one or two members of Congress. Second,
in states with seven members of Congress, the state shall be split into two
districts—one with three members and one with four members. Finally,
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and most parsimoniously, all other states shall be divided into threemember
districts; states that have delegations that are not divisible by three
shall have one or two five-member districts as necessary. The population
distribution between the districts within each state shall be proportional to
the number of seats in each district.
Voting Method - General
By adopting three-member districts, we also reject SMD elections, which
by name and definition require single-member districts. This leaves us with
two remaining voting methods (party-list and single transferable voting)
which we shall judge by our three criteria: proportionality, accountability,
and contestability. Both systems are equally proportional and contestable.
Given a number of seats, a share of the electorate can expect to win the
same share of the seats under either system. Both are highly contestable as
well, as parties are rewarded with more seats for receiving more votes in
both party-list and STV elections.
Thus, the choice between party-list and STV elections must be based
upon accountability and even cultural norms. Party-list voting is a partycentric
system. It is founded upon the assumption that parties, not
individual candidates, are the primary actors in legislatures and, therefore,
that the voters’ main choice is that of which party to support. STV, however,
is candidate-centric. Through STV, the voters rank and choose from candidates,
including independents. The superiority of either system over the
other may not be universal, but the candidate-centric ballots of STV are
more familiar and more readily adoptable by a skeptical electorate in Utah
and around the country. Additionally, candidate-centric elections allow
voters to hold individual candidates within a party accountable, thereby
allowing for precise accountability rather than broader party accountability.
All other considerations being equal, candidate-centric representation and
more precise accountability is enough to make STV, rather than party-list
voting, the system recommended by this article.
Voting Method – Limitations of STV
The previous section argued that proportionality of a candidate-centric
system is best measured by its likelihood of electing the Condorcet candidates.
In other words, a system is fully proportional if it can guarantee an outcome
which is more acceptable to the electorate than any other outcome. STV,
like all easily understood voting systems, cannot guarantee the election of
the Condorcet candidate. This subsection proposes several specific changes
to the details of STV, which can be implemented to increase its probability
of electing the Condorcet set, thereby creating more representative outcomes
and preventing third parties from spoiling the election.
In some circumstances, a failure to elect a Condorcet candidate may
not be the fault of the system, but of voter preference. It is possible that no
candidate can beat each and every other candidate in a one-on-one match
up. This can happen if the electorate’s preferences are cyclical, meaning
that every candidate who can receive a majority of the vote against second
candidate will also fail to receive a majority of the vote against a third
candidate. Cyclical preferences make it difficult for any electoral system to
grant legitimate victory to any candidate, because no matter whom the
system selects, there is another candidate whom a majority of the voters
would prefer. Example 3 shows a hypothetical set of ranked ballots in which
no candidate is a Condorcet candidate. Cyclical preferences represent an
aggregation of individual choice into an irrational and paradoxical choice
of the electorate. Such preferences would be unexpected in real life, in
which candidates and voters usually align on a one-dimensional partisan
continuum. For example, if Candidate A would beat Candidate B, and
Candidate B would beat Candidate C, then it is likely that Candidate A
would beat Candidate C. Additionally, we can only judge a voting system
by how well it reflects the will of the electorate. If the electorate does not
express a coherent joint preference through their ballots, then it is futile to
judge the voting system by the results which it returns. Therefore, when
discussing the limitations of electing a Condorcet candidate with STV, such
limitations will only be discussed in the contexts in which there are Condorcet
candidates to elect or fail to elect.
In both single-member and multi-member elections, STV fails to elect
Condorcet candidates when the Condorcet candidate fails to obtain a
substantial amount of first-choice votes. Such failures are not the result of
extraordinary or unusual results, but of easily conceivable situations in
which the widely-acceptable Condorcet candidates fails to garner many
first-choice votes, if most voters list narrowly-appealing partisan candidates
as their first choice. For example, a very widely acceptable moderate candidate
could fail to receive more than a third of the first-choice votes in a
three-way race against a staunch liberal and a staunch conservative if the
partisan bases of the electorate dominated the election. If only one seat
were being elected, the moderate Condorcet candidate would be eliminated
in the first calculation, thereby electing a highly partisan candidate opposed
by a large minority of the electorate. We can further suggest from this
simple example that the chance of electing the Condorcet set decreases as
the candidate-to-seat ratio increases. This is especially relevant to this
article, because the proposed low-magnitude districts could conceivably
have a relatively high number of candidates per seats elected.
Example 1 shows how STV can fail to elect the Condorcet candidate.
In this election of one candidate out of six candidates running for office,
Candidate B is the Condorcet candidate. Against any other candidate in a
one-on-one match up, Candidate B would receive a majority of the vote
(13-11 against Candidate A, 17-7 against Candidate C, 18-6 against Candidate
D, and 13-11 against Candidate E). Regular STV, however, elects
Candidate D, despite the electorate’s clear preference for Candidate B.
Example 3. Absence of a Condorcet Candidate
Number of Voters (100 total) Ranking of Candidates A, B, and C, from
Most to Least- Preferred
30--------------------------------------------------- A, B, C
6---------------------------------------------------- A, C, B
5---------------------------------------------------- B, A, C
29--------------------------------------------------- B, C, A
16--------------------------------------------------- C, A, B
14--------------------------------------------------- C, B, A
In this example, 59 of the 100 voters prefer Candidate C over Candidate A,
52 voters prefer Candidate A over Candidate B, and 64 voters prefer Candidate
B over Candidate C. In this odd “rock, paper, scissors” scenario there
is not an obvious “right” winner, because no candidate can win in a hypothetical
one-on-one contest against any and all other candidates.
Voting Method – Proposed Modifications to STV
It is possible to alter the standard model of STV to give Condorcet candidates
and sets a better electoral chance against less favorable candidates. First,
one must look at the two main processes that determine the winners in an
STV election: first, the transfer of surplus votes from victorious candidates;
second, the elimination of candidates and the transfer of votes therefrom.
Broadly speaking, the transfer of surplus votes from victorious candidates
is a good thing for Condorcet candidates. Condorcet candidates can be
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Oakley B. Gordon
assumed to be relatively high on most voters’ ballots, as they are highly
appealing to moderate candidates and favorable alternatives to opponents
of the most partisan voters. Therefore, if a Condorcet candidate did not
receive many first choice votes, then he is likely to benefit from the transfer
of surplus votes to the victor’s second and third place choices. Surplus
transfers, therefore, can act as lifelines to Condorcet candidates with few
first choice votes, helping them avoid early elimination.
The elimination of candidates, while necessary if there are no surpluses
to transfer, comes with the risk of eliminating a Condorcet candidate.
Condorcet candidates are especially vulnerable to elimination early in the
calculation if they did not receive many first-choice votes. While Condorcet
candidates will generally rank high on most ballots, they can fail to garner
many first-place votes if candidates with a more narrow appeal target each
section of the electorate. When elimination occurs before many surplus
votes are transferred, Condorcet candidates are at their most vulnerable,
facing the possibility of elimination while even the most unpopular candidates
remain in the contest. In short, surplus transfers generally help
Condorcet candidates, while eliminations, especially early ones, can hurt
Condorcet candidates. A well-designed STV system should, therefore,
ensure that more surplus votes are transferred prior to each elimination.
The only substantial way to increase surplus transfers is to decrease the
victory quota, because a surplus transfer happens whenever a candidate
has more votes than the victory quota. There are three basic ways to decrease
the victory quota: increase the number of winners; change the formula
which calculates the quota by increasing the divisor relative to the number
of seats; and change the method with which the quota is applied. While
the number of seats has already been set at three, the other two means of
decreasing the victory quota can still be manipulated to increase proportionality.
With the number of winners set at three for most of our proposed
districts, the method for calculating the victory quota must be established.
The method must produce a quota small enough to produce enough winners,
but large enough not to elect too many. A quota of 21%, for example, will
always produce four winners because it is impossible for more than four
people to win 21% and possible for four to do so. The simplest method is
to divide the number of voters by the number of winners (i.e., if 100 voters
elect three winners, then the quota is 33+1/3). This method produces the
largest possible victory quota, known as the “Hare Quota.”
To produce the smallest quota for a given number of winners, the following
equation must be used: (number of voters)/(number of winners +
one), rounded up to the nearest whole number of votes. This quota and its
derivatives go by a number of names, but the most common is “Droop
Quota.” Because of its low value, thereby promoting surplus transfers, this
quota is used by most voting systems which require a quota. It is also
proposed by this article for the same reason.
There is not a current STV system that uses a quota smaller than the
Droop Quota, because a smaller quota would increase the number of winners
under basic STV rules. Even the Droop Quota can be too large to elect the
Condorcet candidate or Condorcet set by eliminating them too early. It is,
therefore, necessary to alter STV, so that lower quotas can be used, thereby
helping Condorcet candidates. The altered form of applying the victory
quota to STV, as proposed by this article, shall be called “exhaustive singletransferable
voting” or “ESTV.” Rather than electing all of the desired
number of winners at once, one candidate is eliminated at a time. This is
done by first electing n-1 from “n” number of candidates, then by electing
n-2 candidates from the remaining candidates, n-3 from the set of n-2, and
so forth. 5 For example, the election of three winners from five candidates
would start with the calculation of four winners from the five candidates,
and would end with the calculation of three winners from the four candidates
elected from the original. This ensures that the quota is as low as possible
(17% in this case, rather than 25% under the Droop Quota) at the beginning
of the election, thereby allowing surpluses to flow to any Condorcet candidates
who did not receive many first-choice votes.
Succinctly, the rules of exhaustive single transferable voting would be
as follows (illustrated in Figure 3):
1. Eliminate “trivial” candidates, which are those candidates who
appear on less than (voters/candidates) number of ballots. The
elimination of these candidates through the normal process will
be time-consuming and pointless because of their negligible chance
to win in anything short of a miraculous election. The set of noneliminated
candidates shall be “C” and the number of candidates
in “C” shall be “c.”
2. Use STV to elect c-1 number of candidates from C. The set of
winners shall be “C2.”
3. Use STV to elect c-2 number of candidates from C2. The winners
shall be “C3.”
4. Repeat the process, until the number of candidates elected is equal
to that of the set number of winners.
Under this modification, Condorcet candidates have a stronger chance
of being elected. It is, therefore, a change that will make STV even more
representative of the electorate and a modification that should be adopted
alongside STV. Using the same ballots from Examples 1 and 2, Example 4
shows that ESTV can successfully elect the Condorcet Candidate B, rather
than Candidate D, who was elected under regular STV.
Figure 3. Exhaustive Single Transferable Voting
5
The voters only have to vote once in each election. The same set of ranked ballots
would be used in each elimination.
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Example 4. Electing One Candidate with Exhaustive Single Transferable
Voting
Premise: 24 voters elect one candidate from a selection of six candidates
(Candidates A, B, C, D, E, and F). Their ranked ballots are shown in Figure 2.
First Elimination: From the six initial candidates, this round elects five and
eliminates one using normal STV rules. The quota is set at four votes. Surpluses
are transferred until only Candidate C has failed to reach quota. Candidate C
is eliminated.
Second Elimination: From the remaining five candidates, this round elects four
and eliminates one using normal STV rules. All votes are distributed to their
ballots’ most-preferred remaining candidates. The quota is set at five votes.
Surpluses are transferred until there are no longer any surpluses left to transfer.
Even after all transfers have been made, only three candidates have reached the
quota. Candidate F, who has the least amount of votes, is eliminated.
Third Elimination: From the remaining four candidates, this round elects three
and eliminates one using normal STV rules. All votes are distributed to their
ballots’ most-preferred remaining candidates. The quota is set at six votes. From
this initial distribution of votes, Candidates A, B, and D reach quota. Therefore,
no surpluses need to be transferred and Candidate E is eliminated.
Fourth Elimination: From the remaining three candidates, this round elects two
and eliminates one using normal STV rules. All votes are distributed to their
ballots’ most-preferred remaining candidates. The quota is set at eight votes.
Surpluses are transferred until only Candidate D has failed to reach quota.
Candidate D, who was elected under unmodified STV, is thereby eliminated.
Final Elimination and Election of the Winner: In this final round, each vote is
distributed to either Candidate A or Candidate B, based upon who was placed
higher on each ranked ballot. 13 voters prefer Candidate B, while 11 prefer
Candidate A. Candidate A, therefore, becomes the final eliminated candidate,
while Condorcet Candidate B is elected as the winner.
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CONCLUSION
In the state and federal levels, our representative bodies are plagued by a
number of problems. The United States House of Representatives is vexed
by partisan deadlock, as both parties fight for slim majorities. In the Utah
State House of Representatives, the Republican voters in the state are far
over-represented on the Hill, creating an ideological and partisan gap
between leaders and their constituents. On the district level, for both houses,
Democrats and Republicans alike enjoy safe districts, gerrymandered in
their favor to protect them from challengers and the judgment of their own
voters. These safe districts distance representatives from those whom they
are charged to represent and cushion the legislative bodies at-large from
changes in electoral preferences. Representation, accountability, and contestability,
the three foundations of democracy and competitive government,
are all lacking, to the detriment of our great nation and state.
This is not to cast any blame on those who drafted our federal and state
constitution, who left it to our discretion to create voting systems which
we find fair and just. Nor is the Republican Party to blame, for even though
they benefit from single-member districts in the Utah and Congress this
session, Democrats benefit and have benefited from single-member districts
in other states and other times. Instead of blaming those who use the system
to their own advantage, by gerrymandering safe districts for themselves,
we must see the system itself as the problem. An electoral system based
upon single-member districts cannot guarantee a government which is
representative of, accountable to, and contestable by its electorate.
I have made a case for addressing our political problems by reforming
the electoral system. Through the adoption of both three-member districts
and single transferable voting, many of the problems which plague our
politics can be addressed. Gerrymandering, invulnerable incumbents, and
results that do not reflect the electorate can all be addressed by such changes.
Just as importantly, the ability of voters to control their government through
relatively simple coalitions remains intact with districts which only have
three seats.
Additionally, the article addresses a potential weakness of STV systems,
shared by most systems, which arises when candidates greatly outnumber
the available seats, thereby reducing the most-preferred ballots cast for the
Condorcet candidates and allowing more polarizing and narrowly-appealing
candidates to be elected. The weakness is corrected through a proposed
reiterative calculation of ballots, such that decreasing numbers of winners
are determined, with one candidate eliminated at a time, until only the
desired number of candidates remains. This provision protects the system
from being overwhelmed by an excess of candidates and Condorcet candidates
suffering unwise and unjust disadvantage.
To implement these changes, Utah and the nation would continue their
bold, yet recently stagnated, history of electoral system reform. Utahns
deserve a fully representative and competitive House of Representatives.
The example we set in our own state could lead to reform around the nation,
on both the congressional and state levels, thereby strengthening our
democracy and bringing more accountability to our government.
Duverger, Maurice. (1963). Political Parties. New York: John Wiley.
Federalist Papers no 62, 1788.
Gallagher, Michael. (1991), “Proportionality, Disproportionality and Electoral
Systems.” Electoral Studies 10: 33–51.
Laasko, Markku and Rein Taagepera. (1979). “Effective Number of Parties: A
Measure of with Application to West Europe.”
Mill, John Stuart. (1861). Considerations on Representative Government. New York:
Henry Holt and Co.
Riker, William H. (1977). “The Future of a Science in Politics.” American
Behavioral Scientist. 1977 21:11.
State of Utah. (2012). On-line results of all state legislative elections in 2012
http://www.electionresults.utah.gov/xmlData/main.html retrieved 12/5/12
Strom, Kaare. (1990). Minority Government and Majority Rule. New York:
Cambridge University Press.
Thinkprogress.org. (2012). “Why Americans Actually Voted for a Democratic
House.” http://thinkprogress.org/justice/2012/11/07/1159631/americansvoted-for-a-democratic-house-gerrymandering-the-supreme-court-gavethem-speaker-boehner/
retrieved 12/01/12
Tideman, N. and Daniel Richardson. (2000). “Better Voting Methods Through
Technology: The Refinement-Manageability Trade-Off in the Single
Transferable Vote.” Public Choice, Volume 103, Numbers 1-2.
references
Balanski, Michel L. and H. Payton Young. (2001). Fair Representation Washington,
D.C.: Brookings Institution Press.
Carey, John M. and Simon Hix. (2011). “The Electoral Sweet Spot: Low-Magnitude
Proportional Electoral Systems.” American Journal of Political Science 55(2):
383-397.
32

Unlimited Talent: The Benefits of High-Skilled Immigrants
By Nicolas Tang
Technological companies are increasingly in need of talent and skills often lacking within the native workforce. If the
demand for such workers cannot be met, the United States’ economic competitiveness will continue to diminish. This
research focuses on high-skilled immigrants, a sub-group of immigrants characterized by entrepreneurship, innovation,
and intellect. Though they are ideal candidates for the many unfilled positions in technological sectors, unreasonable
policies both deter and prevent these individuals from contributing to the country. An analysis of other surveys, studies,
and research reveals that certain visas can take applicants decades to obtain. Furthermore, the cause for most of the
opposition towards high-skilled immigrants seems to be fueled by nativism and lack of education. Luckily, if policymakers
can begin to scrutinize the issue of high-skilled immigrants in a more objective manner, solutions can be easily
achieved. The examined data suggests that simply eliminating visa caps can remove many of the decade-long backlogs
in a few years. In other words, this would finally ease the process of attracting and retaining the exceptional talent that
will keep moving this country forward.
With about 214 million immigrants worldwide, 42 million of whom
are located in the United States alone (UN DESA, 2008), immigration
is likely going to remain one of the most controversial
and significant issues of this nation. It is estimated that immigrants represent
about 12%-13% of the total U.S. population. However, due to the
difficulty and lack of tools to accurately assess the amount of undocumented
individuals, it is probable that immigrants actually represent an even larger
percentage of the population. The polarizing nature of this issue has created
countless heated debates in an effort to determine the best policies and
regulations. Some firmly believe that immigrants
pose serious threats to the economy which can only
be countered through more restrictive regulations,
while others contend that immigrants are indispensable
assets that must be encouraged to reside in the
country permanently.
The purpose of this research is to provide compelling
evidence that gives policymakers a clear path
to better decisions. Though the topic of immigration
is highly complex, an analysis of current data and
research reveals that certain aspects of this issue are
easier to address. This paper identifies three distinct
categories of immigrants. The first category will be
referred to as “low-skilled immigrants.” These include
all immigrants that do not possess a college degree and are commonly
associated with low-skilled jobs (positions that require minimal qualifications).
In the second category and the main focus of this research are
“There is a wealth of evidence that
overwhelmingly suggests that
high-skilled immigrants provide a
net benefit to this country and its
economy. In other words, the
United States gains more from the
contributions of these immigrants
than what may be lost through their
disadvantages.”
“high-skilled immigrants.” These are all those who possess a college degree
or higher, and are known as “professionals.” Lastly, “illegal/undocumented
immigrants” represent all those who are present in the United States without
legal consent of the government regardless of their skills. When possible,
this research approaches each group separately. However, the intricate topic
of immigration sometimes requires the blending of these groups to address
certain issues. Yet by identifying different types of immigrants and focusing
on the highly skilled, the issue of immigration can be immensely simplified.
The primary hypothesis of this research predicts that there is a wealth of
evidence that overwhelmingly suggests that highskilled
immigrants provide a net benefit to this
country and its economy. In other words, the United
States gains more from the contributions of these
immigrants than what may be lost through their
disadvantages. If the previous statement can be
shown to be true, perhaps lawmakers can be led to
focus on policy rather than ideological issues affecting
high-skilled immigrants. It is also important to
note that though this research chooses to focus on
high-skilled immigrants, it does not implicitly
suggest the inferiority of other groups. In fact, the
data presented will often and inevitably also defend
low-skilled immigrants.
Section 1 of this research will present the major problems surrounding
the issue of high-skilled immigrants in the United States. These include an
inability to satisfy a growing demand for these individuals and an inefficient
33

Unlimited Talent: The Benefits of High-Skilled Immigrants
Nicolas Tang
system for granting visas. Section 2 will demonstrate how and why highskilled
immigrants are indispensable. The third part of this research examines
some of the causes for the various problems affecting high-skilled
immigrants. Finally, the research will conclude with a section offering
solutions to strengthen the system of regulations used to deal with highskilled
immigrants.
the visa problem
Understanding the problems surrounding high-skilled immigrants requires
knowledge of the system of rules, laws, and regulations that govern this
group in the United States. High-skilled immigrants usually enter this
country with student visas (F or M visas are documents that allow immigrants
to study in the U.S.) or with an H-1B visa (document that allows immigrants
to work in the U.S.), but can sometimes also be granted access with a permanent
resident card (also known as a green card). A green card allows
immigrants to live and work in the U.S. indefinitely, but unfortunately takes
years and a very complicated process to obtain. While H-1B and student
visas are easier to acquire, the holder can only stay in the U.S. for a limited
amount of time. It must also be noted that waiting for these visas can also
take years.
Student visas will be addressed first. Foreigners often come to this
country as students and it is here that they gain the education that transforms
them into high-skilled immigrants. In fact, few successful immigrant
entrepreneurs said they came here ready to start a business (Anderson &
Platzer, 2006). Essentially, it is the United States that spends money and
resources to educate these immigrants, but student visas only allow them
to stay until their studies are complete. Once they have acquired remarkable
abilities, the U.S. sends these new high-skilled immigrants outside of the
country. The only way for them to return and contribute to the country
where they gained their skills is by waiting years to obtain either a work
visa or a green card. It is not a surprise then that enrollment rates for
international students are declining (Anderson & Miller, 2006; Anderson
& Platzer, 2006).
H-1B visas are mainly used by companies to hire immigrants with at
least a college degree for a period of up to six years. The lack of workforce
in high-skilled sectors can easily be solved by allowing more H-1Bs in the
country. These tend to be more efficient and more talented than their
American counterparts (Anderson & Platzer, 2006; Fairlie, 2008; Hunt, 2010).
Companies that need to stay competitive require H-1Bs to provide them
with the most current skills and knowledge often
lacking in the native workforce and especially in
technological sectors (Masters & Ruthizer, 2000;
NFAP, 2007; Ruiz, Wilson, & Choudhury, 2012).
Unfortunately, the H-1B visa system is extremely
flawed. Reports show that this previously unrestricted
visa was limited to a maximum of 65,000
per year in 1990 (Masters & Ruthizer, 2000; NFAP,
2010). Since then, the cap had been briefly raised
between 1999 and 2003, before it was once again
lowered to the original limit. However, lawmakers
did take a step in a positive direction when in 2005
they added 20,000 visa exceptions for immigrants
who had graduated from a U.S. university with a
master’s degree or higher. Table 1 shows the amount of H-1B visas issued
since 1992 against their yearly caps (excluding the 20,000 exemptions).
“Once they have acquired remarkable
abilities, the U.S. sends these
new high-skilled immigrants
outside of the country. The only
way for them to return and contribute
to the country where they
gained their skills is by waiting
years to obtain either a work visa or
a green card.”
Table 1: H-1B Visas Issued Against the Cap by Year
YEAR CAP # ISSUED # UNUSED
1992 65,000 48,600 16,400
1993 65,000 61,600 3,400
1994 65,000 60,300 4,700
1995 65,000 54,200 10,800
1996 65,000 55,100 9,900
1997 65,000 65,000 0
1998 65,000 65,000 0
1999 115,000 115,000 0
2000 115,000 115,000 0
2001 195,000 163,600 31,400
2002 195,000 79,100 115,900
2003 195,000 78,800 117,000
2004 65,000 65,000 0
2005 65,000 65,000 0
2006 65,000 65,000 0
2007 65,000 65,000 0
2008 65,000 65,000 0
2009 65,000 65,000 0
2010 65,000 65,000 0
2011 65,000 65,000 0
2012 65,000 65,000 0
Source: NFAP, 2010
These numbers indicate that for almost a decade now, the annual limits
have been reached. Moreover, during a one-week filing period that was
available in 2008, U.S. Citizenship and Immigration Services received
163,000 H-1B applications. The cap, of course, was at 65,000 and even the
additional 20,000 exceptions were not enough to cover all the applications.
As of June 11, 2012, the 85,000 cap for FY 2013 has already been reached.
The lack of H-1Bs is a constant struggle for businesses that need to fill
employment gaps with flexible labor. A survey reveals that two thirds of
their immigrant entrepreneur respondents believe that U.S. immigration
policies make it more difficult to start a business
(Anderson & Platzer, 2006). Yet despite the data,
many still contend that high-skilled immigrants
affect native workers negatively (Matloff, 2011;
Eisenbrey, 2013). These individuals believe that
companies abuse the H-1B system to hire cheap
labor and save money.
Anti-immigrant groups are often concerned with
immigrants taking jobs away from natives. One
author explains that many U.S. citizens cannot find
employment as immigrants are always willing to
work for less (Beck, 1996). Though this argument
is often employed to attack undocumented immigrants,
some critics have used the same arguments
for high-skilled immigrants. Norman Matloff (2011), a known critic of high
skilled immigrants, believes that “the H-1B work visa is fundamentally
about cheap, de facto indentured labor” (p. 1). The idea is that foreign
workers’ right to remain and work in the U.S. depends on their employers;
companies are then able to pay wages that are too low for natives. Though
34

The Hinckley Journal of Politics 2013
there is some truth to that statement, the situation is a lot more complex
and the evidence implies that the problems are more likely caused by bad
policies rather than by immigrants. First of all, the idea that companies
abuse the H-1B system to pay high-skilled immigrants less in wages is wide
of the mark. The law requires companies to pay H-1B
workers similar wages as to all others in the same
positions. A 2007 National Foundation for American
Policy (NFAP) study reports that though some businesses
do try to abuse the system, there have only
been 7-15 willful violations since 1992. The study
argues that it is unlikely for companies such Microsoft
or IBM (which generate billions of dollars per
year) to risk having legal issues by underpaying
H-1Bs to save a minuscule amount of money. It goes
on to state,“To systematically underpay H-1B visa holders would require,
in effect, keeping a separate set of books, one with the pay scales for Americans
and the other for foreign nationals in similar jobs within the same
company” (p. 7). Furthermore, the fact that almost all companies that hire
H-1Bs have native workers representing 85%-99% of their workforces
challenges the argument that high-skilled immigrants are being used as
cheap replacements for U.S. workers. Companies that wish to hire H-1Bs
actually have to pay about $2,500 in legal fees, a $1,500 training fee, a $1,000
premium processing fee (not required, but used to save time), a $500
antifraud fee, and a $100 visa fee. Despite these costs, companies still compete
for high-skilled immigrants. The obvious reason for this demand is talent;
however, it is true that high-skilled immigrants help companies lower their
costs (just not through wages).
In 2009 the Journal of Ethnic and Migration Studies published a study
by Renee Reichl Luthra, an immigration expert and researcher, seeking to
determine the exact effects of H-1B high-skilled immigrants on natives.
Specifically, Luthra (2009) focused on the notions of cheap labor and
exploitative practices associated with H-1Bs. The first part of the research
explored the idea of Labor Market Segmentation. This concept assumes the
existence of two types of jobs in labor markets. Primary positions are those
which companies invest more capital and training in and are also associated
with more job security, higher pay, and better benefits. Secondary jobs are
those which are less desirable, offer less pay, and less advancement. Nonetheless,
employers consistently need secondary positions filled regardless
of the state of the market. Having a shortage of native workers willing to
work in such positions creates great demand for immigrants who are
undeterred by the disadvantages. The researcher contends that this idea
applies in high-skilled sectors as well. Consider, for example, a technology
firm. This company would have core positions in which they invest significant
amounts of capital and training. These positions are very appealing
and offer excellent benefits, attracting more committed workers which
provide more security to the company (fewer turnovers). However, because
the technological market changes very quickly, the firm would also develop
peripheral positions which are constantly being filled by workers with the
most current skills. The transient nature of these positions justifies paying
these workers less in terms of benefits. In other words, the firm has created
an internal dual market. High-skilled immigrants with H-1B visas are an
ideal match for these peripheral positions. Employers need temporary
workers and H-1Bs can only work for a limited amount of time. Additionally,
they possess the best skills in the market and do not mind receiving
fewer benefits. The argument that high-skilled immigrants are cheap labor,
then, is true to the extent that companies save through benefits and by not
having to train or invest much in these skilled workers. If anti-immigrant
associations wished to change this situation, they would have to focus on
the rules of the H-1B visa instead of simply blaming immigrants. The second
“Over the past 15 years, high-skilled
immigrants had started 25% of all
U.S. public companies....The
market capitalization of these
exceeded $500 billion at that time.”
part of Luthra’s (2009) analysis shows that recently arrived H-1Bs are more
likely to be in peripheral jobs. The chances of being in such positions disappear
with H-1Bs who became permanent residents. Effectively, it is only
visa constraints that force high-skilled immigrants to accept contingent
jobs with fewer benefits. As Luthra (2009) explains,
“The combined results of these analyses point toward
visa reform. A greater likelihood of contingent work
is tied solely to the most-recently arrived immigrants
likely to be temporary visa holders” (p. 247).
The final purpose of visa reform should not only
be to ease the process of allowing high-skilled immigrants
to enter the country, but it should also help
the United States permanently retain their exceptional
talents. To do so, the dire green card situation
must be drastically improved. Anderson (2011) accurately describes the
problem by stating, “Today the most distinguishing characteristic of innovative
and adaptive immigrants is an ability to wait a long time” (p. 1).
Employment-based green cards are divided into five different categories.
The categories starting with the lower preference are EB-5 (issued to creators
of employment or investors), EB-4 (special workers), EB-3 (professional
and skilled workers), EB-2 (possess advanced degrees or exceptional abilities),
and lastly EB-1 (for outstanding professors, researchers or other
immigrants with extraordinary ability). The annual quota, which was set
in 1990, is a maximum of 140,000 visas. Since then, the gross domestic
product of the U.S. has nearly tripled and yet the quotas have remained
unchanged. Each country is also limited to a certain amount of visas each
year. This means that countries with large populations are severely affected.
Because of the massive backlogs that already exist for certain countries, it
is estimated that new Indian applicants can wait up to 70 years and new
Chinese applicants will have to wait about 20 years in the EB-3 category. In
the EB-2 category, wait times for these two countries approximate six to
eight years (Anderson, 2011). Such excessive waiting periods are clearly
disproportionately affecting countries with larger populations and simply
depriving the U.S. of talent.
High-skilled immigrants are more educated, possess superior skills, and
hold better positions than any other group of immigrants. They frequently
come to the United States as students seeking to complete their tertiary
education, or as skilled workers looking for quality jobs that cannot be
found in their native countries. Opponents of immigration, however, view
these foreigners as threats. They often argue that high-skilled immigrants’
willingness to work for less in harder conditions creates unfair competition
for U.S. workers of similar skill (Matloff, 2011; Eisenbrey, 2013; Beck, 1996).
There is much evidence that suggests otherwise.
Entrepreneurship, Innovation, and Job Creation
A 2006 study for the NFAP found that high-skilled immigrants had astonishing
entrepreneurial talents (Anderson & Platzer, 2006). The unique study
examined the birthplace of founders of all U.S. venture-backed publicly
traded companies. Additionally, it also surveyed more than 340 privately
owned venture-backed companies. The research showed that over the past
15 years, high-skilled immigrants had started 25% of all U.S. public companies.
It is important to note that many of these companies may have been
started with native partners or associates. The market capitalization of these
exceeded $500 billion at that time. Considering that all legal immigrants
(not just the highly-skilled) represented only 8.7% of the total U.S. population
that year, the proportion of successful immigrants is remarkable.
Furthermore, the analysis showed that 40% of all public companies started
by immigrants either alone or with native partners were in high-technology
35

Unlimited Talent: The Benefits of High-Skilled Immigrants
Nicolas Tang
manufacturing sectors. Among some of the better known immigrant-founded
companies are Sun Microsystems, eBay, and Google. Immigrant-founded
venture-backed public companies were estimated to employ about 220,000
people in the U.S. Table 2 lists the most successful immigrant-founded public
companies and the amount of people they employed in 2005.
such as computer sciences, mathematics, physical sciences, and engineering
at higher rates than natives. Table 3 shows a comparison between the percentage
of high-skilled natives and immigrants (from a random pool of
participants in a 2003 national survey) with bachelor’s degrees or higher
and other additional details.
Table 2: Immigrant-Founded Companies
COMPANY
Source: Anderson & Platzer, 2006
IMMIGRANT-BORN FOUNDER
OR CO-FOUNDER
COUNTRY
OF BIRTH
EMPLOYEES
(FY 2005)
INDUSTRY
Solectron Corporation Winston Chen Taiwan 53,000 Bare Printed Circuit Board Manufacturing
Sanmina-SCI Corporation Jure Sola Bosnia 48,621 Bare Printed Circuit Board Manufacturing
Milan Mandaric
Croatia
Sun Microsystems, Inc. Andreas Bechtolsheim Germany 31,000 Electronic Computer Manufacturing
Vinod Khosla
India
eBay Inc. Pierre Omidyar France 12,600 Electronic Auctions
Yahoo! Inc. Jerry Yang Taiwan 9,800 Web Search Portals
Life Time Fitness, Inc. Henri Hodara France 7,200 Engineering Services
UTStarcom, Inc. Ying Wu China 6,300 Telephone Apparatus Manufacturing
Google, Inc. Sergey Brin Russia 5,680 Web Search Portals
Kanbay International, Inc. Raymond J. Spencer Austrailia 5,242 Computer Systems Design Services
Dileep Nath
India
Cadence Design Systems, Inc. Alberto Sangiovanni Vincentelli Italy 5,000 Software Publishers
Juniper Networks, Inc. Pradeep Sindhu India 4,145 Telephone Apparatus Manufacturing
Watson Pharmaceuticals, Inc. Allen Chao Taiwan 3,844 Pharmaceutical Preparation Manufacturing
Parametric Technology Corp. Samuel Geisberg Russia 3,751 Software Publishers
Pediatrix Medical Group, Inc. Roger Medel Cuba 3,013 Offices of Physicians (Except Mental Health
Specialists)
NVIDIA Corp. Jen-Hsun Huang Taiwan 2,737 Semiconductor/ Related Device Manufacturing
Salton, Inc. Lewis Salton Poland 2,466 Electric Housewares/Household Fan
Manufacturing
Lam Research Corp. David Lam China 2,200 Semiconductor Machinery Manufacturing
Research that uses government databases to analyze general business
ownership in the U.S. also concurs with the idea that immigrants are
exceptionally talented at starting new businesses (Fairlie, 2008). The study
conducted by Dr. Robert W. Fairlie for the U.S. Small Business Administration
(SBA) concluded that immigrants are almost 30% more likely to start
a business than natives. In the state of California (with one of the highest
concentration of immigrants), 30% of all business owners were immigrants.
A 2000 U.S. census estimated that these businesses generated $20 billion in
business income. This translates to nearly one fourth of California’s total
business income. More importantly however, immigrants that had obtained
a college degree represented the largest educational group (31.3%) of all
immigrant business owners. Once again, this suggests the importance of
separating low-skilled from high-skilled immigrants and the beneficial
advantages we gain from latter.
Not only are high-skilled immigrants outstanding entrepreneurs, but
evidence indicates that they also dominate some of the most demanding
fields of study (Hunt, 2010). The report, published by the Organization for
Economic Co-operation and Development (OECD), reveals that high-skilled
immigrants outperform college-educated natives in areas such patenting,
publishing, and others. Immigrants consistently choose to study in fields
36
Table 3: Degrees Earned by Natives and Immigrants in 2003
U.S. NATIVE IMMIGRANT
Bachelor’s 65% 56.5%
Master’s 26% 28.6%
Doctorate 2.9% 7.7%
Professional 6.2% 7.2%
Age 44.4 43.3
Age at arrival 23.3
Highest degree earned in U.S. 99.6% 55.5%
Female 50.4% 47%
White, non-Hispanic 88% 30.9%
Currently employed 85.5% 86.3%
Currently employed at university 4.8% 8%
Tenure (years) 8.4 6.7
Self-employed 16.5% 17.7%
Source: Hunt, 2010

The Hinckley Journal of Politics 2013
The data establishes that high-skilled immigrants possess more of every
type of post-college degree than natives. Likely due to their greater achievements,
the study continues to explain that compared to natives (0.9%),
double (2%) the amount of high-skilled immigrants have patented in the
last five years. Additionally, 14.4% of natives had published materials, but
17.6% of immigrants had. Moreover, 6.8% of high-skilled immigrants had
published more than six times compared to only 3.6% of natives. High-skilled
immigrants’ superior abilities to start new business (many of which become
extremely successful) create more jobs and their talented minds drive more
innovation in this country. Their disproportionately immense contributions
more than compensate for whatever jobs they may “steal.”
The Next Generation
Though the accomplishments of high-skilled immigrants are very impressive,
there is one group that can match them. The children of high-skilled
immigrants are predictably talented as well. A 2004 study by Stuart Anderson,
Executive Director for the NFAP, elected to focus on the contributions
of the children of immigrants. The investigation
discovered that 70% of winners of the 2004 Intel
Science Talent Search were either immigrants or
their children. Specifically, 18 participants had
parents who had entered on a visa compared to 16
who had native-born parents. Children of immigrants
dominated other events as well. Sixty-five
percent of the 2004 U.S. Math Olympiad’s top scorers
and 46% of the U.S. Physics Team were comprised of children who had
immigrant parents. Policies that make it more difficult for immigrants to
come will not only deprive this country of their talent but also of their
children’s. As Anderson (2004) puts it, “Their children are rising intellectual
superstars—and without them that nation’s technological and scientific
standing is at risk” (p. 15).
The Causes for an Inefficient System: Nativism
“Seventy percent of winners of the
2004 Intel Science Talent Search
were either immigrants or their
children.”
If all the evidence seems to clearly suggest that high-skilled immigrants
are vital assets to this country, what then is the cause for so many
negative policies One study identifies two main concerns that create antiimmigration
sentiments (Hainmueller & Hiscox, 2010). Published in the
American Political Science Review, a leading political science research journal,
the survey experiment examined the Labor Market Competition (LMC)
model and the Fiscal Burden (FB) model. The former predicts that natives
are most opposed to immigrants with similar skill levels because, as the
name implies, these will represent their biggest competition. The second
model predicts that rich natives will oppose low-skilled immigrants and
support high-skilled immigrants more than poor natives will. The reason
for this is that the rich natives are paying for the social services likely being
used by low-skilled immigrants. This should also cause rich natives to be
more opposed to low-skilled immigrants in states that offer more access to
social services. Consistent with the structure used in this paper, the study
attempts to examine attitudes toward low-skilled and high-skilled immigrants
separately (instead of looking at immigration as a whole). The first results
contradict the Labor Market Competition model. The researchers find that
both low-skilled and high-skilled natives strongly prefer high-skilled immigrants.
Additionally, support for immigrants of all skill levels increases with
the skills of the native. These findings imply that the Labor Market Competition
model does not really cause anti-immigrant sentiments. As for the
Fiscal Burden model, the study shows that rich and poor natives equally
favor high-skilled over low-skilled immigrants and that the rich are
surprisingly less opposed to low-skilled immigrants in states with more
welfare programs. The poor natives, however, are more opposed to lowskilled
immigrants in states with more fiscal exposure. In other words, the
data indicates that fiscal burden concerns are mainly relevant among poor
natives only. The combined results of the study reveal two important conclusions.
The first one is that in every situation all natives seemed to always
favor high-skilled immigrants. Once again, this begs the question as to why
such an unfair visa system exists for high-skilled immigrants. The second
conclusion offers a possible answer to this question. If two of the most
prominent attitude formation theories do not explain anti-immigrant
sentiments, and given that appreciation of immigrants seems to increase
with a native’s level of skill (education), negative attitudes appear to form
based on non-economic factors. Nativism, a nostalgic ideology that works
to secure its identity by treating difference as a threat, creates a lack of
tolerance that crosses into racism too often in the American immigration
debate.
Jason Riley (2008), author of Let Them In: The Case for Open Borders,
arrives at a similar conclusion. The author believes that eugenics, a science
that advocates improving the population through
selective breeding and is closely related to the ideology
of Social Darwinism, is one of the root causes
for anti-immigration sentiment in this country. The
belief that access should be restricted to individuals
of inferior quality is very problematic. Quality is a
subjective concept that cannot easily be assigned to
different races. However, if we assume for a moment
that the quality of individuals is based on their productive ability, then the
argument of eugenics could also be used against natives. The evidence
provided in this research demonstrates that immigrants (usually high-skilled)
can in fact be more productive than the native population (Anderson &
Platzer, 2006; NFAP, 2007; Anderson, 2004; Fairlie, 2008; Hunt, 2010).
Though nativism may partially explain why the visa system for highskilled
immigrants remains so inefficient, it mostly applies to attitudes
towards low-skilled and undocumented immigrants. Support for high-skilled
immigration reform is actually more widespread. However, change remains
elusive. Lawmakers are beginning to recognize the need for reform, but
cannot seem to agree on how to proceed (Selyukh, 2013). Opinions range
from those who believe Congress should focus on H-1Bs to those who wish
to begin with the green card situation (Martinez, 2013). Until all political
parties can come to a compromise, the nation will continue to lose exceptional
workers and delay its course to having a more productive workforce.
Conclusion: There Are Solutions
As serious as the situation may seem, better policies can be easily implemented
to quickly resolve many of the issues regarding high-skilled immigrants.
For example, a simple policy that eliminates the per country limits for
employment-based green cards would lower the waiting time for India (70
years) to about 10 years in the EB-3 category (Anderson, 2011). Solely
removing per country limits will not eliminate all the total backlogs that
exist for the different categories, but it would at least make it fairer for
countries with larger populations by creating a true first-come, first-serve
system. The ideal solution though, would be to eliminate the limits completely
or at least increase them. A policy that creates 50,000 exemptions from visas
for students with U.S. degrees in the fields of science, technology, engineering,
and mathematics (STEM) would eliminate the entire backlog of the
EB-2 category within three years and make the EB-3 category current within
10 years. Between fiscal years 1992 to 2006, about 500,000 available visas
were unused. Special legislation recaptured about 200,000 of these, but that
37

Unlimited Talent: The Benefits of High-Skilled Immigrants
Nicolas Tang
still leaves around 300,000 unused visas. Restoring these visas would also
accelerate the elimination of backlogs.
Fortunately, many legislators have noticed the problems and are attempting
to solve them. On November 29, 2011, the U.S. House of Representatives
passed H.R.3012 (Fairness for High-Skilled Immigrants Act). If enforced,
this policy would eliminate per country limits for employment-based green
cards over a period of four years. Other helpful bills include H.R.2161
(eliminates per country limits and establishes exemption from the total
limits for immigrants with U.S. master’s degree or higher in STEM), S.3217
(creates 50,000 exemptions for immigrants with U.S. STEM degrees and
eliminates per country limits), S.3192 (creates an exemption from quota
for U.S. STEM graduates), and S.3185 (reallocates 50,000 green cards from
the Diversity Lottery to immigrants with advanced degrees in STEM from
U.S. universities).
My conclusion is to urge policymakers to re-examine the immigration
debate focusing on high-skilled immigrants. Though the general issue of
immigration may be more complicated and hard to solve, the evidence
clearly indicates that high-skilled immigrants warrant better policies. They
are astonishing entrepreneurs (Anderson & Platzer, 2006; Fairlie, 2008),
they possess the brightest minds (Hunt, 2010), and their children are
remarkably talented as well (Anderson, 2004). Furthermore, research also
indicates that anti-immigrant sentiment is usually motivated by non-economic
factors such as racial tension and ignorance (Hainmueller & Hiscox,
2010). If Congress and the general public can unite to scrutinize the issues
objectively, removing notions of nativism or intolerance, and with willingness
to compromise, comprehensive reform should be easily achievable. To
remain a fair and competitive country, new policies need to invite talent
and productive ability regardless of its origin.
references
Anderson, S. (2011). Waiting and More Waiting: America’s Family and
Employment-Based Immigration System. In National Foundation
for American Policy. Retrieved from http://www.nfap.com/pdf/
WAITING_NFAP_Policy_Brief_October_2011.pdf
Anderson, S. (2011). Answering The Critics of Comprehensive Immigration
Reform. In Cato Institute. Retrieved from http://www.cato.org/
publications/trade-briefing-paper/answering-critics-comprehensive-immigration-reform
Anderson, S. (2004). The Multiplier Effect. In National Foundation for
American Policy. Retrieved from http://www.nfap.com/researchactivities/studies/TheMultiplierEffectNFAP.pdf
Anderson, S., & Miller, D. (2006). Legal Immigrants: Waiting Forever. In
National Foundation for American Policy. Retrieved from http://
www.nfap.com/researchactivities/studies/NFAPStudyLegalImmigrantsWaitingForever052206.pdf
Anderson, S., & Platzer, M. (2006). The Impact of Immigrant Entrepreneurs
and Professionals on U.S. Competitiveness. In National
Foundation for American Policy. Retrieved from http://www.nfap.
com/researchactivities/studies/immigrant_entreprenuers_professionals_november_2006.pdf
Beck, R. (1996). The Case Against Immigration: The Moral, Economic,
Social, And Environmental Reasons for Reducing U.S. Immigration
Back to Traditional Levels. New York: Norton.
Eisenbrey, R. (2013). America’s Genius Glut. The New York Times, p. A27.
Retrieved from http://www.nytimes.com/2013/02/08/opinion/
americas-genius-glut.html
Fairlie, R. W. (2008). Estimating the Contribution of Immigrant Business
Owners to the U.S. Economy. In United States Small Business
Administration. Retrieved from http://archive.sba.gov/advo/
research/rs334tot.pdf
H1B Visa Quota and H1B Cap Systems Explained. In H1 Base. Retrieved
from http://www.h1base.com/visa/work/H1BvisaCapH1BquotaSystem/ref/1568/
Hainmueller, J., & Hiscox, M. J. (2010). Attitudes toward Highly Skilled
and Low-skilled Immigration: Evidence from a Survey Experiment.
American Political Science Review, 104(1), Retrieved from Academic
Search Premier Database.
Hunt, J. (2010). Skilled Immigrants’ Contribution to Innovation and
Entrepreneurship in the United States. OECD, Open for Business:
Migrant Entrepreneurship in OECD Countries. doi:
10.1787/9789264095830-13-en
Luthra, R. (2009). Temporary Immigrants in a High-Skilled Labour
Market: A Study of H-1Bs. Journal Of Ethnic & Migration Studies,
35(2). Retrieved from Academic Search Premier Database.
Martinez, J. (2013). Despite Wide Support for High-Skilled Immigration
Reform, H-1B Visas Called Into Question. Reuters, Retrieved from
http://www.reuters.com/article/2013/03/06/usa-immigrationsenate-idUSL1N0BXEHA20130306
Masters, S. B., & Ruthizer, T. (2000). The H-1B Straitjacket: Why
Congress Should Repeal the Cap on Foreign-Born Highly Skilled
Workers. In Cato Institute. Retrieved from http://www.cato.org/
publications/trade-briefing-paper/h1b-straitjacket-why-Congressshould-repeal-cap-foreignborn-highly-skilled-workers
Matloff, N. (2011). Professor Norm Matloff ’s H-1B Web Page. In Norm
Matloff ’s H-1B Web Page: Cheap Labor, Age Discrimation,
Offshoring. Retrieved from http://heather.cs.ucdavis.edu/itaa.html
National Foundation for American Policy. (2012). Retrieved from http://
www.nfap.com/pdf/NFAPPolicyBrief.StillWaiting.June2012.pdf
National Foundation for American Policy. (2010). Retrieved March 26,
2012, from http://www.nfap.com/pdf/1003h1b.pdf
National Foundation for American Policy. (2007). Retrieved March 20,
2012, from http://www.nfap.com/pdf/071206study.pdf
Riley, J.N. (2008). Let Them In: The Case For Open Borders. New York:
Gotham Books
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Ruiz, N. G., Willson, J. H., & Choudhury, S. (2012). The Search for Skills:
Demand for H-1B Immigrant Workers in U.S. Metropolitan Areas.
In Brookings Institution. Retrieved from http://www.brookings.edu/
research/reports/2012/07/18-h1b-visas-labor-immigration#demand
Selyukh, A. (2013). Senator Schumer Says No Dice for High-Skilled
Immigration Bill. Reuters, Retrieved from http://www.reuters.com/
article/2013/03/06/usa-immigration-senate-idUSL1N0BX-
EHA20130306
Schulz, N. (2012). The Human Capital Imperative: Bringing More Minds
to America. In American Enterprise Institute. Retrieved from
http://www.aei.org/article/the-human-capital-imperative-bringingmore-minds-to-america2/
United Nations Department of Economic and Social Affairs (UN DESA).
(2008). Trends in International Migrant Stock: The 2008 Revision.
Retrieved from http://esa.un.org/migration/index.asppanel=1
39

IMMIGRATION FEDERALISM: THE CASE OF IMMIGRATION ENFORCEMENT
BY NON-FEDERAL AGENCIES
By Eduardo Reyes Chávez
Since 2002, state and local governments have passed many laws and ordinances designed to regulate immigration. This
sort of activism, combined with the failure of the federal government to enforce immigration laws, has blurred the line
between who should and should not be enforcing immigration laws. This study seeks to clarify the debate concerning
the enforcement of immigration laws in the United States. Through an analytical review of the U.S. Constitution,
relevant U.S. Supreme Court rulings, and critical lower court cases, this study contends that the federal government is
entitled to exclusive enforcement of immigration laws. This conclusion centers on four main arguments: (a) the U.S.
Constitution and relevant court cases have established the federal government as the main enforcer of immigration
laws; (b) the complexity of immigration laws concerning the enforcement of criminal and civil regulation may result
in federal preemption for states and localities that overstep their formal agreements with the federal government; (c)
the unnecessary immigration enforcement by states can cause local officers to disregard their traditional job and use
their resources to enforce federal laws; and (d) local enforcement of immigration laws has further distanced immigrant
communities by the voluntary or involuntary violation of civil rights.
The United States has always attracted immigrants. In order to
deal with the treatment of non-citizens, the United States has
created immigration laws that have regulated the movement of
immigrants. Nevertheless, labor market flows and ineffective federal policy
have resulted in a large number of unauthorized
immigrants entering the U.S. and settling permanently.
According to Booth (2006), in 2005 there
were an estimated 8 to 12 million undocumented
immigrants in the U.S., “with an additional 800,000
joining that number each year” (p. 1066). More than
two-thirds of the unauthorized immigrants in the
U.S. have entered the country within the last 10 years
(C. M. Rodríguez, 2008). The uncontrolled levels
of illegal immigration have made it clear that there
is an immigration problem in the United States.
In response to ineffective policy and enforcement
by Washington, DC, state and local governments
have reacted by passing their own immigration
enforcement legislation. In 2007, “More than 1,400 bills addressing immigration…in
some capacity were introduced in state legislatures across the
country” (C. M. Rodríguez, 2008, p. 569). In her research, C. M. Rodríguez
(2008) said that non-federal legislatures will continue to be active in
“In most countries in the world, it is
the national government alone that
has jurisdiction over immigration
law and enforcement. In the United
States, however, the federal system
of government complicates the
creation and enforcement of
immigration law and policy.”
immigration enforcement until the passage of a comprehensive immigration
reform. The continual request of non-federal agencies to carry out their
own enforcement is based on an apparent federal inefficiency in the immigration
field. According to a poll reported by Boatright (2006), “Over 80%
of Americans already think that state and local police
should be involved in immigration enforcement”
(p. 1667). Not only are non-federal governments
expressing their willingness to enforce immigration
laws, but also the general public seems to agree with
the idea.
In most countries in the world, it is the national
government alone that has jurisdiction over immigration
law and enforcement. In the United States,
however, the federal system of government complicates
the creation and enforcement of immigration
law and policy. The proliferation of state and local
enforcement measures raises the question whether
such activities are constitutional. In this paper, I
first conduct a historical analysis of immigration enforcement in the United
States to discuss the participation of states, localities, and the federal government.
Second, I look at the legal framework in immigration to distinguish
civil and criminal law. Third, I examine the constitutionality of immigration
41

Immigration Federalism: The Case of Immigration Enforcement by Non-Federal Agencies
Eduardo Reyes Chávez
enforcement to look for factual evidence regarding enforcement support
for federal and non-federal regulation. Fourth, I analyze two court cases
that support immigration enforcement and two cases that allow for state
and local enforcement. Fifth, I argue that non-federal enforcement is likely
to result in the alienation of the immigrant community, is subject to lack
of immigration expertise by non-federal agents, may violate civil rights and
civil liberties, and that non-federal enforcement is an unnecessary expenditure.
Finally, I analyze the implications of federal preemption through
explicit statutory language, congressional intent, and direct conflict of state
and federal law.
KEY POINTS IN U.S. IMMIGRATION HISTORY
In order to understand why a defined line in immigration enforcement has
not been established, I briefly explain the history of immigration enforcement
in the United States. In this section I include an analysis of the Bracero
Program, the Immigration and Nationality Act of 1952, the Immigration
Reform and Control Act of 1986, the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996, and the Antiterrorism and Effective
Death Penalty Act of 1996. The paper will analyze what the Constitution
says regarding immigration enforcement in a later section.
The Constitutional Convention of 1787
In 1787, a constitutional convention was called for the purpose of amending
the inefficient Articles of Confederation of the United States. In this
meeting, delegates from all the states, except Rhode Island, traveled to
Philadelphia to consider reforms. The delegates, however, decided to propose
the creation of a new constitutional arrangement
rather than amend the Articles of Confederation.
On May 29, 1790, after Rhode Island ratified the
Constitution, the new Constitution took effect and
became the law of the land in the United States.
Huntington (2008) advanced the idea that any
discussion of immigration in the Constitutional
Convention would have implicated issues of slavery.
Thus, the current debate about who should enforce
immigration laws can be traced to the events that occurred during the
Convention. James Madison was concerned that the separation between
the southern and northern states was a great danger to the unity of the
general government. The problematic opposition between the north and
south regions of the U.S. blocked some of the most important problems
from being discussed during the Convention. One of these problems was
the issue concerning slavery. “The institution of slavery was an incendiary
and divisive subject during the Constitutional Convention” (Huntington,
2008, p. 812). Thus, the delegates decided to deal with the topic of slavery
with the 3/5 compromise and avoided talking about immigration enforcement
altogether. Since “immigration was explicitly the province of state
authorities under the Articles of Confederation,” the ratified Constitution
did not establish who was the primary enforcer of immigration laws (Sullivan,
2009, p. 570). It is this uncertainty and lack of textual province in
the Constitution that surrounds the controversy of the current immigration
enforcement debate.
The First 100 Years: State and Local Domination in Immigration Efforts
During the first 100 years of the history of this country, states were the main
actors in immigration enforcement. The lack of a strong centralized
government, even after the ratification of the new Constitution, allowed
“After the passage of the Immigration
Act of 1924, Congress formally
established the Border Patrol as an
agency of the United States
Department of Labor.”
non-federal agencies to enforce their own immigration laws (Kalhan, 2007).
Under the Articles of Confederation, the federal government was restricted
from regulating the flow of immigrants. Even though the federal government
was able to obtain more power after the ratification of the new Constitution,
the question of immigration enforcement was still open to individual
state interpretation. The result was a continuous wave of state and
local legislation that directly affected non-citizens and questioned the role
of immigration enforcement.
In 1842, the Supreme Court of the United States officially established
the federal government as the primary enforcer of immigration laws. In
their decision, the Supreme Court struck down laws in the states of
Massachusetts and New York that required bonds on arriving immigrants.
Even though the states wanted to offset the costs of processing foreign papers,
the Court came to a conclusion that states were directly interfering with
international commerce. Furthermore, according to C. M. Rodríguez (2008),
“The doctrine of federal exclusivity began to take shape, taking off on the
Commerce Clause grounds articulated by the plurality in the Passenger
Cases” (p. 612). Directly influenced by the conclusion of the Civil War and
the Reconstruction amendments, the federal government gained substantial
power over the issues dealing with citizens and non-citizens alike.
The federal exclusivity in immigration enforcement became official by
the late 1800s, and, as C. M. Rodríguez (2008) has argued, the foundation
of the current federal exclusivity principle was consolidated in Chae Chan
Ping v. United States (1889). Rodriguez contends that this case provided
excellent evidence that the constitutionality of complex federal regulatory
schemes provided for the exclusion and deportation of Chinese laborers.
The passage of the Immigration Act in 1882 further established federal
exclusivity over immigration policy. What this legislation solidified was
the idea of federal exclusivity, which supported the
overall understanding that immigration is federal
in nature and should therefore be enforced by the
national government.
Having increased its influence through direct
legislation and court rulings, the federal government
established its “historical” call to enforce immigration
laws. By the same token, in 1891, Congress
created the Superintendent of Immigration in the
Treasury Department whose job became to control immigration enforcement.
When the office became the Bureau of Immigration, the federal
government established full control in the subject of immigration regulation. 1
Enforcement and Legislation During the 1900s
During the 1900s, the federal government spent a lot of energy trying to
take control of national agencies that would further support federal supremacy.
In 1904, as a way to limit the border crossings of Chinese laborers, the
federal government sent a group of watchmen to patrol the U.S.-Mexico
border. Two years later, the Bureau of Investigation came to be “in charge
of maintaining a national catalog of fingerprints and rap sheets that local
law enforcement agencies could access” (Sullivan, 2009, p. 584). What was
initially called the Bureau of Investigation changed its name to the Federal
Bureau of Investigation (FBI) in 1935. While the FBI had jurisdiction in
federal cases, local law enforcement officials had jurisdiction in alleged
violations of state or local laws.
After the passage of the Immigration Act of 1924, Congress formally
established the Border Patrol as an agency of the United States Department
of Labor. In addition to patrolling the southern border and having the
power to make arrests, the Border Patrol was located at inspection stations.
Ironically, “State and local law enforcement agency personnel filled the
42

The Hinckley Journal of Politics 2013
majority of [these] new federal positions” (A. J. Rodríguez, 2008, p. 1237).
The Border Patrol was also given the task to support the Coast Guard and
work in immigration detention camps.
In the 1940s, the federal government passed legislation to recruit Mexican
laborers in order to meet its labor shortage during Word War II. By admitting
foreign workers in the U.S., the federal government declared its power
over state and local efforts in issues of controlling the flow of immigrants.
In early 1942, the Roosevelt administration negotiated a treaty between
Mexico and the U.S. to allow Mexican farm workers to immigrate to the
U.S. temporarily. What became known as the Bracero Program signified
the authority of the federal government, not the states, to establish immigration
policy. The federal government reinforced national supremacy in 1951
when Congress passed Public Law 78, which gave the Bracero Program
permanent status.
Members of the executive branch encouraged Congress to pass a plan
to invite foreigners to work in U.S. soil and to use the federal INS to supervise
and control the number of bracero visas distributed. According to
Massey, Durand, and Malone (2003), “During 1954 the number of migrants
apprehended by the INS swelled to over 1 million for the first time in U.S.
history [while also doubling] the number of bracero visas” (p. 37). Thus,
the federal government left no room for states and localities to manage the
admission and control of foreigners. The repeal of the Bracero Program in
1964 did not restrict the federal government from continuing its control in
immigration policy. For the next decades, the national government passed
much legislation that made it possible for the federal government to control
immigration.
Numerous laws approved after the 1950s further reinforced the supreme
legal power of the federal government. Although key laws were passed
before this time, the most significant were approved after the middle of the
twentieth century. One of the most important laws was the Immigration
and Nationality Act (INA) of 1952, also known as the McCarran-Walter
Act. The INA, which addressed issues of immigration
and citizenship, gave the federal government a legal
“The INA criminalized the act of
entering the United States through
illegal means. It established that
any alien in the U.S. must apply for
their legalization of status after 30
days. The individuals who do not
comply with with this law would be
guilty of a misdemeanor and
subject to be arrested by federal
agents. ”
framework to base its immigration exclusivity and
placed a roadblock for state and local enforcement.
As the new law legally forbade state involvement in
the admission and removals of citizens, the federal
government gained full power to act in those grounds.
In other words, the INA became a comprehensive
law that recognized the federal government as the
only actor to manage the movement of non-citizens
within its jurisdiction.
The Immigration and Nationality Act of 1952
established that:
Any alien who (1) enters the United States at any
time or place other than as designated by immigration
officers, or (2) eludes examination or inspection by immigration
officers, or (3) obtains entry to the [U.S.] by a willful false or misleading
representation or the willful concealment of a material fact, shall, for
the first commission of any such offenses, be guilty of misdemeanor
and for a subsequent commission of any such offenses shall be guilty
of a felony. (Immigration and Naturalization Act of 1952)
The INA criminalized the act of entering the United States through illegal
means. It established that any alien in the U.S. must apply for their legalization
of status after 30 days. The individuals who do not comply with this
law would be guilty of a misdemeanor and subject to be arrested by federal
agents. Furthermore, individuals who fail to carry their immigration papers
at all times will be guilty of criminal misdemeanors. The INA set a defined
line regarding how a non-citizen can become a criminal to the eyes of the
government. For example, under the INA, the harboring, transporting, and
the reentry of immigrants after removal became criminal violations of the
law. In civil matters, failing to depart after a removal hearing would be
enough to be considered for violation of civil federal laws. Overall, the INA
legally defined the difference between the civil and criminal provisions of
immigration enforcement while also giving the task for enforcement to the
federal government.
In 1986, Congress approved the passage of the Immigration Reform
and Control Act (IRCA) to specifically regulate the employment of undocumented
immigrants. Among the most important provisions, IRCA forced
employers to check the immigrant status of their employers, made it illegal
to knowingly hire undocumented workers, granted amnesty to individuals
who entered the U.S. before 1982, and gave legal status to immigrants who
worked in seasonal agricultural sectors. IRCA recognized the supreme
power of the federal government in immigration enforcement while limiting
the power of non-federal authorities. The primary purpose of IRCA
was to prevent undocumented immigrants from working and thus reduce
the attractiveness of coming to the United States. Under IRCA, states cannot
pass laws that enable employers to hire undocumented workers because
those laws would conflict with its provisions.
Since labor demand was the main motivation for immigrants to go to
the United States, sanctioning the companies that provided jobs was to be
an alternative way to discourage immigration. Speasmaker (2007) for
example, stated, “IRCA contains employer sanctions, yet through the language
used in the bill, employers [were] generally able to circumvent the
legislation” (p. 12). Even after specific text regarding how the hiring of
undocumented workers would violate civil and criminal laws, employers
managed to continue illegal hiring. In addition, Speasmaker (2007) argued,
IRCA specifically preempted state and local agencies instituting employer
sanctions (p. 13). IRCA increased the preemption power of the federal
government over state and local activity. In this case, IRCA imposed civil
and criminal sanctions upon employers who knowingly
hired or recruited undocumented immigrants.
In 1996, Congress expanded the power of nonfederal
governments by amending and passing the
Illegal Immigration Reform and Immigrant Responsibility
Act (IIRIRA). Similar to the INA, IIRIRA
set “a comprehensive set of rules for legal immigration,
naturalization, deportation, and enforcement”
(Seghetti, Ester, & Garcia, 2009, p. 2). The IIRIRA
created opportunities for state and local governments
to become involved in immigration enforcement,
therefore weakening the federal government’s exclusive
jurisdiction that previous legislation had asserted.
In the new amendments, Congress granted more
opportunities for non-federal agencies to work
alongside the federal government in immigration enforcement. As the
main actor, the federal government would allow non-federal governments
to choose if they want to come into an agreement with the federal government.
Without recognizing state and local inherited power, the federal
government managed to maintain its supremacy over immigration enforcement
while expanding, with supervision, the opportunity for other nonfederal
agencies to contribute voluntarily. Even though many amendments
were made to the INA, especially through the implementation of section
287, the IIRIRA added section 133 and section 372 to increase collaboration
between states and the federal government in immigration enforcement.
Section 133 of the IIRIRA amended INA section 287 (8 U.S.C. 13567(g))
and permitted non-federal entities to tailor an agreement with the Attorney
General to meet local obligations. This section provided an explicit
43

Immigration Federalism: The Case of Immigration Enforcement by Non-Federal Agencies
Eduardo Reyes Chávez
congressional grant to non-federal agencies to choose to enforce federal
immigration laws through a formal written agreement. As this amendment
states, the local office will have the opportunity to perform a function of a
federal immigration enforcer. Since state and local entities are not allowed
to enforce federal laws, Congress provided a legal way for local officers to
perform work as an immigration officer but not be considered as one.
Jorgensen (1997) explained that the agreements “created under this section
may grant local officers all of the powers exercised by federal immigration
officers and the section provides that the designated local officers will enjoy
federal immunity” (p. 7). By enforcing federal law, local police would work
in the investigation, detention, and apprehension of
non-citizens.
“The passage of the Antiterrorism
and Effective Death Penalty Act
(AEDPA) of 1996 further expanded
the criminal aspects of immigration
offenders.”
As part of the INA, section 287 encouraged
non-federal enforcement by formalizing state collaboration
with the federal government in immigration
enforcement. In 1996, Congress approved
section 287(g) that created a memorandum of agreement
that made it possible for the Attorney General
to have a written agreement with non-federal agencies
in order to participate in immigration enforcement. The memorandum
of agreement included a training requirement for local officers that was to
be conducted by federal immigration agents. According to Decker, Lewis,
Provine, and Varsanyi (2008), the amendments to section 287(g) of the INA
made it possible for local “police officers to be trained by and to join the
federal government in enforcing immigration laws within the interior of
the United States” (p. 170). Section 287 provided the legal support for states
to enforce federal immigration laws. This voluntary action became a gateway
for local and state governments that wanted to enforce immigration laws.
The passage of the Antiterrorism and Effective Death Penalty Act
(AEDPA) of 1996 further expanded the criminal aspects of immigration
offenders. In their work, Decker et al., (2008) stated that most importantly
the AEDPA “gives local police the authority to arrest previously deported
non-citizen felons” (p. 169). In order for state and local agents to have the
authority to detain these individuals, the Immigration and Naturalization
Service must provide appropriate confirmation for non-federal agents to
make the arrest. Section 439 of the AEDPA gives state and local law enforcement
the authority to detain any non-citizen who has been convicted of a
felony in the U.S. The criminal provisions are enforceable by non-federal
agents because the individual is considered to be present in U.S. territory
illegally.
Section 439 of the AEDPA can be used as a tool by state and local
enforcement of immigration laws. Nonetheless, the authorized power exists
only when an alien commits a felony. Even with the authorization of section
439, state and local officers are not able to enforce the criminal provision
“unless officers are authorized to make warrantless arrests for misdemeanors
committed outside the arresting officer’s presence” (Jorgensen, 1997, p. 10).
What Jorgensen (1997) implied in his argument is that since an officer
cannot predict who has committed felonies, he/she will have to make an
arrest for a less serious offence such as a misdemeanor. This practice would
be difficult to conduct since “it requires state and local officers to verify a
suspect’s deportation and felon status with INS before making an arrest”
(Jorgensen, 1997, p. 10). This section would be difficult to apply during an
ordinary traffic stop since verifying a suspect’s immigration status would
take too much time and resources. Finally, section 439 has not been used
in an efficient manner because of the lack of appropriate communication
between the Attorney General and non-federal police. While section 439
expanded the level of interaction between state and federal agencies, it did
not establish a sufficiently effective communication mechanism to fulfill its
mission.
Ultimately, the 9/11 attacks forged a new collaboration between the
federal government and non-federal agencies with the purpose of administering
immigration issues. Since national security became a top U.S.
priority, the federal government began an unprecedented approach to
centralize its enforcement agencies and utilize non-federal agencies in order
to expand their access to information and manpower. 2 “The post-9/11 era
marked the birth of a new generation of interoperable databases that sit at
the crossroads of intelligence and law enforcement, reshaping immigration
enforcement at the federal, state, and local levels through increased information
collection and sharing” (Mittelstadt, Speaker, Meissner, & Chishti, 2011,
p. 2). For example, in 2008, the Department of
Homeland Security (DHS) launched the Secure
Communities program designed to obtain custody
of immigration violators found in federal and nonfederal
jails. As of 2011, ICE has convicted more
than 187,300 immigrants and deported more than
86,600 non-citizens (Mittelstadt et al., 2011, p. 11).
Another program includes the National Fugitive
Operations Program (NFLP) approved in 2003 to
allow ICE to find and apprehend non-citizens who have violated their orders
to leave the U.S. Federal, state, and local authorities have shared the information
of inmates and arrested individuals as a way to support the efforts
of DHS to fight terrorism post-9/11.
Overall, the IIRIRA and the AEDPA increased state and local involvement
in immigration law and policy. This so-called immigration federalism
defines a growing involvement of sub-national entities and their attempt to
implement law and policy relating to immigration. These changes meant
that states and localities were allowed to enforce civil and criminal portions
of immigration law. Therefore, after 1996, it became harder to distinguish
who the main enforcer of immigration law was. The federal government
began allowing and even requesting local enforcement, which blurred the
lines of jurisdiction that had been so clearly set through 1986. Since both
the federal government and non-federal actors were technically allowed to
enforce the same laws, with special federal exclusivity, the IIRIRA and the
AEDPA further heated the immigration enforcement debate.
Legal Framework for Immigration Enforcement
In this section, I define the civil and criminal portions of immigration law.
Since federal immigration laws are divided into civil and criminal law, the
purpose of this section is to understand the complexities of these laws and
how they complicate enforcement efforts. In the case of non-federal enforcement,
state and local agents must be able to distinguish between civil and
criminal sections of immigration when making arrests.
Understanding Civil and Criminal Immigration Laws
The difference between civil and criminal laws is part of the confusion
regarding state versus federal law. Since immigration has criminal and civil
provisions in its policy, scholars have put heavy emphasis on the difference
between these two types of laws. For instance, when an immigrant resides
in the United States illegally, he/she is only breaking the civil section of the
INA, not the criminal portion. In cases of civil defiance, the non-citizen
would be accused of INA violation and subject to deportation or other
procedures related to civil proceedings. With this in mind, any non-citizen
who was admitted legally to the United States may become deportable if
his/her visa expires or his/her student status changes. Likewise, when a
non-citizen is lacking legal immigration status that individual is subject to
civil proceedings. Even though an immigrant can be living in the U.S.
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illegally, he/she would not be violating INA’s criminal entry condition. On
the other hand, criminal violations include re-entry after deportation and
failure to depart U.S. territory after a deportation or a voluntary departure.
In order for those acts to be considered of criminal offense, the government
must prove that those acts were committed willfully. The extreme complications
and the constant changes in immigration laws have made the federal
government hesitant to give such enforcement to local and state officials
who are less likely to fully understand the guidelines. Therefore, “The civil
provisions of the INA have been assumed to constitute a pervasive and
preemptive regulatory scheme” (Seghetti et al., 2009, p. 5). The complexity
and preemptive status has greatly limited the ability of non-federal agents
to enforce local immigration laws.
The difference between criminal law and civil law makes it very hard to
distinguish the borderline in the immigration field. In immigration enforcement,
state and local officers are to some extent prohibited from enforcing
civil violations of the law and instead only enforce the criminal aspect of
the law. “State officers do not have the authority to arrest an individual for
illegal presence, a civil violation of immigration law, [although] they arguably
could arrest an individual whom they actually witness enter the country
at an unauthorized location, a criminal violation” (A. J. Rodríguez, 2008, p.
1256). This example illustrates the complexity of immigrations laws. In
that example, the main difference was the distance of the undocumented
immigrant from the physical border. For this purpose, McKenzie (2004)
argued that when making an arrest, non-federal enforcement agencies
would have a difficult time distinguishing between criminal and civil laws.
Even if the INA permits local and state officers to enforce criminal provisions,
they still have to be cautious not to overstep those legal lines.
In the case of Gonzales v. City of Peoria (1983), the Ninth Circuit clarified
the difference between criminal and civil law. Jorgensen (1997) restated
this idea when he discovered: “The Ninth Circuit also emphasized that
although state law authorized the Peoria police to enforce the INA’s provisions,
it did not authorize them to enforce the INA’s
civil statutes” (p. 5). The Ninth Circuit made it clear
that the failure to have proper documentation does
not mean that an immigrant is in violation of the
criminal section of the INA. Otherwise, the court
insisted that “in implementing the arrest authority
granted by state law, local police must be able to
distinguish between criminal and civil violations
and the evidence pertinent to each” (Jorgensen,
1997, p. 5). What the court tried to show was the
possibility that states and localities might overstep
their enforcement powers and interfere with civil
provisions, a section normally left to the federal
government. In Gonzales, the Ninth Circuit determined
that the illegal entry offense is not a continuous offense because it
was only done at the time that immigrants cross the border. Not only this,
but the offense must be committed at the borderline at the presence of an
officer. In order to legally engage in criminal enforcement, the state and
local police agencies must have a memorandum of agreement with the
federal government. When state or local governments get involved in
regulating the entry, stay, residency, and the deportation, they get involved
in civil regulation and therefore those activities would be limited by the
powers of the federal government.
Constitutional Convention of 1787, the differences between the northern
and southern parts of the 13 states made it impossible for the attending
delegates to agree upon matters of slavery and immigration enforcement.
I argue that, after ratification of the Constitution, the Supremacy Clause,
Naturalization Clause, Foreign Affairs Clause, and the Commerce Clause
all support federal enforcement. A lack of clarity in the Naturalization
Clause, and the Migration Clause, however, supports enforcement by nonfederal
agents. Thus, this section shows that the Constitution allows for an
argument for either federal or local authorities to control immigration
enforcement. The Constitution gives support to the federal government
and, to some extent, to non-federal players as well.
The Case for Constitutional Evidence for Federal Enforcement
The United States Constitution granted the federal government primary
powers to enforce immigration laws. Article I, Section 8, established
Congress with the power to defend the general welfare of the United States,
to regulate commerce with foreign nations, establish naturalization laws,
and to pass all laws that are necessary and proper. Since Article I details
the responsibilities and the powers of the legislative branch, it grants the
power to create immigration laws to Congress. Since legislative actions are
federal, the constitutional power given to Congress is also given to the
federal government. Thus, Article I supports federal enforcement through
the work of Congress.
1. The Supremacy Clause
“The difference between criminal
law and civil law makes it very hard
to distinguish the borderline in the
immigration field. In immigration
enforcement, state and local
officers are to some extent prohibited
from enforcing civil violations
of the law and instead only enforce
the criminal aspect of the law.”
In the U.S. Constitution, the Supremacy Clause has supported the historical
power of the federal government to enforce immigration laws. The U.S.
Constitution explicitly states that “the Laws of the United States…shall be
the supreme Law of the Land…any Thing in the Constitution or Laws of
any State to the Contrary notwithstanding.” The
Supremacy Clause gives the federal government
authority to preempt any state action that interferes
with a federal mandate. By establishing the Constitution
as the supreme law of the land, the Constitution
mandates that non-federal entities must follow
federal law in cases where a conflict arises. Considering
the fact that states provided the central government
with supreme power when the Constitution
was created in 1787, the federal government was
formed with entitlement over issues that deal with
broader affairs such as commerce and international
issues. Hence, scholars have looked at the Supremacy
Clause and concluded that it gives primary power
to the federal government to deal with immigration matters. When a state
approves a law that provides local police with extreme powers to enforce
immigration laws, which in most cases deal with civil laws, the federal
government has historically received supreme power to preempt those state
actions. According to Huntington (2008), the Supremacy Clause authorizes
the national government to preempt non-federal conduct. Another scholar,
Boatright (2006), argued that “even if states have constitutional authority
to enforce immigration law, federal law preempts inconsistent state law
under the Supremacy Clause where concurrent jurisdiction exists” (p. 1655).
The Constitutionality of Immigration Enforcement
This section will analyze the U.S. Constitution to look for evidence of federal
preemption and supremacy on immigration matters. Beginning with the
2. The “Uniform Rule of Naturalization” Clause
The Constitution of the United States produced a mechanism for the new
country to work with uniformity and organization. In Article I, Section 8,
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Eduardo Reyes Chávez
Clause 4, the Constitution gave Congress the right “to establish an uniform
Rule of Naturalization, and uniform Laws on the subject of Bankruptcies
throughout the United States.” Naturalization in the United States established
laws that control citizenship, foreign visitors, and ways to live and work in
the country. In other words, naturalization is also related to the immigration
field. In the field of the naturalization of noncitizens,
Sullivan (2009) argued that the U.S. Constitution
gives the federal government power to
regulate over these issues. Furthermore, Sullivan
(2009) also made the argument that commerce is
connected to the immigration area. Thus, the movement
of individuals and workers may affect commerce
and the interests of the national government
as well. For this reason, if states and localities affect the naturalization
process of immigrants, they will violate the constitutional mandate given
to the federal government.
In Article I, the federal government receives most of its power to
conduct issues of national uniformity and naturalization laws. In the area
of naturalization, the government has passed laws such as the Immigration
Naturalization Act to manage how non-citizens can lose or obtain certain
rights, such as the opportunity to become U.S. citizens. The “uniform Rule
of Naturalization” also establishes that “only Congress may enact laws
pertaining to admission into the United States” (McKenzie, 2004, p. 2). The
powers of admission and removal, therefore, belong only to the federal
government. The “uniform Rule of Naturalization” clause has further
provided federal support in immigration enforcement as well as the administration
of the admission and removal of non-citizens.
3. The Foreign Affairs Clause
“It is impossible to talk about
immigration and not mention its
implication regarding foreign
affairs.”
It is impossible to talk about immigration and not mention its implication
regarding foreign affairs. For instance, the treatment of foreign citizens
automatically entails their foreign government and their constitutional
rights. It is in no surprise that a government, in this case the U.S. government,
worries about leaving the subject of international affairs to 50 different
states. For example, “The Supreme Court has repeatedly stated that
treatment of one country’s citizens in another country is a component of
foreign affairs and that conflicts between nations may arise as a result of
wrongs committed against those individuals” (A. J. Rodríguez, 2008, p.
1258). The complexity of having 50 different immigration policies multiplies
the risk of falling into conflicts with other nations.
When sub-national entities create their own immigration laws, the
interests of the entire nation become attached to those laws as well. Huntington
(2008) agreed and stated that sub-national “governments cannot
exercise immigration authority because to do so necessarily implicates
national interests” (p. 813). In order to deal with such implications, many
scholars have asked for uniformity to reduce the ambiguity in immigration
enforcement. A. J. Rodríguez (2008) further argued that non-federal
enforcement complicates uniformity and the legitimacy of the United States
in foreign affairs. When a country approves numerous laws by more than
one governing body, the international community may become confused
about who governs or what laws to obey. Further, Boatright (2006) stated
that when an individual state acts with its own reason, the state has the
power to embroil the U.S. in international conflicts. Similarly, Sullivan
(2009) added that the possibility of federal preemption is especially relevant
in this area since it influences international relations and other areas of
national concern.
4. The Commerce Clause
Supporters of federal exclusivity have constantly used the Commerce Clause
to show that the U.S. Constitution grants the federal government the right
to enforce immigration laws. Article I, Section 8, Clause 3 of the Constitution
reads that Congress has the power “to regulate
Commerce with foreign Nations, and among the
several States.” In other words, the federal government
maintains supremacy over international commerce
as well as over interstate commerce, especially
when states become involved in commercial activity
that does not support the interest of the nation. After
the 1890s, federal exclusivity began to take shape
on the grounds of the Commerce Clause and further articulated by the
famous Passenger Cases (C. M. Rodríguez, 2008). Interstate commerce,
international commerce, and trading may connect states with international
partners. Since commerce also includes the movement of labor and other
factors, it is parallel to the immigration field. C. M. Rodríguez (2008)
explained, “The dormant Commerce Clause doctrines [support]…interstate
commerce from certain burdens imposed by state regulation” (pp. 638-639).
In order to protect and make interstate commerce possible, the Commerce
Clause gives power to the federal government to facilitate interstate commerce
and avoid international conflicts.
Court Rulings Cases Supporting Federal Exclusivity
There have been many court cases that have ruled in favor of immigration
enforcement by the federal government. Mainly focusing on the admission
and removal of foreigners, the U.S. Supreme Court has made a constant
push to provide such power to the federal government. “The Supreme
Court has stated that ‘the authority to control immigration—to admit or
exclude aliens—is vested solely in the Federal Government’” (Jorgensen,
1997, p. 1). The delicacy of dealing with foreign nationals has been one of
the main elements used by the courts to express their agreement with federal
enforcement. Just like scholars looking at the U.S. Constitution, scholars
who have deeply analyzed the Supreme Court rulings have also favored
federal exclusivity on the grounds of uniformity.
The Supreme Court has recognized that immigration enforcement
belongs to the national government. “The Supreme Court ‘began denying
powers of immigration regulation to the states’ during the 19th century ‘in
part because their actions were visibly abusing those powers’” (Kalhan, 2007,
pp. 6-7). This statement takes us back to the issue that when all states have
the power to regulate an international matter, their actions are very likely
to differ and cause international tension. In the same way, early cases
asserted federal exclusivity because of the concern of interaction with the
international community (A. J. Rodríguez, 2008). Therefore, although state
and local entities deal with foreign nationals in a daily basis, it should be
the job of the national government to pass legislation in that matter.
1. Chy Lung v. Freeman (1875)
The issue in this case was based on principles of federalism and federal
supreme power to limit state power. Chy Lung represented a case that served
as a model for other cases to understand the Supreme Court’s view on
immigration enforcement. When Chinese nationals such as Chy Lung
arrived in San Francisco, the state of California required them to pay a bond
of $500. In Chy Lung, the Court found California’s laws inconsistent with
the federal powers. The Supreme Court held the state law unconstitutional
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because only Congress had the power to enact legislation that affected the
admission of foreigners. The California law intervened with foreign commerce
and foreign relations that resulted in unauthorized activity in an area
normally reserved for the federal government. “The Supreme Court
expressed concern that mistreatment of non-U.S. citizens by state officials
might antagonize foreign governments and render the federal government
liable for claims arising from such mistreatment” (Kalhan, 2007, p. 7). The
power to deal with foreigners at an international border was reserved for
the federal government, not the state of California. The statute could
therefore inflict the U.S. in an international conflict.
2. The Passenger Cases (1842)
The Passenger Cases included the combination of two similar cases, Smith
v. Turner and Norris v. Boston. These cases were important because they
established standards for states to follow in order to comply with federal
regulations on treatment of non-citizens. The Passenger
Cases of 1842 constitute a series of laws in
Massachusetts and New York that levied fees on
arriving foreign passengers. With the intentions to
offset the cost of caring for foreign papers, these two
states acted unilaterally and acted as the national
government. The actions taken by Massachusetts
and New York compromised international commerce
and violated this federal-centered constitutional
responsibility. The responsibility of the federal government
to control the area of foreign commerce implied the total exclusion
of state authority in the area.
The Supreme Court responded to the Massachusetts and New York laws
by striking them down as unconstitutional. The Supreme Court’s decision
established that the imposition of taxes by a state on foreign commerce
violated the Constitution. According to A. J. Rodríguez (2008), “The Court
recognized the importance of the national government speaking with one
voice in instances that ‘take into view our relations with other countries’”
(p. 1232). In this case, the Court was concerned with uniformity when
relationships with foreign nationals are at stake. The one-voice argument
persisted in the minds of the Supreme Court members during the decision
of these series of cases. The issue of foreign commerce restricted the states’
rights to regulate immigration. A. J. Rodríguez (2008) explained that the
Court’s agreement to federal exclusivity extended preemption on immigration
matters and gave this right to the federal government. Federal preemption
and the issue of constitutionality convinced the Supreme Court to stop
the states from enforcing commerce-related laws that impacted the circulation
of foreign nationals. The Passenger Cases set the federal government
to regulate the area of immigration laws that affect foreign nationals.
Cases Supporting State and Local Enforcement
“The Supreme Court has looked
into the Constitution and found
that there is still an opening for
sub-national governments to
participate in the enforcement
process.”
The Supreme Court has looked at the Constitution and found that there is
still an opening for sub-national governments to participate in the enforcement
process (Kalhan, 2007). There are many laws that recognize immigration
federalism. Jorgensen (1997) found that “Congress had specifically
authorized local enforcement of 8 U.S.C. [Section] 1324(c)” (p. 4). Since
this law criminalizes the transportation and harboring of undocumented
immigrants, Congress recognized the need to use the local resources available.
Likewise, “Congress’s silence about local enforcement of the INA’s
criminal entry provision displayed an intent to withhold local enforcement
authority” (Jorgensen, 1997, p. 4). What this means is that if an institution
does not mention who should enforce those laws, then the enforcement is
open to all parties. Since the Constitution does not mention in text that
local institutions are prohibited from enforcing them, Jorgensen (1997)
argued, it also means that they are allowed to enforce immigration laws.
1. Gonzales v. City of Peoria (1983)
Gonzales gives the opportunity to explore non-federal enforcement and
also to understand the risks of enforcement by states and localities. Aside
from risks of preemption, cases such as Gonzales provide information
regarding racial profiling and situations where non-federal agents have
enforced federal immigration laws. In Gonzales, 11 Mexican individuals
sued the City of Peoria, Arizona, for an unlawful traffic stop by the local
police. The plaintiffs claimed the police stop was questionable and discriminated
against them based on their appearance. The plaintiffs of Mexican
ancestry affirmed that the police officers were in the practice of arresting
individuals who violated federal immigration laws. Thus, the plaintiffs sued
the City of Peoria for allowing its police force to
enforce federal immigration laws that were not supposed
to be within their jurisdiction. In addition,
the plaintiffs claimed that the stop was not based on
them violating a law, but on physical characteristics.
For this reason, the Ninth Circuit court examined
the criminal entry provision of the INA to analyze
the legality of the arrest of the undocumented immigrants.
One of the main questions regarding the arrest
of the plaintiffs dealt with the applicability of probable cause. Did the local
police officers have probable cause when they arrested the undocumented
immigrants in the City of Peoria During the analysis of the Ninth Circuit,
the court held that “local police officers may, subject to state law, constitutionally
stop or detain individuals when there is reasonable suspicion or, in
the case of arrests, probable cause that such persons have violated, or are
violating, the criminal provisions of the INA” (Seghetti et al., 2009, p. 8).
Therefore, the court ought to consider if state law gives power to the
local police to enforce these regulations. The City of Peoria approved laws
that allowed local officers to arrest undocumented entrants who were in
violation of the criminal provision of the INA. However, even with authorization
from the state to enforce federal laws, the local police must also
establish probable cause when making an arrest. In Gonzales, probable
cause could not be established because “to believe that an alien has violated
the INA’s criminal entry provision…lack of documentation may serve as a
basis for reasonable suspicion and further questions of a suspect” (Jorgensen,
1997, p. 12). In other words, reasonable suspicion is not evidence enough
to detain individuals such as the plaintiffs unless they can satisfy the requirements
to have probable cause. The conclusion of the court focused on the
civil provision of the INA. By the same token, the Ninth Circuit “held that
the Peoria police department could not enforce the civil offense of illegal
presence” based on civil provisions and the Arizona state law (Jorgensen,
1997, p. 12).
2. De Canas v. Bica (1976)
The De Canas case presented an argument for states and localities to justify
their involvement in enforcing federal law. Since employment is one of the
driving forces for undocumented immigration, this case helps understand
current enforcement efforts by state and local governments. In this case,
the Supreme Court was given the task to decide if local officers can enforce
unlawful hiring of undocumented workers in a field that belongs to the
federal government. Section 2805(a) of the California Labor Code established
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Eduardo Reyes Chávez
that “no employer shall knowingly employ an alien who is not entitled to
lawful residence in the United States if such employment would have an
adverse effect on lawful resident workers.” In particular, the Court tried to
answer if section 2805(a) was unconstitutional based on its attempt to
regulate immigration and if the Supremacy Clause preempts it.
While employment of immigrants is found in the areas of immigration
regulation and naturalization, mere employment regulation does not constitute
enough activity to preempt such action by the federal government.
According to the Supreme Court, the spectrum of immigration has some
space for states and localities to enforce as well. In this case, the enforcement
was based on employment practices that covered workers who were not
authorized to work in the United States. Jorgensen (1997) argued that the
INA only intended to give the federal government power to “regulate the
‘conditions of admission to the country and the subsequent treatment of
aliens lawfully in the country’” (p. 3). Once again, the federal exclusivity
can be seen in this case, but the sub-national entities are still able to participate
as well. In his argument Jorgensen (1997) made clear that subnational
regulation was actually expected “in light of its complicated subject
matter and since the INA’s purpose is only to regulate the admission of
aliens and the treatment of lawful immigrants” (p. 4). In matters of federal
preemption, De Canas made it clear that in this case the state was not
preempted from charging employers for hiring undocumented workers.
After a detailed analysis of the INA, the Supreme Court was not able to find
any explicit statutory language that showed a congressional intent to preempt
states from enforcing these laws. There is space for legal prerogative, and,
as we will see, policy initiation at the local level.
Good Reasons for State and Local Enforcement
Although the federal government has achieved supremacy over immigration
enforcement, it has failed to effectively enforce immigration laws. States
and localities have perceived the need to get involved in immigration
enforcement due to the federal government’s failure to do so. According
to Ellis (2004), the ineffectiveness has been caused by “a lack of direct U.S.
government responsibility for the social costs of
immigration because social policy is devolved to
the states, and [because of] the conjunction of a
national ideology that [favors] unregulated markets
as well as vigorously supporting individual civil
liberties” (p. 52). Since undocumented immigrants
impact (negatively and positively) local labor force,
social programs, schools, civic organizations and
many other social forums, non-federal lawmakers
have shown frustration for the lack of effective federal
enforcement. The dilemma faced by non-federal
governments is that “states and localities have no
control over who enters or exits but bear a considerable
degree of responsibility, some of it mandated
by federal law, for all who are resident” (Ellis, 2004, pp. 52-53). In addition,
states and localities have shown dissatisfaction with ICE given that it has
historically refused to take custody of undocumented immigrants citing a
lack of resources and detention space (Boatright, 2006). All these cases
have encouraged non-federal agents to increase their immigration enforcement
efforts and put pressure on the federal government to pass a comprehensive
immigration reform.
The participation of state and local governments would increase the
number of available resources as well as provide the federal government
with needed manpower to enforce immigration laws. Since national security
became a top priority to the United States post-9/11, some non-federal
“Although the federal government
has achieved supremacy over
immigration enforcement, it has
failed to effectively enforce immigration
laws. States and localities
have perceived the need to get
involved in immigration enforcement
due to the federal government’s
failure to do so.”
agents have argued that state and local participation will enhance national
security and add more manpower to the more than 2,000 federal immigration
agents (McKenzie 2004). Specifically, the participation of non-federal
agents would benefit immigration enforcement due to their constant contact
with the general public. Not only are state and local policemen most likely
to get in contact with criminals, but they are also more likely to have the
personnel to respond to violations of immigration law. For example, local
police encountered three of the terrorists who participated in the 9/11
attacks. Likewise, Boatright (2006) added that since state and local police
represent approximately 95% of the U.S. law enforcement, these officers
would cover a lot more ground and support the severely understaffed ICE.
The advantage of using state and local enforcement officers as counterterrorism
tool is important “because, during the course of daily duties, [nonfederal
agents] may encounter foreign national criminals and immigration
violators who pose a threat to national security or public safety” (Stana,
2009, p. 1).
Overstepping by State and Local Governments
Up to this point, I have argued that the Constitution and some court cases do
allow states and localities to enforce immigration laws with some significant
prohibitions against enforcing civil provisions. In this section, I shift from legal
arguments to practical ones. My argument will be based on evidence that shows
how non-federal enforcement alienates immigrant communities and creates
unnecessary enforcement spending, and how non-federal agents attempting
to enforce immigration laws are likely to violate the constitutional rights of
minorities because of their lack of expertise.
Local Police Enforcement and the Alienation of the Immigrant
Community
When state and local police enforce immigration laws, the relationship
between them and their respective communities can be jeopardized. When
the community fears the local police force, the level of trust and cooperation
is seriously undermined. In the case of undocumented
immigrants, they are less likely to come
forward and report crimes due to the possibility of
deportation. When the community does not cooperate
with the local police, the ability for the police
force to effectively perform their duties is destabilized.
Most immigrants would be discouraged to participate
with the local police either because of fear of
deportation or distrust. Thus, a great number of
prospective witnesses of crime would not be willing
to cooperate, decreasing the chances of a case being
solved. For instance, “Many...immigration groups
that may be vulnerable to high rates of victimization
come from countries where distrust of authorities”
is common (Decker et al., 2008, p. 170). So, when local residents perceive
their local officers to have business with federal immigration officers, they
would be reluctant to participate due to fear and lack of trust.
Local Police Lack of Immigration Expertise
In the United States, as it is the case in most countries, the immigration
system is complicated and hard to understand, even to officers who are
trained to enforce those laws. Boatright (2006) argued, “The immigration
code is complex, arguably too complex for state and local police to enforce
without a high degree of training and expertise” (p. 1648). In particular,
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in a field where even professionals make mistakes, scholars seem to be
skeptical regarding less knowledgeable agents enforcing these types of laws.
The concerns many institutions and social groups have about non-federal
agents enforcing these complex laws are widespread. The uncertainly and
likelihood of making mistakes greatly increases when local agents enforce
immigration laws, an activity that can easily result in overstepping and even
preemption by the federal government.
Decker et al. (2008) are mainly concerned about the “expanding universe
of crimes” that the immigration field covers. As more complex categories
are added to immigration enforcement (terrorism, hate crimes, human
trafficking, gangs, and electronic crimes), the local
and state police would require a lot more advanced
resources and training in order to understand
the already complex system. For instance, this
continuous expansion will also be subject to higherthan-usual
uncertainty that can result in controversial
legal issues once their errors are found. When
state and local police engage in activities outside
their traditional policing responsibilities, the likelihood
of committing unconstitutional activities, racial
profiling, and inefficient ways of using local resources
are greatly increased. Most rational law enforcers
would not want to overstep their given legal boundaries, however, in the
complex immigration field the understanding and interpretation of the laws
might result in a violation even if that was not initially intended.
Violation of Civil Rights and Liberties
Another concern regarding sub-national agencies enforcing federal immigration
laws is that their insufficient training in federal immigration laws
leaves them vulnerable to violate constitutional rights of non-citizens. “State
and local governments must seriously consider the risks of local immigration
enforcement and must be prepared to dedicate the resources necessary
to prevent civil rights violations before implementing any immigration
enforcement plan” (Jorgensen, 1997, p. 13).
Individuals who violate civil rights are committing unconstitutional
acts. The Fifth Amendment to the U.S. Constitution states, “No person
shall…be deprived of life, liberty, or property, without the due process of
law.” The Fifth Amendment, which applies to all individuals regardless of
immigration status, forces all officers to respect its legal power. Similarly,
the Fourteenth Amendment protects all individuals from the power of states
to deny “any person within its jurisdiction the equal protection of the laws.”
The Equal Protection Clause has been one of the main clauses utilized by
civil rights advocates who have recognized a differential treatment to specific
groups.
Some of the most recent legislation that protects against discrimination
is Title VI of the Civil Rights Act of 1964, which prohibits discrimination
on grounds of race. Previously, the Civil Rights Act of 1871 provided
monetary damages as a remedy for harm caused by deprivation of federal
constitutional rights by state and local government agents. Likewise, the
Violent Crime and Control and Law Enforcement Act of 1994 authorized
the Department of Justice to bring legal actions against any police agency
engaged in unconstitutional actions. The civil actions were intended to
target those illegal actions for equitable and declamatory relief (Seghetti et
al., 2009, p. 20).
Since police officers stop individuals on a day-to-day basis, as they focus
on identifying their immigration status they might well end up discriminating
against that individual. Many laws are already established to punish
those types of activities, even against states and local governments. Thus,
without expertise in enforcement of immigration, local and state enforcers
might end up violating the civil rights of individuals especially to racially
identified residents.
Racial Profiling
“Another concern regarding
sub-national agencies enforcing
federal immigration laws is that
their insufficient training in federal
immigration laws leaves them
vulnerable to violate constitutional
rights of non-citizens.”
Opponents of state and local enforcement have been concerned about racial
profiling, a violation of the Fourth Amendment and the Fourteenth Amendment.
3 “Under the current interpretation of the Equal Protection Clause…
the Supreme Court has made it clear in recent years that all racial classifications
are constitutionally suspect” (Johnson, 2001,
p. 23). Nonetheless, in 1975, the Supreme Court
classified Mexican appearance as a legitimate reason
for making an immigration stop. 4 Making race a
reasonable classification to stop an individual can
easily undermine the Equal Protection Clause and
result in violations of constitutional rights. “Latino
residents experienced racial affronts targeted at their
Mexicanness indicated by skin-color, bilingual speaking
abilities, or shopping in neighborhoods highly
populated by Latinos” (Romero, 2006, p. 448). When
the complexity of immigration laws are added to
factors of racial profiling, the provability of a constitutional rights violation
is more likely to occur. The International Association of Chiefs of Police
expressed the concern that probable cause in immigration law is much
harder to be discerned by non-federal agents. A DHS’s Office of Inspector
General (OIG) report concluded that “287(g) training does not fully prepare
officers for immigration enforcement duties,” highlighting their inadequate
training on civil rights and on the Fourth Amendment. As a result, the lack
of adequate training for non-federal agents and the ability for them to use
Mexican appearance as a legitimate reason to stop a person means that they
are more likely to commit constitutional violations than ICE agents.
Unnecessary Local and State Spending to Enforce Federal Laws
After the “great recession” of 2008, economic efficiency and strategic spending
became major concerns for governments across the world. Since
resources have become scarce, enforcement agencies have looked at all types
of ways to save money and continue their enforcement efforts. To compensate
for local expenses, the federal government established the State
Criminal Alien Assistance Program (SCAAP). SCAAP has provided funding
for states that participate in the incarceration of undocumented criminal
immigrants who committed a felony or at least two misdemeanors. After
entering into a contractual program, the participants would be compensated
with an average cost determined by the Attorney General.
ICE can reimburse law enforcement agencies for (1) detention of incarcerated
aliens in local facilities who are awaiting processing by ICE upon
completion of their sentences and (2) transportation of incarcerated
aliens, upon completion of their sentences, from a jurisdiction’s facilities
to a facility or location designated by ICE. (United States Government
Accountability Office, 2009, p. 8)
Still, the funding provided by the ICE and the SCAAP programs are too
small to help with the enforcement cost. The research conducted by Booth
(2006) determined that SCAAP provided less than 5% of the annual budget
allocations for those programs. What was even more surprising is that
average federal aid was about 0.6% of the states’ annual budget and only
provided less than 1% of total expenditures in 39 states (Booth, 2006).
49

Immigration Federalism: The Case of Immigration Enforcement by Non-Federal Agencies
Eduardo Reyes Chávez
Conclusion
There are significant reasons why immigration enforcement, especially in
the criminal realm, is squarely located in federal jurisdiction. The preemption
seen in the Constitution can also be recognized in cases where Congress
intended to give enforcement rights to the federal government. In the field
of immigration enforcement, federal preemption exists “when a state entity
regulates ‘in a field that Congress intended the federal government to occupy
exclusively’” (Seghetti et al., 2009, p. 4). For example, the federal government
has the power to control federal laws and resulting programs such as the
INA, IRCA, and the Bracero Program. Since Congress intended to occupy
the field of immigration enforcement, any sub-national activity can be
preempted. And, since Congress occupies the legislative field, the depth
and breadth of congressional action can restrict sub-national enforcement
if intended to. In cases of field preemption, the federal government maintains
absolute regulatory scheme to completely limit enforcement activity
for states/localities (McKenzie, 2004). Intentional federal exclusivity results
in cases of field preemption intended by Congress.
In short, implications of federal preemption serve as a roadblock that
may encompass state attempts to make and enforce immigration law and
policy. Understanding that Congress has express explicit statutory language
that provides the federal government with clear textual evidence that makes
immigration enforcement a federal issue, federal preemption has the power
to stop non-federal enforcement. Likewise, Congress has blurred the lines
of immigration enforcement by intending immigration law to belong to the
federal government. In other words, congressional actions symbolize a
present risk to states and localities that would like to participate in enforcing
immigration laws.
By enforcing immigration laws, state and local governments jeopardize
overstepping and violating constitutional rights of non-citizens. In addition,
their enforcement also breeds alienation between the community and the
local authorities. In a country where local community collaboration is
essential to combat local crime, alienation from the local police can result
in an increased percentage of crime rates. Not only
that, since immigration is a very complex field, state
and local officers sometimes do not receive enough
training to truly understand immigration laws, especially
criminal and civil laws. In many cases, this
lack of understanding these laws has resulted in
violation of civil rights and racial profiling. In a time
when money is not as available as it used to be, state
and local agencies should use their resources wisely
and only engage in law enforcement that falls under
the local jurisdiction. Even though in some case
enforcing immigration laws can serve as a security
measure, those laws are federal laws and should
“The easiest and most effective way
to solve the confusion in immigration
enforcement would be to pass
a comprehensive immigration
reform where the federal government
receives full authority over
the criminal and civil portions of
the law.”
therefore be enforced by the federal government. Instead, the local officers
should focus in building bridges among cultures and strengthening their
connection with the entire community.
Even though the United States Constitution does not specify who is entitled
to enforce immigration law, the federal government has established itself as the
exclusive enforcer through congressional legislation and recognition by Supreme
Court rulings. State and local governments may voluntarily come into written
agreements with the federal government to enforce criminal and, to some extent,
civil provisions of the U.S. immigration law but they are still restricted to federal
preemption. Therefore, states and localities should not engage in immigration
enforcement since the likelihood of overstepping their legal boundaries may
occur due to the lack of expertise and the risk of violating civil rights and civil
liberties of racial minorities.
As states and localities engage in immigration enforcement, the possibility
of federal preemption is likely to increase as well. Thus, investing
enormous amounts of time, money, and energy in immigration enforcement
might not be the best choice for local enforcers. Since Congress can at any
time pass legislation that influences immigration enforcement, local enforcement
is not stable and is likely to change in any given session. Whenever
a local law conflicts with federal mandate, the national government will
most likely interfere in order to maintain its power. In recent times, subnational
governments have been granted with extensive flexibility to enforce
criminal and civil immigration laws. The complexity of immigration laws
is likely to result in federal preemption, community isolation, and unnecessary
spending in a field where the federal government holds the last word
in immigration enforcement.
The easiest and most effective way to solve the confusion in immigration
enforcement would be to pass a comprehensive immigration reform where
the federal government receives full authority over the criminal and civil
portions of immigration law. Since the number of undocumented immigrants
continues to rise, the alternative cannot be a complete ignorance of
immigration enforcement. Instead, the federal government should become
the only enforcer of immigration laws and give an end to programs such
as 287(g) that involve non-federal agents. The federal government should
dramatically increase the number of federal immigration agents as well as
increase its annual budget in order to cover those costs. With more resources
and manpower, the federal government would increase the number of
apprehensions, detentions, and deportations of undocumented immigrants
whom they consider to be of great threat to national security. To maximize
their available resources, the federal government should focus on finding
only non-citizens who are committing serious crimes or multiple felonies.
In this program, the federal government would continue to have personnel
on the entire international border; however, most of their energy would be
focus on going after incarcerated immigrants and those involved in acts of
terrorism and drug trafficking.
This approach would allow states and localities to focus more on fighting
local crimes and use their limited resources
to work closely with the community in order to
fight crimes more effectively. This would allow all
individuals to participate in the apprehension of
criminals without having to worry about their own
deportation when exposing their immigration status.
In order to ease the cost associated with immigrant
influx (e.g., schools, prisons, or social services), the
federal government would create a reimbursement
program, such as SCAAP, with the mission to provide
a percentage of expenses to non-federal governments.
The higher efficiency by the federal government will
relax tensions between the federal government and
non-federal entities as well as allocate enforcement resources to the hands
of better-trained federal agents. In this alternative, non-federal agents will
not be subject to federal preemption, which will dramatically decrease the
likelihood of violating constitutional rights of non-citizens. The only
participation states and localities would have will be providing the federal
government with information regarding the criminals who have a strong
history of unlawful activity.
50

The Hinckley Journal of Politics 2013
endNOTES
1. The Bureau of Immigration is the precursor to the Immigration and
Naturalization Service (INS) that would ultimately become the current
Immigration and Customs Enforcement (ICE).
2. The Border Patrol, which during that time was under the supervision
of the INS, came under the umbrella of the newly formed Department
of Homeland Security (DHS) (C. M. Rodríguez, 2008). The DHS
was established on March 1, 2003, to replace the Department of
Immigration Services. Similarly, the former INS was divided into three
different sections within the Department of Homeland Security. The
United States Citizenship and Immigration Services (USCIS) became
responsible for providing most of the services and benefits for immigrants.
The second component became the Bureau of Immigration
and Customs Enforcement (ICE) in charge of enforcing immigration.
Finally, the third section became the Bureau of Customs and Border
Protection (CBP). The third bureau became responsible for protecting
the borders of the United States. These federal entities served as parts
of the national body of government and as a symbol of federal supremacy
in enforcement efforts.
3. Racial profiling is defined as the practice of targeting individuals based
on their race or ethnicity in the belief that minority groups are more
likely to engage in unlawful behavior or be present in the United States
illegally (Seghetti et al., 2009).
4. See United States v. Brignoni-Ponce. (1975). 422 U.S. 873-87.
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trusting federalism to increase nonfederal assistance with immigration
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termination doctrines in removal proceedings in light of state and local
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Immigration and Naturalization Act of 1952. (1952). Public Law 82-414, 66 Stat.
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Massey, D. S., Durand, J., & Malone, N. J. (2003). Beyond smoke and mirrors:
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Sullivan, L. (2009). Enforcing nonenforcement: Countering the threat posed to
sanctuary laws by the inclusion of immigration records in the national crime
information center database. California Law Review, 97(2), 567-600.
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items/d09109.pdf.
52

SUGGESTED U.S. POLICIES TO PROMOTE GROWTH IN AFRICA
Compiled by the Fall 2012 Ambassador John Price Think Tank Students
The fall of 2012 marked the inaugural semester for the Ambassador Price Think Tank. John Price served as Ambassador
to the Republic of Mauritius, the Republic of Seychelles, and the Union of Comoros from 2002-2005. He is currently
serving as a Hinckley Resident Scholar. His Think Tank is reserved for our most globally-minded students and
focuses on foreign policy as it relates to Africa and the Arabian Peninsula. For their final project, the students developed
policy proposals for the U.S. to implement to best benefit Africa.
the promise of Small- and medium-sized enterprises
by Basil Vetas
Achieving substantial economic growth throughout Africa is far from a
one-dimensional challenge. The problems facing many African countries
are well known and include poverty, disease, and high infant mortality.
However, also well known are many of Africa’s successes, including the
flourishing telecommunications, retail, and banking industries. In fact,
between 2000 and 2008, real GDP in Africa rose 4.9% per year—and only
about one-third of that growth was a result of rising commodity prices and
natural resources (McKinsey, 2010). In this article, I will examine the other
sources of Africa’s GDP growth and attempt to identify what policies the
United States can implement today to help Africa address existing challenges
and to sustain the growth it has seen over the past decade.
With only about one-third of Africa’s GDP growth coming from rising
commodity prices, the remaining two-thirds has come through wholesale
and retail businesses, transportation, telecom, manufacturing, and other
industries. Many of the small and medium sized enterprises (SMEs) that
drive these industries have thrived off of an improved business climate in
Africa: an inflation rate that has dropped from 22% in the 1990s to 8% after
2000, and more access to credit through microfinance and growing international
capital flows (McKinsey, 2010).
In developed countries, SMEs contribute 60% of employment and 50%
of GDP, whereas in developing countries, the figures are only about 30%
and 17% respectively (Kennedy School of Government, 2007). One reason
for this disparity is smaller formal economies in developing countries. For
the government, a more formalized economy provides less operational
inefficiencies caused by black markets, a broadened tax base, reduced cash
economy, and more resources for formal financial intermediation (USAID,
2005). But many businesses in Africa still operate in the informal economy
due to financial constraints and few incentives to formalize. These SMEs
often find it more profitable to stay informal despite growth opportunities
that are seriously hampered by reduced access to formal credit and limited
expansion out of local markets.
One may ask how United States policy can promote the growth of the
SME sector and encourage the formalization of African businesses. There
are a number of possibilities including foreign aid, trade policies, or even
foreign intervention. But possibly the most powerful tool the U.S. has for
helping the African SME sector grow and formalize is to increase international
capital flows. Since 2000, net private capital flows to countries in
Africa have increased six times, reaching $41 billion in 2010, and these flows
have been an important catalyst for African businesses (IMF World Economic
Outlook, 2011).
One U.S. approach is to mimic China, which has bid for access to millions
of tons of natural resources in Africa in exchange for $6 billion of
infrastructure investments including mine improvements, roads, rail, hospitals,
and schools (McKinsey, 2010). Another avenue is to promote foreign
direct investment (FDI) into Africa by limiting the transaction fees that
banks can charge on FDI, remittances, and other international capital
transfers.
Finally, one method for inducing international capital flows into Africa
that is not as direct, but that may be more crucial than any of the others
mentioned, is to reshape the domestic perception of U.S. citizens. Too
frequently, there is a stigma associated with Africa as a place that is broken,
unstable, and corrupt. In reality, however, Africa is home to many of the
fastest growing economies in the world and should be viewed as a profitable
and opportune place to do business. The U.S. can do Africa a great service
by promoting this brand and reaffirming it around the world to corporations
and individuals alike.
achieving ENVIRONMENTal SUSTAINABILITY
by WENdY KATTER
Many nations depend heavily on their natural resources to sustain themselves.
As the population of the world is expected to reach 2 billion by the year
2050, this burden on the planet will be at its limit (“Environment,” 2012).
Africa in particular is suffering twofold from environmental troubles. One,
global climate change brought on by greenhouse gases from the developing
world furthers desertification and drought on the continent, which therefore
spurs famine and poverty. Two, Africa’s population is growing by about
2.2% each year, making its population surpass 1 billion by the year 2025
53

Suggested U.S. Policies to Promote Growth in Africa
Price Think Tank
(“Addressing Environmental,” 2008, p. 2). At this rate, the stress on the
environment could double or triple (“Addressing Environmental,” 2008, p.
2). Africa’s ability to gain sustainable environmental practices is crucial in
order to maintain its growing population. Help in attaining this sustainability
should be a goal sought by the many world powers, as it will also
bring stability to much of the region. At the forefront of these world powers
should be the United States.
The African continent is a very foreign entity to many Americans. Most
only hear about disease and poverty that have gripped many of the countries.
However, while these issues are far-reaching and devastating, there are very
simple solutions in solving them, one being environmental sustainability.
Environmental sustainability will ensure that Africa’s vast natural resources
are around for the coming generations to thrive on. Also, teaching Africans
how to maintain their land and resources gives them empowerment. Africa
is no longer the world’s charity case. It is a continent seeking to take on its
own issues and find its own strength in the world. Recently, the U.S. has
not avidly pursued partnership with Africa in this regard. President Obama
has only visited the continent once in his first four years of office and it was
not even for a full day (J. Price, personal communication, November 16,
2012).
There is great possibility for the U.S. to renew its relationship with Africa.
Supporting the continent in establishing environmental sustainability is
one way. One entity that is already making headway in this field is the U.S.
Agency for International Development (USAID). USAID recognizes the
possibility of a future threat if the environmental challenges are not faced,
stating, “Changes to the climate, such as more frequent and severe storms,
floods, and droughts and warmer temperatures, present serious risks to the
well-being and livelihoods of millions of poor people—especially those who
depend on the land and coastal resources for their living” (“Global Climate
Change,” 2012). USAID has also set goals for the coming years in order to
help developing countries reduce greenhouse gas emissions, decrease
deforestation, and prepare for changes in the climate (“Global Climate
Change,” 2012).
One example where USAID efforts have already produced results is in
Burkina Faso. USAID and partner Catholic Relief Services (CRS) brought
improved seeds and soil-fertility enhancing techniques to the northern
village of Wattigué (“Supporting,” 2013). These changes allowed families to
have better harvests and thus have increased their incomes (“Supporting,”
2013). The boost in revenue has afforded families the ability to send their
children to secondary school, which was a first for many (“Supporting,”
2013).
While USAID’s work is significant worldwide, it only works in 15 African
countries (“Interactive Map,” 2012). Broadening USAID’s environmental
goals throughout Africa would make a great impact in the region just as it
did in the village of Wattigué, bringing not only stability but growth to many
that depend on the land for income. Environmental sustainability is only
one step in creating a strong and independent African continent; however,
its establishment would ensure the country’s future resilience and fortitude.
The U.S. could be Africa’s foremost support in this process, ensuring peace
and security for the future generations of each region.
a focus on the FISHING INDUSTRY
by SALVADORE MACIEL
As with all issues related to Africa, the continent’s fishing industry is highly
complex, particularly when viewed from a sustainability and economic
viability standpoint. There is no one single component of this issue that can
be easily or readily addressed without dealing with a host of other components.
There is also no single coordinated U.S. program or policy for dealing
with the African fishing industry whether it be commercial fishing for export,
local consumption, or aquaculture.
Illegal and over-fishing is extensive off all coasts of the African continent,
depleting resources and affecting the African economy. Piracy, largely off
the coast of Somalia and around the Horn of Africa, threatens international
commerce. An insufficient number of deep-water ports limits shipping,
affecting both import and export. Aquaculture, for both local consumption
and for export needs to be further developed. Free trade zones are necessary
to attract foreign investment. Consumers are increasingly demanding species
from unsustainably fished stocks. There is a lack of fishing-related industry,
such as canning for example, in much of the continent.
A report by The World Fish Center (2009) stated that
Fish is an important food for over 400 million Africans. At the same
time, fish consumption in sub-Saharan Africa is the world’s lowest.
Africa is projected to need an additional 1.6 million tons of fish a year
by 2015 just to maintain current consumption, increasing by a further
2.6 million tons a year by 2030. Most wild capture fisheries, however,
have reached their production limit or are over-fished. The rapid increases
in fish supply required over the next decades will only be possible,
therefore, if these fisheries are sustained and improved while simultaneously
developing aquaculture” (p. 1).
The problem of over-fishing, or illegal, unreported, and unregulated
(IUU) fishing, is a global problem being tackled by a host of organizations.
The IUU-Working Group within the NEPAD Program of the African Union,
working with NGOs, Civil Society, international organizations, and the
fishing industry, is working to promote uniform policy throughout Africa
regarding inland waters and marine waters, whether at small-scale or
industrial level (The New Partnership for Africa’s Development, 2012). The
National Oceanic and Atmospheric Administration (NOAA) is active in
helping shape conservation and management practices of international
fisheries by engaging other nations to ensure environmental protection and
sustainability of fisheries (FAO, 2008). A U.S. State Department coordinated
National Plan of Action of the United States of America to Prevent, Deter,
and Eliminate Illegal, Unregulated, and Unreported Fishing outlines a
comprehensive set of goals and cooperatives with other international efforts
to prevent, deter, and eliminate IUU fishing.
Baker (2011), in an article on African maritime economy, states “The high
profile of Somali piracy has brought the issue of African maritime security to
the attention of world leaders and citizens” (p. 39). He explains that this crisis
is not the only challenge facing Africa, but it is a symptom of a much deeper
problem—Africa suffers from weak maritime governance and the lack of vision
for an African maritime economy (Baker 2011). Global partners, to include
the African Union, the International Maritime Organization, the UN, and the
United States, are working together to make international waters safer for both
import and export to aid the African economy. In response to piracy off the
Horn of Africa, the U.S. National Security Council has prepared a plan that
involves three distinct lines of action: prevent pirate attacks by reducing the
vulnerability of the maritime domain to piracy; interrupt and terminate acts of
piracy consistent with international law and the rights and responsibilities of
coastal and flag states; ensure that those who commit acts of piracy are held
accountable for their actions by facilitating the prosecution of suspected pirates
by flag, victim, and coastal states, and, in appropriate cases, the United States
(National SecurityCouncil, 2008). Additionally, in remarks made to the American
University Law Review Symposium (2010), Andrew J. Shapiro, Assistant
Secretary for Political-Military Affairs, U.S. State Department, said that the U.S.
and other countries had formed a Contact Group on Piracy off the Coast of
Somalia, with more than 50 countries and international organizations.
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The Hinckley Journal of Politics 2013
This paper has looked briefly at only two of the issues concerning the
African fishing industry. While the U.S. has no single policy, or organization,
addressing all of the complicated components of the African fishing industry,
it is working with international partners, NGOs, Civil Society, the
African Union, and many others through a variety of programs, including
those mentioned herein, the Feed the Future initiative, the Millenium
Challenge Corporation programs, the Peace Corps, USAID, and the New
Partnership to Fight Global Hunger. Progress is being made; the long-term
challenge will be to maintain funding.
REMOVING BARRIERS TO FINANCE
by BRADley CALL
The approach to agriculture in Africa has been dysfunctional for years.
Insufficient access to capital at the local level is one of the major inhibitors
to agricultural development. In order to create sustainable growth in the
agricultural sector, smallholder farmers need skills in business and finance
as well as a healthy economic environment. Historically, access to loans has
been denied farmers because of the risks of loaning to under-skilled businesspeople.
Additionally, poor government practices have poisoned the
business environment by subsidizing unprofitable private interests. To
remove these barriers, farmers need to be educated on best business and
financial practices, while governments need to reduce the use of subsidies
and increase investments in select physical and financial infrastructures.
Building farmers’ financial and business skills is a critical step in improving
their access to necessary capital. They face difficulties securing loans
from banks because they lack “training in basic farm economics, financial
literacy, organization, governance, business management, and financial
skills” (International Finance Corporation, 2011, p. 11). In fact, many
farmers fail to see themselves as businesspeople (Making Finance Work for
Africa, 2011). Moreover, banks hesitate to lend to the agricultural sector
because of common problems such as collateral constraints and poor
recordkeeping among would-be borrowers (Making Finance Work for
Africa, 2011). Farmers who have business and finance training are more
attractive borrowers to otherwise reluctant financial institutions.
The Ugandan Coffee Farmers Alliance (UCFA) has successfully worked
with farmers to improve their business skills. The UCFA provides smallgroup
training to farmers in “best business practices like bulk marketing,
strict quality control and joint transporting” (Making Finance Work for
Africa, 2011, p. 15). UCFA also connects farmer groups, financial institutions,
and transportation services, closing the gap between farmers and lenders
while providing improved access to markets. By working with UCFA, the
average farmer with 300 coffee trees increases their income by 298%. This
program lowers the risk of lending to coffee farmers by educating participants
in best practices and providing technical assistance. This additional support
lowers the risk of loan default, making it more profitable to lend to trained
coffee farmers.
Even with improved financial and business skills, financial institutions
will avoid lending to farmers in a toxic economic environment. For years,
governments in Africa have attempted to shore up agriculture by subsidizing
seeds, fertilizer, harvested crops, and by keeping interest rates artificially
low. These practices provide short-term solutions, but they benefit only a
narrow portion of the value chain, distort the market, and create a culture
of dependency that keeps the market from strengthening itself by natural
means (International Finance Corporation, 2011). Instead of subsidizing
private interests, governments should devote funds to developing rural and
financial infrastructure such as “weather stations for insurance, irrigation
systems to mitigate weather risks, quality storage facilities to support
warehouse receipt financing, and market information systems” (International
Finance Corporation, 2011). For example, the Nigerian Agricultural Insurance
Corporation (NAIC) has provided a 50% subsidy on insurance
premiums against natural disasters. By participating in this governmentowned
program, 40,000 farmers and farmer groups have gained additional
access to credit (Making Finance Work for Africa, 2011). These types of
investments benefit the agricultural market as a whole. They create a safety
net for farmers, reducing the risks of loan default. In addition, they foster
an environment where markets can grow, bringing more revenue into the
hands of farmers and financial institutions.
The current approach to African agriculture limits access to much needed
funds among smallholder farmers. Farmers’ inadequate skills in financial
and business arenas have traditionally made farmers risky borrowers.
Although government subsidies have brought temporary local relief, they
have largely failed to create sustainable agricultural growth. Providing
farmers with the necessary financial and business skills will increase their
ability to obtain loans. Furthermore, by redirecting subsidy funds to select
infrastructure improvements, the government can correct imbalances in
the value chain, thus creating an atmosphere conducive to lending. The
improved skills of farmers combined with a more stable economic environment
will help support sustainable growth in Africa’s agricultural sector.
increasing intracontinental trade
by christian herman
One of the largest problems holding back Africa’s potential as a continent
is the lack of well developed economies in a majority of its nations. In recent
years, African nations have come a long way in opening up their economies
to increased global trade. However, Africa still continues to struggle economically.
Presently, most of Africa’s trade is conducted with partners
outside of the continent such as the United States. This has been facilitated,
at least in part, by policies such as the African Growth and Opportunity
Act (AGOA). While it has been helpful to the economies of many African
nations, perhaps a better solution to focus on now would be to help African
nations increase trade with one another.
High levels of intra-regional trade are a common characteristic of successful,
developed economies around the world, and this is a characteristic
that is missing from Africa. “Intra-African trade accounts for hardly 10%
of the region’s total trade, compared to rates of 40% for intra-North American
trade and about 60% for trade among Western European countries”
(The World Bank, 2010). Due to the size of the continent and corresponding
diversity of its resources, African nations each have varied trade
advantages. Some countries are better suited to agriculture, others to mining
or manufacturing, and so forth. If they choose to utilize their advantages
by trading with each other, then each country will earn capital by exporting
the goods they produce easily while simultaneously benefitting from the
increased flow of imported goods that can be produced more easily in a
neighboring country.
At present, Africa may not be completely capable of self-sufficiency in
basic foods, but it has the potential to completely satisfy its import needs
in several important areas, including fuels, beverages and tobacco, precious
stones, and ores and metals (United Nations Commission on Economic
Development, African Union Commission, & African Development Bank,
2010, p. 96). Therefore, while Africa will have to continue trading with
intercontinental partners to meet the full scope of its economic needs, the
continent can potentially be self-reliant in many vital economic areas.
55

Suggested U.S. Policies to Promote Growth in Africa
Price Think Tank
Considering that the end goal of most efforts to improve the African economy
is for Africa to eventually be less reliant on foreign aid, it is clear that a large
step in the right direction would be for African nations to become more
reliant on each other to fulfill their needs.
How can the United States assist Africa in this endeavor The United
States currently runs AGOA, which has been helpful in some sub-Saharan
African nations at fostering trade relationships between the U.S. and African
nations as well as helping African nations open up their economies to
international trade. However, if the U.S. wants to see Africa reach its full
economic potential, it ought to also encourage African nations to trade with
each other. African nations will not increase trade with each other overnight,
because doing so will likely require considerable changes in the existing
economic and government institutions to open up national economies to
increased intracontinental trade. Perhaps an expansion of AGOA with an
added focus on intracontinental trade can be used as a tool to assist African
nations in making these reforms and facilitate cooperation between nations
to expand trade in the region.
education for livestock sustainability
by Ariel Katrina Robertson
Livestock is crucial to the rural economic development of Africa. Not only
is livestock at times the only possible food source, but it is also necessary
for agricultural sustainability. Within the arid parts of Africa, livestock is
the only means of survival. “The economic health of the area and the
livelihoods of the people—their food, clothing, health, well-being, and
resilience—are centered on livestock production” (“USAID, East Africa,
2010). For smallholder farmers throughout the continent, animals are used
in the place of tractors for crop production. At other times, livestock are
the only source of cash to purchase essentials for crop production like seeds,
fertilizers, and pesticides. Lastly, livestock are a critical link in the larger
nutrient cycle as they return nutrients back into soil for crop production
(“The importance of livestock,” 2012). Increasing livestock development
throughout Africa is a critical step towards creating food security. In order
to increase livestock production, the United States needs to continue creating
programs that provide assistance in the creation of livestock cooperatives
as well as providing educational training to smallholder farmers on land
usage, disease prevention, creating value in livestock production, and in
the creation of livestock trade among African countries (“Kenya drylands
livestock,” 2012).
The United States Agency for International Development (USAID) has
launched several programs that have assisted in livestock production throughout
Africa. Two programs in Kenya have been notably successful. The first
is the Kenya Dairy Sector Competitiveness Program (KDSCP). Started in
2008, the KDSCP has benefited 283,821 households, 45.7% of which have
been run by women (“Kenya dairy sector,” 2012). Over 50,000 smallholder
farmers have received assistance in creating relationships with financing
institutions to expand their businesses, and 113,225 have received management
technology training (“Kenya dairy sector,” 2012). The KDSCP has
thrived because it increases the productivity and value of the dairy sector
through small cooperatives and assistance in creating plants and distribution
systems (“Kenya dairy sector,” 2012). By educating farmers on the proper
techniques and methods to increase their productivity, the KDSCP is yielding
stability and motivating long term agricultural involvement. Increasing
the productivity provides incentive for farmers to protect their range
land sustainably instead of utilizing ploughs (“The importance,” 2012).
The KDSCP also has connected different industries in Africa by linking
multiple small business organizations to expand the inputs and services
across several economic sectors (“Kenya dairy sector,” 2012).
USAID’s other notable program is the Kenya Drylands Livestock Development
Program. This program focuses on raising income and food
security for pastoral farmers through a comprehensive approach including
through trade and marketing, value creation of livestock products, and
increasing productivity, efficiency, and competitiveness (“Kenya drylands
livestock,” 2012). The program’s success is largely attributed to increased
education of smallholder farmers. They receive veterinary, environmental,
and climate instruction in order to build the resilience of their herds (“Kenya
drylands livestock,” 2012). USAID guarantees implementation of the development
plan through its partners: the Citizens Network for Foreign Affairs
(CNFA), Kenya Livestock Marketing Council, and Agricultural Market
Development Trust (“Kenya drylands livestock,” 2012). Together the organizations
have created a community effort in assisting 11,338 households,
including 149 women’s associations, with livestock production and sustainability
(“Kenya drylands livestock,” 2012).
Ultimately, both programs have made a substantial impact on increasing
food security. Their large success is due to the creation of trading
relationships, the implementation of new technologies, and the focus on
education. Most importantly, they empower smallholder farmers to become
self-sustainable and independent of foreign aid. Both programs are excellent
models of success that should be extended throughout Africa.
Empowering the women
by kendahl melvin
Women are an essential component in improving the agricultural status of
Africa. They increasingly fulfill the role of not only primary caregiver, but
also provider. Through agricultural means, they facilitate their families’
welfare and their children’s education (Alston, 2010). While women are
more likely to become the primary source of resources, they are significantly
less likely to have access to agricultural related education, credit, and supplies
(Alston, 2010) One of the most effective means to increase agricultural
productivity within Africa is to enhance the resources available to the
continent’s women. Through collaborative efforts with various organizations,
African women are able to improve their standard of living.
There are multiple organizations that strive to meet the needs of Africa’s
women. One of the more successful efforts has been via the World Cocoa
Foundation, whose mission focuses on influencing stable economies by
developing proficient community economies and educating residents about
responsible farming practices (“World cocoa foundation,” 2012). Over 2
million independent family farms within Africa produce about 70% of the
world’s cocoa annually, and many of these farms are headed by women
(“World cocoa foundation,” 2012). Currently the World Cocoa Foundation
works in Cameroon, Côte d’Ivoire, Ghana, Liberia, and Nigeria and focuses
on fostering women’s education in agricultural techniques (“World cocoa
foundation,” 2012). Through education videos, discussion, and manual
activities, women are able to not only learn the skills necessary to increase
the productivity of their farms, but additionally network with other women
in their communities. Overall the program has achieved notable success.
For example, women in Ghana have been able to triple their production
(World cocoa foundation,” 2012). Organizations such as these are highly
effective in that they create long-standing systems in which women are
better able to provide resources and education for their families.
Another impressive organization is AWARD, African Women in Agricultural
Research and Development. Through an AWARD grant, African
56

The Hinckley Journal of Politics 2013
women are able to study their own plight in order to develop effective
programs to address needs. Over 250 women from 11 countries have
participated in AWARD, and more than 15,000 women across the continent
have benefited from these scientists’ discoveries and recommendations
(AWARD, 2012). This program focuses on a “trickle down” effect; by educating
women to be leaders, they are then able to teach women in their own
communities how to better their farming processes. For example, one woman
from Mozambique was able to earn a PhD in agriculture and worked to
increase productivity in Mozambique’s poultry industry. By increasing the
amount of peas consumed by the poultry, she is working to increase the
lifespan and quality of the livestock (AWARD, 2012). AWARD is a highly
beneficial program in that it focuses on influencing the entire woman’s
farming process, from the leadership and education, to those working in
the field.
Both the World Cocoa Foundation and AWARD are integral in developing
agricultural capabilities in Africa. One of the most effective methods
for increasing Africa’s agricultural independence is through empowering
women by means of education and provision of resources. In order for
African women to be successful as family providers, they need external help
such as from these organizations. The effort to increase the role of women
and the accessibility they possess is an essential component to helping Africa
become a sustainable continent.
References
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log post]. Retrieved from http://blogs.worldwatch.org/nourishingtheplanet/
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Action_Plan.pdf
Shapiro, A. J. (2010). Counter Piracy. U.S. Department of State. Retrieved from
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AFRICAEXT/0,,contentMDK:22730595~pagePK:146736~piPK
Ashley, C., De Brine, P., Lehr, A., & Wilde, H. (2007). The role of the tourism
sector in expanding economic opportunity. John F. Kennedy School of
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media/award-in-the-news.html
Baker, M. L. (2011). Toward an African maritime economy. Naval War College
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Unreported Fishing. Retrieved from http://www.nmfs.noaa.gov/ia/docs/
NPOAIUU.pdf
United Nations Economic Commission for Africa (2010). Assessing regional
integration in Africa IV. Retrieved from website: http://siteresources.
worldbank.org/INTAFRREGINICOO/Resources/1587517-1271810608103/
UNECA-4th-Africa-RI-Assessment-May2010.pdf
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of world fisheries and aquaculture. Retrieved from ftp://ftp.fao.org/docrep/
fao/011/i0250e/i0250e.pdf
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gov/what-we-do/environment-and-global-climate-change
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Agricultural SMEs: Policy Review and Recommendations. Washington, DC:
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sites/default/files/documents/G20_Agrifinance_Report%20%28FINAL%20
ONLINE%29.pdf
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rising risks. World Economic and Financial Surveys. Retrieved from http://
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the Market for Small and Medium Enterprises. ECI Africa.
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environment-and-global-climate-change/global-climate-change
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United States Agency for International Development. (March 2013). Supporting
Each Other in Achieving Food Security. Retrieved from http://www.usaid.gov/
results-data/success-stories/supporting-each-other-achieving-food-security
United States Agency for International Development , Kenya. (2012). Kenya dairy
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default/files/u21/USAID%20FACT%20SHEET%20Dairy%20CompetitivenessJune%202012.pdf
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and_AU_Join_Forces_to_Promote_Healthy_Trade_in_Livestock
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http://www.worldfishcenter.org/resource_centre/WF_2466.pdf
58

A Thriving Metropolitan Area With A “Small-Town” Feel:
My Vision, as Mayor, for Salt Lake County
By Mayor Ben McAdams
Salt Lake County residents have good reasons to prepare for growth and to confront new realities. Today, our children
are sometimes kept inside at recess because the air is not healthy to breathe. Our transportation corridors are already
congested. Our schools are expected to prepare our children to compete in a global economy with limited financial
resources. I want to decide whether our challenges will shape us, or whether we will seize the day and shape our own
future. With challenge comes opportunity—if we choose to confront issues collaboratively.
I
was sworn in on January 7, 2013, to take the reins of an entity that
services more than 1 million people. I am fortunate to have inherited
a county government that is stable, well managed, and well regarded by
other government officials both inside and outside of Utah. Our employees
are among the most dedicated and hard working of any in this state. As I
stated in my inaugural State of the County address, I see challenges and
opportunities ahead, but Salt Lake County is well positioned to succeed.
My vision for my coming term in office will result in a stable, fiscally
sound county framework for a thriving metropolitan area that retains a
“small-town” feel with safe, friendly, desirable neighborhoods and communities.
Living in a rapidly changing region is a big challenge.
Our county’s population is expected to double
in the next 20-30 years. We must prepare for that
growth in ways that recognize the realities that
accompany it, yet preserve what we all love about
living here.
Salt Lake County residents have good reasons
to prepare for growth and to confront new realities.
Today, our children are sometimes kept inside at
recess because the air is not healthy to breathe. Our
transportation corridors are already congested. Our
schools are expected to prepare our children to
compete in a global economy with limited financial resources. I want to
decide whether our challenges will shape us, or whether we will seize the
day and shape our own future. With challenge comes opportunity—if we
choose to confront issues collaboratively.
I know that the 1.1 million people who live, work, worship, and play in
this valley—which has been a refuge for hardy pioneers and intrepid immigrants
alike—demand and expect a government that supports, not obstructs,
their hopes and dreams. I have a three-part vision for Salt Lake County
government designed to live up to their expectations.
First, county government will provide strong regional leadership to all
residents of our metropolitan area; we will be efficient and coordinated in
our efforts, while maintaining appropriate levels of local control and accountability
to the communities we serve. Second, our residents can expect
“My vision for my coming term in
office will result in a stable, fiscally
sound county framework for a
thriving metropolitan area that
retains a ‘small-town’ feel with safe,
friendly, desirable neighborhoods
and communities.”
bipartisanship and team play from their county government. Finally, county
government will remain small, efficient, and fiscally responsible.
REGIONAL LEADERSHIP
Over the last several decades, Salt Lake County has been transformed. From
a checkerboard of small cities surrounded by farmland, we are now a major
metropolitan area with precious pockets of open space. It is a different era,
and county operations must reflect this new reality. We will change the
existing county government functions that no longer reflect the world we
now live in. The future of Salt Lake County government includes consolidated
services coupled with coordinated, regional
decision making. This evolution in our governance
matches the evolution of our community. It means
better service at a lower cost for our residents.
I will advance a consolidated public works system
for the residents of Salt Lake County who choose to
participate in pooled and coordinated services. What
will that mean to the average resident Better service
for less. Less confusion for the citizens trying to
find the right office to contact. It means staff working
across different floors, offices, buildings, and zip
codes to achieve a common goal. On my watch, the
customer is king.
I have been receiving valuable input from a number of township meetings
with residents in unincorporated Salt Lake County. Together, these
160,000 people comprise what would be the county’s second largest city.
Serving as their municipal government is a responsibility that I take seriously.
Listening to residents helped to drive my decision on day one to reorganize
and rename the new Public Works and Regional Development Department.
Over the coming months, I will work to more clearly differentiate when we
are functioning as a countywide metropolitan government and when we
are acting on behalf of unincorporated areas. This will result in a better,
more efficient, and more cost effective county government for all.
I have also established a new role of Township Executive, who will
function much like a typical city manager. His undivided loyalty is to serving
59

A Thriving Metropolitan Area with a “Small-Town” Feel
Mayor Ben McAdams
the needs and focusing on opportunities for economic development in a
particular area. Why shouldn’t a future high-tech firm or other well-paying
business locate in these areas, providing local jobs and tax revenues We
must identify and pursue those types of opportunities for the unincorporated
county.
BIPARTISANSHIP
The hallmark of my administration will be bipartisanship. People are tired
of partisan bickering. A pothole in their street is not a Republican pothole
or a Democratic pothole—it is just something that needs to be fixed. I
believe New Jersey Governor Chris Christie put it well, in his State of the
State address, when he described a governing model that shows that “even
with heartfelt beliefs, bipartisan compromise is possible.” There is no need
and no place in county government for anything but cooperation, collaboration,
and common sense leadership that earns the public’s trust.
FISCAL RESPONSIBILITY
I am, and will govern as, a fiscal conservative. As I align county-wide
government across a large metropolitan area, my priority is to create greater
efficiencies and deliver services at lower cost. The county will be able to
fulfill its role in a way that delivers effective, efficient service at the lowest
possible expense. My vision is for a county government that is better, not
bigger—one that is lean, collaborative, affordable, and accountable to the
people who pay the bills.
The struggling economy of the years 2007-2010 forced tough choices
on county leaders. An apparent advantage is that the deep and painful
recession of the past few years is receding. A growing economy and more
private-sector jobs are the best options for balancing our budget and keeping
our fiscal house in order. The recent good news that the Outdoor Industry
Association will keep its trade show here through at least 2016 cheered local
economic forecasters. Thanks to Salt Lake County’s leadership and partnership
with Governor Gary Herbert, we have secured a four-year, $160-million
economic impact from more than 20,000 manufacturers, retailers, and
suppliers who gather here. It’s also proof that Salt Lake County is a bigleague
player in the tourism and convention business.
County’s planning staff, in collaboration with the public, private businesses,
cities, the state, and the U.S. Forest Service, has invested countless hours in
that effort. I am ensuring that our county, in partnership with Summit and
Wasatch counties, will lead us forward with a comprehensive environmental
impact statement that will address additional resource-protection
initiatives and development opportunities, as well as result in a transportation
solution for this heavily-used, yet fragile area.
We enter public service knowing that, on our best days, what we do
matters. That came into sharp focus for me during my mayoral campaign.
I met a woman named Lila Hutchingson during a visit to Alliance House,
a non-profit that partners with the county. Alliance House features a
comprehensive program organized around the work-ordered-day. It focuses
on an individual’s strengths in order to give mentally ill people the skills,
purpose, confidence, and support to reintegrate into the community and
lead productive lives. For much of her life, Lila had struggled with bipolar
disorder. Its effect impacted her at her job, which in part led to unemployment.
That subsequently resulted in some very difficult family circumstances
and unstable housing arrangements. Lila’s story could be my story or your
story, but through Alliance House and its programs, she rallied. Gradually,
she got her life back. She found educational opportunities, housing, and
relationships. Today she is a productive member of our community and
assists others.
At its best, government is a temporary support on the road to selfreliance.
We are there when needed. We answer when duty calls.
I am humbled by the knowledge that we inherited this place from
pioneers and immigrants: men and women who took a risk, blazed a trail,
put down roots, and left their mark. I am optimistic that, through bipartisan
collaboration, we can build on their foundation, and as scholar Hugh
Nibley wrote about those early settlements, “prepare a fit habitation, an
environment, and an economy stable enough to last a thousand years.”
NEAR-TERM GOALS
Our citizens value parks and trails. I will continue plans to complete major
trails and acquire and develop regional parks. We want Salt Lake County
residents to be healthy, and outdoor recreation helps people get and stay
healthy. Spaces to walk, bike, run, and play help residents stay active and
feel better. More than that, they lead to reduced health care costs and add
to a vibrant economy. Salt Lake County should be accessible, with a range
of outdoor amenities available to county residents of all ages, incomes, and
interests. We want families and their friends to enjoy time together, become
better acquainted, and just have fun.
The Wasatch Mountains are a regional asset that we must safeguard for
their value as watershed, as a jobs-generator, and as a beloved backyard
playground. The clean, affordable water supply from that watershed made
the development, growth, and prosperity of the Salt Lake Valley possible.
Millions of residents and visitors spend time and money on canyon recreation
each year. The Wasatch peaks provide the stunning natural backdrop
that we use to brand our county as the place to locate a business, hold a
convention, or serve as the site of a future Olympic games. Rapid growth,
multiple stakeholders, and a patchwork of agencies create both challenges
and opportunities for those who would shape the canyons’ future. Salt Lake
60

Utah Can Model Federal Immigration Reform
By Utah Senator Luz Robles
The U.S. is a country founded on immigration with a core value in welcoming and integrating those who arrive seeking
a better life for themselves, their children, and future generations; yet historically, fear of the unknown has led citizens
to treat immigrants with resentment, blame, and xenophobia.
Immigration has been a controversial issue at the national level for many
years; however, in the last two decades, the conversation, debate, and
policy decisions around immigration have moved to the state level,
which has resulted in confusion and a lack of uniformity in our nation. The
United States’ Constitution clearly outlines the federal government’s role
in immigration policy and border security, but, in reality, Congress has
failed to address immigration in a comprehensive way; their Band-Aid
solutions have only brought despair to the U.S. and the 11 million undocumented
immigrants living here.
The U.S. is a country founded on immigration with a core value in
welcoming and integrating those who arrive seeking a better life for themselves,
their children, and future generations; yet historically, fear of the
unknown has led citizens to treat immigrants with resentment, blame, and
xenophobia.
Immigration reform is complicated, but not impossible, and includes
the following as basic components of the conversation:
1. Secure the borders.
2. Share accountability between employers and employees—create a
system that actually works to verify employees and creates an
accurate response to the continued labor demand.
3. Settle the status of the more than 11 million undocumented immigrants
that currently reside in our nation.
Utah has not been shy to explore state solutions to the broken federal
immigration system. In 1999, the Utah Legislature began addressing the
flaws in existing laws that did not consider businesses’ needs as labor demands
increased or the needs of the children of undocumented immigrants. These
children were brought to the U.S. at a young age, grew up in Utah, and
graduated from Utah high schools, yet until 2002, the high cost of nonresident
tuition rates prohibited them from attending state higher education
institutions due to their immigration status. After 2000, Utah had contradictory
proposals like driving privilege cards and in-state tuition for
undocumented students. The Utah Legislature has also produced more
punitive proposals, such as SB 81 in 2008 that cross deputized local law
enforcement and put measures in place to profile undocumented immigrants
and limit access to basic aid. SB 81 intended to make the lives of undocumented
immigrants so miserable that they would choose to self deport.
However, in 2011, as many states were facing anti-immigrant legislation,
Utah changed the discussion using innovative solutions.
For the last 13 years, I have been involved with the immigration conversation
in different capacities including as an advocate, state employee,
and state legislator. During this time, I have seen both fiscally irresponsible
punitive solutions and progressive compassionate solutions to immigration
reform. The year 2010 was a turning point for the U.S. because states began
seeking more comprehensive solutions to immigration.
In April 2010, the state of Arizona passed the stringent anti-immigrant
legislation SB 1070, which made it a misdemeanor crime for an immigrant
to be in Arizona without proper documentation and required state police
to check the immigration status of people that they had “reasonable suspicion”
to be undocumented immigrants. As soon as SB 1070 was signed
into law, a Utah state representative announced his interest in creating a
similar bill for Utah. This was unacceptable to many in the pro-immigrant
community.
That timing was perfect, and as a policymaker the question was simple—
was Utah going to follow in Arizona’s path of fiscally irresponsible and
unconstitutional legislation, or could Utah become a catalyst for positive
change
In hopes that Utah could alter the immigration conversation to create
a viable and proactive solution to immigration, I partnered with a coalition
of diverse individuals who wanted the same outcome. The unique and
informal coalition included Dimitri Moumoulidis, the former executive
director of the Utah Democratic Lawyers Council, and the conservative
Utah think tank The Sutherland Institute’s President Paul Mero and Director
of Public Affairs Stan Rasmussen. We had to think outside the box to
create solutions that made sense financially, respected the integrity of
immigrants and their families, and provided a tool to increase public safety.
We wanted our bill to stop the reactionary approach to immigration policy
that had been the status quo for years. The coalition’s work resulted in a
counter response to Arizona’s legislation, SB 60, which led to the creation
of bill HB 116. This law, which allows workers to obtain work permits and
state residence, passed in the 2011 legislative session and was later signed
by the Governor.
SB 60, the Utah Pilot Accountability Permit Program, is a proactive
state-based solution to immigration policy. This legislation brings individual
and business accountability, integration, and public safety together.
The legislation did not address legalizing the undocumented immigrants
in the state of Utah, but it recognizes the reality that more than 110,000
undocumented immigrants reside here and creates a mechanism to account
for their contribution to our tax system. The bill requires these individuals
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Utah Can Model Federal Immigration Reform
Senator Luz Robles
to enroll in English and civic classes, therefore bringing an integration
component to the state of Utah. The bill created an accountability card with
three major components:
1. Public safety—We need to know who lives in our communities.
2. Labor force demand—Immigration is driven by labor demand;
there is a need for labor in agriculture, especially on dairy farms,
and in the hotel, lodging, and restaurant industries.
3. Integration—Undocumented individuals are active members of
our communities that need to be welcomed and integrated. The
bill specifically includes a required level of proficiency in the English
language and civics.
Legislative Intent
Now, in 2013, more action is needed. Since the federal government has
failed to secure our national borders and support our economy through
comprehensive immigration reform, it is the intent of the Utah Legislature:
1. To send a strong message to the federal government for a comprehensive
immigration reform that will secure our national borders
and increase the number of employment-based visas in response
to the labor demand of United States businesses and create pathways
to legalization for the 11 million undocumented residents in the
United States.
2. To enact policies that normalize the worker status of undocumented
individuals and their families employed in Utah while we wait for
the federal government to act.
Utah Pilot Accountability Permit Program
1. The Department of Public Safety shall develop an accountability
permit program to allow undocumented individuals employed in
Utah to continue to work here.
2. Create a database and registry where permit holders and Utah
businesses will register to match the information and create shared
responsibility.
Workforce Needs
1. The Department of Public Safety shall develop the Pilot Accountability
Permit Program to allow undocumented individuals to work
in Utah subject to the need for workers in any particular labor
sector in accordance with guidelines promulgated by the Department.
2. The Department of Public Safety shall develop and post the worker
needs within each labor sector in the state to provide employers
the information necessary to meet their workforce needs.
3. In developing the Utah Pilot Accountability Permit Program and
the guidelines for allocating workers in particular labor sectors,
the Department shall require that jobs within each labor sector
shall first be allocated to U.S. citizens. After a reasonable period
of time, jobs within each labor sector may then be allocated for
the employment of undocumented individuals subject to the
conditions provided in this chapter and by the Department.
4. Any other employer-based work program that meets the needs of
Utah employers by using workers outside of the state and who are
not U.S. citizens may be used by Utah employers if such a program
is already in existence under the auspices of a foreign government
in cooperation with the United States government.
Eligibility
Any individual that is not legally present in this country and has resided in
the state of Utah before January 1, 2011, is eligible and must pass a criminal
background check, pay an application fee, attend a class to meet requirements
and test English and civics proficiency, and renew every two years.
Federal Waivers – Support – Reporting
1. In order to develop and implement the accountability permit
program, the Department of Public Safety shall seek the appropriate
waivers from federal law to allow the state to implement and
enforce the accountability permit program. None of the provisions
may be implemented until the appropriate waivers have been
granted.
2. The Governor shall ask each member of Congress representing
Utah to help obtain the appropriate federal waivers contemplated
under this section and ask the Utah Congressional delegation
provide a regular report to the Governor on the progress and status
of these efforts. The Governor shall provide such regular reports
to the Legislative Management Committee.
3. The Governor shall seek support for the accountability permit
program from the Western Governors Association and the National
Governors Association. The Governor shall provide a regular
report to the Legislative Management Committee on the progress
and status of these efforts.
4. The Governor shall direct that a portion of lobbying services used
by the state and a portion of the budget used for the state’s Washington,
DC, office be used to seek federal waivers.
Conclusion
SB 60 became the framework of HB 116 that after a very heated and extensive
debate passed and became law in the state of Utah in 2011. This bill
passed because the members of the Utah Legislature from both political
parties were able to put aside political differences and focus on creating
good public policy. With the passage of HB 116 the state of Utah sent a clear
message to the federal government and nation: even Utah—an ultra-conservative
state—was able to reach across the aisle and create an immigration
policy that was fair, integrated, and considered accountability and public
safety. The Utah Legislature understood that the federal government
controlled immigration status but that allowing states to define residency
could be successful. I believe the examples and methods used in Utah can
frame the federal immigration reform that will be addressed by Congress
and the President later this year.
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Tort Reform in Utah: Disclosure and Apology
By Lieutenant Governor Greg Bell
Because of the incentives reflected in the new rule, it is hoped only parties who were involved in the claimed malpractice
will be party to the litigation.
In late September 2011, Governor Gary Herbert staged his first annual
health summit, Utah Solutions for a Healthy Economy and Community.
The Summit brought together more than 100 of Utah’s best and brightest
leaders in the field. Governor Herbert also chose to pursue medical tort
reform as a principal topic for the Summit. To this end, the Governor asked
me to convene a group of key community stakeholders to review the tort
reform landscape in Utah and improve it, if possible.
It is widely assumed that two major drivers of health care costs are
related to medical malpractice claims. Costs are said to be driven up by,
first, the practice of “defensive medicine,” and second, the high cost of
malpractice insurance for doctors, hospitals, and other health professionals.
Our work group reviewed Utah’s tort reform history, national and state
trends, current problems—both real and perceived—with current law,
current legal procedures, and whether changes to the judicial system are
warranted. Our objectives were:
• To assist patients in receiving the highest quality health care,
• To make sure those injured by medical errors have appropriate
recourse,
• To deal fairly with medical providers whose reputations and livelihoods
can be seriously impaired or lost through medical malpractice
claims, and
• To take away incentives for medical providers to practice costly
“defensive medicine.”
Our group asked these questions:
• How do our laws and procedures compare with other states
• Are doctors ordering medically unnecessary tests to protect themselves
from lawsuits
• Do these costs drive up the cost of medical insurance to a significant
degree
• Are patients receiving open and honest communication from their
doctors when medical errors or unanticipated outcomes occur
• Are medical errors being reported and shared with patients
• Are compassion, condolences, and/or apologies offered when warranted
• Do medical providers feel free to discuss with the patient and their
family follow-up care needed to address medical errors
What are the current laws and procedures surrounding medical
malpractice in Utah
Utah has adopted most of the popular tort reform measures that have been
discussed nationally over the past decades, and in this context, our state
has a very conservative legal environment. The measures Utah has adopted
in this area include:
• A statute of limitations that was shortened to two years (Title 78B
§ 3-404(1), 2008).
• Requiring medical malpractice claimants to give advance notice of
a claim (Title 78 B § 3-404(5), 2008).
• Before a lawsuit can be filed, each claimant must go before a prelitigation
panel of three people: one chosen by the plaintiff, one by
the defendant, and one by the other two panelists. The panel will
designate the claim either meritorious or non-meritorious, although
the claimant may still proceed to suit with a non-meritorious finding.
Many do.
• At the pre-litigation hearing, the plaintiff must provide an affidavit
from an expert stating malpractice has occurred (Title 78B § 3-416,
2008). This is a big hurdle for plaintiffs. The inability for the plaintiff
to obtain an expert’s opinion at this stage of the proceedings bars
proceeding further.
• A statutory ceiling of $450,000 for pain and suffering. Formerly, this
cap was automatically adjusted yearly for inflation and reached
$488,000, but the inflator clause was revoked a few years ago (Title
78B § 3-410, 2008).
• Specialists treating people other than their own patients in the
emergency room can be held liable for malpractice based only on
clear and convincing evidence, compared to the much lower standard
of preponderance of the evidence, which typically applies to malpractice
cases (Title 78B § 5-817, 2008).
• One-half of punitive damages, in excess of $50,000, relating to a
personal injury recovery must be paid to the State (Title 78B § 8-201,
2008).
• “I’m Sorry” laws, referred to later.
Lawyers from both the plaintiff and defense bars agree that Utah has adopted
most measures used around the nation to limit non-meritorious cases and
“lottery” type recoveries. Our group reached the same conclusion. There
seemed to be almost nothing of a legal nature that we could recommend
to ameliorate illegitimate malpractice claims. Importantly, we also concluded
that doctors and other providers seem to have a sense of their risk of incurring
a liability claim far beyond what the evidence justifies.
National research shows that doctors are ordering medically unnecessary
tests to protect themselves from lawsuits. Although we were not able to
obtain Utah-specific data, it was the group’s consensus that Utah physicians
sometimes order tests and procedures with at least the partial motivation
of protecting themselves from claims. Moreover, there is much anecdotal
evidence that patients are pushing physicians for procedures such as an
MRI instead of a simple X-ray, or an angiogram instead of a much cheaper
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Tort Reform in Utah: Disclosure and Apology
Lieutenant Governor Greg Bell
EKG. Combine the demands of patients with the doctor’s desire to insulate
himself or herself from liability and there is little doubt that defensive
medicine is alive and well in Utah. Shannon Brownlee, who recently spoke
in Salt Lake City, wrote in her 2007 book Overtreated that a third of every
healthcare dollar goes toward procedures, tests, treatments, and surgeries
of dubious medical necessity.
Are patients receiving open and honest communication from their
doctors when a medical error occurs Are medical errors being
reported and shared with patients Are compassion, condolences,
and/or apologies offered when warranted Do medical providers feel
free to discuss with the patient and their family follow-up care needed
to address medical errors
Utah adopted “I’m Sorry” legislation in the last decade. Moreover, in 2010
and 2011, the Legislature also changed Rule 409 of the Utah Rules of Evidence
to reflect the statutory intent “to encourage expressions of apology, empathy,
and condolence and the disclosure of facts and circumstances related to
unanticipated outcomes in the provision of health care in an effort to
facilitate the timely and satisfactory resolution of patient concerns arising
from unanticipated outcomes in the provision of health care” (Joint Resolution
to Amend, 2011). Even the fact that a provider had paid or offered to
pay a plaintiff ’s medical expenses was made inadmissible under Rule 409.
It was our group’s consensus, however, that this legislation and rule change
had not really changed the culture of how Utah physicians and hospitals
address medical liability claims.
As we reviewed data on the small number of tort claims filed in the state
of Utah (which were far less than 1% of all cases filed in Utah courts in
recent years), and having a general knowledge of medical liability payouts
during the last few years, our group concluded that Utah has relatively few
claims, suits, and payouts, and that payouts seem to be reasonable. We do
not suffer from the “runaway jury” syndrome present in some states. Nonetheless,
we found that doctors’ perception of their risk of incurring a malpractice
claim is much higher than is the reality.
Breakthrough
Even though the actual number of suits and settlements in Utah is small
and the payouts are not out-sized, mere notice of a claim is a very serious
and stressful matter for medical practitioners.
The breakthrough moment for the group came when Michelle McOmber,
Executive Vice President & CEO of the Utah Medical Association, clearly
communicated to the attorneys in the room that doctors incur much, if not
most, of the stress and trauma associated with a malpractice claim from the
mere receipt of notice of a claim. Such a claim brings a doctor great stress
about his or her status in the profession and worries about the ongoing
ability to practice, to hold his or her head up in professional circles, and to
make a living. Once the doctor has received a claim, he must report that
claim on every credentialing application and renewal and on every application
for and renewal of malpractice insurance, even though the claim may
ultimately be dismissed as non-meritorious. Usually, a claim will cause the
physician’s malpractice insurance premiums to increase. It is like a scarlet
letter that will not fade.
Insurance companies and self-insured medical institutions have traditionally
responded to malpractice claims with a “deny, delay, and defend”
strategy. Accordingly, the attorneys in our group who practice in this area
explained that a plaintiff ’s counsel must name every medical professional
whom they can determine had any role in the matter, be it ever so minor
or tangential. Until a suit is filed and counsel can subpoena all the medical
records, the plaintiff ’s counsel does not know what actions various doctors
and nurses took. Thus, they name everyone they are aware of in the case
as a possible defendant. Consequently, many claims are later dismissed
against practitioners who had nothing to do with the claimed injury or
damage, but the onus of the claim persists.
Out of this “Ah ha!” moment, the plaintiff and defense counsel from
our group began meeting to explore ways of avoiding the negative impact
of a mere claim. In light of our group’s recommendation that counsel be
given early access to medical records, as explained below, their ingenious
solution was to develop a proposed rule of civil procedure that would require
that before trial, each party must name all persons the party intends to
name in the lawsuit. The rule is incorporated in 1SHB135, which unanimously
passed both the House and Senate in the 2013 General Session of
the Utah Legislature. Thus, hospitals that intend to claim against a physician
must name that physician at the commencement of the suit, instead of
relying on plaintiffs’ counsel to do that for them. Hospitals have a hard
time claiming against doctors who practice with them. Because of the
incentives reflected in the new rule, it is hoped only parties who were
involved in the claimed malpractice will be party to the litigation.
University of Michigan Early Resolution and Disclosure System (EDR)
We became aware of a program the University of Michigan Health System
(UMHS) had developed and employed for many years. Called “Early
Disclosure and Resolution” (EDR), it was developed by Richard C. Boothman,
their Chief Risk Officer. Boothman had defended malpractice claims
in private practice before joining the in-house legal staff at UMHS. As he
worked more closely with patients and health professionals on malpractice
claims, he realized that a patient who has suffered an unanticipated adverse
surgical or medical outcome has never had greater need of communication
with their doctor. Unfortunately, he found that the first casualty in a malpractice
case is the physician-patient relationship. Under the deny, delay,
and defend mentality, risk managers would now be interposed between
patient and doctor. The risk managers thereafter deal with the patient and
his representatives. When the focus should have been on addressing the
patient’s medical, psychological, financial, and other needs, liability concerns
shoved patient care and welfare aside.
With the consent of hospital management, Boothman tried a new
approach, which became EDR, by openly disclosing the adverse event and
its related facts to the patient and his or her representatives, then seeking
early resolution to the patient’s concerns and interests. Under EDR, the
hospital trained its doctors and caregivers to approach patients and their
families in a manner that addresses the patients’ needs above all else and
keeps legal issues in the background. When a medically adverse event
occurs, the doctor(s) and a hospital representative disclose to the patient
and the family what they know about the event, how it occurred, what
treatments or surgeries will be required to address it, and whether they have
established if there was a hospital or doctor error or if the adverse outcome
is simply an unfortunate but unpreventable condition. The hospital offers
the patient and his or her representatives, including lawyers, complete and
immediate access to all medical records and other relevant information. As
appropriate, they discuss the patient’s immediate financial needs that may
have arisen from the adverse event. UMHS uses each event as a quality
improvement opportunity by gathering everyone involved to candidly assess
any errors or patient frustrations and to improve the hospital’s systems to
avoid or lessen the risk of such errors in the future. Under EDR, the hospital
and the doctors do not seek a waiver of liability or legal settlement as
pre-conditions to discuss the error and to give access to records or the terms
of any settlement. It is an “open book” experience. Significantly, the doctor
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The Hinckley Journal of Politics 2013
and hospital continue to focus on helping the patient get well and on
maintaining a cooperative rather than an adversarial attitude.
Studies show that UMHS’s EDR system has reduced the size of payouts
and has made them more rational. Generally, the prevailing tort litigation
system results in most injured patients not making any claim, losing their
claims, or getting paltry payouts, while a few fortunate plaintiffs get lotterysize
settlements or judgments. There is no way to reconcile such payouts
when they are granted one at a time by hundreds of different courts and
juries. UMHS’s rationalized payout system considers many factors, including
the extent of discomfort, suffering and disability, the seriousness of the
medical error, the need for extended care, the patient’s age, career, and
earning capacity, and any limitations on the patient returning to full employment.
Every claimant is treated fairly and equitably. This one outcome of
the EDR program alone justifies the program.
In my personal conversation with Mr. Boothman, he indicated the
UMHS and its related doctors are very pleased with the system. Plaintiffs’
counsels have embraced the program, in part, because it is simpler for them
to reach settlement for their clients. They have early and complete access
to relevant records and evidence. The hospital and doctors want to reach
an accord that fairly addresses the patient’s needs. In such a system, a wise
lawyer will become part of a team that focuses on the patient’s immediate
and long-term medical, psychological, and financial needs.
Another distinct advantage of EDR is that it preserves the paramount
doctor-patient relationship, rather than letting the adversarial risk management
mentality set the tone of doctor and hospital interaction with the
patient. Because the system is voluntary for all participants, everyone works
toward resolution rather than either protecting themselves from risk or
seeking legal recovery. The process seeks a human solution to what are, at
their core, human problems, rather than legal problems. The legal issues
are still attended to, but in a more collaborative manner.
Research has also shown that under the traditional deny, delay, and
defend philosophy, many patients sue simply out of frustration at one or
more factors: being barred from obtaining medical information about the
medical error, being denied a chance to discuss the events with their doctors,
and failing to receive appropriate information about what went wrong and
whether human error caused it. Moreover, it has been shown that a patient
who feels his or her doctor has shown compassion and perhaps even
apologized is far less likely to sue for an adverse outcome. EDR takes much
of the angst and frustration out of the equation, and the patient is therefore
much more likely to reach a reasonable settlement with the medical providers,
or perhaps not seek one at all. Patients are also gratified when they
learn the adverse outcome in their case will be studied and used as a learning
experience to address flaws in hospital systems and procedures for the
benefit of future patients. We also learned of the work of Dr. Thomas
Gallagher of the University of Washington Medical School, who has been
developing an EDR system throughout the State of Washington. Dr. Gallagher
spoke to the Governor’s Health Summit in 2012, and indicated that
although getting all the stakeholders to the table in Washington had been
very difficult, they were on the cusp of rolling out a state-wide EDR system.
Treasure in Our Own Backyard
Through pure serendipity, we stumbled on treasure in our own backyard.
Dr. Elizabeth Guenther, a wonderful doctor, was a practicing emergency
room pediatrician at Primary Children’s Medical Center (PCMC) and
researcher at the University of Utah. She has worked extensively with her
colleagues in Utah and in other states in researching and promoting a system
of early disclosure and resolution of medical errors. Dr. Guenther joined
our group and has become an important contributor. She did much of her
research under a now-expired grant through the U.S. Department of Health:
Agency for Healthcare and Research Quality (AHRQ). We applied for and
received a grant from AHRQ for $1 million to expedite finding innovations
in Utah’s health care systems, which Dr. Guenther will use to continue her
research on early disclosure and resolution.
In addition to bringing the benefit of her own research and expertise
in this area to our group, Dr. Guenther also made us aware of the early
disclosure and resolution system at PCMC in Salt Lake City, Utah. Over
the past decade, Dr. Edward Clark, Chief Medical Officer at PCMC and
Chair of the Department of Pediatrics at the University of Utah, has instituted
an ECR program at PCMC similar to the Boothman model. At PCMC,
they have found it to be well received by patients and professionals and
economically advantageous to the hospital as well.
We have presented this model to other local hospital systems and are
hopeful they will embrace it, too. Early signs are most encouraging.
Conclusion
A system of early disclosure, apology, and resolution of medical injuries
exemplifies what I think will be a major trend. This system elevates human
relationships, specifically that of doctor-patient, above legal and institutional
considerations and the complexity they bring. EDR is an organic, collaborative
process looking for positive outcomes for all participants, but
especially for the patient. An additional important outcome is that medical
professionals who work in an EDR environment are able to practice with
confidence that human errors will not likely be met with threats, legal claims,
or the potential loss of reputation, professional standing, and their livelihood.
* The author expresses deepest gratitude to the Tort Reform Group, who
developed the Utah early disclosure and resolution program and related
measures. The membership of our work group was: Lt. Governor Greg Bell;
David Gessel, VP Government Relations and Legal Affairs, Utah Hospitals
and Health Systems Association; Charles H. Thronson, Senior Litigator, Parsons,
Behle & Latimer; Michelle McOmber, Executive Vice President and CEO,
Utah Medical Association; Rep. Kay L. McIff; Edward B. Havas, President,
Dewsnup, King, and Olsen; Bill Crim, Sr. Vice President, Community Impact
& Public Policy, United Way; Elliott Williams, Williams & Hunt; Rep. Francis
Gibson; Dr. Brian Shiozawa; Cathy Dupont, OLRGC; and Patti Peavey, staff.
The author is particularly indebted to Ms. Peavey, whose intelligence, can-do
attitude, and outreach helped us find best practices around the country as well
as allies and collaborators for our work.
References
Brownlee, S. (2007). Overtreated: Why too much medicine is making us sicker and
poorer. New York City, NY: Bloomsbury USA.
Joint Resolution To Amend Rule Of Evidence, H.R. 38, 59th, General Session (Utah
2011).
Title 78B Judicial Code, Utah Code Ann. § 3-404(1) (2008).
Title 78B Judicial Code, Utah Code Ann. § 3-404(5)(a) (2008).
Title 78B Judicial Code, Utah Code Ann. § 3-416(3)(d)(ii)(B)(b)(i-iii) (2008).
Title 78B Judicial Code, Utah Code Ann. § 3-410(1)(d) (2008).
Title 78B Judicial Code, Utah Code Ann. § 5-817 (2008).
Title 78B Judicial Code, Utah Code Ann. § 8-201(3) (2008).
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“We never conquer other minds until we conquer our own.
We never conquer fear until we are masters of ourselves.”
-Robert H. Hinckley
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