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The promise and peril of the EU’s new asylum plan
Daily life inside the new refugee camp in Kara Tepe, on September 24, 2020, Lesvos, Greece. | Vassilis A. Poularikas/NurPhoto via Getty Images The problem isn’t that the EU is doing too much. It’s that it’s not doing enough. The European Union has proposed an ambitious new plan to deal with the thousands of asylum seekers who continue to arrive on Europe’s shores. But even top officials in the bloc acknowledge that the plan won’t make anyone happy. On Wednesday, the European Commission (the EU’s executive arm) released more than 500 pages filled with proposals to change its years-long asylum policy. The “New Pact for Migration and Asylum,” which is strongly backed by Germany, aims to convince EU member nations skeptical of letting in migrants, already overburdened with refugees, or angling for reform that a new compromise can be struck by the end of next year. “I am not asking you to like it,” European Commission Vice President Margaritis Schinas told EU lawmakers on Thursday. “I am asking you to understand it.” Under the plan, all 27 member states would agree to take in asylum seekers or take responsibility for sending those who are denied asylum back to their home countries. The plan would end the quotas for the number of refugees each country should take in, and would set up a new, expedited system for processing and deporting people who are denied asylum back to their countries of origin. The problem is that the plan has upset nearly everyone, likely dooming its prospects for full adoption. “These rules are not acceptable for us,” Czech Prime Minister Andrej Babis said during a Thursday news conference alongside other leaders hostile to refugees. “The strategy should be that these people really should stay and live in their home countries, and we have to do the maximum for this and we have really to discuss it.” Those who want to help asylum seekers and believe the EU’s migration laws should be more welcoming don’t support the plan, either. “There’s not a whole lot that’s actually new in this proposal, and the few things that are new are, on the whole, ghastly,” said Judith Sunderland, the deputy director for Europe at Human Rights Watch (HRW). Simply put, for some the new migration policy isn’t tough enough, and for others it isn’t humane enough — a divide that may be too wide to bridge. “The proposal is an attempt to reconcile two extreme positions among member states that can’t really be reconciled,” Gerald Knaus, chair of the European Stability Initiative (ESI) think tank headquartered in Berlin, told me. Such a challenge hasn’t stopped European Commission President Ursula von der Leyen from tackling the continent’s migration woes, an issue she has made a core concern during her first year in charge. The EU’s migration policy needs “a fresh start,” she told reporters in Brussels after releasing the reform package. “The old system to deal with it in Europe no longer works.” Migration has always been a fact for Europe – and it will always be.#MigrationEU— Ursula von der Leyen (@vonderleyen) September 24, 2020 She has a point. European politics have roiled since more than a million people fleeing war and persecution sought asylum in the EU in 2015 — with hundreds of thousands arriving since, and others dying on the way — fueling the rise of far-right parties and the strongmen who lead them. The bloc’s mishandling of the issue, mainly by stashing those who await an asylum decision in sprawling refugee camps on the continent’s periphery, has deepened the humanitarian crisis. The extent of the overall failure was underscored earlier this month when a fire destroyed Europe’s largest refugee camp on the Greek island of Lesbos, leaving the majority of its 12,000 residents homeless. The lives of thousands of people, then, hang in the balance as European leaders debate the complex set of proposals over the coming year. Unfortunately, very few believe it’ll lead to any real progress. “Most of this is unlikely to work the way the European Commission says it will work,” HRW’s Sunderland told me, “but it is likely to cause a lot of suffering to people.” How the EU’s new asylum proposals would work Within the 500-plus pages of proposals lie solutions to three interrelated problems the EU’s leaders aim to solve. First, they want immigration officials in border states to adjudicate asylum claims much faster than they do now, hoping to reduce the number of people waiting for a decision and foster a more efficient process. Second, they want to incentivize nations unwilling to assist with asylum claims to pitch in. If they don’t, there is a mechanism by which the bloc can force those countries to do so. Third, they want to expedite the return of people not granted asylum back to their home countries, ensuring they don’t linger too long in the temporary host nation. The reason for tackling those three issues is not only to attempt to improve the situation for thousands of refugees, but also to satisfy the concerns of countries that don’t want to accept more asylum seekers, according to multiple European Commission staffers I spoke with. They said top Commission officials have engaged every nation’s leader for months — including immigration hawks in Hungary, Austria, Poland, Slovakia, the Czech Republic, and more — to hear their views. The suite of proposals is meant to assuage their worries. Good discussion with Viktor Orbán, @AndrejBabisand Mateusz @MorawieckiM, on EU Budget and Recovery Plan, climate, migration, rule of law and on the economic plan for #Belarus which they presented. We agreed to work closely together on these important issues.— Ursula von der Leyen (@vonderleyen) September 24, 2020 But experts say the reform package falls well short of the mark, however well-intentioned. “The end result, if adopted, wouldn’t make much of a difference, and it wouldn’t address the problems along the external border today,” said ESI’s Knaus. Let’s take a look at the proposals for those three problems: 1) Approve or deny asylum claims faster The current EU asylum directive gives member states up to six months to decide whether or not to accept someone’s asylum claim if they arrive at a European border irregularly — that is, illegally by land or sea. That’s a long time, but consider what goes into such a decision. The government must figure out if sending an applicant back home might lead to their persecution, imprisonment, or even death. That’s a hard thing to do, made harder by the fact that some people have weak — or even fraudulent — asylum claims. If the nation’s immigration agency is understaffed or overwhelmed by a large number of asylum seekers, delays inevitably ensue. Many of the individuals and families come from war-torn nations or are religious and ethnic minorities facing persecution back home. Fleeing for their lives, they may not have the requisite paperwork and evidence to prove they were recently in mortal danger. They also may not have the funds to contract proper representation for a tricky legal matter. International law states that someone who requests asylum at another nation’s port of entry should have their plea heard and fairly considered, and the EU as a whole abides by that. But, of course, there are countries that don’t want migrants awaiting asylum decisions for months in their territory, and most refugees would like an answer as quickly as possible. To satisfy both needs, the EU has now proposed ways of making the entirety of the process faster. Say an asylum seeker — let’s call him Alex — arrives in Greece irregularly from the United States. Before Alex can pass a border checkpoint, local and EU asylum officials will put him through a five-day-long screening process. He’ll have his ID and health checked, his background delved into, and more. After the screening, Alex will be placed on one of two tracks: 1) where a negative decision is likely, or 2) where a positive decision is likely. Alex is most likely not going to get his asylum claim granted. The US is a safe country, he’s male, he’s in his 30s, and no one could find evidence that sending him back to his reporting job in Washington would put him in danger. There’s also the chance that border guards find Alex poses some security threat to Europe — perhaps he has an extremist acquaintance on Facebook — and that might also put him on the negative track. In either case, under the new proposal, he will remain at Greece’s border in a facility constructed to house people going through the “border procedure.” He won’t be granted access into the country, he can’t leave the frontier, and he’ll only have 12 weeks total to make his case, including any needed appeals — about half the time of the current deadline. If Greece still thinks Alex has a weak asylum claim by the end of that time period, he’ll be sent back to the US, though that’s easier said than done (more on this in a minute). (To be clear, if Alex were an unaccompanied minor, part of a family from a war-torn nation, or an individual from a country that might harm him upon return — say, Syria — he might be put in the positive decision track and the normal six-month process remains in effect.) European Commission At first blush, this all sounds well and good. Asylum seekers would be in limbo for less time, and authorities can more quickly remove from the queue people unlikely to have their appeals granted. But if all this sounds familiar, it’s because it is. This is basically the EU’s existing plan, known as the “hotspot approach,” to house asylum seekers in ramshackle facilities at borders. The only real difference here is the handle-the-asylum-claims-faster twist. The refugee camp in Lesbos that just burned down, for instance, was a so-called hotspot. So it seems the EU doesn’t actually have a plan to move away from having places like it. “What they’re proposing would lead to more and more and more [Lesbos-like camps] in more and more places,” said HRW’s Sunderland. “The whole logic of the hotspot approach hasn’t worked at all.” There’s also a debate on the speed-of-decisions part. Some experts fear plowing through asylum claims will lead to more errors. For example, instead of delving more deeply into a refugee’s background, some details might be missed by authorities in an effort to rush, perhaps ending in a wrongful denial. Others say certain European countries — namely the Netherlands and Switzerland — have successfully expedited decisions on asylum claims by modernizing procedures, increasing staff, and offering government-funded legal advice to claimants. Either way, this part of the reform package doesn’t seem that different at all, save for trying to move things along more quickly. 2) Get other countries to help with asylum claims, even if they don’t want to This next change — having other nations chip in to help overwhelmed member states — is arguably the EU’s most controversial proposal and the one most likely to cause the greatest political strife. Countries in Europe’s south — Greece, Italy, Spain, Malta, and more — have by virtue of their geography seen hundreds of thousands of asylum seekers arrive on their shores in the last five years alone. Nations elsewhere on the continent don’t see such high numbers of refugees because they’re not as easily accessible by land or sea. During the 2015 crisis, those southern countries, especially Greece and Italy, were overwhelmed with asylum claims and asked other nations to help them. But many didn’t, leaving them to handle the influx mostly by themselves. In the following years, some southern European nations have forced boats of migrants and refugees to turn away, in violation of international and EU law, in order to keep the number of asylum-seekers down because they feel they can’t take anymore. The EU’s leadership knows this is a problem and has long made boosting solidarity on this issue — that is, getting all member states to help with migration and asylum claims — a main focus. The new proposals this week offer a remedy, basically by forcing other states to help. Here’s how it would work: Say Alex is joined by thousands upon thousands of refugees awaiting asylum decisions in Greece. Like in 2015, the influx is so large that it’s overtaking what Greece could handle, even with the EU’s assistance. At that point, either the EU or Greece may realize other countries in the bloc need to help with the situation and officially call for help. This is where it gets tricky. Most simply put, EU countries would have to pledge how many asylum seekers they’re willing to care for. If the number of pledges falls below 70 percent of the determined need (i.e., countries in total are only willing to take 600 of 1,000 claimants) then the EU can force those who have under-pledged — determined by how rich and populous a nation is — to take more people. (More on the forcing mechanism, and the problems with it, in a moment.) Countries pledging to help can do so in one of two ways. First, they can choose to relocate an asylum seeker. In this case, a country like Sweden would take Alex from Greece and continue to process his asylum claim there, in Sweden. That option is straightforward and appeals to nations not skeptical of bringing in new migrants. The second option is geared toward refugee-skeptic countries. Instead of taking in Alex, a country like Hungary could sponsor his return back to the US once his asylum claim is denied. Alex would stay in Greece, but Hungary would handle the negotiations with Washington to send him back and pay for the flight to the US. That makes Greece happy by taking Alex’s return issues out of its hands, and makes Hungary happy by allowing it to help without having to take Alex in. There’s a catch, though: If Alex isn’t returned to America within eight months, he would be sent to Hungary as the process continues. The reason for that is to ensure Alex doesn’t grow too fond of Greece or set up familial roots by getting married or having kids — which would make his eventual return home harder — and also to incentivize Hungary to handle Alex’s case quickly instead of letting him languish in Greece. European Commission But what if Hungary doesn’t want to pay for Alex’s, or any asylum seeker’s, return? After all, Hungary already passed a law making asylum assistance harder, and Prime Minister Viktor Orbán is deeply hostile to refugees. This is where the enforcement mechanism comes in. Per European Commission officials I spoke to and the proposal documents, the European Commission would have the right to adopt an “implementing act” — a law — that would force a member state to assist whatever country is in need. Since such a measure would be official EU law, the strong belief is that EU member states would abide by it. After all, the bloc is governed by the rule of law, and Hungary would have no choice but to choose either the relocation or return-sponsorship option. But EU officials don’t yet have an answer for what would happen if Hungary, or another refugee-hostile government, were to defy such a law. If that were to happen, the EU could find itself in a deep political crisis. “It’s hard to see how the Hungarian government is going to suddenly participate in schemes that would see more migrants move to Hungary,” said Andrew Geddes, director of the Migration Policy Center (MPC) in Florence, Italy. That said, EU officials remain confident that even the migration-skeptic nations would follow the law, as they could be taken through the bloc’s judicial process for redress. It’s therefore possible these proposals would work just fine if implemented and that cynicism is unwarranted. But what bothers some experts most is that the proposed reforms are the EU effectively cowing to refugee hardliners. “The lowest common denominator has been lowered,” Geddes told me. And even then, statements by Hungary’s government and other EU countries make it clear that those concessions still aren’t enough. 1/5 Since 2015, the stance of the HU Gov’t on migration has been clear and unchanged. We have presented this stance and our proposals on several occasions. We believe that the EU and its member states must cooperate in keeping the looming migration pressure outside our borders.— Zoltan Kovacs (@zoltanspox) September 23, 2020 3) Send denied asylum seekers back to their home countries faster Finally, we arrive at the return-to-the-home-country part. Let’s stick with our example: Alex’s asylum claim in Greece was denied, and now he’ll be forced to go back to America. Greece can’t handle the return home because it’s overwhelmed, so Hungary — either willingly or forced by the EU — is taking care of it. In this case, Alex’s return is quite simple. The US can easily absorb him back into society and his life won’t be in danger upon return. But say Alex was from Tunisia — now the situation gets trickier. Tunisia is currently in an economic crisis and is struggling with the coronavirus. Because of that, thousands are crossing the Mediterranean Sea to Italy and other southern European countries to claim asylum. The problem is that not everyone is going to have their claim accepted, and Tunisia doesn’t necessarily want to take certain people back since they already wanted out (among other reasons). As a result, there’d be a standoff as both Hungary and Tunisia work out what to do. Multiply that by thousands of cases, and you can see the scale of the problem: thousands of men, women, and children just languishing at European borders waiting for a resolution. This is a common problem in the EU. Its own statistics show only 40 percent of asylum seekers are successfully returned to their home countries, and that number plummets if the home nation is outside of the European continent, experts told me. ESI’s Knaus said Germany could only deport 1,000 people outside the EU in the first half of this year, well below last year’s rate, when 4,000 people total were sent back to their non-European home nations. It’s this issue countries like Hungary cite often, and it is partly why they’re opposed to even the return-sponsorship option. Remember, if the Hungarian government can’t send Alex to his home country within eight months, it has to bring him to Hungary as it further works on sending him out of the EU. That’s just not a scenario refugee-hostile nations want hanging over them. Put together, the EU tried to tackle three key problems with its new reforms, but it seems they either repackaged old solutions or didn’t offer appealing remedies. It’s for those and other reasons experts feel the proposals won’t make it through a year or more of deliberations. What would make the EU’s migration policy better? To be adopted, every proposal must make it through the European Parliament — which is made up of representatives from member states — and the European Council, a decision-making group made up of heads of state or ministers from each EU nation. Unanimity isn’t required, but it will take a large portion of each body to approve the new measures. That’s a big task, and few believe most of the proposals will make it through the process. “The European Commission is basically saying ‘these are our ideas,’ but it doesn’t mean member states will like them,” said MPC’s Geddes. ”This is a big test for the EU to see if it can put in place agreements for such issues of high politics. A lot is at stake.” What’s more, most experts I spoke to believe debating these issues amounts to a wasted opportunity. If passed, the reforms would lock in most of the failures of the EU’s asylum and migration policies of the last few years. And if they fail to pass, vulnerable people will have continued to suffer while politicians spent time fruitlessly debating and posturing. The experts offered three general solutions the EU should focus on instead. First, the EU shouldn’t try to force countries to take in migrants they simply don’t want. The bloc’s focus should shift from finding a common policy to creating a “coalition of the willing” — a group of EU nations that actually do want asylum seekers. As a reward, they might receive more funding or perhaps even greater voting power inside the EU. The downside is the bloc won’t be as cohesive on asylum and migration issues. But some feel giving people a welcoming place to stay should be the priority, not creating an artificial sense of unity. “I don’t think Europe should be held hostage by a hostile minority,” HRW’s Sunderland told me. Second, the EU should work on enforcing existing asylum and migration laws instead of trying to sell new ones. That means ensuring countries don’t push asylum seekers back on boats and actually take in refugees from hotspots to lessen the burden on the Greeces and Italys of Europe. Furthermore, the EU should find a way to punish countries like Hungary for making it harder for asylum seekers to enter there. “The fundamental problem right now is that we have a lot of laws that are being broken already,” said ESI’s Knaus. “If laws are being broken with impunity, isn’t the first step toward change making the laws already in force count? Why would changed laws be any better?” Third, the EU must get creative with how it deals with home nations. For example, Moroccans and Tunisians don’t have visa-free travel in the EU. The EU could offer visa-free travel to citizens — making tourism and commerce easier — in exchange for their willingness to expedite the return of nationals denied asylum in Europe. Such a trade worked with Ukraine, and the EU has found it easier to send back asylum-seekers there ever since a deal was struck. None of these solutions is perfect, but many believe they’ll serve the interests of both refugees and the EU more than what was just proposed. “There’s a big question mark about whether or not all this will actually help asylum seekers,” MPC’s Geddes told me. That said, he understands why EU leadership wants to settle this problem now before it gets any worse. “Something has to get done, or else the EU is never going to make an agreement.” Help keep Vox free for all Millions turn to Vox each month to understand what’s happening in the news, from the coronavirus crisis to a racial reckoning to what is, quite possibly, the most consequential presidential election of our lifetimes. Our mission has never been more vital than it is in this moment: to empower you through understanding. But our distinctive brand of explanatory journalism takes resources. 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Trump is expected to nominate Amy Coney Barrett to the Supreme Court
Judge Amy Coney Barrett at the Federalist Society’s 2019 National Lawyers Convention in Washington. | Samuel Corum/The New York Time​s via Redux The United States Court of Appeals for the Seventh Circuit justice is a favorite of the religious right. President Donald Trump is expected to choose Judge Amy Coney Barrett, whom he previously appointed to the United States Court of Appeals for the Seventh Circuit, to replace the late Justice Ruth Bader Ginsburg. Multiple outlets, including CNN, PBS Newshour, and CBS, reported Friday evening that the president is expected to announce Saturday that he has chosen to nominate Barrett to the nation’s highest court — though the pick isn’t yet final until Trump makes a formal nomination. Barrett is a staunch Catholic, a favorite of the religious right, and a former law clerk to conservative Justice Antonin Scalia. Her judicial record is fairly thin, owing to the fact that she’s only been a judge for about three years, but that short record suggests that she’ll be a reliable conservative if confirmed to the Supreme Court. In one of her most revealing opinions, Barrett took an expansive view of the Second Amendment — dissenting to the right of two colleagues who were appointed by President Ronald Reagan. Before joining the federal bench, Barrett was a law professor at the University of Notre Dame, and she frequently weighed in on many of the cultural fights that animate religious conservatism. In a 2013 speech on Roe v. Wade, Barrett reportedly stated that life begins at conception — a common view among abortion opponents. She signed a 2012 statement claiming that an Obama administration policy requiring employee health plans to cover contraception was “a grave violation of religious freedom and cannot stand.” She also signed a 2015 statement to Catholic bishops endorsing the church’s conservative views on abortion, sexuality, and marriage. And in a 2017 book review, Barrett seemed to criticize two Supreme Court decisions that largely upheld Obamacare against partisan attacks — suggesting that she is likely to vote to undercut the Affordable Care Act and potentially strip health care from millions of Americans in the process. Barrett’s views are hardly atypical of a Trump appointee to the federal bench. And her professional credentials, while impressive, are shared by many other sitting judges. It’s likely that she rose to the top of Trump’s Supreme Court shortlist not because her record sets her apart from a dozen or more staunch conservatives on the federal bench, but because of a disastrous effort by Democrats to impugn Barrett’s fitness for the bench when she was originally nominated to the Seventh Circuit. That botched effort allowed religious conservatives to paint Barrett as a persecuted martyr, and means that Trump’s choice of Barrett could double as an attempt to stoke resentment among Christian conservative voters shortly before the election. Barrett’s 2017 confirmation hearing was a disaster for Democrats Barrett is a devout Catholic, and she often grounds her conservative political views in her faith. She even co-authored a 1998 law review article exploring how Catholic judges should behave when the law’s demands come into conflict with their religious beliefs. That somewhat dated law review article played a starring role in opposition research memos and other documents circulated by liberal groups opposed to Barrett’s 2017 nomination to the federal bench. Many of these groups feared that, if confirmed, Judge Barrett would place her personal opposition to abortion ahead of her judicial obligation to follow Supreme Court decisions such as Roe v. Wade. It is fair game to criticize a nominee for their political beliefs, including their opposition to abortion. And it is fair game to criticize someone for political beliefs that are inspired by their religious faith. But, in an utterly disastrous exchange with future Judge Barrett during her 2017 confirmation hearing, Sen. Dianne Feinstein (D-CA) appeared to go a step further — seeming to attack Barrett’s Catholicism itself. In the coming weeks, expect to see a short clip from Barrett’s 2017 confirmation hearing over and over again. During Barrett’s 2017 hearing, Feinstein, the ranking Democrat on the Senate Judiciary Committee, drew a distinction between “law” and religious “dogma,” and accused Barrett of applying the later when she should apply the former. “The dogma lives loudly within you,” Feinstein told Barrett, “and that’s a concern.” It was a remarkably tone-deaf remark, and it immediately transformed the obscure law-professor-turned-judge into a celebrity among the Christian right. Feinstein, meanwhile, was cast as something akin to a tyrannical emperor tossing innocent Christians to the lions. “The notion that Catholics are so beholden to Rome as to be incapable of rendering independent judgment in public office has a long, sordid history,” wrote the Catholic conservative writer Sohrab Ahmari in a New York Times op-ed attacking Feinstein. The origin of the “dogma” debacle appears to be an article, titled “Catholic Judges in Capital Cases,” which Barrett co-authored with law professor John H. Garvey in 1998 (Garvey is now the president of Catholic University). In that article, which was published shortly after Barrett graduated from law school, she and Garvey suggested that Catholic judges may have to recuse themselves from death penalty cases when their religious convictions against the death penalty conflict with their judicial obligation to enforce laws that provide for capital punishment. The article also mentions the Catholic Church’s “absolute” opposition to abortion. Many of Barrett’s opponents characterized this 22-year-old article as evidence that she would place the teachings of the Catholic Church ahead of her obligation to follow the law. As one liberal group claimed, Barrett “wrote specifically about the duty of judges to put their faith above the law.” The often-explicit fear underlying statements such as this one was that Barrett would undermine the right to an abortion if confirmed to the bench. Had Feinstein merely expressed concerns about Barrett’s views on abortion, perhaps the future Supreme Court nominee would not have become such a celebrity among Christian conservatives. But by blurring the line between a legitimate attack on Barrett’s political views and an illegitimate attack on her Catholic faith, Feinstein transformed Barrett into a hero for the religious right. Barrett has very conservative views on issues like abortion or LBGTQ rights Barrett often expresses conservative political opinions in explicitly religious terms. In 2015, for example, she signed a letter to Catholic bishops that endorsed many of the church’s conservative teachings on abortion and sexuality. In the words of that letter: We give witness that the Church’s teachings—on the dignity of the human person and the value of human life from conception to natural death; on the meaning of human sexuality, the significance of sexual difference and the complementarity of men and women; on openness to life and the gift of motherhood; and on marriage and family founded on the indissoluble commitment of a man and a woman—provide a sure guide to the Christian life, promote women’s flourishing, and serve to protect the poor and most vulnerable among us. This letter’s reference to “the value of human life from conception to natural death” leaves little doubt that Barrett personally opposes abortion. And its statements regarding “the complementarity of men and women” and “marriage and family founded on the indissoluble commitment of a man and a woman” suggest that Barrett personally opposes marriage equality — and potentially opposes extending other rights to LGBTQ people. To be sure, the fact that Barrett personally opposes certain rights does not necessarily ensure she will vote to undermine those rights if confirmed to the Supreme Court. Justice William Brennan, for example, was a liberal icon who played a significant role in shaping the Court’s abortion rights decision in Roe v. Wade (1973). Yet he once told a biographer that he “wouldn’t under any circumstances condone an abortion in my private life.” But Barrett’s limited judicial record suggests that her approach to constitutional interpretation aligns with her conservative political views. In Planned Parenthood v. Box (2019), Barrett joined a brief dissent arguing that her court should rehear a case that blocked an anti-abortion law before that law took effect. That opinion argued that “preventing a state statute from taking effect is a judicial act of extraordinary gravity in our federal structure” — suggesting that Barrett would have prevented her court from blocking the anti-abortion law at the heart of that case if given the chance. Meanwhile, in Price v. City of Chicago (2019), Barrett joined a decision that reluctantly upheld a Chicago ordinance barring anti-abortion protesters from “approaching within eight feet of a person in the vicinity of an abortion clinic if their purpose is to engage in counseling, education, leafletting, handbilling, or protest.” The idea behind this ordinance is to prevent protesters from harassing patients entering abortion clinics. Though the opinion in Price acknowledged that the Chicago ordinance is “nearly identical” to one that was previously upheld by the Supreme Court in Hill v. Colorado (2000), and thus must be upheld by a lower court, the Price opinion argued at length that Hill “is incompatible with current First Amendment doctrine.” Should Barrett be confirmed to the Supreme Court, she would no longer be bound in the same way that lower court judges are bound by Supreme Court precedent. And thus she would be free to vote to overrule decisions like Hill — or even Roe. Barrett is likely to vote to undercut Obamacare In 2017, Barrett wrote a lengthy review of Our Republican Constitution, a deeply radical book by libertarian law professor Randy Barnett, which argues that huge swaths of American law are unconstitutional and should be struck down by judges. To her credit, Barrett largely rejected Barnett’s proposal to turn much of American governance over to heavy-handed judges. While Barnett “offers a fulsome explanation of why we should mistrust legislatures,” the future Supreme Court nominee wrote, “he spends less time defending the institutional capacity of the courts.” Toward the end of her review, however, Barrett does single out two cases — NFIB v. Sebelius (2012) and King v. Burwell (2015) — and suggests that the courts should have taken a more aggressive approach in those decisions. Both NFIB and King largely rejected partisan attacks on the Affordable Care Act. In NFIB, Judge Barrett writes, “Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute.” Likewise, Barrett appears to endorse Justice Scalia’s dissenting opinion in King, which attacks the majority for its supposed willingness to “rewrite” Obamacare in order to save it. “For Justice Scalia and those who share his commitment to uphold text, the measure of a court is its fair minded application of the rule of law, which means going where the law leads,” Barrett writes. “By this measure, it is illegitimate for the Court to distort either the Constitution or a statute to achieve what it deems a preferable result.” Many fair-minded lawyers — including the six justices who joined the majority in King — would no doubt take issue with Barrett’s suggestion that King distorted the text of Obamacare. But if Barrett is confirmed to the Supreme Court, it won’t really matter what those lawyers think. If Barrett is a justice, she’ll be free to vote against Obamacare even if her reading of the statute is idiosyncratic. It’s also worth noting that Barrett is unlikely to follow past decisions upholding Obamacare simply out of loyalty to precedent. In a 2013 article, Barrett suggested that justices should not feel bound by precedents that they strongly disagree with. “I tend to agree with those who say that a justice’s duty is to the Constitution and that it is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she thinks clearly in conflict with it,” Barrett wrote in that piece. Thus, if Barrett concludes that a decision like NFIB is “clearly” in conflict with the Constitution, she is likely to ignore it. Barrett is likely to expand the Second Amendment significantly Four members of the current Court — Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh — have all called for their Court to take a more expansive approach to the Second Amendment. If confirmed, Barrett is likely to provide the fifth vote for this project. In Kanter v. Barr (2019), Barrett sat on a three-judge panel considering a case brought by a former felon who claimed that he had a Second Amendment right to own a gun, despite his felony conviction. Notably, both of the other judges on this panel were Reagan appointees. The two Reagan appointees joined an opinion by Judge Joel Flaum arguing that the plaintiff in Kanter, who’d previously been convicted of mail fraud, was not exempt from the general rule barring ex-felons from carrying firearms. Flaum’s opinion pointed to the Supreme Court’s decision in District of Columbia v. Heller (2008), which held that “nothing in [the Supreme Court’s] opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill.” Barrett dissented. The crux of her argument is that “longstanding prohibitions on the possession of firearms by felons” should be shrunk to only “prohibit dangerous people from possessing guns.” Thus, a person convicted of a nonviolent crime like mail fraud would most likely be allowed to own a gun. As the two judges in the majority noted, “several courts of appeals have concluded that nonviolent felons are outside the scope of the Second Amendment.” And those two judges are, themselves, right-leaning judges appointed by a conservative president. So Barrett’s approach to the Second Amendment appears to place her well to the right of the consensus within the judiciary. If Barrett is confirmed, however, that consensus will no longer matter. She will sit at the apex of the judiciary. 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