vox--2020-09-25--The legal theories of Amy Coney Barrett, explained

According to multiple news sources , President Trump is set to announce that his nominee to replace Ruth Bader Ginsburg on the Supreme Court is Judge Amy Coney Barrett , who sits on the US Court of the Appeals for the Seventh Circuit ( based in Chicago ) and is also a law professor at Notre Dame .
The 48-year-old Barrett was appointed by Trump to the appeals court in 2017 , and was also reportedly a finalist for Justice Anthony Kennedy ’ s seat in 2018 .
She has been portrayed as a favorite of social conservatives seeking to @ @ @ @ @ @ @ abortion jurisprudence .
She is unusual , compared especially to famously ( and perhaps strategically ) tight-lipped recent nominees like Brett Kavanaugh and Elena Kagan , for her extensive paper trail on questions of constitutional law .
As a legal academic , she ’ s written extensively on what obedience to the original meaning of the Constitution requires of judges and members of Congress ; how to reconcile the importance of precedent with allegiance to the Constitution ’ s original meaning ; and how precedent can be used to mediate deep disagreements about @ @ @ @ @ @ @ we know more about her jurisprudential beliefs than we ’ ll know about those of any SCOTUS nominee since , perhaps , Ginsburg .
We know she identifies as an originalist who believes that the original public meaning of the Constitution is binding law .
But we also know that she is skeptical of the radical libertarian originalist idea that economic regulation is presumptively unconstitutional , and that she believes some Supreme Court decisions that originalists may conclude are incorrectly decided nonetheless stand as “ superprecedents ” that the Court can abide by @ @ @ @ @ @ @ heated reactions from detractors .
One piece ( with fellow law professor John Garvey ) on when Catholic judges might be obligated to recuse themselves from death penalty cases , prompted criticism from Senate Democrats during her appeals court confirmation hearings , who suggested Barrett was unable to separate her faith from her jurisprudence ( a charge she strongly rejected ) .
Another piece ( with late Notre Dame colleague John Copeland Nagle on how members of Congress should incorporate the original meaning of the Constitution into their votes has raised the eyebrows @ @ @ @ @ @ @ by noting that there are originalist arguments ( which the paper itself does not accept , except for the sake of argument ) to think that West Virginia was invalidly admitted as a state ; that the 14th Amendment wasn ’ t properly ratified ; and that paper money is unconstitutional , among other surprising conclusions .
To better understand her academic writings , I reached out to Keith Whittington , a professor of politics at Princeton and a leading expert on originalism and constitutional interpretation .
I wanted to get a better @ @ @ @ @ @ @ is an originalist , how her variety of originalism works , and how to understand her most prominent academic papers .
A transcript of our conversation , edited for length and clarity , follows ; note that it took place before Barrett ’ s actual nomination .
If you want to dig deeper , Whittington teaches a course on constitutional originalism and the syllabus is a great place to start .
See also my colleague Ian Millhiser ’ s introduction to Barrett .
Let ’ s start very basic : What is originalism @ @ @ @ @ @ @ a commitment to think that one , the meaning of the text of the Constitution is fixed at the time of its adoption , and two , that that has consequences for how judges ought to adjudicate cases .
Then there ’ s lots of wiggle room as to how much consequence that should have for judges in particular kinds of cases , how exactly do we determine what the meaning of the Constitution is , etc .
But [ University of Virginia law professor ] Larry Solum has characterized those as the @ @ @ @ @ @ @ I think that ’ s right .
Is it possible to divide the current Supreme Court into originalists and non-originalists ?
Who would fall in each camp ?
I think they all act as originalists to some degree , actually .
Many different approaches to thinking about constitutional decision-making would say that there are times when originalist arguments are appropriate , and you ought to pay attention to them .
So a case I was just writing about recently , the “ faithless electors ” case from this last term [ about whether @ @ @ @ @ @ @ vote for the presidential candidate who won their state ] , Elena Kagan wrote the majority , Clarence Thomas writes a concurring opinion , and both those opinions are basically originalist in their structure and design .
There are moments when all the justices are willing to draw on that kind of argument .
Some see it as more foundational than others and draw on it more exclusively .
Thomas is clearly the leader on this front .
Since Scalia has left the court , Thomas is the one who is most consistently @ @ @ @ @ @ @ and is most emphatic that the justices ought to be thinking about the original meaning of the text and trying to apply it to cases before them .
I think it ’ s too early to say the degree to which Kavanaugh is particularly committed to originalism .
Gorsuch certainly has indicated that he thinks it ’ s important .
I think both Alito and Roberts , on the other hand , have indicated that they are a little more pluralistic .
Originalism is part of what goes into their decision-making , but @ @ @ @ @ @ @ they have in mind .
They ’ re similar to previous conservative justices .
I think Chief Justice Rehnquist was like that .
He sometimes talked about originalism , sometimes it ’ s important , but also sometimes departed from it and didn ’ t focus on it very much .
All the conservative justices would say it ’ s important , but they aren ’ t all equally committed to thinking it ’ s the primary goal that ought to be driving their opinions .
Let ’ s talk about Amy Coney @ @ @ @ @ @ @ academic who has contributed extensively to debates about how originalists should act and rule .
Where does she fall on some of those questions ?
She ’ s been pretty vocally committed to originalism as really being the guiding light , more so than some others .
She is more explicitly committed to the notion that one ought to be an originalist , and that it is the primary principle for judges , than Roberts is , or than Kavanaugh historically was .
In that sense , she ’ s a little more @ @ @ @ @ @ @ a clear judicial philosophy , and originalism is at its core .
I think it ’ s less clear to what degree she is a pure textualist the way Gorsuch tends to be , and to what degree she ’ s willing to think beyond the text as she thinks about original principles .
I don ’ t think she ’ s really emphasized the kind of narrow textualism that Gorsuch has emphasized .
I suspect her originalism is going to look a little different than his version .
On the other hand @ @ @ @ @ @ @ ought to care more about stare decisis [ the doctrine that courts should generally abide by their previous rulings ] than Thomas tends to .
I think she ’ s a more moderate figure in that regard than Thomas .
She would be trying to navigate precedents that are in conflict or in tension with original meaning , rather than just thinking they ought to be tossed overboard .
She clearly is a kind of originalist .
She doesn ’ t look quite like either Gorsuch or Thomas , but she ’ s @ @ @ @ @ @ @ I ’ m glad you brought up stare decisis .
A paper she wrote with her colleague John Copeland Nagle , “ Congressional Originalism , ” has caused a bit of concern among critics , in part because she leads with a list of precedents that arguably conflict with the original meaning of the Constitution .
Brown v. Board of Education is the most incendiary one , but she mentions arguments that West Virginia was invalidly admitted , that the 14th Amendment wasn ’ t properly ratified , that paper money is unconstitutional @ @ @ @ @ @ @ ’ t say she thinks they ought to be overruled — and indeed suggests that the point is moot in most cases as these issues would never come before the Court — but I think even putting up the examples has raised hackles .
How should people weighing her nomination think about that paper ?
I tend not to think it ’ s terribly significant .
To some degree , it is an academic enterprise of trying to think about , “ What are the tensions here ?
What are the implications of @ @ @ @ @ @ @ are the implications if you think there are tensions between the theory and some of these foundational constitutional decisions that have been made over time , whether they are things like creating the state of West Virginia or things like Brown v. Board ?
” For her , that ’ s just a starting point for then trying to think about how to deal with the fact that there are going to be these tensions .
Importantly , her view was not , “ you ’ ve got to go overturn all these @ @ @ @ @ @ @ rid of the state of West Virginia , or whether it means overturning judicial decisions that have been made that are hard to justify on originalist grounds .
From her perspective , the question is , “ What do you do about the fact that there are , from a theoretical perspective , mistakes that have been made over time ?
” The answer is not always that you ’ ve got to run out and correct all the mistakes .
Sometimes you have to figure out how to live with those mistakes @ @ @ @ @ @ @ about her work is that she ’ s in part concerned with figuring out how to live with our mistakes .
That ’ s not an easy question , from a theoretical perspective .
From a judicial perspective , they often don ’ t have to confront that very directly .
An academic is very interested in trying to say , “ Let ’ s look at the creation of West Virginia or the Brown decision and think through the constitutionality of that and what it means about how the system works.
” @ @ @ @ @ @ @ that ’ s not much of a practical problem that ’ s going to come in front of you .
But there might be implications in how you think about those issues that do have more practical consequences for how you behave as a judge .
I think her enterprise , of trying to think more practically about what those implications are , is helpful .
A concrete worry a lot of left-of-center people have about Barrett is that a commitment to originalism puts important precedents — Roe v. Wade is the obvious @ @ @ @ @ @ @ a right to same-sex marriage , for instance — at risk of being overturned if she concludes they conflict with the Constitution ’ s original meaning .
Barrett ’ s willingness to concede that we have to live with some decisions she considers “ mistakes ” in a theoretical sense is pretty interesting then .
Why would an originalist think that ?
Why doesn ’ t every originalist act like Thomas in consistently putting precedent second to original meaning ?
For at least a couple of reasons .
One is a practical political @ @ @ @ @ @ @ overturn all the mistakes .
But the more you think there are quite dramatic mistakes .
the more you need a theory about , “ How do you live with those mistakes rather than try to overturn them ?
” If you think all the mistakes that your theory identifies are actually relatively minor and small , you can more easily imagine getting out there and cleaning them up .
The more you think they ’ re actually big and important , then the more important it becomes to try to figure out @ @ @ @ @ @ @ with those mistakes and figure out how to move forward given the existence of those mistakes .
Originalist theory has moved on this front .
It ’ s increasingly become interested in that question of how many and how significant are the mistakes out there from an originalist perspective ?
And then how do you deal with them and manage them ?
Some of the early academic literature in particular was often interested in adopting a fairly revolutionary posture and suggesting there ’ s lots of big , important , mistaken decisions , @ @ @ @ @ @ @ correct them all .
The more recent literature has really moved away from that , in part because it ’ s become more practical .
It ’ s not just an academic exercise anymore .
The other issue that a lot of originalist scholars are starting to circle around is that judges made all kinds of decisions in the past that they themselves did not try to ground in original meaning .
It ’ s an easy instinct to think all those things are mistaken .
But instead , we might start analyzing @ @ @ @ @ @ @ , it turns out you can build an originalist argument that gets you to a very similar place .
So we ought to be trying to think about to what degrees those precedents can actually be salvaged , can be regrounded on better foundations from an originalist perspective , that might provide better guidance as to what you ought to do in the future , given those precedents , and how we ought to be trying to develop them , how they fit more coherently within the overall constitutional scheme .
The other @ @ @ @ @ @ @ a lot of popular attention relates to how judges should balance their faith and their rulings .
She ’ s responding in part to William Brennan , a Catholic liberal on the Court who spoke about leaving his faith at the door when acting as a justice , and partially disagreeing with him .
What do you make of that piece ?
Does it imply anything important about her jurisprudence ?
My impression of that was that she wants to recognize it as being a problem , and therefore try to figure out @ @ @ @ @ @ @ A lot of people have run with the notion that she ’ s emphasizing the significance of her religious belief and , likewise , the religious beliefs of other judges and justices .
But I think it ’ s one of these cases where that ’ s the starting point for her , saying , “ It is true that judges have religious beliefs .
And those religious beliefs sometimes have implications for the kind of issues that come before the court.
” And then the question is how judges ought to deal @ @ @ @ @ @ @ not simply that judges ought to therefore impose their religious beliefs .
Will you help keep Vox free for all ?
The United States is in the middle of one of the most consequential presidential elections of our lifetimes .
It ’ s essential that all Americans are able to access clear , concise information on what the outcome of the election could mean for their lives , and the lives of their families and communities .
That is our mission at Vox .
But our distinctive brand of explanatory journalism takes resources @ @ @ @ @ @ @ news advertising market recovers , your support will be a critical part of sustaining our resource-intensive work .
If you have already contributed , thank you .
If you haven ’ t , please consider helping everyone understand this presidential election : Contribute today from as little as $ 3 .

On Monday, by a narrow vote of 52 to 48, the US Senate confirmed Judge Amy Coney Barrett to replace the late Ruth Bader Ginsburg on the Supreme Court.
The 48-year-old Barrett was appointed by Trump to the 7th Circuit Court of Appeals in 2017, and was also reportedly a finalist for Justice Anthony Kennedy’s seat in 2018. She has been portrayed as a favorite of social conservatives seeking to push against the Supreme Court’s abortion jurisprudence. She is unusual, compared especially to famously (and perhaps strategically) tight-lipped recent nominees like Brett Kavanaugh and Elena Kagan, for her extensive paper trail on questions of constitutional law. As a legal academic, she’s written extensively on what obedience to the original meaning of the Constitution requires of judges and members of Congress; how to reconcile the importance of precedent with allegiance to the Constitution’s original meaning; and how precedent can be used to mediate deep disagreements about the law.
As a result, we know more about her jurisprudential beliefs than we’ll know about those of any new SCOTUS justice since, perhaps, Ginsburg. We know she identifies as an originalist who believes that the original public meaning of the Constitution is binding law. But we also know that she is skeptical of the radical libertarian originalist idea that economic regulation is presumptively unconstitutional, and that she believes some Supreme Court decisions that originalists may conclude are incorrectly decided nonetheless stand as “superprecedents” that the Court can abide by.
Her legal writing has also prompted heated reactions from detractors. One piece (with fellow law professor John Garvey) on when Catholic judges might be obligated to recuse themselves from death penalty cases, prompted criticism from Senate Democrats during her appeals court confirmation hearings, who suggested Barrett was unable to separate her faith from her jurisprudence (a charge she strongly rejected).
Another piece (with late Notre Dame colleague John Copeland Nagle) on how members of Congress should incorporate the original meaning of the Constitution into their votes has raised the eyebrows of some commentators, because it begins by noting that there are originalist arguments (which the paper itself does not accept, except for the sake of argument) to think that West Virginia was invalidly admitted as a state; that the 14th Amendment wasn’t properly ratified; and that paper money is unconstitutional, among other surprising conclusions.
To better understand her academic writings, I reached out (a few days before Barrett was actually nominated) to Keith Whittington, a professor of politics at Princeton and a leading expert on originalism and constitutional interpretation. I wanted to get a better sense of what it means that Barrett is an originalist, how her variety of originalism works, and how to understand her most prominent academic papers.
A transcript of our conversation, edited for length and clarity, follows; note that it took place before Barrett’s actual nomination. If you want to dig deeper, Whittington teaches a course on constitutional originalism and the syllabus is a great place to start. See also my colleague Ian Millhiser’s introduction to Barrett.
Dylan Matthews
Let’s start very basic: What is originalism?
Keith Whittington
I think of it simply as a commitment to think that one, the meaning of the text of the Constitution is fixed at the time of its adoption, and two, that that has consequences for how judges ought to adjudicate cases. Then there’s lots of wiggle room as to how much consequence that should have for judges in particular kinds of cases, how exactly do we determine what the meaning of the Constitution is, etc.
But [University of Virginia law professor] Larry Solum has characterized those as the two central principles of originalism, and I think that’s right.
Dylan Matthews
Is it possible to divide the current Supreme Court into originalists and non-originalists? Who would fall in each camp?
Keith Whittington
I think they all act as originalists to some degree, actually. Many different approaches to thinking about constitutional decision-making would say that there are times when originalist arguments are appropriate, and you ought to pay attention to them.
So a case I was just writing about recently, the “faithless electors” case from this last term [about whether Electoral College electors can be required to vote for the presidential candidate who won their state], Elena Kagan wrote the majority, Clarence Thomas writes a concurring opinion, and both those opinions are basically originalist in their structure and design. There are moments when all the justices are willing to draw on that kind of argument.
Some see it as more foundational than others and draw on it more exclusively. Thomas is clearly the leader on this front. Since Scalia has left the court, Thomas is the one who is most consistently committed to thinking about historical meaning, and is most emphatic that the justices ought to be thinking about the original meaning of the text and trying to apply it to cases before them.
I think it’s too early to say the degree to which Kavanaugh is particularly committed to originalism. Gorsuch certainly has indicated that he thinks it’s important. I think both Alito and Roberts, on the other hand, have indicated that they are a little more pluralistic. Originalism is part of what goes into their decision-making, but it’s not the only consideration they have in mind.
They’re similar to previous conservative justices. I think Chief Justice Rehnquist was like that. He sometimes talked about originalism, sometimes it’s important, but also sometimes departed from it and didn’t focus on it very much. All the conservative justices would say it’s important, but they aren’t all equally committed to thinking it’s the primary goal that ought to be driving their opinions.
Dylan Matthews
Let’s talk about Amy Coney Barrett. She’s a legal academic who has contributed extensively to debates about how originalists should act and rule. Where does she fall on some of those questions?
Keith Whittington
She’s been pretty vocally committed to originalism as really being the guiding light, more so than some others. She is more explicitly committed to the notion that one ought to be an originalist, and that it is the primary principle for judges, than Roberts is, or than Kavanaugh historically was. In that sense, she’s a little more like Thomas and Gorsuch. She has a clear judicial philosophy, and originalism is at its core.
I think it’s less clear to what degree she is a pure textualist the way Gorsuch tends to be, and to what degree she’s willing to think beyond the text as she thinks about original principles. I don’t think she’s really emphasized the kind of narrow textualism that Gorsuch has emphasized. I suspect her originalism is going to look a little different than his version.
On the other hand, she has also suggested that judges ought to care more about stare decisis [the doctrine that courts should generally abide by their previous rulings] than Thomas tends to. I think she’s a more moderate figure in that regard than Thomas. She would be trying to navigate precedents that are in conflict or in tension with original meaning, rather than just thinking they ought to be tossed overboard.
She clearly is a kind of originalist. She doesn’t look quite like either Gorsuch or Thomas, but she’s probably playing in the same sandbox.
Dylan Matthews
I’m glad you brought up stare decisis. A paper she wrote with her colleague John Copeland Nagle, “Congressional Originalism,” has caused a bit of concern among critics, in part because she leads with a list of precedents that arguably conflict with the original meaning of the Constitution.
Brown v. Board of Education is the most incendiary one, but she mentions arguments that West Virginia was invalidly admitted, that the 14th Amendment wasn’t properly ratified, that paper money is unconstitutional, and so forth. She doesn’t say she thinks they ought to be overruled — and indeed suggests that the point is moot in most cases as these issues would never come before the Court — but I think even putting up the examples has raised hackles.
How should people weighing her nomination think about that paper?
Keith Whittington
I tend not to think it’s terribly significant. To some degree, it is an academic enterprise of trying to think about, “What are the tensions here? What are the implications of adopting a certain theoretical perspective? What are the implications if you think there are tensions between the theory and some of these foundational constitutional decisions that have been made over time, whether they are things like creating the state of West Virginia or things like Brown v. Board?” For her, that’s just a starting point for then trying to think about how to deal with the fact that there are going to be these tensions.
Importantly, her view was not, “you’ve got to go overturn all these decisions,” whether it means getting rid of the state of West Virginia, or whether it means overturning judicial decisions that have been made that are hard to justify on originalist grounds. From her perspective, the question is, “What do you do about the fact that there are, from a theoretical perspective, mistakes that have been made over time?” The answer is not always that you’ve got to run out and correct all the mistakes. Sometimes you have to figure out how to live with those mistakes. Part of what’s interesting about her work is that she’s in part concerned with figuring out how to live with our mistakes. That’s not an easy question, from a theoretical perspective.
From a judicial perspective, they often don’t have to confront that very directly. An academic is very interested in trying to say, “Let’s look at the creation of West Virginia or the Brown decision and think through the constitutionality of that and what it means about how the system works.” From a judge’s perspective, that’s not much of a practical problem that’s going to come in front of you. But there might be implications in how you think about those issues that do have more practical consequences for how you behave as a judge. I think her enterprise, of trying to think more practically about what those implications are, is helpful.
Dylan Matthews
A concrete worry a lot of left-of-center people have about Barrett is that a commitment to originalism puts important precedents — Roe v. Wade is the obvious one, but also the cases establishing a right to same-sex marriage, for instance — at risk of being overturned if she concludes they conflict with the Constitution’s original meaning.
Barrett’s willingness to concede that we have to live with some decisions she considers “mistakes” in a theoretical sense is pretty interesting then. Why would an originalist think that? Why doesn’t every originalist act like Thomas in consistently putting precedent second to original meaning?
Keith Whittington
For at least a couple of reasons. One is a practical political one, that you can’t overturn all the mistakes. But the more you think there are quite dramatic mistakes. the more you need a theory about, “How do you live with those mistakes rather than try to overturn them?” If you think all the mistakes that your theory identifies are actually relatively minor and small, you can more easily imagine getting out there and cleaning them up. The more you think they’re actually big and important, then the more important it becomes to try to figure out a theory that allows you to live with those mistakes and figure out how to move forward given the existence of those mistakes.
Originalist theory has moved on this front. It’s increasingly become interested in that question of how many and how significant are the mistakes out there from an originalist perspective? And then how do you deal with them and manage them?
Some of the early academic literature in particular was often interested in adopting a fairly revolutionary posture and suggesting there’s lots of big, important, mistaken decisions, and we ought to be trying to correct them all. The more recent literature has really moved away from that, in part because it’s become more practical. It’s not just an academic exercise anymore.
The other issue that a lot of originalist scholars are starting to circle around is that judges made all kinds of decisions in the past that they themselves did not try to ground in original meaning. It’s an easy instinct to think all those things are mistaken. But instead, we might start analyzing those more closely and finding, actually, it turns out you can build an originalist argument that gets you to a very similar place. So we ought to be trying to think about to what degrees those precedents can actually be salvaged, can be regrounded on better foundations from an originalist perspective, that might provide better guidance as to what you ought to do in the future, given those precedents, and how we ought to be trying to develop them, how they fit more coherently within the overall constitutional scheme.
Dylan Matthews
The other paper of hers that’s gotten a lot of popular attention relates to how judges should balance their faith and their rulings. She’s responding in part to William Brennan, a Catholic liberal on the Court who spoke about leaving his faith at the door when acting as a justice, and partially disagreeing with him.
What do you make of that piece? Does it imply anything important about her jurisprudence?
Keith Whittington
My impression of that was that she wants to recognize it as being a problem, and therefore try to figure out how it ought to be reconciled. A lot of people have run with the notion that she’s emphasizing the significance of her religious belief and, likewise, the religious beliefs of other judges and justices. But I think it’s one of these cases where that’s the starting point for her, saying, “It is true that judges have religious beliefs. And those religious beliefs sometimes have implications for the kind of issues that come before the court.” And then the question is how judges ought to deal with that. Certainly her conclusion is not simply that judges ought to therefore impose their religious beliefs.


vox--2020-09-25--What Amy Coney Barrett on the Supreme Court would mean for abortion rights

President Trump has repeatedly promised to appoint Supreme Court justices who would overturn Roe v. Wade , the landmark 1973 decision that established the right to an abortion in America .
If he nominates Amy Coney Barrett to fill the seat left vacant by the death of Justice Ruth Bader Ginsburg , he has moved one step closer to that goal .
Barrett , a judge on the Seventh US Circuit Court of Appeals in Chicago , has attracted praise from social conservatives for her religious faith as well as her strict interpretation of the Constitution .
On the federal @ @ @ @ @ @ @ decisions in cases involving the Second Amendment and immigration , among others .
But her views on abortion are likely to get particular attention during her confirmation process , given the president ’ s promise on Roe and the political importance of the issue in an election year .
Barrett has not stated publicly how she would rule on abortion if confirmed to the Court .
But her history includes a number of clues about her feelings on the issue , both as a person and as a judge .
Barrett has twice @ @ @ @ @ @ @ in ways favorable to abortion restrictions .
And while she ’ s said she doesn ’ t believe Roe will be overturned outright , she ’ s also made clear that she ’ s open to reversing Supreme Court precedent if she thinks a previous decision goes against the Constitution .
If she is nominated , Barrett is sure to face a contentious confirmation process where questions about abortion will be front and center .
In the past , nominees have avoided answering such questions directly and Barrett is likely to do the @ @ @ @ @ @ @ suggestion , if not the certainty , that she could be a deciding vote to reverse Roe and eliminate the legal right to abortion in America .
At 48 , Barrett doesn ’ t have a long judicial record , as the LA Times noted in 2018 when she was first floated as a replacement for Justice Anthony Kennedy .
Barrett was confirmed to the Seventh Circuit , her first judgeship , in 2017 .
Since then , she ’ s voted in two abortion cases , each time in ways that could @ @ @ @ @ @ @ .
In one , Box v. Planned Parenthood of Indiana and Kentucky Inc. , the Seventh Circuit voted to block an Indiana law requiring parental notification for minors seeking abortions .
Barrett joined a dissent saying the law should have been allowed to take effect , as ABA Journal reports .
The second case , Commissioner of the Indiana State Department of Health v. Planned Parenthood of Indiana and Kentucky Inc. , concerned an Indiana law that would have banned abortions on the basis of race , sex , or Down syndrome diagnosis @ @ @ @ @ @ @ remains be buried or cremated .
A lower court struck down the law , and the state of Indiana appealed only the fetal remains portion .
A panel of the Seventh Circuit declined to rehear the case , but Barrett joined the dissent , arguing that the case should be reheard , and bringing up potential legal merits of the ban on race- or sex-selective abortions , even though that part of the law was no longer actually at issue .
The dissenters called the law a “ eugenics statute ” and wrote @ @ @ @ @ @ @ s abortion decisions holds that states are powerless to prevent abortions designed to choose the sex , race , and other attributes of children.
” In addition to these votes , Barrett has also made a number of public statements on Roe and abortion over the years .
A Catholic and member of the religious group People of Praise , she has said that she personally believes life begins at conception , and that Roe “ ignited a national controversy ” by deciding the issue of abortion by court order rather than leaving @ @ @ @ @ @ @ Barrett has also said several times that she believes the Supreme Court will not overturn Roe .
“ I don ’ t think the core case , Roe ’ s core holding that women have a right to an abortion , I don ’ t think that would change , ” she said in a 2016 appearance at Jacksonville University .
“ But I think the question of whether people can get very late-term abortions , you know , how many restrictions can be put on clinics , I think that will change.
@ @ @ @ @ @ @ more likely to let states chip away at abortion access than to reverse Roe outright was common for many years among advocates on both sides of the abortion issue .
Indeed , conservative state legislatures have worked for years to restrict abortion within the bounds of Roe , with Louisiana , Texas , and other states passing numerous laws that have shut down clinics across the South and Midwest .
But now , the calculus is changing .
As Nina Totenberg and Domenico Montanaro note at NPR , Trump has already appointed two @ @ @ @ @ @ @ moving it to the right .
Meanwhile , some believe that Chief Justice John Roberts may be more amenable to a direct challenge to Roe than to the kinds of incremental clinic restrictions that were at issue in the recent June Medical Services v. Russo , in which he voted to strike down a Louisiana abortion law .
And of course , the death of Justice Ginsburg leaves Trump the opportunity to pull the Court even further to the right .
Should Barrett join it , conservative justices might well have the votes @ @ @ @ @ @ @ after the right to an abortion directly .
If they do , states would be able to ban abortion outright , rather than just passing laws making the procedure harder to get .
Should such an opportunity present itself , Barrett has made clear that judicial precedent wouldn ’ t necessarily be an obstacle for her .
The judge has said she believes the Supreme Court has the responsibility to revisit and potentially overturn old rulings that its current members feel conflict with the Constitution .
“ I tend to agree with those @ @ @ @ @ @ @ duty is to the Constitution and that is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she thinks is clearly in conflict with it , ” Barrett wrote in 2013 .
Despite her past votes and writings , no one knows for sure how Barrett would rule in a Supreme Court abortion case until and unless she gets to consider one .
But one thing is clear — Barrett has no particular allegiance to Roe v. Wade , or to Supreme Court precedent more @ @ @ @ @ @ @ the opportunity to overturn the 1973 decision , nothing in her record suggests she wouldn ’ t take it .
Will you help keep Vox free for all ?
The United States is in the middle of one of the most consequential presidential elections of our lifetimes .
It ’ s essential that all Americans are able to access clear , concise information on what the outcome of the election could mean for their lives , and the lives of their families and communities .
That is our mission at Vox .
But @ @ @ @ @ @ @ resources .
Even when the economy and the news advertising market recovers , your support will be a critical part of sustaining our resource-intensive work .
If you have already contributed , thank you .
If you haven ’ t , please consider helping everyone understand this presidential election : Contribute today from as little as $ 3 .

President Trump has repeatedly promised to appoint Supreme Court justices who would overturn Roe v. Wade, the landmark 1973 decision that established the right to an abortion in America. By putting Justice Amy Coney Barrett on the Court, he moved one step closer to that goal.
Barrett, who was confirmed by the Senate on Monday, attracted praise from social conservatives for her religious faith as well as her strict interpretation of the Constitution. As a judge on the Seventh US Circuit Court of Appeals in Chicago, she issued conservative decisions in cases involving the Second Amendment and immigration, among others. But her views on abortion got particular attention during her confirmation process, given the president’s promise on Roe and the political importance of the issue in an election year.
During her confirmation hearings, Barrett did not directly answer questions about how she would rule on abortion rights. But she has made her personal opinion on the issue clear in the past, signing her name to a 2006 newspaper ad opposing “abortion on demand.” She has twice voted in abortion cases, both times in ways favorable to abortion restrictions. And while she’s said she doesn’t believe Roe will be overturned outright, she’s also made clear that she’s open to reversing Supreme Court precedent if she thinks a previous decision goes against the Constitution.
She might get that opportunity soon, with more than a dozen abortion cases just one step away from the Court. And while no one knows for certain what kind of justice she would be, her past certainly suggests she could be a deciding vote to reverse Roe and eliminate the legal right to abortion in America.
Barrett’s record suggests she’d be open to overturning Roe
At 48, Barrett doesn’t have a long judicial record, as the LA Times noted in 2018 when she was first floated as a replacement for Justice Anthony Kennedy. Barrett was confirmed to the Seventh Circuit, her first judgeship, in 2017.
Since then, she’s voted in two abortion cases, each time in ways that could be seen as friendly to abortion restrictions. In one, Box v. Planned Parenthood of Indiana and Kentucky Inc., the Seventh Circuit voted to block an Indiana law requiring parental notification for minors seeking abortions. Barrett joined a dissent saying the law should have been allowed to take effect, as ABA Journal reports.
The second case, Commissioner of the Indiana State Department of Health v. Planned Parenthood of Indiana and Kentucky Inc., concerned an Indiana law that would have banned abortions on the basis of race, sex, or Down syndrome diagnosis, as well as requiring that fetal remains be buried or cremated. A lower court struck down the law, and the state of Indiana appealed only the fetal remains portion.
A panel of the Seventh Circuit declined to rehear the case, but Barrett joined the dissent, arguing that the case should be reheard and bringing up potential legal merits of the ban on race- or sex-selective abortions, even though that part of the law was no longer actually at issue. The dissenters called the law a “eugenics statute” and wrote that “none of the Court’s abortion decisions holds that states are powerless to prevent abortions designed to choose the sex, race, and other attributes of children.”
In addition to these votes, Barrett has made a number of public statements on Roe and abortion over the years. Perhaps most notably, in 2006 she signed her name to an ad placed by the group St. Joseph County Right to Life in the South Bend Tribune, an Indiana newspaper. The ad stated that the undersigned “oppose abortion on demand and defend the right to life from fertilization to natural death,” the New York Times reported.
The ad has raised additional concerns because St. Joseph County Right to Life opposes in vitro fertilization, and has stated that the discarding of frozen embryos generated through IVF should be criminalized, as BuzzFeed News reported. In response to concerns about this position, the White House directed BuzzFeed to a statement by Barrett on the day of her nomination: “Judges are not policymakers, and they must be resolute in setting aside any policy views they might hold.”
Barrett, a Catholic and member of the religious group People of Praise, has also said that she personally believes life begins at conception, and that Roe “ignited a national controversy” by deciding the issue of abortion by court order rather than leaving it to the states.
However, Barrett has also said several times that she believes the Supreme Court will not overturn Roe.
“I don’t think the core case, Roe’s core holding that women have a right to an abortion, I don’t think that would change,” she said in a 2016 appearance at Jacksonville University. “But I think the question of whether people can get very late-term abortions, you know, how many restrictions can be put on clinics, I think that will change.”
The idea that the Court was more likely to let states chip away at abortion access than to reverse Roe outright was common for many years among advocates on both sides of the abortion issue. Indeed, conservative state legislatures have worked for years to restrict abortion within the bounds of Roe, with Louisiana, Texas, and other states passing numerous laws that have shut down clinics across the South and Midwest.
But now the calculus is changing.
As Nina Totenberg and Domenico Montanaro note at NPR, Trump has already appointed two conservative justices to the Court, moving it significantly to the right. And some believe that Chief Justice John Roberts may be more amenable to a direct challenge to Roe than to the kinds of incremental clinic restrictions that were at issue in the recent June Medical Services v. Russo, in which he voted to strike down a Louisiana abortion law.
And, of course, the death of Justice Ginsburg leaves Trump the opportunity to pull the Court even further to the right. Should Barrett join it, conservative justices might well have the votes — and the will — to go after the right to an abortion directly. If they do, states would be able to ban abortion outright, rather than just passing laws making the procedure harder to get.
Should such an opportunity present itself, Barrett has made clear that judicial precedent wouldn’t necessarily be an obstacle for her. The judge has said she believes the Supreme Court has the responsibility to revisit and potentially overturn old rulings that its current members feel conflict with the Constitution.
“I tend to agree with those who say that a justice’s duty is to the Constitution and that is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she thinks is clearly in conflict with it,” Barrett wrote in 2013.
Like previous nominees to the Supreme Court, including Brett Kavanaugh, Barrett declined to provide substantive answers about her thoughts on Roe during her confirmation hearing, arguing that to do so “signals to litigants that I might tilt one way or another on a pending case.” However, she did provide some clues.
For example, she referred to a category of rulings she called “superprecedents” or “cases that are so well settled that no political actors and no people seriously push for their overruling,” as CBS News reported. That category included the cases Brown v. Board of Education, which struck down school segregation, and Loving v. Virginia, which invalidated laws against interracial marriage, she said — but not Roe v. Wade. In the case of that decision, “calls for its overruling have never ceased,” Barrett told the Senate Judiciary Committee. To many, that signaled that she saw Roe as a decision the current Court could revisit — and potentially reverse.
Despite her past votes and writings, no one knows for sure how Barrett will rule in a Supreme Court abortion case until she gets to consider one. But one thing is clear: Barrett has no particular allegiance to Roe v. Wade, or to Supreme Court precedent more generally. And if she is given the opportunity to overturn the 1973 decision, nothing in her record suggests she won’t take it.


vox--2020-09-25--The promise and peril of the EU’s new asylum plan

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 @ @ @ @ @ @ @ , 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 @ @ @ @ @ @ @ 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 @ @ @ @ @ @ @ 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 @ @ @ @ @ @ @ 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 @ @ @ @ @ @ @ .
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.
” 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 .
@ @ @ @ @ @ @ 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 @ @ @ @ @ @ @ 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 @ @ @ @ @ @ @ 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 @ @ @ @ @ @ @ 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 .
But experts say the reform package @ @ @ @ @ @ @ 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 : 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 @ @ @ @ @ @ @ 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 @ @ @ @ @ @ @ 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 ’ @ @ @ @ @ @ @ 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 @ @ @ @ @ @ @ 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 @ @ @ @ @ @ @ 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 @ @ @ @ @ @ @ .
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 ) .
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 ’ @ @ @ @ @ @ @ 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 ] @ @ @ @ @ @ @ 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 @ @ @ @ @ @ @ 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 @ @ @ @ @ @ @ ’ 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 .
@ @ @ @ @ @ @ 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 @ @ @ @ @ @ @ 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 @ @ @ @ @ @ @ 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 @ @ @ @ @ @ @ 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 @ @ @ @ @ @ @ 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 @ @ @ @ @ @ @ 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 .
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 @ @ @ @ @ @ @ 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 @ @ @ @ @ @ @ 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 @ @ @ @ @ @ @ 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 @ @ @ @ @ @ @ 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 @ @ @ @ @ @ @ 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 @ @ @ @ @ @ @ 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 @ @ @ @ @ @ @ 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 @ @ @ @ @ @ @ 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 @ @ @ @ @ @ @ 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 @ @ @ @ @ @ @ 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 @ @ @ @ @ @ @ 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 @ @ @ @ @ @ @ .
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 @ @ @ @ @ @ @ .
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 @ @ @ @ @ @ @ .
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 @ @ @ @ @ @ @ 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 @ @ @ @ @ @ @ 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 .
Even when the economy and the news advertising market recovers , your support will be a critical part of sustaining our resource-intensive work .
If you have already contributed , thank you .
If you haven ’ t , please consider helping everyone make sense of an @ @ @ @ @ @ @ as little as $ 3 .

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 pic.twitter.com/hMMB0fDeru — 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, @AndrejBabis
and 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. pic.twitter.com/0MuLSJr44Q — 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.)
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.
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 Europe 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.”
Correction 9/26: Knaus’s statistic about deportations from Germany were to outside Europe, not the EU. The change has been made.