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Supreme Court May Put Administrative-State On Chopping-Block In Upcoming Term, Lawyers Say

Supreme Court May Put Administrative-State On Chopping-Block In Upcoming Term, Lawyers Say

Authored by Matthew Vadum via The Epoch Times,

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Supreme Court May Put Administrative-State On Chopping-Block In Upcoming Term, Lawyers Say

Authored by Matthew Vadum via The Epoch Times,

The Supreme Court may take steps to roll back the administrative state in its approaching term that begins next month, according to lawyers who frequently appear before the nation’s highest court.

The lawyers were appearing at a Sept. 20 event hosted by The Heritage Foundation think tank.

Attorney Paul Clement of the law firm of Clement and Murphy in Washington participated. Mr. Clement was U.S. solicitor general under President George W. Bush from July 2004 to June 2008.

Also participating was attorney Lisa Blatt, a partner at the law firm of Williams and Connolly in Washington.

The court agreed on June 30 to hear Securities and Exchange Commission (SEC) v. Jarkesy (court file 22-859) at some point in the upcoming term.

The SEC, an independent federal agency, enforces federal securities laws administratively or by filing civil actions in court.

George Jarkesy and his advisory firm, Patriot28, were sued in federal court in the District of Columbia in 2013 for infringing securities laws in managing two hedge funds. Mr. Jarkesy countersued, arguing that the structure of the commission ran afoul of the U.S. Constitution.

The lower court found for the SEC, which continued the proceedings and assigned the case to an administrative law judge who confirmed the violations. The SEC reviewed and ratified the decision and ordered the parties to pay $300,000 in civil penalties.

A divided U.S. Court of Appeals for the 5th Circuit found that the two levels of removal protections applying to administrative law judges unconstitutionally shielded them from presidential oversight. The court also held that SEC proceedings infringed the Seventh Amendment right to a jury trial and that Congress had unconstitutionally delegated its lawmaking powers to the commission, according to a Ballotpedia summary.

'Rethinking These Fundamental Questions'

Ms. Blatt said, “We’re at a place in our country, and I think with the court, where they’re rethinking these fundamental questions about the administrative state, and how people’s liberty interests are being taken away by bureaucrats.”

“SEC is an aggressive agency,” she said.

“To be gone after by the SEC, I think, triggers all the senses of big, bad, mean government.”

The 5th Circuit found the SEC’s system was unconstitutional “because Congress could not have, or should not have, delegated to the SEC the decision to proceed either internally by adjudication or go to court.”

With the Federal Trade Commission and many other agencies, “you can either do it in-house or go to court,” she said.

“Well, guess what you would do if you were an agency. I would do it in-house because you’re going to win. You get to be the judge, jury, and the executioner. And it is very unfair to have that.”

“I do think there’s some due process arguments to be made for the fact that the government can always go after you internally where your government’s always going to win.”

Lawyer Lisa Blatt speaks before the Senate Judiciary Committee during the confirmation hearing for Judge Brett Kavanaugh to be associate justice, in Washington, on Sept. 4, 2018. (Saul Loeb/AFP via Getty Images)

Ms. Blatt noted that in 2010 the Supreme Court found in Free Enterprise Fund v. Public Company Accounting Oversight Board that laws insulating lower-level federal officers from presidential removal authority with two levels of for-cause removal violated the Constitution.

Mr. Clement said, “The double for-cause removal issue is the one where I think the government definitely has the greatest vulnerability.”

“Part of the unfairness of all of this is that you’re stuck in front of this agency, and they’re adjudicating their own cases, and they never lose,” he said.

“What I think a majority of the court cares deeply about in this context is accountability.”

Oral arguments in the case, Loper Bright Enterprises v. Raimondo (court file 22-451), have not yet been scheduled.

'Chevron Deference'

The case challenges “Chevron deference,” a bureaucracy-empowering legal doctrine that critics say has distorted the U.S. system of government for decades at the expense of everyday citizens.

The doctrine, which arose out of Chevron v. NRDC (1984), holds that an executive agency’s interpretation of a statute is entitled to deference unless Congress has explicitly said otherwise.

Conservatives and Republican policymakers have long been critical of the doctrine, saying it gives unelected regulators far too much power to make policy by going beyond what Congress intended when it approved various laws. The authority of regulatory agencies has been increasingly questioned in recent years as the conservative majority on the Supreme Court has grown. Conservative Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch have expressed skepticism of the Chevron doctrine.

“I don’t want to say that Chevron is responsible for all the ills of the modern administrative state, just most of them,” Mr. Clement said.

The appeal itself concerns a federal rule that requires the owners of fishing vessels, which tend to be small, to pay for having federal observers onboard to oversee operations and ensure compliance with a litany of federal regulations.

The court’s eventual ruling in the case could alter the current balance of power among Congress, executive agencies, and the nation’s judiciary by tearing away at the legal underpinnings of the modern administrative state, which critics deride as an illegitimate fourth branch of government.

Mr. Clement expressed outrage over the fisheries rule, saying it is the “maritime equivalent of the forced quartering of British soldiers,” a colonial-era policy that helped to spur the American Revolution.

The rule forces fishing companies “to give over precious space on the vessels,” and to make matters worse, “the fishermen themselves have to pay the salaries for the federal monitors who are monitoring them for compliance with all the federal regulations.”

This is “really a case about the separation of powers and how power is allocated in our system, particularly between Congress and the executive.”

The Chevron doctrine has contributed to the growth of government in part because “if Congress creates ambiguous statutes, the executive has a lot of leeway under Chevron to interpret them one way or another.”

Over time it has created a “dynamic where Congress has very little incentive to legislate clearly,” Mr. Clement said.

“At any given time, about half the members of Congress have allies in the executive branch, and at a certain point, they figure, ‘well, I'm not going to compromise anymore because compromising is difficult—compromising could make me look weak, I can get a primary challenge.’”

So lawmakers prefer to keep legislation “fuzzy and vague” because they know they are going to get what they want from their “friends in the executive branch, and so it creates these long-term incentives.”

The U.S. Supreme Court in Washington on Sept. 18, 2023. (Madalina Vasiliu/The Epoch Times)

16th Amendment

Ms. Blatt said the government’s brief in the Loper Bright case “didn’t even acknowledge that for the last eight years, or at least since the Obama administration, the government has been disavowing reliance on Chevron.”

“And the court itself hasn’t been applying it so there’s somewhat of a disconnect between the government’s brief defending Chevron and the reality of the last eight years,” she said.

Mr. Clement said the tax case of Moore v. United States (court file 22-800), which has not yet been scheduled, is “the great 16th Amendment case of the court’s term.”

Charles and Kathleen Moore, a married Washington state couple, are challenging a wealth tax that was levied on capital gains they never received.

The mandatory repatriation tax, also known as the Section 965 transition tax, was part of the Tax Cuts and Jobs Act passed by the Republican-controlled Congress in 2017 and signed into law by President Donald Trump in December 2017.

The provision taxes U.S. citizens on certain accumulated foreign earnings of foreign corporations going back 30 years, even if the earnings haven’t been distributed.

This “pretty obscure statute” addressed a “concern that there were certain taxpayers who were leaving lots and lots of money in foreign companies, and they weren’t repatriated to the United States where it could be taxed. And so they were building up lots of wealth in a way that wasn’t giving any sort of benefit to the public fisc,” Mr. Clement said.

Before the 16th Amendment was ratified in 1913, “there were some real limits on how big the federal government could get because it was seriously revenue-constrained,” he said.

“The 16th Amendment just blew the doors off of that and paved the way for the income tax, which is now why we have a federal government of this huge size that we have.

“So other than thinking about this as a boring tax case, I think the 16th Amendment [and the] 17th Amendment, which also fundamentally changed the relationship between the states and the federal government by having direct election of senators—this is super interesting stuff, at least to me.”

Loper Bright is a “hugely important” case because “people are talking about a wealth tax and the constitutionality of a wealth tax may well be decided in the context of this case,” he said.

If the mandatory repatriation tax is upheld, “then there’s no reason for the federal government to wait until you actually take money from your stocks that have appreciated over time and take it as a capital gain.”

“I think the issue here is much more important than meets the eye,” Mr. Clement added.

Social Media

Ms. Blatt discussed O’Connor-Ratcliff v. Garnier (court file 22-324), and a related case, Lindke v. Freed (court file 22-611). The court granted both petitions on April 24 and will hear both cases on Oct. 31.

The issue is whether Americans can sue government officials who block them on social media. The court’s ruling in the matter is likely to have an impact on all levels of government as citizens increasingly turn to social media to interact with public officials.

The court is expected to decide if a public official is engaging in state action subject to the First Amendment when he blocks an individual from accessing his social media account.

One federal appeals court found in favor of the citizens; another found for the public official.

Petitioners Michelle O’Connor-Ratcliff and T.J. Zane were two elected members of a school district in California who used their personal Facebook and Twitter accounts to communicate with the public. They complained that parents of local students spammed their posts. The officials blocked the parents, who in turn, maintained they were exposing mismanagement.

Petitioner Kevin Lindke, a resident of Port Huron, Michigan, criticized the municipality’s response to the COVID-19 pandemic including the perceived hypocrisy of local officials. An official blocked Mr. Lindke and removed his comments.

“If you block somebody from your website based on their negative criticism that’s blatantly a First Amendment violation,” Ms. Blatt said.

Despite that, “I do think the public officials are more likely than not to win,” she said.

Several individuals also sued then-President Trump after he blocked them from accessing his account on Twitter, now called X, but the Supreme Court ordered that case dismissed in April 2021 as moot because he had already left office.

Mr. Clement said when it is a president doing the blocking “it does feel slightly different.”

“The president’s different because it’s such an all-encompassing, 24/7 sort of thing. Everything the president does is sort of official,” so it begins “to sound like an immunity argument that’s probably being made in some courts somewhere in the country right now, too.”

“It’ll be interesting to see how the court tiptoes around that issue because it’s definitely going to be in the backdrop, but I think there are probably some pretty good reasons for the court to not say anything in particular about that in the context of these cases.”

The Supreme Court is in recess for the summer. It resumes oral arguments on Oct. 2.

Tyler Durden Thu, 09/21/2023 - 13:05

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Vaccine-skeptical mothers say bad health care experiences made them distrust the medical system

Vaccine skepticism, and the broader medical mistrust and far-reaching anxieties it reflects, is not just a fringe position in the 21st century.

Women's own negative medical experiences influence their vaccine decisions for their kids. AP Photo/Ted S. Warren

Why would a mother reject safe, potentially lifesaving vaccines for her child?

Popular writing on vaccine skepticism often denigrates white and middle-class mothers who reject some or all recommended vaccines as hysterical, misinformed, zealous or ignorant. Mainstream media and medical providers increasingly dismiss vaccine refusal as a hallmark of American fringe ideology, far-right radicalization or anti-intellectualism.

But vaccine skepticism, and the broader medical mistrust and far-reaching anxieties it reflects, is not just a fringe position.

Pediatric vaccination rates had already fallen sharply before the COVID-19 pandemic, ushering in the return of measles, mumps and chickenpox to the U.S. in 2019. Four years after the pandemic’s onset, a growing number of Americans doubt the safety, efficacy and necessity of routine vaccines. Childhood vaccination rates have declined substantially across the U.S., which public health officials attribute to a “spillover” effect from pandemic-related vaccine skepticism and blame for the recent measles outbreak. Almost half of American mothers rated the risk of side effects from the MMR vaccine as medium or high in a 2023 survey by Pew Research.

Recommended vaccines go through rigorous testing and evaluation, and the most infamous charges of vaccine-induced injury have been thoroughly debunked. How do so many mothers – primary caregivers and health care decision-makers for their families – become wary of U.S. health care and one of its most proven preventive technologies?

I’m a cultural anthropologist who studies the ways feelings and beliefs circulate in American society. To investigate what’s behind mothers’ vaccine skepticism, I interviewed vaccine-skeptical mothers about their perceptions of existing and novel vaccines. What they told me complicates sweeping and overly simplified portrayals of their misgivings by pointing to the U.S. health care system itself. The medical system’s failures and harms against women gave rise to their pervasive vaccine skepticism and generalized medical mistrust.

The seeds of women’s skepticism

I conducted this ethnographic research in Oregon from 2020 to 2021 with predominantly white mothers between the ages of 25 and 60. My findings reveal new insights about the origins of vaccine skepticism among this demographic. These women traced their distrust of vaccines, and of U.S. health care more generally, to ongoing and repeated instances of medical harm they experienced from childhood through childbirth.

girl sitting on exam table faces a doctor viewer can see from behind
A woman’s own childhood mistreatment by a doctor can shape her health care decisions for the next generation. FatCamera/E+ via Getty Images

As young girls in medical offices, they were touched without consent, yelled at, disbelieved or threatened. One mother, Susan, recalled her pediatrician abruptly lying her down and performing a rectal exam without her consent at the age of 12. Another mother, Luna, shared how a pediatrician once threatened to have her institutionalized when she voiced anxiety at a routine physical.

As women giving birth, they often felt managed, pressured or discounted. One mother, Meryl, told me, “I felt like I was coerced under distress into Pitocin and induction” during labor. Another mother, Hallie, shared, “I really battled with my provider” throughout the childbirth experience.

Together with the convoluted bureaucracy of for-profit health care, experiences of medical harm contributed to “one million little touch points of information,” in one mother’s phrase, that underscored the untrustworthiness and harmful effects of U.S. health care writ large.

A system that doesn’t serve them

Many mothers I interviewed rejected the premise that public health entities such as the Centers for Disease Control and Prevention and the Food and Drug Administration had their children’s best interests at heart. Instead, they tied childhood vaccination and the more recent development of COVID-19 vaccines to a bloated pharmaceutical industry and for-profit health care model. As one mother explained, “The FDA is not looking out for our health. They’re looking out for their wealth.”

After ongoing negative medical encounters, the women I interviewed lost trust not only in providers but the medical system. Frustrating experiences prompted them to “do their own research” in the name of bodily autonomy. Such research often included books, articles and podcasts deeply critical of vaccines, public health care and drug companies.

These materials, which have proliferated since 2020, cast light on past vaccine trials gone awry, broader histories of medical harm and abuse, the rapid growth of the recommended vaccine schedule in the late 20th century and the massive profits reaped from drug development and for-profit health care. They confirmed and hardened women’s suspicions about U.S. health care.

hands point to a handwritten vaccination record
The number of recommended childhood vaccines has increased over time. Mike Adaskaveg/MediaNews Group/Boston Herald via Getty Images

The stories these women told me add nuance to existing academic research into vaccine skepticism. Most studies have considered vaccine skepticism among primarily white and middle-class parents to be an outgrowth of today’s neoliberal parenting and intensive mothering. Researchers have theorized vaccine skepticism among white and well-off mothers to be an outcome of consumer health care and its emphasis on individual choice and risk reduction. Other researchers highlight vaccine skepticism as a collective identity that can provide mothers with a sense of belonging.

Seeing medical care as a threat to health

The perceptions mothers shared are far from isolated or fringe, and they are not unreasonable. Rather, they represent a growing population of Americans who hold the pervasive belief that U.S. health care harms more than it helps.

Data suggests that the number of Americans harmed in the course of treatment remains high, with incidents of medical error in the U.S. outnumbering those in peer countries, despite more money being spent per capita on health care. One 2023 study found that diagnostic error, one kind of medical error, accounted for 371,000 deaths and 424,000 permanent disabilities among Americans every year.

Studies reveal particularly high rates of medical error in the treatment of vulnerable communities, including women, people of color, disabled, poor, LGBTQ+ and gender-nonconforming individuals and the elderly. The number of U.S. women who have died because of pregnancy-related causes has increased substantially in recent years, with maternal death rates doubling between 1999 and 2019.

The prevalence of medical harm points to the relevance of philosopher Ivan Illich’s manifesto against the “disease of medical progress.” In his 1982 book “Medical Nemesis,” he insisted that rather than being incidental, harm flows inevitably from the structure of institutionalized and for-profit health care itself. Illich wrote, “The medical establishment has become a major threat to health,” and has created its own “epidemic” of iatrogenic illness – that is, illness caused by a physician or the health care system itself.

Four decades later, medical mistrust among Americans remains alarmingly high. Only 23% of Americans express high confidence in the medical system. The United States ranks 24th out of 29 peer high-income countries for the level of public trust in medical providers.

For people like the mothers I interviewed, who have experienced real or perceived harm at the hands of medical providers; have felt belittled, dismissed or disbelieved in a doctor’s office; or spent countless hours fighting to pay for, understand or use health benefits, skepticism and distrust are rational responses to lived experience. These attitudes do not emerge solely from ignorance, conspiracy thinking, far-right extremism or hysteria, but rather the historical and ongoing harms endemic to the U.S. health care system itself.

Johanna Richlin does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.

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Is the National Guard a solution to school violence?

School board members in one Massachusetts district have called for the National Guard to address student misbehavior. Does their request have merit? A…

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Every now and then, an elected official will suggest bringing in the National Guard to deal with violence that seems out of control.

A city council member in Washington suggested doing so in 2023 to combat the city’s rising violence. So did a Pennsylvania representative concerned about violence in Philadelphia in 2022.

In February 2024, officials in Massachusetts requested the National Guard be deployed to a more unexpected location – to a high school.

Brockton High School has been struggling with student fights, drug use and disrespect toward staff. One school staffer said she was trampled by a crowd rushing to see a fight. Many teachers call in sick to work each day, leaving the school understaffed.

As a researcher who studies school discipline, I know Brockton’s situation is part of a national trend of principals and teachers who have been struggling to deal with perceived increases in student misbehavior since the pandemic.

A review of how the National Guard has been deployed to schools in the past shows the guard can provide service to schools in cases of exceptional need. Yet, doing so does not always end well.

How have schools used the National Guard before?

In 1957, the National Guard blocked nine Black students’ attempts to desegregate Central High School in Little Rock, Arkansas. While the governor claimed this was for safety, the National Guard effectively delayed desegregation of the school – as did the mobs of white individuals outside. Ironically, weeks later, the National Guard and the U.S. Army would enforce integration and the safety of the “Little Rock Nine” on orders from President Dwight Eisenhower.

Three men from the mob around Little Rock’s Central High School are driven from the area at bayonet-point by soldiers of the 101st Airborne Division on Sept. 25, 1957. The presence of the troops permitted the nine Black students to enter the school with only minor background incidents. Bettmann via Getty Images

One of the most tragic cases of the National Guard in an educational setting came in 1970 at Kent State University. The National Guard was brought to campus to respond to protests over American involvement in the Vietnam War. The guardsmen fatally shot four students.

In 2012, then-Sen. Barbara Boxer, a Democrat from California, proposed funding to use the National Guard to provide school security in the wake of the Sandy Hook school shooting. The bill was not passed.

More recently, the National Guard filled teacher shortages in New Mexico’s K-12 schools during the quarantines and sickness of the pandemic. While the idea did not catch on nationally, teachers and school personnel in New Mexico generally reported positive experiences.

Can the National Guard address school discipline?

The National Guard’s mission includes responding to domestic emergencies. Members of the guard are part-time service members who maintain civilian lives. Some are students themselves in colleges and universities. Does this mission and training position the National Guard to respond to incidents of student misbehavior and school violence?

On the one hand, New Mexico’s pandemic experience shows the National Guard could be a stopgap to staffing shortages in unusual circumstances. Similarly, the guards’ eventual role in ensuring student safety during school desegregation in Arkansas demonstrates their potential to address exceptional cases in schools, such as racially motivated mob violence. And, of course, many schools have had military personnel teaching and mentoring through Junior ROTC programs for years.

Those seeking to bring the National Guard to Brockton High School have made similar arguments. They note that staffing shortages have contributed to behavior problems.

One school board member stated: “I know that the first thought that comes to mind when you hear ‘National Guard’ is uniform and arms, and that’s not the case. They’re people like us. They’re educated. They’re trained, and we just need their assistance right now. … We need more staff to support our staff and help the students learn (and) have a safe environment.”

Yet, there are reasons to question whether calls for the National Guard are the best way to address school misconduct and behavior. First, the National Guard is a temporary measure that does little to address the underlying causes of student misbehavior and school violence.

Research has shown that students benefit from effective teaching, meaningful and sustained relationships with school personnel and positive school environments. Such educative and supportive environments have been linked to safer schools. National Guard members are not trained as educators or counselors and, as a temporary measure, would not remain in the school to establish durable relationships with students.

What is more, a military presence – particularly if uniformed or armed – may make students feel less welcome at school or escalate situations.

Schools have already seen an increase in militarization. For example, school police departments have gone so far as to acquire grenade launchers and mine-resistant armored vehicles.

Research has found that school police make students more likely to be suspended and to be arrested. Similarly, while a National Guard presence may address misbehavior temporarily, their presence could similarly result in students experiencing punitive or exclusionary responses to behavior.

Students deserve a solution other than the guard

School violence and disruptions are serious problems that can harm students. Unfortunately, schools and educators have increasingly viewed student misbehavior as a problem to be dealt with through suspensions and police involvement.

A number of people – from the NAACP to the local mayor and other members of the school board – have criticized Brockton’s request for the National Guard. Governor Maura Healey has said she will not deploy the guard to the school.

However, the case of Brockton High School points to real needs. Educators there, like in other schools nationally, are facing a tough situation and perceive a lack of support and resources.

Many schools need more teachers and staff. Students need access to mentors and counselors. With these resources, schools can better ensure educators are able to do their jobs without military intervention.

F. Chris Curran has received funding from the US Department of Justice, the Bureau of Justice Assistance, and the American Civil Liberties Union for work on school safety and discipline.

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Chinese migration to US is nothing new – but the reasons for recent surge at Southern border are

A gloomier economic outlook in China and tightening state control have combined with the influence of social media in encouraging migration.

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Chinese migrants wait for a boat after having walked across the Darien Gap from Colombia to Panama. AP Photo/Natacha Pisarenko

The brief closure of the Darien Gap – a perilous 66-mile jungle journey linking South American and Central America – in February 2024 temporarily halted one of the Western Hemisphere’s busiest migration routes. It also highlighted its importance to a small but growing group of people that depend on that pass to make it to the U.S.: Chinese migrants.

While a record 2.5 million migrants were detained at the United States’ southwestern land border in 2023, only about 37,000 were from China.

I’m a scholar of migration and China. What I find most remarkable in these figures is the speed with which the number of Chinese migrants is growing. Nearly 10 times as many Chinese migrants crossed the southern border in 2023 as in 2022. In December 2023 alone, U.S. Border Patrol officials reported encounters with about 6,000 Chinese migrants, in contrast to the 900 they reported a year earlier in December 2022.

The dramatic uptick is the result of a confluence of factors that range from a slowing Chinese economy and tightening political control by President Xi Jinping to the easy access to online information on Chinese social media about how to make the trip.

Middle-class migrants

Journalists reporting from the border have generalized that Chinese migrants come largely from the self-employed middle class. They are not rich enough to use education or work opportunities as a means of entry, but they can afford to fly across the world.

According to a report from Reuters, in many cases those attempting to make the crossing are small-business owners who saw irreparable damage to their primary or sole source of income due to China’s “zero COVID” policies. The migrants are women, men and, in some cases, children accompanying parents from all over China.

Chinese nationals have long made the journey to the United States seeking economic opportunity or political freedom. Based on recent media interviews with migrants coming by way of South America and the U.S.’s southern border, the increase in numbers seems driven by two factors.

First, the most common path for immigration for Chinese nationals is through a student visa or H1-B visa for skilled workers. But travel restrictions during the early months of the pandemic temporarily stalled migration from China. Immigrant visas are out of reach for many Chinese nationals without family or vocation-based preferences, and tourist visas require a personal interview with a U.S. consulate to gauge the likelihood of the traveler returning to China.

Social media tutorials

Second, with the legal routes for immigration difficult to follow, social media accounts have outlined alternatives for Chinese who feel an urgent need to emigrate. Accounts on Douyin, the TikTok clone available in mainland China, document locations open for visa-free travel by Chinese passport holders. On TikTok itself, migrants could find information on where to cross the border, as well as information about transportation and smugglers, commonly known as “snakeheads,” who are experienced with bringing migrants on the journey north.

With virtual private networks, immigrants can also gather information from U.S. apps such as X, YouTube, Facebook and other sites that are otherwise blocked by Chinese censors.

Inspired by social media posts that both offer practical guides and celebrate the journey, thousands of Chinese migrants have been flying to Ecuador, which allows visa-free travel for Chinese citizens, and then making their way over land to the U.S.-Mexican border.

This journey involves trekking through the Darien Gap, which despite its notoriety as a dangerous crossing has become an increasingly common route for migrants from Venezuela, Colombia and all over the world.

In addition to information about crossing the Darien Gap, these social media posts highlight the best places to cross the border. This has led to a large share of Chinese asylum seekers following the same path to Mexico’s Baja California to cross the border near San Diego.

Chinese migration to US is nothing new

The rapid increase in numbers and the ease of accessing information via social media on their smartphones are new innovations. But there is a longer history of Chinese migration to the U.S. over the southern border – and at the hands of smugglers.

From 1882 to 1943, the United States banned all immigration by male Chinese laborers and most Chinese women. A combination of economic competition and racist concerns about Chinese culture and assimilability ensured that the Chinese would be the first ethnic group to enter the United States illegally.

With legal options for arrival eliminated, some Chinese migrants took advantage of the relative ease of movement between the U.S. and Mexico during those years. While some migrants adopted Mexican names and spoke enough Spanish to pass as migrant workers, others used borrowed identities or paperwork from Chinese people with a right of entry, like U.S.-born citizens. Similarly to what we are seeing today, it was middle- and working-class Chinese who more frequently turned to illegal means. Those with money and education were able to circumvent the law by arriving as students or members of the merchant class, both exceptions to the exclusion law.

Though these Chinese exclusion laws officially ended in 1943, restrictions on migration from Asia continued until Congress revised U.S. immigration law in the Hart-Celler Act in 1965. New priorities for immigrant visas that stressed vocational skills as well as family reunification, alongside then Chinese leader Deng Xiaoping’s policies of “reform and opening,” helped many Chinese migrants make their way legally to the U.S. in the 1980s and 1990s.

Even after the restrictive immigration laws ended, Chinese migrants without the education or family connections often needed for U.S. visas continued to take dangerous routes with the help of “snakeheads.”

One notorious incident occurred in 1993, when a ship called the Golden Venture ran aground near New York, resulting in the drowning deaths of 10 Chinese migrants and the arrest and conviction of the snakeheads attempting to smuggle hundreds of Chinese migrants into the United States.

Existing tensions

Though there is plenty of precedent for Chinese migrants arriving without documentation, Chinese asylum seekers have better odds of success than many of the other migrants making the dangerous journey north.

An estimated 55% of Chinese asylum seekers are successful in making their claims, often citing political oppression and lack of religious freedom in China as motivations. By contrast, only 29% of Venezuelans seeking asylum in the U.S. have their claim granted, and the number is even lower for Colombians, at 19%.

The new halt on the migratory highway from the south has affected thousands of new migrants seeking refuge in the U.S. But the mix of push factors from their home country and encouragement on social media means that Chinese migrants will continue to seek routes to America.

And with both migration and the perceived threat from China likely to be features of the upcoming U.S. election, there is a risk that increased Chinese migration could become politicized, leaning further into existing tensions between Washington and Beijing.

Meredith Oyen does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.

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