Eviewthe C ORNELL POLIC Y a RTICLES

ReviewTHE C ORNELL POLIC Y A RTICLES

Farm Bill Politics: Exploring the Outdated Relationship between Supplemental Nutrition Policy and Agriculture Subsidies Lila Cardell, Cornell University

Rapanos v. United States Brandon Chiazza, Arc Aspicio

Immigration Policy Responses to Transmigrants in Mexico V OLUME 0 3 Xiomara Chávez-Suárez, Cornell University N UMBER 0 2

S PRIN G ’13 C OMMENT

Post-Conﬂict Cambodia and Myanmar: A Political Comparison Jonathan Hill, Cornell University

I NTERVIEW

Interview with Charlie Meyer Henry McCaslin, Sarah Gardner Evans, Cornell University ReviewTHE C ORNELL POLIC Y

6 /,5-%s.5-"%2s302). ' THE C ORNELL POLIC Y Review Core Faculty of the Cornell Institute for Public Affairs N ORMAN UPHOFF R ICK G EDDES Editor-in-Chief Director of the Cornell Institute Associate Professor of Policy for Public Affairs Analysis and Management Sarah Gardner Evans

R ICHARD BOOTH J OE G RASSO Managing Editor Professor of City and ILR School Associate Dean of Daniel Thomas Nolan III Regional Planning Finance, Administration and Corporate Relations N A N CY BROOKS Executive Editorial Board Visiting Associate Professor of R O B ERT H ARRIS, JR Marcus Cerroni City and Regional Planning Professor of African Studies Olinda Hassan N A N CY C HAU D A N IEL P. L O U CKS Joseph Mizener Associate Professor of Applied Professor of Civil and Jennifer Shin Economics and Management Environmental Engineering

R ALPH D EAN C HRISTY T HEODORE J. L OWI Associate Editors Professor of Emerging John L. Senior Professor D’Andre Carr Markets, Director of Cornell of American Institutions International Institute for Food, Jonathan Davey Agriculture and Development K ATHRYN S . M ARCH Kelly Hughes Professor of Anthropology Dean Mack K IERAN D O N AGHY Professor of City and P ER P I N STRU P - A N DERSEN Jeremy Stull Regional Planning Professor of Food, Nutrition and Public Policy Article Editors G ARY F IELDS Professor of Labor Economics Elena Bussiere Faraz Haqqi Abeela Latif Victor Tchakalov Staff of the Cornell Institute for Public Affairs

Jamaica Brown, Administrative Assistant Research Editors Jennifer Evangelista, Administrative Assistant Barbara Marchiori de Assis Lisa Jervey Lennox, Assistant Director for External Relations Alexandra Popovici Judy Metzgar, Administrative Manager Hui Zhao Cheryl Miller, Administrative Assistant Steve Riester Laurie J. Miller, Service Learning Initiative Program Coordinator Millie Reed, Career Management Coordinator Thomas J. O’Toole, Executive Director Editor’s Note

t is my pleasure to introduce this issue of The Cornell Policy Review. As an interdisciplinary policy journal, we present a wide range of political and policy-related articles. As editors of The Review, we have the opportunity to read, research, and work with a variety of topics across Isubstantive policy areas.

Not only does this experience underscore the multidimensional program of the Cornell Institute for Public Affairs, but engaging in such broad policy dialogue highlights the importance for public administrators to be aware of, and engaged with, the world beyond their immediate purview. There are lessons to be shared across sectors, across disciplines, and across borders.

In this issue, Lila Cardell illuminates some of the competing stakeholder interests surrounding the Farm Bill. Xiomara Chavez-Suarez discusses the incongruous relationship between Mexican policies that seek to limit transmigrants in-country, while being a large contributor of migrants in other countries. Our ﬁnal article, written by Brandon Chiazza, revisits issues surrounding wet land development, left unresolved by the 2005 Rapanos v. United States Supreme Court case.

Also included is a commentary pieces written by Jonathan Hill. Hill summarizes recent political developments in Cambodia and Myanmar, extrapolating lessons that can be learned between the two cases.

We conclude this issue with an interview with Charlie Meyer, a public manager and performance management professional who most recently served as City Manager for Tempe, Arizona. Mr. Meyer shares his insights into city management and performance measurement—insights that have implications for local government ofﬁcials, federal employees, and international workers alike.

I’ve greatly enjoyed my tenure at The Review and am thankful to our editorial staff, editorial board, and the authors who contributed their time and talents. I’d also like to thank everyone who submitted to the journal and shared their work with us. Thanks especially to our outgoing Managing Editor, Dan Nolan, who has been an incredible friend and partner throughout the process.

I hope that you enjoy reading these pieces and might perhaps considering adding your voice to the conversation by submitting a piece of your own. I personally look forward to being a continued reader of The Review.

—Sarah Gardner Evans, MPA 2013, Editor-in-Chief

Farm Bill Politics: Exploring the Outdated Relationship between Supplemental Nutrition Policy and Agriculture Subsidies

Lila Cardell

A B STRACT

The farm bill is one of the largest and oldest legislative arrangements in the United States, and was considered innovative at its inception. While stakeholders were closely aligned during the initial wave of legislation, an increase in the quantity and breadth of programs in the farm bill abrogates those relationships. The legislative relationship between supplemental nutrition efforts and agricultural subsidies creates a complex web of individuals and organizations with disparate interests who have a stake in the development of United States food policy. Although Congress is ultimately responsible for the creation of the Farm Bill, legislators must weigh the interests of various stakeholders in their decisions to fund programs. As a Congress attempts to create a comprehensive 2013 Farm Bill, it is imperative that legislators are mindful of these incongruities and the political, structural, and ethical issues affecting supplemental nutrition policy, and consider dissolving the outdated relationship between supplemental nutrition policy and agricultural subsidies.

A B O U T THE A U THOR

Lila Cardell is a Master of Public Administration candidate at Cornell University, where she is concentrating in public and nonproﬁt management with a focus on food security. Prior to attending Cornell, she worked as a Senior Consultant at Ernst & Young and as a Senior Operations and Finance Analyst at the non-proﬁt Community Environmental Center. Lila has a Bachelor’s Degree in Finance and Accounting from the Stern School of Business at New York University.

F ARM BILL P OLITICS 5 Introduction ongressional inertia in the form of budget standoffs, ﬁscal cliffs, and se- questration has exposed the tenuous and outdated relationship between supplemental nutrition policy and agricultural subsidies. The inability of the United States Senate and House of Representatives to reconcile Cand pass a new farm bill in 2012 and the general congressional budget stalemate in late 2012 resulted in a nine-month extension of the 2008 Farm Bill to avoid expiration of crucial programs such as food stamps and crop insurance programs. Although the temporary extension maintained funding for supplemental nutrition programs, the contentious battle to create a new farm bill reveals the conﬂicting demands of stakeholders and the hazards of combining public health policy and agricultural economic policy in the same legislation. As a new Congress attempts to create a comprehensive farm bill in 2013, it is imperative that legislators are mindful of these incongruities and the political, structural, and ethical issues affecting supplemental nutrition policy, and consider permanently severing the relationship between supplemental nutrition policy and agricultural subsidies.

Historical Legislative Context The term “farm bill” refers to federal omnibus bills that cover a wide spectrum of programs from agriculture to renewable energy and are negotiated approximately every five years. The United States Department of Agriculture (USDA) is the federal department responsible for implementing farm bill policies. While the Agri- cultural and Consumer Protection Act of 1973 was the first farm bill to officially include funding for both food stamps and agriculture subsidies, federal intervention in both the agriculture sector and supplemental nutrition policy began during the Great Depression.

The combination of advanced farm technology and reduced export opportunities after World War I led to agriculture surpluses and plummeting prices. In 1929, the Agricultural Marketing Act was passed in an attempt to stabilize market prices by creating the Federal Farm Board, which distributed loans to farm cooperatives to “prevent and control surpluses in any agricultural commodity through orderly production and distribution.”1 However, the bill did not set production limits and farmers realized the board would pay for all excess crops and increased production, thereby further decreasing prices and quickly depleting program funds. The 1933 Agricultural Adjustment Act aimed to ﬁx this er-

6 C ARDELL ror by giving direct payments to farmers who voluntarily limited production or destroyed excess livestock, based on a calculation of land acres owned; however, this was irrespective of actual production capacity or market demand.2 The 1938 Agricultural Adjustment Act amended certain funding provisions in the 1933 Act, and is considered “permanent legislation,” meaning that any lapse in a farm bill reverts commodity policies to 1938 acreage allocation calculations.3

Although agricultural support was intended to be a temporary solution to market conditions following World War I and during the Great Depression, farm bills continue to be passed by Congress and now include direct payments for farmers regardless of market conditions, as well as conditional revenue programs such as crop insurance, which reimburse farmers for crop losses. Although not a direct subsidy, the crop insurance program creates the same incentives as subsidies by encouraging farmers to plant lower-yielding crops or not mitigate losses through cover cropping, because the insurance pays farmers back at the inﬂated market price post-disaster, not the market price when the insurance was origi- nally purchased. The current farm bill also provides farmers access to loans at below-market interest rates and funding to subsidize exports.4

Supplemental nutrition policy evolved directly from agricultural subsidy policy, as the Federal Surplus Relief Corporation (FSRC) was created in 1933 to distribute surplus crops and livestock after public outcry over the intentional destruction of pigs and cotton as a method to reduce supply and to maintain higher market prices.5 The FSRC was renamed the Food Surplus Commodities Corpora- tion in 1935 and permanent funding was provided for the acquisition and distribution of surplus commodities for eligible schools, non-proﬁts, and summer camps.6 The USDA still maintains a Commodity Supplemental Food Program (CSFP) that purchases commodities on behalf of state agencies who distribute the food to eligible low-income women, infants, children, and elderly.7 As crop surpluses persisted throughout the 1930s and poverty rates increased, supplemental nutrition was expanded using a voucher system as part of President Roosevelt’s New Deal. Eligible participants purchased orange food stamps equivalent to normal food expenditures and received a 50 percent match in blue coupons, which could be spent on speciﬁc surplus products that the government previously purchased from farmers.8 Food stamp distribution ended when World War Two began and surpluses dwindled due to a decline in agricultural production and an increase in foreign demand for food.

F ARM BILL P OLITICS 7 Although agricultural subsidy programs continued, a new food stamp program was not enacted until 1961 when President Kennedy piloted a program that sold discounted coupons for perishable food. In 1964, President Johnson passed the Food Stamp Act, which provided eligible low-income recipients with access to food vouchers for all food items except alcohol and imported foods.9 This bill was negotiated alongside the Food and Agricultural Act of 1965, although the Agricul- tural and Consumer Protection Act of 1973 was the ﬁrst farm bill that ofﬁcially provided funding for both food stamps and agriculture subsidies. Participation in the food stamp program has risen steadily since 1964 to the current level of 46.6 million participants at a cost of $78.4 billion for the year 2012.10 The most recent farm bill was passed in 2008 with a total of $288 billion in funding. In this bill, food stamps were relegated to the new Supplemental Nutrition Assistance Pro- gram (SNAP) with a goal of improving the nutrition of low-income individuals.11

The 2008 Farm Bill officially expired on October 1, 2012, but Congress was unable to agree on a new comprehensive farm bill to replace it. While the Sen- ate was able to pass its version of the bill in 2012, the House of Representatives refused to bring its version to a vote, due to disagreement over funding levels for SNAP, despite bipartisan and bicameral support for ending direct agricultural subsidy payments.12 On January 1, 2013 Congress was forced by the “fiscal cliff” to pass a temporary extension of the 2008 bill, which protected SNAP benefits but maintained the current subsidy payment structure at a cost of $5 billion for the nine months until its expiration on September 30, 2013.13

Farm Bill Stakeholders The legislative relationship between supplemental nutrition efforts and agricultural subsidies creates a complex web of individuals and organizations with disparate interests who have a stake in the development of food security policy. Stakeholders include politicians, farmers, food processors, hunger relief organizations, environmental nonprofits, supermarkets, and all of their affiliated lobbies. Their interests are extraordinarily diverse: large agricultural producers want to expand food exports, small farmers are interested in startup capital, nonprofits strive to provide for the food insecure, food producers seek to minimize the cost of inputs, schools need funding for lunch programs, and organizations try to conserve natural resources.

Although Congress is ultimately responsible for the creation of a farm bill, and the USDA is responsible for its implementation, legislators must weigh the

8 C ARDELL interests of various stakeholders in their decisions to fund programs. In the United States, the lobbying system allows organizations or coalitions supporting a particular interest to pay advocates to influence public policy on their behalf through congressional persuasion and public media campaigns. The immense size of the U.S. agriculture sector provides the basis for the existence of the massive farm lobby, which spent almost $90 million during the farm bill renegotiations in 2012.14 Such stakeholder impact on congressional decision-making is supported by Joel Aberbach and Bert Rockman’s findings in the early 1970s that “84 percent of congressmen concede that the influence that some interests have in the administrative process and the power that agencies themselves wield sometimes comes at the expense of the general interest.”15 The inability of Congress to pass a new farm bill in 2012 demonstrates that the extreme variability of interest and incessant negotiation process among stakeholders has a significant impact on how farm bill programs are funded and implemented.

Stakeholders were more closely aligned during the initial wave of farm and food legislation but an increase in the quantity and substance of programs in the farm bill has abrogated those relationships. During the Great Depression, the government utilized crop surpluses to provide food to food insecure populations, and increases in crop demand due to government purchases raised market prices for farmers. Now, both groups compete against each other for farm bill cash subsidies. Initially, farmers primarily resided in rural districts, while food stamp recipients lived in cities, establishing a quid pro quo relationship that allowed both urban and rural congressional representatives to satisfy their respective constituencies. However, the nationwide expansion of the food stamp program reduces the need for urban legislators to support rural farm legislation. Early versions of food stamp programs were restricted to provide surplus goods only. They were later restricted to domestically produced crops, which maintained legislative alignment between the needs of domestic producers and domestic consumers. Now, SNAP allows consumers to purchase both domestic and foreign foods, and provides subsidies for producers to export food while domestic food insecurity is rising.

Shifting program regulations and priorities increase the tension between stakeholder groups. Early farm bills providing production control subsidies that paid farmers not to grow crops in order to increase market prices were in contradiction with programs supplying below-market rate loans that supported credit- fueled expansion.16 Direct payments to farmers based on owned acreage drives up land prices as sellers internalize potential subsidy revenue, making it difﬁcult

F ARM BILL P OLITICS 9 for new farmers to start farm operations. The farm bill’s designation of fruits and vegetables as “specialty crops” and the prohibition of growing those crops on subsidized land directly undermine farm bill programs supporting increases in fruit and vegetable consumption.17 Conservation programs seeking to protect soil and water resources are juxtaposed against policies that prohibit conservation measures such as cover cropping on subsidized land.18 The World Trade Organization (WTO) considers most crop subsidies, import restrictions, and crop insurance programs to be against free trade. The U.S. has been subject to sanctions as a result of farm bill policies, increasing the total effective cost of the bill and exposing the U.S. to retaliatory subsidies from other countries.19

The increasing size and breadth of the farm bill has led to the creation of a stakeholder web so large and complex that it is impossible for the various interest groups and policies to effectively align. The powerful farm lobby will continue to have a sig- niﬁcant inﬂuence on all farm bill policies until these contradictions are remedied or the legislative relationship between food stamps and subsidies is eliminated.

The Role of Federalism in the Farm Bill Federalism, the relationship between federal and state governments, can have a significant role in how a program is funded and implemented. The concept of federalism in the United States is implicitly endorsed by the Constitution and its legacy can be seen in the design of agriculture and food stamp programs. The 1933 Agricultural Marketing Act was funded by a direct tax on producers of food products and was declared unconstitutional, as “it is a statutory plan to regulate and control agricultural production, a matter beyond the powers delegated to the federal government. The tax, the appropriation of the funds raised, and the direction for their disbursement are but parts of the plan.”20 The 1938 Agricultural Adjustment Act resolved the tax issue by funding it with general taxes. However, the justification for federal involvement in state agricultural policy remains under a loose interpretation of interstate commerce whereas cooperative federalism has allowed states to increase the value of SNAP benefits to residents.

The 1939 food stamp program was part of the second wave of New Deal policies that embodied cooperative federalism, which entailed redistribution of responsibilities between federal and state agencies by purchasing surplus foods and giving them to local agencies to distribute to recipients through matching vouchers. The 1964 Food Stamp Act was part of President Johnson’s Great Society

10 C ARDELL program and reflected a shift to creative federalism, which went beyond cooperative federalism to include local agencies in program design and execution. The Food Stamp Act of 1977, which eased food stamp program rules by eliminating the voucher purchase requirement, reflects the New Federalism concept of decentral- ization and reduced red tape.21 The devolution movement embodied by President Clinton’s welfare reform in 1996 shifted more power to states, including eliminating a standardized national application for food stamps, however this was coun- tered by federal regulations eliminating benefits for immigrant populations and creating work requirements for most SNAP recipients.22

Although food stamps are funded and regulated at the federal level by the USDA, states and municipalities are responsible for the certification of recipients and the issuance of benefits. The cost of administering the program on the state level is evenly split between the USDA and the relevant state agency. This structure encourages local agencies to minimize administrative overhead, however subjects the implementation of the program to local economic fluctuations. In- creasing food insecurity and decreasing municipal resources have led to a severe decline in application processing rates on the state level.23 Some local agencies responded by attempting to streamline application processing by introducing comprehensive applications for multiple federal assistance programs including Temporary Assistance for Needy Families (TANF.) The USDA also tried to increase program efficiency by moving from food vouchers to Electronic Benefit Transfer (EBT) cards to automatically load funds for both programs. However, the USDA reports that only eight percent of SNAP recipients rely on TANF. This may indicate that SNAP-eligible applicants are simply filling out unnecessary paperwork if local agency policy requires applications be completed as a holistic aid pack- age.24 As state budgets have been significantly reduced in the past decade, local agencies combine the implementation of programs; however, this should not come at the price of participant dissatisfaction, or administrative inefficiency. Federal program regulations permit states to apply for waivers to abrogate certain SNAP policies, another example of cooperative federalism in food stamp legislation. The requirement that states share in the cost of administering SNAP also creates an incentive on a state and local level to create complementary policies to reduce food insecurity. There is limited research on the effectiveness of state modifications to SNAP policy, but it would be beneficial to obtain timely, quality data on state program variation due to federalism, in order to share best practices among states and improve the overall program.25

F ARM BILL P OLITICS 11 Whereas Federalism is a defining characteristic of food stamp programs, it is absent in agriculture subsidy programs. Direct agriculture subsidies are provided via federal check to farmers and marketing loans and crop insurance are provided by the USDA Risk Management Agency. Because states bear no direct costs for agricultural supports and farmers merely have to prove land ownership, not production, to receive direct payments, there is no incentive for states to modify programs to save money and no local accountability for the level of benefits provided. Even though there are significant regional differences in arability of land and susceptibility for natural disasters, states have no motivation to improve production conditions or minimize disasters. The design of the farm bill epitomizes the concept of opportunistic federalism, which Tim Conlan described as a “system that allows–and often encourages–actors in the system to pursue their immediate interests with little regard for the institutional or collective consequences”26 The combination of a federally-managed economic subsidy program and a state- managed social welfare program results in wild variability in accountability and oversight standards for state and federal politicians and program administrators.

New Public Management fascination with performance measurement also reveals a particular complication of opportunistic federalism in the design of omnibus bills like the farm bill. Conlan forewarned that “although outcome-based accountability has the potential to free grant recipients from rigid process-based systems, Opportunistic Federalism can interfere with realizing this potential. In- deed, striving for strict performance accountability can have significant centraliz- ing effects.”27 In the case of SNAP, the program has seen an increase in federal eligibility guidelines and an increase in federal evaluation reporting requirements. While performance measurement aims to increase accountability and program efficiency by valuing outcomes over processes, the diversity of farm bill programs and competing stakeholder interests make it fairly impossible to isolate program- specific goals. Evaluation of a social service program such as SNAP is difficult enough without the additional pressure of the efficacy of other programs. In addition, it is impossible to determine the impact the entanglement of intergovern- mental interests has on the effectiveness of individual programs in the farm bill.

Nutritional Limitations of the Farm Bill The lack of nutritional guidelines in SNAP regulations is likely related to the program’s agricultural origins as a channel to divert crop surpluses during the Great Depression. Most food products can be purchased using SNAP funds with the

12 C ARDELL exception of prepared foods, alcohol, and tobacco.28 Although the federal government issues dietary guidelines through a joint initiative between the USDA and the Department of Heath and Human Services, the USDA does not summarily align its policies with those guidelines. SNAP differs from other USDA supplemental nutrition programs such as Women, Infants, and Children (WIC), the Com- modity Surplus Food Program (CSFP), and the National School Lunch Program (NSLP) in that there is no speciﬁc nutritional objectives intended to be achieved by program funds.

As a result of the lack of program guidelines, as well as underlying economic conditions, SNAP recipients typically seek to maximize program funds by purchasing the least expensive calories available. Agriculture subsidies for speciﬁc commodities combined with commodity import barriers encourage domestic over- production of “cheap calories” such as bread, cereal, and high-fructose corn syrup products. Agricultural subsidy programs speciﬁcally prohibit growing fruits and vegetables on subsidized land, creating a disincentive for farmers to grow those crops and raising market prices, in contradiction with federal nutrition guidelines recommending an increase in fruit and vegetable consumption.29 A 2006 USDA report found that in order for Americans to meet dietary guidelines for fruits and vegetables, U.S. farmland allocated for vegetables would have to increase by 137 percent and farmland allocated for fruit would have to increase by 100 percent.30 The same study also found that Americans over-consume grains and could meet dietary requirements with a reduction of 5.6 million acres allocated for wheat production.31 Placing SNAP legislation alongside subsidy legislation supporting corn, wheat, and rice production, and not incentivizing fruit and vegetable production leads to the consumption of the former over the latter, and makes it economically unfeasible for food stamp recipients to follow recommended dietary guidelines.

Congress directly contributes to the consumption of subsidy products through the distribution of surplus commodities through the CFSP and the NSLP. Commodities are provided either for free or at a significant discount and are typically meats, eggs, cheese, and potatoes. While the Healthy Hunger-Free Kids Act of 2010 illustrated a rare step in disassociating consumption policies from production subsidies by significantly increasing fruit and vegetable requirements under the NSLP, the act does not provide sufficient funding to schools to meet requirements at current market prices. Either more funds must be allocated to purchase healthy food or agricultural policies must be changed to promote alignment with nutritional requirements.32 The 2008 Farm Bill included funding for innovative

F ARM BILL P OLITICS 13 food and farm programs such as the Farmers Markets Promotion Program, Com- munity Food Project Grants, and the Beginning Farmers Development Program. None of these programs, however, were re-authorized under the temporary farm bill extension and will continue to be marginalized as long as they are forced into legislation alongside commodity subsidy programs.33

The combination of limited nutritional guidance, the relatively high cost of fruits and vegetables to subsidized grains and corn products, and the scarcity of supermarkets in low-income areas may explain the lack of nutritional improvement gained by participation in the SNAP program.34 Although economists, politicians, and nutritionists have attempted to demonstrate a correlation between increasing SNAP participation rates and increasing obesity rates, only a slight causal relationship has been definitively shown, and only in non-elderly adult women.35 Still, regardless of the structural alignment of the program with agriculture programs, nutritional priorities continue to be influenced by farm policy supporters instead of the health and human services community. Supplemental nutritional policy would benefit from less correlation with farm production priorities and greater alignment with nutritional guidelines.

Federalism offers a solution to this challenge by providing opportunities for local programs to supplement SNAP. In New York City, Mayor Michael Bloomberg has been aggressive in lobbying the USDA to limit products that can be purchased with SNAP funds, such as sweetened drinks, but has been generally unsuccess- ful in getting sufficient federal support. Instead, Bloomberg created programs to incentivize the use of SNAP for fruits and vegetables by giving greenmarkets ma- chines to accept EBT cards and providing a $2 “Health Bucks” coupon for every $5 a customer spends at a greenmarket using EBT.36 Health Bucks can also be ac- quired by attending healthy food demonstrations at the markets and demonstrate an innovative way for local agencies to make federal programs more effective through collaboration. The USDA is currently piloting a similar program in Mas- sachusetts where recipients receive a 30 percent subsidy of produce automatically credited to their EBT card.37 In Philadelphia, the Department of Health and the Food Trust, a local nonprofit, created the Healthy Corner Store Network, which provides small neighborhood retailers with refrigerated cases, shelving and technical assistance to increase the amount of fresh fruits and vegetables available for sale.38 Although the federal government does not provide specific nutritional guidance for SNAP, state and local jurisdictions can improve the nutrition of recipient through complementary food security policies.

14 C ARDELL Ethical Considerations Ethical inconsistencies abound in the farm bill due to the combination of agriculture, a for-profit commercial venture, and food security, a fundamental human right. As Robert Dahl asserted, public administration cannot be value-neutral and the different sets of values between for-profit and public benefit ventures affect the definition and determination of the end goals of public administration programs.39 The combination of SNAP and agricultural subsidies in the farm bill may lead to multi-party support of the overall legislation, but it diminishes the opportunity to recognize the value adjustments associated with each program than if each program had been deliberated and evaluated separately. Value adjustments include the identification of the distribution of taxpayer funds to individuals or businesses as either upholding a right or bestowing a privilege. This designation impacts how programs are developed and administered as well as recipient perceptions of both themselves and of government in general. Although economists might attempt to create value-neutral models to support policy approaches, public administrators have the opportunity to leverage underlying values to engage recipients and strengthen programs.

In 1996, President Clinton’s welfare reform legislation barred access to food stamps from immigrants who had been in the U.S. for less than five years. Al- though subsequent bills have carved out exemptions to that policy, the introduction of immigration issues into food security legislation revealed the value adjustments made by legislators about citizen and immigrant rights. Such reforms also impacted how immigrants perceive themselves relative to the general population. The agriculture sector has continually insisted that migrant farm workers are necessary due to labor shortages and this creates an ethical conflict where farm bill policy supports access to foreign labor but refuses to uphold minimum wage or fair labor standards, or access to sufficient food.

Federal legislators seeking to eliminate or minimize SNAP often point to in- stances of program fraud or abuse, penalizing local recipients for systemic issues. Food stamp fraud includes applicants falsifying documents or reselling vouchers, as well as theft of beneﬁts by local agency staff. Although the introduction of EBT cards allows for more oversight due to electronic trails, the existence of fraud or abuse in social service programs has negative effects on the perception of the program as a whole by recipients, legislators, and the general public. Fraud prevention and detection is integral to the survival of a program such as SNAP, which

F ARM BILL P OLITICS 15 is already subject to scrutiny from a large network of stakeholders. As beﬁts the entangled nature of SNAP, responsibility for prevention and deduction is shared between local agencies and the USDA.

To reduce fraud and abuse, Arizona and New York State required fingerprinting to receive food stamps in order to prevent individuals from sharing benefits. Although the federal government has the responsibility for determining recipient eligibility, state prerogative regarding certification allowed the fingerprinting policies to exist. In New York State, the policy was eliminated in 2007 but New York City had received an exemption to continue fingerprinting recipients. In May 2012, Governor Andrew Cuomo forbid fingerprinting against the wishes of Mayor Michael Bloomberg of New York City who claimed the requirement reduced fraud by $35 million over the prior decade. New York City Council speaker Christie Quinn and local hunger nonprofits claimed that the requirement was deterring eligible recipients and that fraud could be prevented through other measures such as more thorough review of applications by agencies and online monitoring of EBT transfers.40 This case reveals that the ethical implication of being fingerprinted was valued differently on the federal, state, and local levels. Joe Soss hypothesizes that “program designs structure clients’ experiences in ways that shape their beliefs about the effectiveness of asserting themselves at the welfare agency. Because clients associate the agency with government as a whole, these program-specific beliefs, in turn, become the basis for broader orientations toward government and political action.”41 By requiring recipients to be fingerprinted, local agencies can have a pejorative effect on client participation and recipient views of government as a whole. The effect of an increase of food resources can impact a citizen’s capacity to participate in government, whereas the rules and structure of the program affect the citizen’s perception of government. Although Bloomberg felt that it was in the greater public interest to fingerprint recipients to reduce fraud, his administration did not consider what the policy communicates about recipient status, agency decision-making, and the perception of government by affected recipients.

There is significantly less oversight in the subsidy program. The nonprofit Environmental Working Group (EWG) has sought to increase transparency in the program, and issued a report in 2012 showing that 23 members of Congress or their family received in aggregate $6.2 million in subsidies between 1995 and 2011.42 SNAP recipients receive on average $1,596 annually according to USDA Data for fiscal year 2012.43 Comparatively, the top 10 percent of subsidy recipients

16 C ARDELL received $31,400 per year.44 The difference between the amount of SNAP beneﬁts received per person and the level of subsidy beneﬁts received per farm entity, compared against the relative scrutiny of each program, reveals differences in how the farm bill perceives recipients of each program, and how they perceive each other.

In addition to these implied value adjustments, a U.S. Governmental Ac- countability Office (GAO) report in 2012 explicitly described direct subsidy payments as inconsistent with farm bill principles of “Relevance, Targeting of Needs, Affordability, Effectiveness, or Oversight.”45 Whereas SNAP eligibility requires that recipient income must be below 130 percent of the poverty line, in 2011, a congressional report indicated that from 2003 to 2009, over $316 million in farm payments were provided to individuals with income greater than $1 million annually.46 The inclusion of agricultural subsidies to wealthy individuals alongside food stamps to the categorically poor communicates a conflict in the definition and application of public benefits.

Conclusion Although the geographic bifurcation between food stamp recipients and subsidy recipients during the 1930s and 1960s supported their legislative cohabitation, the expansion in national SNAP participation has eliminated the need for urban legislators to support agricultural subsidies in exchange for rural legislators’ support for food stamps. Eighty years later, congressional adherence to this outdated arrangement is indicative of the bureaucratic pathos that often stymies effective public administration. The farm bill’s breadth of programs and entangled stakeholder interests impede value-conscious and deliberative program design. By separating supplemental nutrition policy and agricultural subsidies, recipients and local agencies will be able to play a larger part in the design and efﬁcacy of the program. Although quid pro quo arrangements are common in Congress, the farm bill reﬂects one of the largest and oldest arrangements and was considered innovative at its inception, but the most innovative approach now would be to dissolve this outdated relationship. Q

F ARM BILL P OLITICS 17 (Endnotes)

1 Agricultural Marketing Act, §§ 24-1-15, 71st Congress of the United States. 2 Agricultural Adjustment Act of 1933, §§ 73–10, 73rd Congress of the United States, accessed April 14, 2013, http://www.nationalaglawcenter.org/assets/farmbills/1933. pdf. 3 “The Effects of Failure to Enact a New Farm Bill: Permanent Law Support For Commodities and Lapse of Other USDA Programs,” United States Department of Agriculture. 4 ‘‘Food, Conservation, and Energy Act of 2008,’’ H.R. Res. 6124, 110 Congress of the United States. 5 Joseph Stancliffe Davis, On Agricultural Policy, 1926-1938, (Stanford, Stanford University Press, 1939), 253. 6 Citation from Section 32 of 1935 act. 7 “CSFP Eligibility Requirements and How to Apply,” USDA Food and Nutrition Service, accessed April 14, 2013, http://www.fns.usda.gov/fdd/programs/csfp/csfp_eligibility. htm. 8 Frederick V. Waugh, “Programs for Using Agricultural Surpluses to Reduce Malnutrition and to Benefit Farmers,” Journal of Farm Economics Vol. 22.1, 1940, p. 324-334. 9 The Food Stamp Act of 1964, 88th Congress of the United States, accessed April 14, 2013, http://www.fns.usda.gov/snap/rules/Legislation/pdfs/PL_88-525.pdf. 10 “Annual Summary of FNS Programs.” United States Department of Agriculture Food and Nutrition Service, April 5, 2013, accessed April 14, 2013, http://www.fns.usda. gov/pd/annual.htm. 11 Food, Conservation, and Energy Act of 2008, 110th Congress of the United States. 12 “Farm Programs: Direct Payments Should Be Reconsidered,” United States Government Accountability Office, July 2012, accessed April 14, 2013, http://gao.gov/ assets/600/592105.pdf. 13 Tom Philpott, “Fiscal Cliff Drama Produces an Awful Farm Bill Extension,” Mother Jones, Jan. 4, 2013, accessed April 14, 2013, http://www.motherjones.com/tom- philpott/2013/01/fiscal-cliff-farm-bill. 14 “Agribusiness: Long-Term Contribution Trends,” Opensecrets Center for Responsive Politics, accessed April 14, 2013, http://www.opensecrets.org/industries/totals.php. 15 Joel D. Aberbach and Bert A. Rockman, “Bureaucrats and Clientele Groups: A View from Capitol Hill,” American Journal of Political Science Vol. 22.4,1978, pp/ 818-832. 16 Murray R. Benedict, “Some Policy Problems in a Federal Farm Credit Program.” American Journal of Agricultural Economics Vol. 16. 1, Jan. 1934, accessed April 14, 2013, http://www.jstor.org/stable/1230780. 17 Food, Conservation, and Energy Act of 2008, 110th Congress of the United States, accessed April 14, 2013, http://www.govtrack.us/congress/bills/110/hr2419/text. 18 “Commodity Insurance Fact Sheet,” United States Department of Agriculture, Risk

18 C ARDELL Management Agency, Feb. 2013, accessed April 14, 2013, http://www.rma.usda.gov/ fields/mn_rso/2013/2013iaoats.pdf. 19 “Agriculture: Fairer Markets for Farmers,” World Trade Organization, accessed April 14, 2013, http://www.wto.org/english/thewto_e/whatis_e/tif_e/agrm3_e.htm. 20 “United States v. Butler - 297 U.S. 1,” Justia US Supreme Court Center, accessed April 14, 2013, http://supreme.justia.com/cases/federal/us/297/1/. 21 Food and Agriculture Act of 1977, 95th Congress of the United States. 22 Personal Responsibility and Work Opportunity Reconciliation Act, 104th Congress of the United States. 23 “SNAP Overview,” United States Department of Agriculture Economic Research Service, accessed April 14, 2013, http://www.ers.usda.gov/topics/food-nutrition- assistance/supplemental-nutrition-assistance-program-(snap).aspx#.UWr5hLWPPzw. 24 Ibid. 25 Caroline Ratcliffe, Signe-Mary McKernan, and Kenneth Finegold, “The Effect of State Food Stamp and TANF Policies on Food Stamp Program Participation,” The Urban Institute, 2007, pp. 1-49. 26 Tim Conlan, “From Cooperative to Opportunistic Federalism.” Public Administration Review, Vol. 66.5, 2006, pp. 664-76. 27 Ibid. p. 126. 28 “SNAP Regulations,” United States Department of Agriculture Food and Nutrition Service, accessed April 14, 2013, http://www.fns.usda.gov/snap/rules/regulations/. 29 James E. Tillotson, “America’s Obesity: Conflicting Public Policies, Industrial Economic Development, and Unintended Human Consequences,” Annualreview.org, accessed April 14, 2013, http://www.annualreviews.org/doi/pdf/10.1146/annurev. nutr.24.012003.132434. 30 Jean C. Buzby, Hodan Farah Wells, and Gary Vocke, “Possible Implications for U.S. Agriculture From Adoption of Select Dietary Guidelines,” USDA Economic Research Service, 2006, accessed April 12, 2013, http://www.ers.usda.gov/media/860109/ err31_002.pdf. 31 Ibid. 32 Melissa D. Mortazavi, “Are Food Subsidies Making Our Kids Fat? Tensions Between the Healthy Hunger-Free Kids Act and the Farm Bill,” Washington and Lee Law Review, Vol. 68.4, 2011, accessed April 14, 2013, http://scholarlycommons.law.wlu. edu/cgi/viewcontent.cgi?article=3305&context=wlulr. 33 “Congress Includes Awful 2008 Farm Bill Extension in Fiscal Cliff Deal,” National Sustainable Agriculture Coalition, 3 Jan. 2013, accessed April 14, 2013, http:// sustainableagriculture.net/blog/farm-bill-extension-fiscal-cliff/. 34 Michele Ver Ploeg and Katherine Ralston, “Food Stamps and Obesity: What Do We Know?” United States Department of Agriculture, accessed April 14, 2013, http:// www.ers.usda.gov/media/210659/eib34_1_.pdf. 35 Ibid.

F ARM BILL P OLITICS 19 36 “Mayor Bloomberg Discusses How New Health Bucks Program Will Provide Greater Access To Healthy Food For Low Income Families In Weekly Radio Address,” 1010 WINS News Radio, accessed April 14, 2013, https://soundcloud.com/mikebloomberg/ weekly-radio-address-07-08-12. 37 “Healthy Incentives Pilot - Basic Facts,” United States Department of Agriculture Food and Nutrition Service, accessed April 14, 2013, http://www.fns.usda.gov/snap/ hip/qa-s.htm. 38 “Philadelphia’s Healthy Corner Store Initiative 2010-2012,” The Food Trust, accessed April 14, 2013, http://foodtrust-prod.punkave.net/uploads/media_items/hcsi- y2report-ﬁnal.original.pdf. 39 Robert A. Dahl, “The Science of Public Administration: Three Problems,” Public Administration Review, Vol. 7.1,1947, pp. 1-11, accessed April 14, 2013, http://www. jstor.org/stable/972349. 40 John Eligon, “Cuomo Seeks to End Fingerprinting for Food Stamps in N.Y.C.” New York Times, 17 May 2012. 41 Joe Soss, “Lessons of Welfare: Policy Design, Political Learning, and Political Action.” The American Political Science Review Vol. 93.2, 1999, pp. 363-380. 42 Sara Sciammacco, “The Downfall of Direct Payments,” Environmental Working Group, Oct. 19, 2011, accessed April 14, 2013, http://www.ewg.org/downfall-direct- payments. 43 “Annual Summary of FNS Programs,” USDA. 44 “The United States Summary Information,” EWG Farm Subsidy Database, accessed April 14, 2013, http://farm.ewg.org/region.php. 45 “Farm Programs: Direct Payments Should Be Reconsidered,” US GAO. 46 “FY 2013 Income Eligibility Standards,” United States Department of Agriculture Food and Nutrition Service, accessed April 14, 2013, http://www.isbe.net/nutrition/ pdf/IEG_13.pdf.

20 C ARDELL F ARM BILL P OLITICS 21

Federal Jurisdiction and the Clean Water Act: Rapanos v. United States

Brandon Chiazza

A B STRACT

The Clean Water Act gives the federal government jurisdiction over the use of wetlands. The exact definition of a wetland has been a controversial subject largely attributed to the court’s failure to elucidate what is exactly meant as “navigable water.” In a 2005 Supreme Court case, Rapanos v United States, an unauthorized developer sought to fill a wetland in Michigan. The case disputed what exactly determined the existence of a wetland and never reached a definitive conclusion in a plurality decision (4-1-4). Consequently, Wetland Law under the Clean Water Act has yet to evolve into a standard rule for when and when not to develop wetlands. This paper discusses the case and the opinions presented to the court. Finally, it attempts to extrapolate some of the potential standards from those opinions in order to solidify and resolve the Wetland Law issue.

A B O U T THE A U THOR

Brandon Chiazza is an alumnus of Cornell University graduating with a BS in 2009 and an MPA in 2012 where he was an active student writing for the Cor- nell Chronicle on economic topics, and a co-founder and member of the school’s Triathlon Club. He currently resides in Washington D.C. as a consultant at Arc Aspicio.

F EDERAL JU RISDICTION A N D THE C LEAN W ATER A CT 23 Introduction ong before the times of Gifford Pinchot, John Muir, Henry David Tho- reau, and Bob Marshall, the environment and its contents, whether for pure conservation or for extraction of its exquisite resources, has been arguably one of the most important concerns to the American people. It Lwould be the Nation’s 26th President, Theodore Roosevelt, who would say:

“To waste, to destroy our natural resources, to skin and exhaust the land instead of using it so as to increase its usefulness, will result in undermining in the days of our children the very prosperity which we ought by right to hand down to them ampliﬁed and developed.” 1

Today, America’s appreciation for natural resources still endures, and it is evident in the pervasive legal system and preservation of public lands that have evolved from its beginnings.2 Expending federal jurisdiction over public lands has attempted to provide long lasting recreational use, natural resources preservation, and scientific use. Specifically, water resources have been of significant importance to an exponentially growing population

Congress recognized the importance of preserving the water resource not only for maintaining a sound ecology of an area containing flora and fauna, but also because it realized the superior threat that polluted and degraded waters pose to its people. The inchoate stages of water protection law generated Acts such as the “Rivers and Harbors Act of 1899” which sought to make filling “navigable waters with diffuse matter” illegal; and later, the “Federal Water Pollution Control Act of 1948” which aimed to reinforce similar goals. Since being amended in 1977, the “Federal Water Pollution Control Act of 1948” was renamed the Clean Water Act (CWA). A revision of the 1948 Water Pollution Control Act, the law has served as the main statutory authority driving regulatory control of water resources today.3 The CWA’s objective is clear: “to restore and maintain the chemical, physical, and biological integrity of the Nation’s Waters.”4 Further, the CWA provides that regulatory authority over the waters of the United States reside with federal agencies, and often legal disputes involving commercial rights to property, defi- nitions within the statutory language, and jurisdiction over these waters, have obfuscated the interpretations of the statute with split judicial decisions and ultimately an equivocal approach to determining the extent of the CWA’s authority and where it can be implemented. For example, wetlands have received consider- able attention and courts have sought to resolve the issue of whether a wetland

24 C HIAZZA constitutes “navigable water” and whether its hydraulic “connection” can bear it the same federal jurisdiction as a river, channel, lake, or tributary. This is referred to as a “Land is Waters” approach.5, 6

A recent case, Rapanos v. United States, exempliﬁed the tumultuous and complex nature of the CWA and gave rise to an examination into the longstanding constitutional question of the extent to which the federal government can impose jurisdiction on the lands of this Nation.7, 8 The Supreme Court of the United States came to a split decision (plurality) in a 4-1-4 vote regarding the issues presented in the case. Some argue that the inconclusive precedent had benign effects.9 None- theless, the importance of the Judges’ opinions have provided some interesting approaches on how the statute, and the extent of federal jurisdiction, should be deﬁned. For example, Justice Kennedy alluded to a conceptual foundation that draws from economics and the law as a framework for applying the statute: the risk of deeming wetlands navigable and the liability that may be imposed on the developer of the wetland.

History of the Clean Water Act and the Evolution of the Statute10 Before discussing Rapanos, it is important to provide a discussion of the Clean Water Act and relevant legislative history that led to the Rapanos decision. The codiﬁcation of water laws has long been a staple of the United States legal system; from prior appropriation rights in the early West, to riparian rights in the East, and pollution mitigation laws throughout.

Deemed the Clean Water Act upon subsequent amendments in 1972 and 1977 to the Federal Pollution Control Act of 1948, Congress passed the Act to restore and maintain the integrity of United States waters. The amendments of 1977 brought current scientific knowledge in hopes of elucidating the understanding of the relevant hazardous pollutants, and set a threshold for pollutant concentration in water. Further, it sought to clarify point sources from non-point sources, which distinguishes facilities that require permits to discharge pollutants into waters from non-facilities.11 The CWA makes explicit that “the discharge of a pollutant is unlawful,” while defining the “discharge of a pollutant” as the “addition of any pollution to navigable waters from any point source.”12 The CWA authorizes state and federal officials to issue permits to individuals who seek to discharge pollutants.13 Specifically, § 404(a) authorizes the Army Corps of Engineers to issue permits for the dredge or fill material (considered to be a pollutant) into navigable

F EDERAL JU RISDICTION A N D THE C LEAN W ATER A CT 25 waters at designated sites.14 “Dredge or fill material” is used to fill wetland areas to procure the land for development and is often only permitted in the case that there is no “practicable alternative” and that one has shown significant efforts to reduce the impact on the wetlands. In general, the statute allows exemption from the wetland requirement to support forestry and certain farming activities.15 A study conducted in 2004 by the United States Fish & Wildlife Service found that there are 107.7 million acres of wetlands in the contiguous United States.16 Much of the case law has disputed what should fall under the definition of “navigable water” and the extent to which the Interstate Commerce Clause of the Constitu- tion should provide the basis for the statute. Some discussion of landmark cases within this area of law follows.

The Daniel Ball of 187117 The Daniel Ball was a steam vessel with “goods” on board that operated on a part of Grand River located in Michigan. It operated in alleged violation of the Congres- sional Act of 1838, which asserted that Grand River was a “navigable water” of the United States and operation on such waters without a license was unlawful. The Daniel Ball owners claimed that the waters did not fall under the deﬁnition of navigable waters and that the commerce clause did not apply because it was not transporting goods from another state. The court subsequently applied a test for navigable waters and deﬁned it as:

“when [the waters] are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water…[and] when they form in their ordinary condition by themselves, or by uniting with other waters, a continued highway over which commerce is or may be carried on with other States or foreign countries in the customary modes in which such commerce is conducted by water.” [10 Wall. 557, 19 L. Ed. 999]

The court concluded that the transportation of goods within a state constituted the interstate commerce clause and it subsequently upheld that The Daniel Ball owners had violated the Act.

In ensuing cases, such as US v. Appalachian Elec. Power Co. [311 US, 1940], the deﬁnition of navigable waters was broadened to include “[the water’s]avail- ability for navigation “ and that if the waters could be equipped for navigation upon improvements, then the waters should be considered “navigable waters.”18

26 C HIAZZA Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers In another Supreme Court case, SWANCC was a Chicago based organization that wanted to construct a landﬁll in an area of seasonal ponds that have been known to be regularly occupied by migratory birds such as the Canadian goose, mallard ducks, and others. The U.S. Army Corps of Engineers (the Corps) denied the issuance of a permit to the organization alleging that such an issuance would violate the “Migratory Bird Rule” and the CWA.19 SWANCC argued that Congress did not have authority to oversee the regulation of ponds. In a 5-4 decision, the majority of the Supreme Court determined that isolated ponds were not necessarily supported by the CWA and further that mere occupation of migratory birds cannot be determined to be “navigable waters.”20 The case brought widespread confusion as to what can constitutionally deﬁne navigable water, thus giving the federal government expansive jurisdiction over more waters of the United States.

United States v. Riverside Bayview Homes Inc In Michigan, Riverside Bayview Homes Inc. began filling a wetland area to start a housing project. The Corps, after advising Riverside Bayview against filling the area, sued the company, seeking an injunction on the grounds that the wetland was adjacent to navigable waters and filling it would violate the CWA. The Su- preme Court decided that the Corps used a sufficiently reasonable interpretation by concluding that the waters adjacent to the navigable waters fell under the CWA. The Supreme Court stated that “the Corps must necessarily choose some point at which the water ends and land begins” and that the difficulty with determining such waters was adequately dealt with from the reasonable deduction that the Corps used when interpreting the statute.21

The court cases leading to Rapanos had failed to come to a clear conclusion about what constitutes navigable water and the approach in deciding Rapanos embodied this failure. On one side, the Courts saw that greatly expanding the term “navigable waters” relied upon the commerce clause so as to push it to unconstitutional limits; whereas others saw that by reducing the CWA’s broad, categorical nature, limits to the protection of water digressed from the very purpose of the statute. With a deep legislative history and important constitutional questions at the fore, the Supreme Court provided a decision in Rapanos.

F EDERAL JU RISDICTION A N D THE C LEAN W ATER A CT 27 Rapanos

The Supreme Court consolidated two cases, one of John Rapanos, and the other of June and Keith Carabell. Both Rapanos and the Carabells sought to fill wetlands for the purpose of constructing buildings for commercial enterprise. John A. Rapanos owned three parcels of land that contained wetlands referred to in the opinion as the Salzburg site, Hines Road site, and the Pine River Site. Rapa- nos had sought to build a shopping center, and asked the Michigan Department of Natural Resources to inspect the sites. The state informed him that in order to move ahead with construction, the wetlands need to be “identified and preserved.”22 Rapanos hired a consultant who, upon surveying his land, concluded that 48 of the 58 acres were wetlands. Rapanos went forward with filling the wetland despite not obtaining a permit. The case of the Carabells was similar. Seeking a permit from the Michigan Department of Environmental Quality, the Carabells anticipated filling wetlands to build a 130 condominium units. The Corps’ concluded that the Carabells’ property “provides water storage functions that, if destroyed, could result in an increased risk of erosion and degradation of water quality.”23

After moving through the Court of Appeals, which afﬁrmed that the wetlands were adjacent to navigable waters and thus under federal jurisdiction, the Supreme Court of the United States granted a writ of certiorari to further consider the jurisdictional question. The Supreme Court sought to decide whether the federal agencies issuing the permits had jurisdiction over the wetlands, which Rapa- nos and the Carabells sought to develop.

Justice Scalia provided the plurality opinion of the court.24 The plurality opinion was geared towards limiting the federal jurisdiction implied by the Corps. He began by discussing the expansive acreage to which federal agencies, such as the Corps and the EPA, have asserted jurisdiction. He wrote, “The Corps and the EPA have interpreted their jurisdiction to cover 270-300 million acres of swampy lands in the United States.”25 He further emphasized, rather sarcastically, that the Corps has deemed areas as federal waters such as roadside ditches, and “lands covered by ﬂoodwaters once every 100 years.”26 By examining the costs that the Act has imposed on the defendants in these cases, Scalia concluded that the costs of the regulations are extremely high. What actually determines whether costs of regulations are “extremely high” was left unstated. Scalia recalled the previous decisions of the Court, stating that where SWANCC showed that the term “navi-

28 C HIAZZA gable waters” is more than just the conventional term, Riverside Bayview showed that the “navigable” is “not devoid of significance.” He proceeded to state that if the congressional intent were to define “navigable waters” as “waters of the United States,” as the Corps has broadly interpreted it to be, then Congress would have just used this definition.27

Accordingly, Scalia calls upon the dictionary definition of the term “waters,” asserting that the plural form of the term implies something specific as waters found in “streams and bodies forming geographical features such as oceans, rivers, [and] lakes.” It then follows, according to Scalia, that the definition of “the waters of the United States, include only relatively permanent, standing or flowing bodies of water,” emphasizing the continuously present, and fixed nature of the water. Further, Scalia asserts that the Corps “has stretched the term ‘waters of the United States’ beyond parody and that the language of the statute simply does not authorize this “land is waters” approach to federal jurisdiction.”

The plurality refutes the lower court’s affirmation of the ecological judgment used by the Corps when asserting its jurisdiction as well as the conclusions in Riverside Bayview and SWANCC. In fact, Scalia pointed out that Riverside Bayview incorrectly interpreted the ambiguity that lies in the “point at which water ends and land begins,” to give too much discretion to the Corps to allow an ecological judgment to be made. Further, Scalia argued that the test in SWANCC, which found that a significant nexus must exist in order for the waters to be deemed “navigable,” was abused by the Corps and falsely interpreted. Ultimately, the plurality supported two criteria for allowing a wetland to fall under federal jurisdiction: (1) “a relatively permanent body of water connected to a traditional interstate navigable water” must exist; and (2) a wetland must exhibit “continuous surface connection with that water, making it difficult to determine where the water ends and the wetland begins.”30

“The Significant Nexus Test” Justice Kennedy provided a singular opinion. Kennedy’s “Significant Nexus Test” suggested that the cases be remanded to the Court of Appeals to properly consider the “significant nexus” requirement purported in SWANCC.31 Justice Kennedy described the role that wetlands play in a typical ecology, citing the Corp’s scientific studies.32 Wetlands provide for flood control, filtration of pollutants, runoff storage, and a critical habitat for wildlife. According to Kennedy, the “Significant

F EDERAL JU RISDICTION A N D THE C LEAN W ATER A CT 29 Nexus Test” should not consider whether there is a continuous surface connection, but whether the wetland is sufficiently supporting the Act’s purpose.33 He wrote, “The required nexus must be assessed in terms of the statute’s goals and purposes.”34 Kennedy added that by not making the regulations specific, “the Corps must establish a significant nexus on a case-by-case basis when it seeks to regulate wetlands based on adjacency to non-navigable tributaries.”35

Justice Stevens provided the dissenting opinion.36 He took the approach that the plurality opinion was willfully ignorant by “rejecting more than 30 years of practice by the Army Corps” and “disregarding the nature of the congressional delegation to the agency and the technical and complex character of the issues at stake.”37 Stevens decided that the Corps acted reasonably in its interpretation of the statute and what constituted “navigable water” and that interpretation merited deference under Chevron.38

The dissent relied on the unanimous decision in Riverside Bayview. This opinion saw the issue from the standpoint of whether the CWA “authorizes the Corps to require landowners to obtain permits from the Corps before discharging fill material into wetlands adjacent to navigable bodies of water and their tributaries.”39 Recognizing the difficulty in drawing distinct lines between land and water, the dissent argued that, as in Riverside Bayview, the Corps’ understanding of what an adjacent wetland is and the importance of preserving that wetland aligns with the purpose of the CWA.40 Further, the dissent claimed that SWANCC is un- related because it “had nothing to say about wetlands, let alone about wetlands adjacent to traditionally navigable waters or their tributaries.” Due to Congress specifically intending the Act to include “navigable waters and their tributaries,” Stevens concludes that the Corps reasonably and logically made an argument as to why the adjacent wetlands in this case should be considered “waters of the United States.”41

Legal Implications, the Future of CWA and Federal Jurisdiction Justice Scalia’s opinion incited a riveting and vociferous dissent from Justice Ste- vens. Justice Kennedy, whose test was ultimately used to decide the case in the lower courts, found himself somewhere in the middle. The Rapanos case’s se- verely disjointed opinions may be used to glean some insight as to the future of the CWA and Federal Jurisdiction over environmental protection.

30 C HIAZZA It was clear that the many subtle interpretations of the term “navigable waters” in past cases would not provide the judges with a useful deﬁnition. Further, the split decision led to two different tests to be applied in determining a wetland for the lower courts, and one suggestion to uphold the Corps’ interpretation of the statute. Though it did not seem as if the opinions would have a lasting effect on the future of federal jurisdiction and the Clean Water Act, a closer look would reveal some redeeming lessons from the case.

Scalia’s opinion hinted at the high costs that the Clean Waters Acts regulation imposes on the violators of the Act, and the dissent stated that these costs are trivial compared to what the public loses as a result of unprotected water. Thomas (2008) has noted that this argument by Scalia is particularly weak because he does not adequately weigh the costs of forgoing the regulations against the benefits from the commercial entrepreneur’s endeavor (often the costs greatly exceed the benefits).42 Further, this line of reasoning could be beneficial because it may give way to economic analysis of the Clean Water Act. In essence, a test that could be used to determine whether land falls under federal jurisdiction is whether or not the benefits of the Act are higher than the costs from the development of an area such as a wetland.43, 44 Of course, Environmental Impact Statements (EIS) are often required for intended development sites and do include some economic analysis. That being said, the question of valuing the environment is a highly con- tested topic. For example, is a wetland downwind of a major city worth more in value (because of its ability to filter pollutants and provide flood control) or less in value (because of environmental and aesthetic degradation caused by that major city) when compared to a wetland that is not situated near a major city?

Although the plurality purports a strict definition of “navigable waters” that includes a “surface connection,” it contradictorily concedes that some regulations of waters under the CWA must occur. Consequently, where SWANCC failed to narrow the scope of the “navigable waters” definition, Rapanos can be read to have made this even less clear.45 Furthermore, Scalia’s two-part test does not extend into enduring law because it was met with caustic opposition in the opinions of Kennedy and Stevens.46 It seems evident in Justice Scalia’s opinion that he will go to great lengths, including an attempt to manipulate the Act, to significantly reduce the federal jurisdiction which the Act imposes.

Justice Kennedy’s use of SWANCC’s “Signiﬁcant Nexus Test” may warrant similar dismal recognition. The “Signiﬁcant Nexus Test” was sharply repudiated

F EDERAL JU RISDICTION A N D THE C LEAN W ATER A CT 31 by Stevens’ dissent and Scalia’s plurality, consequently barring it from becoming a mainstay in the law regarding jurisdiction over wetlands. The nature of the test suggests that the Corps must decide “navigable water” on a case-by-case basis. Subsequently, it can be anticipated that wherever the Corps and Environmental Protection Agency (EPA) can claim authority, it will assert jurisdiction in each case, and it will be followed by the high costs and slow process of litigation. This is something Justice Kennedy should have foreseen.47 At the same time, under Kennedy’s opinion, wetlands are afforded more protection than under the strict terms of Scalia’s criteria. If wetlands do, in fact, provide the multifarious beneﬁts to clean water that the Corps purports, then, in the long run, this may mean that the Act’s purpose is being satisfactorily endorsed. Some have said that Kennedy’s words stand out among the opinions provided, but still do little to explain what “constitutes a ‘nexus’ or makes a nexus ‘signiﬁcant’.”48

Looked at in a different light, Kennedy’s opinion could reap an economic approach to preserving wetlands that state regulation has been unable to reach.49 Here, Macdonald (2007) argues that Kennedy’s test ﬁnds the balance between the state’s primary rights, and the integrity of the “nation’s waterways.” Further, Macdonald (2007) writes, “By allowing the federal government to regulate in all those cases where wetlands affect interstate waters, Justice Kennedy allocates regulatory responsibility to the federal government where state regulation alone is likely to undervalue wetlands preservation…states will more fully internalize the costs and beneﬁts of their regulatory decisions.”50

Finally, Justice Stevens’ surgical words, which promoted the Corps’ interpretation of the statute and upheld the lower court’s decision to do the same, were vastly critical of the plurality but again, the split decision thwarted any possibility of imprinting his words into a lasting law. It was successful at showing that the plurality indicated the Corps’ freedom to use its own discretion in determining the waters of the United States under Chevron, but also that the plurality followed by not allowing that deference.51 Though Stevens made a compelling argument against the plurality and in favor of Chevron deference to the agency, he also failed to provide a rule in determining the place of wetlands in the Clean Water Act for future cases.

Although no rulemaking was ever initiated, the EPA and the Corps were pressured to create new regulations that narrowed the scope of the law.52 Ac- cordingly, they created guidance in line with the opinions in Rapanos to advise

32 C HIAZZA some of the rulemaking and regulatory procedures in the near future. Jurisdic- tional questions continue to linger and Rapanos reafﬁrmed the apprehension of the Courts to tackle the subject. To effectively solve the issue of wetlands preservation or development, agencies must take leadership and avoid the lengthy and expensive congressional quarrels.53

Rapanos’ anticipated rumble of the jurisdictional reach of the Clean Water Act amounted to nothing more than a ripple in the evolution of the statute. Wet- land protection did not see any gains as a result of the case and the future will likely just lead to more court proceedings, litigation costs, and uncertainty. Q

(Endnotes)

1 Theodore Roosevelt, “Seventh Annual Message,” (1907). Accessed March 26, 2013. Available at: http://millercenter.org/president/speeches/detail/3779. 2 Environmental policy is comprised of three components: 1) pollution control; 2) natural resource management; and 3) maintaining cultural and aesthetic purity. It would seem that the United States had a long history of reverence for its natural environment; a cultural foundation that was rooted in the immigration movement of the Industrial Revolution. During the time, many famous American painters such as Albert Bierstadt, Thomas Moran, and William Keith (often referred to as the Rocky Mountain School) were hired to create illustrious depictions of landscapes among the West, helping create the draw for immigrants to the United States. Theodore Roosevelt leveraged the Antiquities Act to deem several national monuments or historical sites preserved for public use and protected by law. His distant cousin, Franklin D. Roosevelt enacted several modes of legislation during the New Deal Era that displayed the value of the nation’s environment and natural resources via acts such as the Historic Site Act (1935) and Park, Parkway, and Recreation Act (1936). See: Andrews Richard N.L. (1999). Managing the Environment, Managing Ourselves: A History of American Environmental Policy. Yale University Press. Coggins, G. et al. (2007). Federal Public Land and Resource Law, Sixth Edition. Foundation Press. New York, New York. 3 US Environmental Protection Agency website.(2011). http://www.epa.gov/history/ topics/fwpca/05.htm. 4 33 U.S.C. 1251 et seq. (1972). “The Clean Water Act.” Title I. 5 “Navigable Water” is a conventional term used in law dealing with the protection of water in the US. It will be of signiﬁcant importance to this paper. 6 SWANCC v. Army Corps of Engineers, Rapanos v. United States, United States v. River- side Bayview Homes. 7 Rapanos v. United States (2006)547 US 715, 126 S. ct. 2208, 165 L.Ed. 2d 159. 8 Article 1, Section 8, Clause 3, of the Constitution empowers Congress “to regulate Commerce with foreign Nations, and among several States, and with the Indian Tribes.” The term commerce as used in the Constitution means business or commer-

F EDERAL JU RISDICTION A N D THE C LEAN W ATER A CT 33 cial exchanges in any and all of its forms between citizens of different states. 9 Macdonald, M. (2007). “Case Comment: Rapanos v. United States and Carabell v. United States Army Corps of Engineers”. The Harvard Environmental Law Review. Vol 31. 321. 10 33 U.S.C. 1251 et seq. (1972). “The Clean Water Act.” 11 Point sources can be defined as “any pipe, ditch, channel;, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged” [33 U.S.C. §1362 (14)]. 12 33 U.S.C. 1251 et seq. (1972). “The Clean Water Act.”, and Larson J. (2006). 13 ‘‘discharge’’ includes, but is not limited to, any spilling, leaking, pumping, pouring, emitting, emptying or dumping, but excludes (A) discharges in compliance with a permit under section 402 of this Act, (B) discharges resulting from circumstances identified and reviewed and made a part of the public record with respect to a permit issued or modified under section 402 of this Act, and subject to a condition in such permit, (C) 1 continuous or anticipated intermittent discharges from a point source, identified in a permit or permit application under section 402 of this Act, which are caused by events occurring within the scope of relevant operating or treatment systems, and (D) discharges incidental to mechanical removal authorized by the President under subsection (c) of this section. Retrieved from 33 U.S.C. 1251 et seq. (1972). “The Clean Water Act.” 14 33 U.S.C. 1251 et seq. (1972). “The Clean Water Act.” §306. It specifically reads, “When proposing or promulgating any effluent standard (or prohibition) under this section, the Administrator shall designate the category or categories of sources to which the effluent standard (or prohibition) shall apply. Any disposal of dredged material may be included in such a category of sources after consultation with the Secretary of the Army.” 15 “Wetland Regulatory Authority.”(2004) US Environmental Protection Agency, Wet- land Factsheet Series. No. EPA-843-F-04-001. 16 US Fish & Wildlife Service (2004). “Status and Trends in the Conterminous United States in 1998 to 2004. Accessed May 2011. http://www.fws.gov/wetlands/_docu- ments/gSandT/NationalReports/StatusTrendsWetlandsConterminousUS1998to2004. pdf. 17 The Daniel Ball [77 U.S. 557, 561, 1871] and also in [10 Wall. 557, 19 L. Ed. 999]. 18 United States v. Appalachian Elec. Power co. [311 US, 1940] and Sato, S (1960) “Water Resources—Comments Upon the Federal-State Relationships”. California Law Review. Vol. 48 pp. 43-57. 19 The “Migratory Bird Rule” is a rule pursuant the CWA that stipulates that waters occupied by migratory birds are of value and commend legal protection under the Act. 20 Solid Waste Agency of Northern Cook City v. United States Army Corps of Engineers, [531 US 159, 167, 121 S. Ct. 675, 148 L. Ed. 2d 576 (SWANCC). 21 United States v. Riverside Bayview Homes Inc., 474 US 121, 133, 106(1985) S. Ct. 455, 88 L. Ed. 2d 419. 22 Rapanos v. United States 547 US 715, 126 (2006) S. ct. 2208, 165 L.Ed. 2d 159 p. 193. 23 Ibid at p.194. 24 Scalia was joined by Justice Roberts, Thomas, and Alito. Justice Roberts also provided a concurring opinion, but that will not be discussed in this paper. The opinion

34 C HIAZZA joins with the plurality but adds that the EPA and the Corps should have narrowed the scope of the definition of a wetland in its own rule making procedures. Its failure to do so led to the litigation that took place. Rapanos v. United States 547 US 715, 126 (2006) S. ct. 2208, 165 L.Ed. 2d 159. 25. Id. P.167. 26. Id. P.167. 27. Id. P.167. See also Hanousek v. United States, 528 US 1102, 1103, 120 (2000) S. Ct. 860 and Natural Resources Defence Council, Inc. v. Callaway, 389 F. Supp. 1263 (1974), where the interpretation by Army Corps regarding the scope is too narrow. 28. Id. P.169. 29. Id. P.175. 30. Id. P. 180. 31. Id. p. 190. 32 Wetlands Research Program Technical Report Y-87-1 Jan. 1987. (www.saj.usace.army. mil/permit/documents/87manual )Found in Rapanos v. United States (2006)547 US 715, 126 S. ct. 2208, 165 L.Ed. 2d 159. 33 Rapanos v. United States (2006)547 US 715, 126 S. ct. 2208, 165 L.Ed. 2d 159. 34 Id. At p. 163. 35 Ibid. 36 Justice Stevens was joined by Justices Souter, Breyer, and Justice Ginsburg. 37 Rapanos v. United States (2006)547 US 715, 126 S. ct. 2208, 165 L.Ed. 2d 159 and Thomas, JC. (2008) “Clearing the Muddy Waters? Rapanos and the Post-Rapanos Clean Water Act Jurisdictional Guidance”. Houston Law Review. 44, 1491. 38 Chevron USA v. Natural Resources Defense Council, Inc. 467 US 837, 842-845, 104 (1984). S. ct. 2778. 81 L. Ed. 2d 694. This case found that an agency action deserves deference to that action in court decisions as they are often equipped to make those decisions pursuant the Administrative Procedures Act. These decisions often require scientific and technical expertise that courts are not equipped to make. 39 Rapanos v. United States (2006)547 US 715, 126 S. ct. 2208, 165 L.Ed. 2d 159 p. 211. 40 Id p. 213. Specifically, the Corps has seen the importance of protecting the wetlands because it greatly affects the “waters downstream” by improving the water quality. Stevens’ said that this was fulfilling the exact purpose of the Act. 41 Id. P 215 42 Thomas, JC. (2008) “Clearing the Muddy Waters? Rapanos and the Post-Rapanos Clean Water Act Jurisdictional Guidance”. Houston Law Review. 44, 1491. 43 Lyon R. and Farrow S. (1995). “An Economic Analysis of Clean Water Act Issues.” Wa- ter Resources Research, Vol. 31 No. 1 pp. 213-223. This research does not necessarily purport this idea but it does suggest that an approach to Clean Water Act jurisdiction may be benefited by the use of a benefit-cost analysis. At the same time, it recog- nizes that often the data collected regarding the subject is insubstantial and will not always provide a clear economic analysis. Wetlands, in particular, are grounded in serious externality issues. 44 Sunding & Zilberman (2002). “The Economics of Environmental Regulation by Licensing: An Assessment of Recent Changes to the Wetland Permitting Process, 42 Natural Resources Journal. 59, 74-76.

F EDERAL JU RISDICTION A N D THE C LEAN W ATER A CT 35 45 Henner, P. (2007). “Rapanos and Warren—A Tale of Two Cases: The Supreme Court Bats .500”. Albany Environmental Outlook Journal Vol 12, 52. 46 Ibid at p. 84. 47 Thomas, JC. (2008) “Clearing the Muddy Waters? Rapanos and the Post-Rapanos Clean Water Act Jurisdictional Guidance”. Houston Law Review. 44, 1491. 48 Macdonald, M. (2007). “Case Comment: Rapanos v. United States and Carabell v. United States Army Corps of Engineers”. The Harvard Environmental Law Review. Vol 31. 321. P.4. This author seems to support the idea that Kennedy’s test will have lasting effects and instead of being dismissed in future courts, as most have come to think of the signiﬁcant nexus test, gives broad discretion to the Corps, rather than narrow; and that this will do little to “constrain the Corps’ jurisdiction.” 49 Adler, J. (2005). The Jurisdictional Mismatch in Environmental Federalism. 14 NYU Envtl. LJ 130 and Macdonald, M. (2007). “Case Comment: Rapanos v. United States and Carabell v. United States Army Corps of Engineers”. The Harvard Environmental Law Review. Vol 31. 321. P.5. 50 Id at p. 5. 51 Thomas, JC. (2008) “Clearing the Muddy Waters? Rapanos and the Post-Rapanos Clean Water Act Jurisdictional Guidance”. Houston Law Review. 44, 1491. 52 Ibid p. 14. 53 Ibid p. 14.

36 C HIAZZA F EDERAL JU RISDICTION A N D THE C LEAN W ATER A CT 37 38 Immigration Policy Responses to Transmigrants in Mexico

Xiomara Chávez-Suárez

A B STRACT

“To arrive at the southern border of Mexico is to arrive at the beginning of the nightmare of the American dream.”1 In recent years, the ﬂow of Central American migrants through Mexican territories into the United States has reached an unprece- dented number. The difﬁculty facing these migrants is not necessarily in crossing the U.S. border, but rather in surviving from abuse and crime committed against them in their vulnerable condition. In response to this growing issue, the government of Mexico has exhibited newfound concerns over the so-called “transit migration.” This paper argues that Mexican immigration policies are contradictory; on one hand, the government has included protective laws for transmigrants, while on the other, it enacts restrictive policies on Mexico’s southern border.

A B O U T THE A U THOR

Xiomara Chávez-Suárez is a second-year Master of Public Administration student at Cornell University with a concentration in International Development. Her studies focus on immigration policy and labor markets in developing countries. Xiomara graduated from the Centro de Investigación y Docencia Económi- cas (“Center for Research and Teaching in Economics”, also known as CIDE) in 2008 with a major in political science and international relations in Mexico. She then worked at the Department of Finance in Mexico City, where she served as a senior advisor to the treasurer. She also served as project manager for INOMA, a non-proﬁt that aims to improve public education in Mexico and other developing countries through information technology. Most recently, she interned at the U.N. Population Division’s Economic Commission for Latin America and the Caribbean (ECLAD) in Mexico City.

I MMIGRATION P OLICY R ESPON SES 39 Introduction ne of the major challenges that Mexico faces is that it is a nation of transit for millions of migrants from Central America. The National Commission of Human Rights (Comisión Nacional) estimates that around 150,000 undocumented migrants enter Mexico every year, Omostly from Central American countries.2 The actual number of undocumented migrants is as high as 400,000.3 In the last six years, these transmigrants have been affected by an increasing wave of systematic violence that results from institutions, policies, and social forces perpetuating and exacerbating a state of corruption and impunity.4

While historically, the Mexican government has refused to take a particular stance in regards to immigration policies in its own territory, newfound concerns have been exhibited over transit migration in the past six years. This, in turn, has led to the creation of a new migration law with the purpose of protecting transit migrants through a new, legal framework. At the same time, the Mexican government also enacted more restrictive border enforcement policies in its interior roads that connect their southern border.

The seemingly contradictory initiatives by the Mexican government require an examination of why such laws were created in the first place for transmigrants. The answer lies in the confluence of political pressures that have been exerted on Mexico. On one hand, Mexican policies aimed at protection appear to be motivated by minimal pressures from Central American governments and mostly, from non-profit organizations that have publicized the atrocities committed against transmigrants. Conversely, the Mexican government seems to be restricting their policies on immigration from its neighbors in the south as a result of increasing pressure from the U.S. This was especially the case when American immigration policies shifted to a more restrictive model since September 11, 2001.5 Such policies have been coupled with the incentive for Mexico to possibly negotiate with the U.S. on other issues by using its immigration policies as political leverage. While these issues are debated at the international level, transmigants continue to find themselves in an increasingly vulnerable position while traveling through Mexico.

Violence against transmigrants in Mexican territory has reached unprece- dented numbers in recent years. As a result, a series of individual policies have been implemented by various states in an attempt to safeguard migrants’ rights.

40 C HÁVEZ- S U ÁREZ However, without comprehensive immigration reform in Mexico, the violence against transmigrants is unlikely to cease. Despite the Mexican government’s legislative reforms to protect transmigrants, such reform efforts do not provide sufﬁcient safeguards for them to escape the systematic abuse associated with Mexico’s southern border. Existing literature on transit states and migration, and the peculiarities of Mexico as a transit country, support the argument that these reform efforts are often inadequate. Additionally, the abuse and crimes committed by criminals who exploit transmigrants, especially given their illegal status, illustrates their severe vulnerability in the journey through Mexican territory. Mexico has instituted some policies that focus on strengthening enforcement mechanisms in the southern border and along the roads to reduce transmigration. Concurrent- ly, the new Migration Law6 and changes to the General Population Law7 indicate an effort to also protect transmigrants from abuse. These incongruous immigration policies in Mexico will impede change while transmigrants continue to suffer systematic abuse and violence, even though the legal framework for migration issues in Mexico has changed in the past months.

Mexico: A Country of Transit Migration across the Mexican southern border during the 1980s and 1990s mainly consisted of Salvadorian, Guatemalan, Nicaraguan and Honduran refugees ﬂeeing from political upheaval and rising violence in their respective countries.8 Many of these migrants settled in Chiapas and other regions in Mexico, working as low-wage laborers, harvesting coffee, sugarcane, and other agricultural products.9 This vast movement during the time was considered as a refugee crisis, not only because of the large number of migrants, but also because it was the ﬁrst time that Mexico became a major refugee destination.10 Recently, however, most Cen- tral American migrants have been passing through Mexican territory to cross the U.S. border in search for better work opportunities and to improve the well-being of their families. The precarious economic situation of their countries of origin, the consequences of the political and military upheaval, combined with the social and economic devastation resulting from recent natural disasters, have all led many Central Americans to migrate to the U.S. through Mexico. In other words, Mexico became a transit state in addition to already being a state that sends millions of its own migrants to the U.S.

According to much of the literature on migration, despite the widespread use of the concept, there is no standard deﬁnition of transit migration. For some schol-

I MMIGRATION P OLICY R ESPON SES 41 ars, the notion of transmigration is highly politicized and often carries a negative connotation.11 This may result from the fact that both in political discourse and in academic research, “transmigration” is often used interchangeably with “irregular migration,” creating ambiguity in the terms.12 Transit states, defined as “cross- roads of the first and third worlds that receive migrants every year in transit to neighboring first world countries,”13 tend to be thought of as problematic because of its characteristics, such as porous borders, lax entry controls, and liberal visa regulations, as well as their geographic positions. However, some empirical evidence suggests that because some countries restrict the entry of legal migration to certain categories of people, transit migration is a response to changing control regimes.14 In other words, transit migration is the consequence of restrictive policies in destination countries.

Transit states are seen as gatekeepers to the ﬁrst world nations that they border. In turn, these countries receive pressure from their neighbor-states to restrict transit migration. Since transit states are often interested in becoming allies of destination countries, which tend to be more politically and economically powerful, there is a tendency to enforce immigration policies for the purpose of strengthening border controls.15 Such a regional integration perspective is evident in the case of Mexico and the U.S. Mexico implements restrictive policies for transit migrants while simultaneously being a country that produces many migrants.16 Thus, there is an asymmetry between the rights that the government demands from the U.S. for Mexican migrants and its own treatment of Central American transmigrants.

For many transnational states, it is difﬁcult to differentiate between transmigrants and immigrants, since migrants are sometimes forced to reside in a country that they initially intended to merely travel through. Rather, many transmigrants simply cannot continue their journey, becoming de facto immigrants and leaving transit states grappling with entirely new immigration issues.17 This possibility increases as violence against transmigrants increases. The Human Rights Watch argues that “migrants are often ‘stuck’ in transit states because they lack the resources to continue their journey yet cannot return home.”18 Migrants cannot know the duration of their stay, since a short stopover in a given country may eventually translate into a longer, perhaps even a permanent stopover. Issues arise as it is only after arriving in the transit country that a migrant is able to determine if their stay is temporary or more permanent.19

42 C HÁVEZ- S U ÁREZ Even though transmigrants want to spend the least amount of time possible in a transit country, their illegal status can lead them to extend their journey. Cer- tain regulations, visa restrictions, and ﬁnancial constraints can cause migrants to lengthen the time spent in the transit country.20 By not being able to use regular roads or accommodations while transiting, transmigrants are forced to be evasive and cannot travel the shortest distance on the fastest routes.

Violence Against Transmigrants While in transit on speciﬁc roads that avoid Mexican authorities, Central Ameri- can migrants often face violence. “Without status, transmigrants remain on the margins of society and are thus vulnerable to a variety of rights abuses.”21 Since border surveillance in Mexico has increased in recent years, migration points and routes have also shifted toward places that are also more dangerous for migrants.22 In principle, “crossing the border is no problem; the problem is trying to cross through Mexico” since the southern border control measures differ greatly than those along the U.S. border.23

The U.S. embassy in Mexico has revealed that 30,000 U.S. customs and border patrol officers watch over the 1,926-mile U.S. border with Mexico, while only 125 Mexican immigration officials monitor their country’s 540-mile-long border with Guatemala.24 Additionally, a 2010 cable from U.S. diplomats, made public by Wikileaks, revealed that Guatemala has only one helicopter and five pickup trucks to patrol its entire border with Mexico.25 Thus, upon reaching the Mexico-Guate- mala border, it is easy for migrants to find a raft operator and be ferried across the Suchiate River without being detected by immigration authorities.26 Moreover, riverbanks along the path tend to have very little surveillance because of the traditional trading culture attached to its shared history that Mexican authorities do not want to disrupt.

Once transmigrants cross the river, minibuses take both migrants and residents to Tapachula, a city close to the U.S. border. While residents are charged just $1, “migrants can be charged from 8 to 15 US dollars for the ride.”27 Furthermore, since the train station in Tapachula stopped operating as a result of the devastation caused by Hurricane Stan in 2005, the journey from that point to the next closest train station takes about one week by foot.28 Transmigrants have to snake through jungles and mountains in this process, making themselves more vulnerable to criminals and corrupted authorities, as well as volatile weather conditions.

I MMIGRATION P OLICY R ESPON SES 43 Thus, migrants are even more susceptible to crime networks in places between Pijijiapan and Arriaga, the next stage of their journey.

Once they reach Arriaga, transmigrants are able to recuperate from six days of walking; Tapachula’s train station is in the “House of Mercy” (in Spanish, Hogar de la Misericordia), a migrant’s shelter that receives dozens of migrants every day as part of the Migrants House shelter network.29 Here, they wait for the train known as the “Beast,” which departs every other day without a set schedule. Among transmigrants, land routes are the most common, and among them, trains are the most common mode of transportation used. However, migrants who have the necessary documentation and can afford to travel by air can leave from air- ports in Central America, usually Guatemala, and arrive in Hermosillo, Tijuana, Chihuahua, or Ciudad Juárez in Mexico, depending on the agreements they have with Coyotes or polleros.30 Coyotes or polleros are individuals who act as middle- men, assisting in helping to smuggle immigrants through the U.S. border or, in this case, through Mexican territory, in exchange for a negotiable fee.

Some transmigrants can afford the bus transportation and many buy coun- terfeit Mexican papers. They tend to use “Tijuaneros,” or buses that regularly go to the northern border or to intermediate spots, offered by “travel agencies” that are commonly installed in residential houses, local grocery stores, and auto repair shops. These so-called travel agencies offer different options for “touristic buses,” with the main destination being Tijuana. The journey takes three days from Fron- tera Comalapa to either Tijuana or to Altar and the cost ranges from $60 to $100, depending on the type of bus. Besides, travel agencies also arrange trips with coyotes to go into any point in the U.S at a cost of $1,700.

Some of the travel agencies require official Mexican government-issued identification; however, they eventually allow transmigrants to travel without such required verification. After all, the agencies do not guarantee transmigrants their safety from inspection at the checkpoints or other regular inspections along the way. Since these buses normally do not depart from, nor arrive at bus stations, migrants become more vulnerable to crime along these routes.31

Low income migrants, consisting of mostly women and children, travel pre- dominantly by the Beast because it is the least expensive mode of transportation.32 To get on the train is neither easy nor inexpensive. The staff of the train charges $8 for traveling on top of the train and $110 to travel with the machine operator.33

44 C HÁVEZ- S U ÁREZ Transmigrants traveling on the Beast must be cautious and carry money with them in order to pay bribes to Mexican authorities, the train’s private security, and to staff. A beneﬁt of such bribes is being forewarned of immigration raids.34 Before the train arrives at the station, a bribe must be paid to train administrators and private security guards who arrange migrants in the freight train.35 Once migrants have paid, the administrator notiﬁes the train’s engineer, who stops and allows migrants to climb on. In short, traveling on top of the train is not free as it entails both monetary costs and the cost of risk to personal safety.

Once migrants traveling by train reach the center of Mexico, they are likely to either continue on their journey by train or bus, since the route tends to diver- sify in this region. The ﬁrst route goes through Queretaro, Celaya, Guadalajara, Los Mochis, and Hermosillo, and then diverges to Altar, Sonoita, San Luis Colo- rado and Tijuana. Most migrants who make it this far enter the U.S. through Ari- zona, where their ﬁrst goal is to reach Phoenix or Tucson. The second route goes through Querétaro, San Luis Potosí, and Saltillo, where migrants can choose to go on to Torreón, Chihuahua, or Ciudad Juárez.36

For many migrants, this journey into the U.S. may not be their first attempt at border crossing. Most want to go home with their families and see their children in the country of origin. The probability of being caught by Mexican or U.S. authorities increases with each subsequent trip.37 Those migrating for the first time may not be familiar with the trafficking networks, (e.g. coyotes), but nevertheless many plan to rely on these networks once they get closer to the north in order to cross the U.S.-Mexican border. It is argued that transit migration, in part, would not be possible without coyotes. The main economic activity of coyotes comes from smuggling people across such borders, but many of them often lack the requisite knowledge and experience to truly assist a transmigrant. In some cases, authorities detain coyotes because other coyotes have acted as informants.38 However, most coyotes do not act alone. There normally exists a complex network that allows them to collaborate throughout the routes. So, when one is detained, only one link is compromised, leaving the rest of the network intact.

As previously discussed, the southern border of Mexico does not have many controls in effect. Although certain geographic locations throughout the country have become notorious for the presence of transmigrant violence, the Ministry of Public Security has identiﬁed only six areas as high risk for migrants–the States of Mexico, Guerrero, Querétaro, Tamaulipas, Veracruz, and Nuevo León. The ar-

I MMIGRATION P OLICY R ESPON SES 45 eas where more crimes are committed such as Chiapas, Oaxaca, and Tabasco are not included.39 Recent efforts have been made by the government to implement internal checkpoints throughout the country. Such checkpoints are prominent in Chiapas, Oaxaca, Tabasco, and Veracruz, as well as strategic points such as highways, train stations, and other locations where transmigrants frequently travel. Moreover, controls in zones where drug trafficking is common, make it difficult for transmigrants, given increased surveillance and check points.40 Thus, it is extremely difficult for transmigrants to travel undetected.

In response to such surveillance, migrants try to avoid highly travelled roads or regular bus lines. Consequently, transmigrants’ routes have shifted towards more dangerous places where there is less likelihood of their illegal status being discovered. Violence and crime against migrants is perpetrated both by Mexican authorities and criminals alike. Authorities have been known to commit robbery and extortion. Even though only authorities from the National Immigration Insti- tute (Instituto Nacional de Migración, also known as INM) and the Federal Police (PFP) are allowed by law to stop and apprehend migrants, extortion is a common practice amongst almost every branch of Mexico’s public security forces.41

Criminal gangs, such as the Mara Salvatrucha, also have increased their presence along transmigratnts’ routes. The “Maras” often decide who can get on the train and how much they will have to pay.42 In addition, migrants in recent years have increasingly become part of the drug trade in Mexico.43 Speciﬁcally, the Zetas, one of the most powerful drug cartels, have been known to abduct hundreds of migrants in the region.

Reported Crimes and Abuses Due to transmigrants’ illegal status, there is little documented evidence and few official reports of crimes and human rights violations. Among the reasons why migrants do not report crimes committed against them are that they do not know how to report incidents or which government departments are responsible for in- vestigating abuses. Additionally, they often lack the necessary information about the mechanisms and official requests to safeguard their human rights. Further- more, they often do not have the time to report crimes, and are afraid of being deported or suffering reprisals by going to officials.44

According to the data reported to the CNDH with regards to human rights violations against transmigrants, the Federal General Attorney received only three

46 C HÁVEZ- S U ÁREZ inquiries from January 2008 to August 2009.45 Furthermore, the data from each of the state’s general attorney ofﬁces showed that Chiapas had the highest record of inquiries, of only a dozen. Tabasco follows with nine inquiries and Veracruz with six. In the data collected by the CNDH itself, from January to December 2010, in which 35,237 migrants were assisted, only 253 complaints were recorded.46

Amidst the systematic violence, CNDH has compiled a report that lists certain characteristics of the abuses that migrants face during their stay in Mexico. Some shelters have suffered attacks from crime organizations with the apparent purpose of recapturing abducted victims who managed to escape or to ﬁnd new victims. The modus operandi of these crime organizations is to abduct and torture migrants until they give their family’s contact information. Once communication is initiated with relatives, the criminals dictate the circumstances under which the migrants will be set free.47 The report reveals that migrants have testiﬁed to the involvement of INM agents as well as the complicity of municipal and state police and private security members from the train companies in cases of abduction.

The reported statistics are not surprising since the vulnerability of transmigrants reduces the likelihood of their willingness and ability to report crimes and human rights violations perpetrated against them. Therefore, it is important to acknowledge that the official figures, or even those that NGOs report, might differ from actual incidence of abuse. Nevertheless, it is helpful to consider the statistics regarding violence against transmigrants as defined by the CNDH. Thus, crimes can be classified as “unknown,” crimes that are known to be committed but are not reported, and crimes that are reported (official statistics). Hence, it is important to take into consideration that examining reported crimes is a limited strategy for understanding the nature and volume of crimes committed against migrants, since most injustices go unreported.48

Incongruous Migration Policies and Government Enforcement Since the Central American refugee crisis of the 1980s and 1990s, Mexican authorities have paid greater attention in the southern border zone. For decades, the U.S.-Mexican border had dominated diplomatic and trade negotiation interests for policy makers. However, the guerrillas in Central America, the Zapatista Army of the National Liberation rebellion in Chiapas (Ejército Nacional de Liberación Nacional, also known as EZLN) and the more recent increased violence and drug trafﬁcking in the region has been pivotal in turning the government’s attention

I MMIGRATION P OLICY R ESPON SES 47 southward.49 Although the Mexican government has made efforts to strengthen relations with Central American governments, negotiations on trade, development, and drug trafﬁcking have taken precedence due to their equally urgent associated problems.

Nevertheless, increasing violence, political upheaval, and a lack of economic opportunities have resulted in a drastic increase of Central American migration to the U.S. via Mexico. In response, since the mid-1990s a number of restrictive controls and anti-transit migration projects were implemented along the Mexico- Guatemala border. In 2001, the “South Plan,” created by the INM, was put into operation with the goal to tighten surveillance and gain control over migrants from the Itsmo de Tehuantepec to the southern border by militarizing the region.50 The plan included migrant documentation projects, human rights initiatives, mod- ernization of the INM, and the merging of organized crime and security issues with actions targeting irregular migration.51 The South Plan incorporated a vision of public safety and national security in its efforts to control migration through the southern border. A clear example of this vision is the collaboration among ministries and government departments that include the National Security In- vestigation Center (Centro de Investigación y Seguridad Nacional, also known as CISEN), which was appointed as the Technical Secretariat of the High Level Group of Border Security between Mexico and Guatemala.52 Yet, in 2003, the South Plan was dismantled for failing to prevent transit migration. The capacity of detention centers were not prepared to take on the signiﬁcant amount of transmigrants. The transportation system to repatriate migrants also fell short. Most importantly, there were no repatriation agreements with any Central American governments in order to make the South Plan a workable project. In addition, the Mexican government was highly criticized for emulating U.S. policies by militarizing the area, especially after the public accusation from the Salvadoran government against the Mexican authorities in the Inter-American Commission of Human Rights for its violations against 132 Salvadorans that were awaiting deportation.53

In October 2007, the U.S. and Mexican governments announced the Mérida Initiative, a $1.4 billion multi-year proposal to work as counter-drug and anti- crime assistance to Mexico and Central America. In June 2008, the U.S. Congress appropriated $400 million for Mexico and $65 million for Central America, Haiti, and the Dominican Republic.54 Among other objectives of the Mérida Initiative was to develop stronger border security that would allow for legitimate entrance

48 C HÁVEZ- S U ÁREZ of merchandise and people, while preventing the inﬂux of drugs, weapons, and other harmful illegal goods.

Under the Mérida Initiative, some Mexican authorities were detained as “sus- picious” migrants (i.e. detained because they could potentially commit terrorist acts or be involved in criminal activities such as drug dealing and human traf- ﬁcking).55 The misuse of the Mérida Initiative has resulted in further violation of transmigrants’ rights, as it has made them more susceptible to be falsely accused of being criminals by Mexican authorities.

Furthermore, the U.S. has also ﬁnancially underwritten many of the border control initiatives enacted not only in Mexico but in Central America. Some of the programs include the training of the border personnel, the purchase of new surveillance equipment, and the transportation of detainees back to their home- lands.56 However, as previously addressed, most of the surveillance activities in Mexican territory and the locations of checkpoints are concentrated along the interior roads of the country.

In the last ten years, the Mexican government has instituted a set of enforcement policies to prevent Central American migrants from using Mexico as a transit state. In addition, it is also apparent that Mexican immigration policies have been highly inﬂuenced by the U.S. government. Moreover, most of these enforcement standpoints did not come from a population that demanded detention of immigrants; rather they were instituted through a top-down process by high- ranking ofﬁcials within the Mexican government.57 This could be the result of two possible motives: either as a result of pressure from the U.S. government, or from agreements made on other matters, of which Mexico could use its immigration policies as leverage.

An alternative explanation for the Mexican government’s restrictive immigration policies is that transit states can change over time and eventually become countries of immigration.58 Although Mexico for now remains a “bridge” between the ﬁrst and third world, it has the potential to become economically hospitable enough to retain, if not attract, migrants from surrounding countries. When seen from this perspective, the policies of the Mexican government may be interpreted as preventative measures against becoming a country of immigration.

I MMIGRATION P OLICY R ESPON SES 49 Government Responses and Initiatives Against Crime and Violations In 1974, the General Population Law61 established immigration and emigration regulations in Mexico to manage all phenomena that affected the structure, size, dynamics, and distribution of the population in Mexican territory. In other words, it was the main instrument to control the entrance, stay, and departure (voluntary and forced) of non-citizens in Mexico.

The General Population Law was amended several times from 1974 to 2010, but remained ineffective in the face of a complex migration situation, and unre- sponsive to an increasing ﬂow of transmigrants that cross Mexican territory under perilous circumstances daily. The law has led to the perpetuation of abuse and extortion against migrants. It was not until 72 Central and South American migrants were massacred in 2010 by members of a drug cartel, only 100 miles from the U.S. border, that the Mexican government, under President Calderon, presented a strategy to prevent and combat violence against transmigrants.

In response to the massacre, the Ministry of Interior, Attorney General, Min- istry of Public Security, INM, and CNDH signed the Treaty for the Collaboration for the Prevention and Fight against the Kidnapping of Migrants in August 2010. As a result of this treaty, policies for the long, medium, and short term were for- mulated to reduce the abuses committed against transmigrants. In the short term, the INM suggested a dissemination campaign to promote among undocumented immigrants, their rights and obligations in Mexico. By the same token, the three government levels signed an agreement to warrant the protection of transmigrant human rights. Additionally, workshops on issues of prevention of transmigrant crime and abuse were recommended. Other proposed goals were to develop a plan to dismantle criminal networks that surround railroad tracks, strengthen the INM by creating a professional civil service, increase the number of migration ofﬁcials, and create a Migration Planning Unit within Mexico’s Ministry of Interior.62

As a result of the recommendations, the INM provides information to undocumented immigrants through a brochure that includes “coexistent rights and rules for foreigners in migrant stations,”63 as well as by informing them about the possibility of reporting crimes as victims or witnesses to the corresponding authority. Unfortunately, in the overall context, the suggested measures did not appear to make the journey of transmigrants any easier. For example, signing an agreement among municipal, local, and federal governments would only be a

50 C HÁVEZ- S U ÁREZ symbolic act of concern, given the abuses that the police and authorities themselves commit against transmigrants. Moreover, holding a workshop with INM ofﬁcials about preventing abuses against transmigrants do not simply convert civil servants into professionals who can manage traumatized victims of rape or physical and mental abuse.

Some local authorities have developed programs to help transmigrants within their areas. The Ministry of Public Security of the State of Mexico, for example, announced the “Commitment with Migrants” Security Program, with the objective of orienting and helping migrants through their transit in that speciﬁc state. Paradoxically, the CNDH reports that Cuautitlán, an area in the State of Mexico, has been identiﬁed as a high-risk zone for transmigrants. It is, in fact, one of the states that reports more abuse from local and state police against immigrants.64

However, the most important effect of the treaty has been the modifications and abolishment of the General Population Law, which currently only regulates issues on population, internal migration, and a few elements of emigration. Instead, the Migration Law65 was created to manage migration issues. The new and first Migration Law was recently promulgated in 2011 and has been effective since Sep- tember 2012. The Migration Law is an attempt to conflate all legal issues around migration into a single, unique law, with the objective of simplifying the necessary administrative procedures relating to migration. The law is the first of its kind in Mexico and it is important not only for its content, but also for the relevant issues it addresses. It is precise enough to mention, for instance, “the Mexican State will guarantee the rights and freedoms that non-citizens have in the Consti- tution, treaties and international agreements that Mexico has signed, no matter their migrant status.”66

The second chapter of the Migration Law describes the rights and obligations of migrants and the duty of the Mexican government to guarantee the equal treatment of foreigners with regard to Mexican citizens. It also provides access to education and health services and basic rights irrespective of migration status. Additionally, the law establishes that the authorities must take into consideration the ages of migrant children and teenagers when they are subject to this law.67

The third chapter describes the authority of Mexico’s Ministry of Interior in migration issues and how the INM works as its operational instrument. The fourth chapter explains the requirements to enter Mexican territory. However, the law does not include initiating a “transit visa,” to facilitate transmigrants entering

I MMIGRATION P OLICY R ESPON SES 51 Mexico to travel to the U.S. Instead, the only visa in which a transmigrant would be able to enter the country legally would be as a “guest without permission of remunerated activities,” which falls in the same category of visas for tourists and business people.68

The INM requires all applicants for this visa type to show proof of sufﬁcient ﬁnancial resources to cover accommodation and living expenses during their stay in Mexico. Additionally, applicants need an invitation from an organization or a public or private institution established in Mexican territory to participate in any activity that does not involve any remuneration. Due to the lack of resources, the requirements for a visa are hard to meet for most Central American transmigrants. Despite the fact that President Calderón had announced the creation of a transit visa to allow Central Americans to travel legally in Mexican territory, it seems that their journey and its associated risks will not change much after all.69

The Migration Law does, however, attempt to create some legal protection for transmigrants. For example, the law allows individuals greater freedom of movement through national territory by limiting their obligation to prove their na- tionality and migratory situation only to the competent authority, under the cases and circumstances established by the law. According to its ﬁfth chapter, migrants, whether in transit or not, have legal protections. This chapter also anticipates that Mexico’s Ministry of Interior signs collaboration treaties with the federal, state, and municipal authorities, as well as with the federal public administration departments and civil society organizations. The objective of signing treaties with these organizations is to assist migrants and coordinate the prevention and pros- ecution of crimes involving migrants.70 The seventh chapter deals with sanctions imposed on those individuals who violate the law, whether citizens or foreigners, including INM’s public servants. This section is potentially helpful in preventing corruption among abusive INM ofﬁcials.

Finally, the eighth chapter includes the crimes committed against migrants, speciﬁcally targeting coyotes and human trafﬁckers. However, it also includes the involvement of humanitarian groups or individuals that assist transmigrants in their journey. The law states:

there will be no sanctions for individuals who provide donations or resources to those persons who have entered the country in an [sic] irregular manner because of humanitarian reasons, and with no intention of pursuing any beneﬁt for themselves.71

52 C HÁVEZ- S U ÁREZ Thus, civil organizations as well as migrant houses should not be subjected to harassment or detention for providing transmigrants help through their journey.72

Although the Migration Law is an important step forward from the General Population Law, it does not guarantee an end to the nightmare that most transmigrants experience in Mexico since it does not offer a solution to the illegal status of most transmigrants. Given the requirements for applying for a visa, it is difficult to imagine that the regular Central American transmigrant would be able to obtain one. Furthermore, the current immigration system allows for a discretion- ary interpretation of the law that leads to abuse. There is still a general lack of specificity for the authorities on how to implement immigration laws. Moreover, corruption, abuse, and irregular application of the laws are common. “On the one hand, INM agents must be given scope to rapidly respond to the specificities of each case; on the other, there must be a minimum threshold of coherence and uniformity in decision-making.”73

The rampant corruption of Mexican authorities does little to facilitate the implementation of the Migrant Law or the Treaty for the Collaboration for the Prevention and Fight against the Kidnapping of Migrants.74 Due to a lack of effective coordination among the three government levels, measures remain isolated. Consequently, such measures have limited reach, which falls short of directly impacting the structural causes of crimes against migrants.75 In addition, there are no mechanisms to monitor or analyze preventative measures to evaluate the effectiveness and relevance of their implementation.

Finally, until today, the reception of the new law regarding immigration has been mixed. Civil society members have showed their disapproval for the lack of protections for transmigrants, yet many also applaud the precedent that has been set by the law. Government stakeholders, such as the government of Tlaxcala, have introduced regulation at the state level to match its regulation to the federal migration law.76

Conclusion The recent Migration Law, along with federal and local measures in Mexico, rep- resents small steps to protect transmigrants from the violence they suffer. The involvement of authorities in transmigrant abuses along with other anti-immigrant programs such as the Mérida Initiative remains contradictory to the newly

I MMIGRATION P OLICY R ESPON SES 53 approved law. Rather than protecting transmigrants, the systematic corruption of authorities at different levels, coupled with the lack of rule of law has, in fact, facilitated violence against them.

In recent years, the ongoing desire to pursue an agenda of regional integration with the U.S. has appeared to shape immigration policies in Mexico.77 Cur- rent immigration policy has received attention as a matter of national and public safety, mainly because of the constant interaction of human and drug trafﬁcking along with immigration issues along the southern border. Mexico has acted as a guardian to prevent Central American immigrants from reaching the U.S., making the border region a focal point of interest both for the U.S. and for Mexico. However, the border remains porous, and transmigrants have become a target for criminals and abusive authorities.

Moreover, the top-down policy-making process regarding immigration has been dominated exclusively by the INM. There is a lack of participation by other government and international agencies with expertise in transmigration. Agen- cies such as the Ministry of Interior, Ministry Foreign Affairs, Ministry of Social and Economic Development, and even the Federal Police could positively impact immigrations policies. Most importantly, NGOs that help transmigrants have not had a real stake in the development of migration policy and laws. This cycle creates a disconnection of immigration policies and the protection of transmigrants’ human rights.

Despite the creation of the Migration Law in 2012, the balance of immigration policies in regards to transmigrants will not differ much from their recent and continued experiences. In order to change the status quo of transmigrants in Mexico, it is imperative that the Mexican state acknowledge its position as a transit state, taking into consideration the fact that it is also a sending state. Migration policies effective enough to address the situation have to be explicitly directed toward transmigrants in order to provide the necessary protection and prevent human rights abuses. Q

54 C HÁVEZ- S U ÁREZ (Endnotes)

1 Ademar Barillli, “Migration Through Mexico: the perils facing Central Americans,” Mesoamerica no. 6 (June 2006): 25. 2 Mexico. Comisión Nacional de Derechos Humanos (CNDH). Informe Especial sobre Secuestro de Migrantes en México, Comisión Nacional de Derechos Humanos, February 22, 2011, http://www.cndh.org.mx/sites/all/fuentes/documentos/informes/ especiales/2011_secmigrantes.pdf. 3 Ibid. 4 To clarify terminology, throughout the paper, I use the term “emigration” to denote migration from a country of origin, “immigration” to refer to migration to a destination country, and “transit migration” to refer to journey that encompass a country (or countries) where migrants pass by between the country of origin and the destination country. 5 Francisco Alba and Angel Castillo, “New approaches to migration management in Mexico and Central America,” Regional Migration Study Group (online; Woodrow Wilson International Center for Scholars, 2012), accessed March 27, 2013, http:// www.migrationpolicy.org/pubs/RMSG-MexCentAm-Migration.pdf. 6 “Ley De Migración Y Reglamento.” Instituto Nacional De Migración (Nov. 2012), accessed December 12, 2012, http://www.inm.gob.mx/. 7 “Ley General de Población.” Camara de Diputados del H. Congreso de la Unión (Sept. 2012), accessed December 12, 2012, http://www.diputados.gob.mx/LeyesBiblio/ pdf/140.pdf. 8 María Cristina García, Seeking Refuge: Central American Migration to Mexico, the United States, and Canada. (Berkeley: University of California, 2006). 9 María Cristina García, Seeking Refuge: Central American Migration to Mexico, the United States, and Canada, 44. 10 Ibid. 11 Franck Düvell, “Transit Migration: A Blurred and Politicized Concept.” Population, Space and Place, 18, no.4 (2010): 415-2, accessed December 6, 2012, http:// onlinelibrary.wiley.com/doi/10.1002/psp.631/pdf. 12 Aspasia Papadopoulou-Kourkoula, Transit Migration: The Missing Link between Emigration and Settlement (Basingstoke, England: Palgrave Macmillan, 2008), 4. 13 Ann Kimball, The Transit State: A Comparative Analysis of Mexican and Moroccan Immigration Policies, Working paper no. 150. The Center for Comparative Immigration Studies (June 2007), http://spot.pcc.edu/~sbentley/mexico.and.morocco.pdf, 1. 14 Franck Düvell, “Transit Migration: A Blurred and Politicized Concept,” 422 (see footnote 11). 15 Ann Kimball, The Transit State: A Comparative Analysis of Mexican and Moroccan Immigration Policies, 15. 16 Ann Kimball, The Transit State: A Comparative Analysis of Mexican and Moroccan Immigration Policies, 5.

I MMIGRATION P OLICY R ESPON SES 55 17 Ibid. pg.10. 18 Ibid. pg. 16. 19 Aspasia Papadopoulou-Kourkoula, Transit Migration: The Missing Link between Emigration and Settlement, 5. 20 Ann Kimball, The Transit State: A Comparative Analysis of Mexican and Moroccan Immigration Policies, 7-8. 21 Ibid. pg 16. 22 Gustavo Verduzco and Maria Isabel De Lozano, “Migration from Mexico and Central America to the United States: Human Insecurities and Paths for Change,” Transnational Migration and Human Security: The Migration-development-security Nexus, 1st ed. vol. 6. (Heidelberg: Springer, 2011), 41-56. 23 Ibid. pg. 45. 24 Nick Miroff and William Booth, “In Southern Mexico, a Neglected Frontier,” Washington Post. The Washington Post, June 21, 2011, accessed November 5, 2012, http://articles.washingtonpost.com/2011-06-21/world/35234842_1_mexico- guatemala-suchiate-river-guatemala-city. 25 Ibid. 26 Ann Kimball, The Transit State: A Comparative Analysis of Mexican and Moroccan Immigration Policies, 55. 27 Eduardo G. Velázquez, “Trepar a “la Bestia”: Una Victoria Pírrica,” La Jornada, January 23, 2009, accessed December 7, 2012, http://archivo.lajornadajalisco.com. mx/2009/01/23/index.php?section=politica&article=008a1pol. 28 Ibid. 29 Ibid. 30 Ana María Chavez and Antonio Landa, “Migrantes en su Paso por México: Nuevas Problemáticas, Rutas, Estrategias y Redes,” Inseguridad, Violencia y Movilidad Internacional. Proc. of XI Reunión Nacional de Investigación Demográﬁca en México, Aguascalientes, Ags. Sociedad Mexicana De Demografía (31 May 2012), accessed October 6, 2012, http://www.somede.org/xireunion/ponencias/Migracion%20 internacional/147Pon%20Ana%20Ma%20Chavez-Antonio%20Landa.pdf, 12. 31 Ana María Chavez and Antonio Landa, “Migrantes en su Paso por México: Nuevas Problemáticas, Rutas, Estrategias y Redes,” 12. 32 Ibid. 33 Eduardo G. Velázquez, “Trepar a “la Bestia”: Una Victoria Pírrica.” 34 Rodolfo Casillas, “Las Rutas de los Centroamericanos por México, un Ejercicio de Caracterización, Actores Principales y Complejidad,” Migración y Desarrollo (2008), 164. 35 Rodolfo Casillas, “Las Rutas de los Centroamericanos por México, un Ejercicio de Caracterización, Actores Principales y Complejidad,” 165. 36 Ana María Chavez and Antonio Landa, “Migrantes en su Paso por México: Nuevas

56 C HÁVEZ- S U ÁREZ Problemáticas, Rutas, Estrategias y Redes,” 12. 37 Felipe Jácome, Trans-Mexican Migration: A Case of Structural Violence. Working paper no. 20. London: London School of Economics (2008) 38 Rodolfo Casillas, “Las Rutas de los Centroamericanos por México, un Ejercicio de Caracterización, Actores Principales y Complejidad,” 170. 39 Comisión Nacional de Derechos Humanos, Informe Especial sobre Secuestro de Migrantes en México, (Comisión Nacional de Derechos Humanos, February 22, 2011), accessed October 5, 2012, http://www.cndh.org.mx/sites/all/fuentes/documentos/ informes/especiales/2011_secmigrantes.pdf, 42. 40 Ibid. pg. 131. 41 Felipe Jácome, Trans-Mexican Migration: A Case of Structural Violence, 16. 42 Ann Kimball, The Transit State: A Comparative Analysis of Mexican and Moroccan Immigration Policies, 69. 43 Felipe Jácome, Trans-Mexican Migration: A Case of Structural Violence, 25. 44 Ibid. pg.7. 45 Ibid. pg. 14. 46 Ibid. pg. 14-21. 47 Ibid. pg. 24. 48 Ibid. pg. 21. 49 María Cristina García, Seeking Refuge: Central American Migration to Mexico, the United States, and Canada, 158. 50 Propuesta De Política Migratoria Integral En La Frontera Sur De Mexico, (México Instituto Nacional De Migración, 2005), 8. 51 Elba Coria, Estudio Comparativo de la Legislación y Políticas Migratorias en Centroamérica, México y República Dominicana, (México: Instituto Centroamericano de Estudios Sociales y Desarrollo y Sin Fronteras, 2011), accessed October 5, 2012, http://www.sinfronteras.org.mx/attachments/article/1292/INTRODUCCI%C3%93N. pdf, 10. 52 Ibid. pg. 11. 53 Ann Kimball, The Transit State: A Comparative Analysis of Mexican and Moroccan Immigration Policies, 85 and María Cristina García, Seeking Refuge: Central American Migration to Mexico, the United States, and Canada, 160. 54 Clare Ruth Seelke, Mérida Initiative for Mexico and Central America: Funding and Policy Issues. Rep. N.p.: Congressional Research Service (2009), 6. 55 Chavez and Landa, Migrantes en su Paso, 5. 56 María Cristina García, Seeking Refuge: Central American Migration to Mexico, the United States, and Canada, 161. 57 Ann Kimball, The Transit State: A Comparative Analysis of Mexican and Moroccan Immigration Policies, 36.

I MMIGRATION P OLICY R ESPON SES 57 58 Ibid. pg. 42. 59 “Ley General de Población.” 60 Laura González-Murphy and Rey Koslowski, Entendiendo El Cambio De Las Leyes De Migración En México, (Woodrow Wilson International Center: 2011), 5. 61 “Ley General de Población.” 62 CNDH, 11-12 and “Ley de Migración De México Es Un Peligro,” Univision.com, N.p., (17 Apr. 2012), accessed December 10, 2012, http://noticias.univision.com/mexico/ noticias/article/2012-04-17/ley-migracion-mexico-es-un-peligro. 63 CNDH, pg. 40. 64 Ibid. 65 “Ley De Migración Y Reglamento.” 66 “Ley De Migración Y Reglamento.” 67 Luisa G Morales Vega, Categorías Migratorias En México. Análisis a La Ley De Migración, vol. XII, N.p. (Instituto De Investigaciones Jurídicas De La UNAM: 2012), 934. 68 “Ley De Migración Y Reglamento.” 69 Hanako Tanigushi, “La Nueva Ley De Migración Pide Requisitos “imposibles” a Migrantes,” El Periódico De México, CNN México (16 Nov. 2012), accessed December 5, 2012, http://mexico.cnn.com/nacional/2012/11/16/la-nueva-ley-de-migracion-pide- requisitos-imposibles-a-migrantes. 70 Morales Vega, Categorías Migratoria, 934. 71 “Ley De Migración Y Reglamento.” 72 Morales Vega, Categorías Migratoria, 929-958. 73 “New approaches to migration management in Mexico and Central America,” 17. 74 CNDH, pg. 41. 75 Morales Vega, Categorías Migratoria, 954. 76 “New approaches to migration management in Mexico and Central America,” 16. 77 Ann Kimball, The Transit State: A Comparative Analysis of Mexican and Moroccan Immigration Policies, 96.

58 C HÁVEZ- S U ÁREZ I MMIGRATION P OLICY R ESPON SES 59

Comment Post-Conﬂict Cambodia and Myanmar: A Political Comparison

Jonathan Hill

Jonathan Hill is a second-year Master of Public Administration student at Cornell University. Jonathan served as Project Coordinator at The Global Child in Cambo- dia for several years before coming to Cornell, and he worked in the region as an undergraduate through the Minerva Fellowship. Jonathan received his Bachelor’s Degree from Union College.

Introduction consider the effectiveness of providing millions of dollars in aid to Myanmar yanmar and Cambodia, both by understanding the lessons learned Theravada Buddhist coun- from international aid to post-conflict Mtries, respectively lie along Cambodia. the western and eastern borders of Thailand. The majority ethnic groups, Myanmar’s nationalism, lack of the Khmer and Burmans, are lowland press freedom, and the international rice farmers, while the minority ethnic community’s optimism obscure the groups are highland peoples, some- potential weaknesses of the National times referred to as Zomia.1,2 Follow- League for Democracy (NLD) and its ing World War II, Myanmar gained in- party leader Aung San Suu Kyi. Simi- dependence from the United Kingdom larly, the international community’s in 1948, and Cambodia from France in confidence in opposition leader Sam 1953. Myanmar immediately suffered Rainsy overshadowed the weaknesses internal violence, whereas Cambodia in Cambodia. As David Steinberg did not enter civil war until 1967. Both writes, “Aung San Suu Kyi has become conflicts included regime purges and a the icon of Myanmar and the interna- heightened paranoia of internal secu- tional symbol of tethered democracy. rity threats. Now, as Myanmar opens Without her image, the excesses of the and moves toward democracy, the regime, which are less than the hor- United States and other nations must rors in parts of Africa or Asia (Cambo-

P OST- C O N FLICT C AMB ODIA A N D M YAN MAR 61 dia, China, North Korea, for example), (b) the entourage system requires would be barely internationally extralegal funding; (c) policy noted.”3 Hopefully, the international replaces law and is controlled at community will make billions of dol- the apex of the system, and what lars of aid accessible to the hands of may have been ‘legal’ yesterday may be illegal today; (d) loyalty the Tatmadaw, as they have done with requires the follower to obey the Cambodia People’s Party (CPP) for leadership commands even when two decades since 1993. This would the contradict legal norms or com- likely lead to a further entrenchment mon sense; and (e) wives often of the Tatmadaw and their continued have business interests based on abuse of the Burmese people. Ulti- ‘insider trading’ and have been mately, the establishment of democ- accused of corruption in the past.5 racy and international aid failed to facilitate fundamental changes in These were elements of governance Cambodia and are no more likely to before the military control in Myan- alter the entrenched role of Myanmar’s mar and before the rise of the CPP in military, the Tatmadaw, after so many Cambodia. Mark Dufﬁeld also refers to years of military rule. Furthermore, as these systems in his description of an Cambodia’s wartime economy became “emerging political complex,” or “an the foundation of a de facto one-party adaptive system that relies on multiple dictatorship, Myanmar’s economy also links to local and global networks in moves in the same direction. which new, if often illiberal, forms of economic development and political Steinberg also points out Myanmar’s control and legitimacy are evolving.”6 lack of a democratic precedent and the This adaptive system of control and similarities between the behavior of its legitimacy in both Cambodia and previous civilian government and the Myanmar, however, is difﬁcult to un- current military regime.4 David Chan- derstand with western political values dler makes similar parallel character- and concomitant false assumptions. izations of Sihanouk’s civilian government in 1960s Cambodia and current Moreover, the challenge of studying Prime Minister Hun Sen’s Cambodia Myanmar and Cambodia is that “[d] People’s Party today. Both describe the ata are very unreliable...facts are ne- unchanging continuity of Cambodian gotiated more than they are observed and Myanmar politics, which Stein- in Myanmar,” and there is “a madden- berg argues are perpetuated by the ing absence of the hard data required following behaviors: to do adequate political science analysis” in Cambodia.7 Therefore, (a) breaking existing laws is the international community can look required for economic survival; to Cambodia’s contemporary history

62 H ILL as a forewarning of an undemocratic Douglas Pike wrote that the central future in Myanmar dominated by the factor of the peace process is to decide: Tatmadaw, in which the positive treat- Who is to govern and under what ment of Aung San Suu Kyi and a high- arrangements; how is power to be er degree of openness directly relate to divided, and how are the divisions an increase in the Tatmadaw’s power to be maintained; who will ad- through increased international aid, judicate disputes; which element free-market reforms, and increased takes the leading role, or should exploitation of Myanmar’s vast natural the role of each faction be deter- resources. mined with the establishment of a multiparty electoral system?9 Background Although the various Cambodian fac- Cambodia’s democratic reforms and tions vying for control of the country 1993 constitution did little to change in 1989 desired governance and leader- the condition of the country, and ship, their main concern was survival, instead preceded years of low-level not a multiparty electoral system. conflict during which a spurious de- Between 1967 and 1999, Cambodia mocracy did little to improve the lives closely resembled a “post-civil-war, of Cambodians.8 The lack of change is not-quite-peace environment” as Mary often attributed to the result of poorly Callahan describes Myanmar today.10 educated civil servants, high levels Cambodia was in a perpetual state of corruption and poverty, predatory of conflict, during which the Khmer capitalism, and traditionally authori- Rouge (KR) destabilized the country tarian political values. None of these until their eventual surrender to the conditions alone seem to guarantee government. Even after King Siha- the failure of democratic reform. Their nouk’s ouster in 1970 by General Lon collective presence, however, has Nol, he intermittently supported the helped prevent the positive effects Khmer Rouge for pragmatic reasons. generally associated with democracy from being realized in Cambodia. Eventually, the Paris Peace Agreement, Democracy can be a device through organized by the United Nations and which the ruling powers gain legiti- signed by 18 governments, marked macy. Moreover, party identification the end of violence in Cambodia and and elections make the conflict more its first election. However, the election personal in post-conflict countries like only brought previously warring par- Cambodia and Myanmar. ties to campaign against each other for control of the economic development In 1989, before the signing of Cambo- and reconstruction funds promised by dia’s Paris Peace Agreement in 1991, the United Nations Transitional Au-

P OST- C O N FLICT C AMB ODIA A N D M YAN MAR 63 thority in Cambodia (UNTAC), which ment of Myanmar’s political future “as also oversaw the election. Cambodia’s elected assemblies haltingly find their Prime Minister Hun Sen lost the 1993 feet, and power slowly flows from the election but remained co-prime minis- hands of military leaders who have ter with control over a vast network of long imposed tight control on the local administrators and the nation’s country into the hands of civilians.”12 most sophisticated military force, Myanmar’s elites will most likely try much like the Tatmadaw in Myanmar. to avert that transfer of power and In addition, UNTAC was unable to maintain an influential position in the disarm Cambodia’s party-run militias new political environment. and the Khmer Rouge, which also boycotted the election. Pike described Cambodia with political optimism in the early 1990s, Four years after the coalition govern- however, with limited information.13 ment was formed in the lead-up to Cambodia’s recent history is a testa- the 1998 election, Hun Sen and the ment to the fact that “emerging politi- CPP won a military skirmish against cal complexes are not simply unfor- his co-prime minister, Prince Rana- tunate bumps in the road to peace, riddh and his political party Front Uni but instead constitute intricate and National pour un Cambodge Indépen- evolving social systems that may con- dant, Neutre, Pacifique, et Coopératif tinue to be adapted and sustained.”14 (FUNCINPEC). The CPP has remained As witnessed in Cambodia, Myanmar in power ever since by using national exhibits the same struggle to dissolve institutions to maintain its legitimacy the embedded decentralized systems and control. Therefore, counter to of rule, resource allocation, and pri- Pike’s prediction, establishment of a vate military units formed during the democratic government in 1993 did years of civil war. These adaptive pow- not result in peace in Cambodia, much er networks, and the war-economies to the international community’s that fostered their growth, cannot disappointment. This forewarns of be fundamentally changed by token the likelihood of continued instability democratic reforms. in Myanmar, as the country attempts democracy in its own successive elec- The Kingdom of Cambodia and The tions.11 Republic of the Union of Myanmar are often referred to as weak states. King Sihanouk famously said that the However, they are more accurately 1993 constitution is “just a piece of pa- described as an adjustable array of per” when referring to how Cambodi- networks among national, provincial, an politicians view their nation’s laws. and local political authorities that tie This attitude is a highly important ele- domestic and foreign business inter-

64 H ILL ests, traditional indigenous leaders, monopolies that have already formed religious authorities, overseas refugee in Myanmar are not likely to be bro- and diaspora communities, political ken up by democratic and free-market party leaders, and NGOs, all of which reform in Naypyidaw.17 govern through rules, resource extraction, security, and morality.15 Gover- Moreover, the large informal econo- nance is not methodical due to this mies of Myanmar and Cambodia are array of networks, and any attempt to misrepresented by words that con- make it more systematic could result note exceptionalism and illegality in instability. This notion is more such as “corruption.” These informal useful than simply ascribing respon- economies provide “reliable lifelines sibility to political authorities, which for hundreds of thousands of Burmese would prefer not to influence given lo- [and Cambodian] citizens living in cal conditions for fear of unknown re- areas poorly served by the formal 18 percussions. The central governments economy and government agencies.” in Phnom Penh and Naypyidaw do not Therefore, “informal economy” is a have full autonomy and are composed much more useful term when refer- of networks of previously warring par- ring to economic activities that are ties and their external allies or eco- not sanctioned by the state in Cam- nomic partners. Fundamental changes bodia and Myanmar. Cambodian and to these networks are often met with Burmese systems of governance and credible threats of a return to violence. economics include ambiguity. Strong legal systems would directly threaten Myanmar and Cambodia are still these systems, so stating that cor- characterized by guerilla warfare ruption is endemic is not helpful. As and counterinsurgencies in the post- Steinberg eloquently states, “law is civil war environment, which also essentially irrelevant–whereas ‘policy’ facilitates informal economies. Also is important: today’s policies may also referred to as war-economies, these be tomorrow’s crimes...Businesses arrangements “evade regulation by need predictability, and this is sorely the national state and are dependent lacking in contemporary Myanmar on external resources, connections, society.”19 Informal economies and know-how, and capital.”16 Much like rules are not the exception; they are Cambodia, free-market reforms in an intricate part of the system of Myanmar will be constrained by vari- governance (or lack thereof) in both ous armed groups that refuse to lay countries. Education systems function down their weapons, and ceasefires because of kickbacks for teachers to will simply enable them to monopolize earn a livable wage, property owners certain sectors of the economy that of surrounding areas fund firemen’s are regionally based. Furthermore, the water hoses to put out local fires, and

P OST- C O N FLICT C AMB ODIA A N D M YAN MAR 65 petty thieves bribe policemen to avoid may have occurred in other countries. punishment.20 These public servants Many insurgent groups emerged with are not fully to blame, however, since vested interests in maintaining control official wages are often too low to over certain areas and peoples.22 These live on, and without the informal “vested interests” are found mostly economy, these public services would within the informal economy, which not exist at all. This emerging complex played an important role during periods has become entrenched in Cambodia, of conflict and continues to do so today.23 and Myanmar is likely to follow Cam- bodia’s post-conflict example. Similar to what occurred in Cambo- dia between 1993 and 2012, ceasefire Democracy is another central element groups also entered into profit-sharing of Myanmar’s and Cambodia’s emerg- agreements with Myanmar’s Tat- ing political complex. Democracy in madaw, making it increasingly more Myanmar will most likely be subvert- difficult for the central government ed by existing relationships formed to implement political reforms and during decades of conflict. Ian Holli- control various regions of the coun- day cautions that “there is little reason try, such as Koh Kong and Pailin in to believe ethnic politics will mi- Cambodia, and the Kachin, Shan, and raculously fall into place if Myanmar Karenni states in Burma.24 At the same starts again to move down the path time, they potentially fuse the inter- of democracy,” but it is important to ests of the previously warring parties include poorly educated civil servants, into a new exploitative relationship high levels of corruption and poverty, supported by outside powers such as predatory capitalism, and historically China or Thailand. authoritarian political values as things that democracy will not “miraculous- Leading up to the 1993 election, the ly” solve.21 United Nations Transitional Authority of Cambodia (UNTAC) unsuccessfully disarmed the three main Cambodian Peace Dominated by factions: the Khmer Rouge, FUNCIN- Previously Warring Parties PEC, and the CPP. The FUNCINPEC Cambodia and Myanmar both share royalists’ alliance with the Khmer similar decentralized and non-mono- Rouge led to justified distrust from the lithic state structures. Previously CPP and continued armed struggle. warring parties in both countries Prince Sihanouk and FUNCINPEC won control certain areas and intermittent the election, but the CPP maintained ceasefires have led to a diffusion of de facto control of the government, state power, which precluded simple, armed forces, and rural powerbases standard approaches to mediation that that they formed with the guidance of

66 H ILL the Vietnamese between 1979 and 1989. As in Cambodia, Myanmar’s ethnic The power-sharing agreement formed militias and the Tatmadaw will need between FUNCINPEC and the CPP to disarm and cede power to the civil- openly debated the posts that could ian government in order to create a produce the most graft, each group lasting peace. This would require a contending for profit and thus, power. large reintegration of military person- Although some argue that infant nel into a peacetime economy. How- democracies are never perfect, and any ever, “a program of demilitarization step towards developing democratic and demobilization will be sustain- governance is beneficial in the long- able only if it is accompanied by the term, their argument is based on the increasing formalization and regu- idea that there is a historical continu- larization of the shadow economy.”25 um at the end of which is democracy. Cambodian factions are unwilling to This assumed historical continuum, lay down their arms partly because however, does not explain the histori- militarization assumes access to the cal trajectory of post-conflict countries lucrative shadow economy. For ex- such as Cambodia and Myanmar. ample, some factions receive up to $116 million per year from Cambodia’s The power-sharing agreement in illicit lumber trade alone.26 Similar Cambodia eventually broke into open numbers for the value of Myanmar’s conflict in 1997 because the still- lumber trade are not readily avail- armed and frustrated FUNCINPEC re- able. However, the international NGO alized that democratic reforms would Global Witness estimated that in 2001, not transfer power away from the one million cubic meters of lumber CPP. Democracy in Cambodia did not was exported across the northern bor- fundamentally change the entrenched der to China through the Kachin and ceasefire-powers, and on the eve of Shan States, following ceasefire agree- President Obama’s November 2012 ments. Similarly, ceasefires in Cambo- visit to Myanmar, reports of continued dia correlate with periods of increased conflict in the northern Kachin state natural resource depletion, as each continued. Until the Tatmadaw go be- group prepares for the next conflict yond democratic overtures and start to and feverishly reaps profits from their address the grievances of Myanmar’s autonomous zones of control. minority ethnic groups, as well as its weak federal political structure, the Although “a crackdown on the infor- cease-fires will be temporary. Myan- mal economy is certainly beyond the mar’s ethnic armies will not disarm capabilities of the current political and and they will continue to find ways to regulatory authorities” in Myanmar, generate revenue in order to prepare it is not because they “are lacking in for the next conflict. management skills when it comes to

P OST- C O N FLICT C AMB ODIA A N D M YAN MAR 67 fiscal, monetary, and macroeconomic natural resources within an increas- policies.” It is because the informal ingly complicated political context. It economy is their main source of is clearly an unsustainable practice, power.27 This informal economy is an and “continued resource destruction entrenched element of the post-conflict could very easily contribute to re- political structure, and as it supports newed violent political conflict as well the conflict, it also supports the peace. as long-term impoverishment.”32

The policies for both Cambodia and Natural Resource Depletion Myanmar need to carefully con- The Southeast Asian economies that sider the causes of natural resource surround Cambodia and Myanmar depletion and its associated effects. continue to grow at a rapid pace. Something must replace the revenues Notably, Thailand depleted most of its generated by natural resource deple- forests and increasingly looks for log- tion in order to maintain fragile peace ging opportunities in Laos, Cambodia, agreements and weak state structures. and Myanmar.28 Simple bans and misplaced morality- based arguments can potentially lead The potential to increase revenue to more conﬂict and further natural and various political powers by using resource depletion. natural resource sales entices local populations. When they need more Additionally, the CPP and the Tat- guns or money, they cut their trees madaw have not shown the capacity faster, leading to alarming rates of to minimize the negative effects of deforestation.29 Local populations in their natural resource policies on local Myanmar exported roughly one mil- populations, nor to properly mediate lion cubic meters of timber to China between the various actors within the every year between 1989 and 2009, informal economy from whom they almost depleting the most valuable receive most of their support. forests in the Kachin State, before For instance, when Myanmar’s govern- China’s and Myanmar’s governments ment tried to ban opium production intervened.30 in the Kokang region, farmers were In Cambodia, speculation that the “forced to cut back on education and entire forest reserve could be depleted health care expenditures as a result by 2003 led to International Monetary of the opium ban,” and an already Fund (IMF) loan stipulations and impoverished population was put in conditionality in Ofﬁcial Development greater danger. In addition, CPP log- Assistance (ODA) agreements.31 Both ging concessions famously destroy Cambodia and Myanmar deplete their sources of traditional off-season agri-

68 H ILL cultural revenue for rural Cambodians Powerful Monopolies such as resin collection. As Cam- Tied to the Government bodia’s integration into the interna- Both Cambodia and Myanmar are tional community speeds up resource transitioning from state-run economies extraction, it also arguably harms the dependent on their natural resources livelihoods of its rural population that to free-market economies that rely on relies on resin for off-season revenue. light industry. The kleptocratic elite, The important role that natural re- however, which uses political connec- source depletion plays in the current tions to monopolize different sectors political structures—in both maintain- of the economy, dominates free-market ing peace and rural people’s liveli- reforms in Cambodia.35 These elites hoods—makes it a powerful draw for are often leaders of previously warring international aid to both Cambodia parties and their control of various and Myanmar. sectors of the economy is another element of the emerging political com- As fear of conflict mounts, the inter- plex. national community will most likely support Myanmar’s government in Relatives of major business owners, the name of stability and develop- such as Prime Minister Hun Sen’s ment, much like international aid has first cousin, Dy Chouch, and one of steadily poured into the CPP’s coffers Myanmar’s highest-ranking generals, since 1993’s election. Than Shwe, control the extraction and taxation of natural resources. However, the CPP never integrated Their connections allow them to their wartime lumber revenues with under-report the number and qual- the national budget, and it is highly ity of specific resources like lumber. unlikely that the Tatmadaw will do For example, Cambodian firewood 34 so. Revenue from natural resource requires a royalty payment of $1 per extraction is substantially higher cubic meter, while high quality timber than tax revenue in both Cambodia requires a $54 per cubic meter roy- and Myanmar, and the CPP and the alty.36 Yet, connected individuals like Tatmadaw control the flow of interna- Dy Chouch under-report the amount tional aid to the civilian government. of firewood their company processes Therefore, any attempt to provide and, in turn, the government loses $53 international aid conditional upon in tax revenue for each cubic meter reforms to the civilian government of high quality lumber his company can be met by refusal and replaced cuts.37 Global Witness estimated the by extra-budgetary natural resource Cambodian government lost $1.5 mil- revenues. lion of tax revenue between 2003 and

P OST- C O N FLICT C AMB ODIA A N D M YAN MAR 69 2006 for under-reported plywood ship- These arrangements are controlled by ments to China alone.38 The remaining elites and are made for their benefit, revenues fund Brigade 70, Hun Sen’s not for the benefit of the general popu- personal bodyguard unit, and lavish lation. weddings of Myanmar’s generals and their relatives.39 The military contin- Cambodian and Burmese citizens need ues to maintain a firm position amid to be wary of the interests of increas- free-market and democratic reforms. ingly wealthy elites in the Tatmadaw and CPP because they use state mecha- A high degree of intermarriage among nisms to aggressively protect their elites also occurs, reinforcing the mili- monopolies and attack their enemies. tary officials’ monopolization of eco- State-sanctioned activities by the police nomic sectors in Cambodia and Myan- and military support the growth of mar. For example, Cambodia’s former these monopolies, and it is increas- Minister of Agriculture, Forestry, and ingly difficult to discern between the Fisheries, Chan Sarun’s brother-in-law, interests of the elite and those of the Khun Thong, is a leading figure in government. This marriage exposes Cambodia’s largest logging syndicate, the majority of the population in both the Seng Keang Company. The Seng countries to greater levels of poverty Keang Company is managed by Seng and inequality. As a result, the demand Keang, her ex-husband, and the prime for international aid grows, and the minister’s first cousin, Dy Chouch.40 likelihood that it will reach those in need decreases. Much like Cambodia, international investors require a local partner who officially owns at least 51 percent of Education capital investments in Myanmar.41 The Human Development Indices of These patron-client relationships are Cambodia and Myanmar are low and highly unstable and unpredictable, indicate similar problems for develop- slowing development and discourag- ment and democracy.44 As Pike noted in ing investment.42 They allow elites to 1989, “[t]he single most intractable, control the outcomes of supposed free- longer-run problem to face Cambodia market reforms and they also contrib- will be the sheer lack of trained and ute to Cambodia’s 164th and Myan- educated Khmer personnel.”45 Steinberg mar’s 180th ranking in the Corruption also noted in 2010 that “[e]nrollment Perception Index (CPI).43 As a result, in education at all levels has expand- laws mandating majority ownership ed, yet the quality has declined.”46 by local partners do not successfully These educational problems are an maintain local autonomy in develop- intractable part of the emerging ment and capital investment projects. political complex in both countries

70 H ILL and weaken civil society. A simplistic Today, government expenditures for campaign against corruption in either education total only 2.1 percent of Cambodia or Myanmar could disable gross domestic product.48 The lack of the de facto education systems and investment in quality education reduc- increase the potential for future es the expectation for any signiﬁcant corruption by a class of under-educat- changes in the futures of Cambodia ed, poorly paid public employees. and Myanmar.

Informal economies support undergraduate and graduate education Political Opposition systems. For example, failing students Both Sam Rainsy and Aung San Suu may bribe school administrators. Kyi are extremely popular in the Professors may have little control over international community. Their ability their students’ progression through to articulate post-cold war political undergraduate programs. Students ideologies better than many English from this education system aided in and French citizens inflate the percep- Myanmar’s uprising in 1988 and are tion of their popularity abroad and the a core part of the National League perception of their ability to deal with for Democracy’s base. Therefore, one domestic political concerns. Both of cannot be certain of their conviction these opposition leaders resemble their to institute a meritocratic society, or former colonial rulers in ways that to eradicate corruption since they are make them easy targets for nationalist familiar with the payment system for movements that support the Tatmadaw teachers to maintain a basic standard and the CPP. of living. Steinberg notes that “[t]he military has Again, this illustrates the complex way specifically decried the subjugation of in which the various components of Burman women to foreign exploitation Myanmar’s emerging political complex as unpatriotic and an attempt to dilute interact. Steinberg writes, “Corruption the Burman race. [The military] cite[s] is rife in grades and attendance, and the marriage of Aung San Suu Kyi to students are not motivated because a British academic, Michael Aris, as jobs are scarce. The government spends disqualifying her from leading the 1.3 percent of gross domestic product country.”49 The Rainsy family’s politi- on education, a very low percentage in cal history is similar to that of Aung international comparisons.”47 San Suu Kyi’s. Rainsy’s father, Sam Sary, played a key role in Cambodian This also describes Cambodia’s educa- independence, and was assassinated tion system almost two decades after soon after, as was Aung San Suu Kyi’s its first democratic elections in 1993. father Aung San. The two opposi-

P OST- C O N FLICT C AMB ODIA A N D M YAN MAR 71 tion leaders also share many personal As illustrated by race riots in Phnom strengths and weaknesses. Penh—most notably the anti-Thai riots in 2003—democracy and international Hopefully, Aung San Suu Kyi will aid do not always mitigate the deleteri- decide to show more tact in dealing ous power of nationalism. with ethnic minorities in Myanmar. The international community eventu- Ian Holliday recently wrote that the ally distanced itself from Sam Rainsy “rapid creation of a free press is likely in 1998 after a particularly xenophobic to be counterproductive because open political campaign that resulted in vio- media can readily become vehicles lence against Vietnamese minorities in for nationalism.”53 The combination of Cambodia. politicized media and racial tension make it difficult for young opposition To gain nationalist credibility amidst parties to present an alternative to an influx of Vietnamese immigrants radical nationalism. and the CPP’s creation during the Vietnamese administration of Cam- Such domestic conditions present lead- bodia, Sam Rainsy tried to character- ers like Aung San Suu Kyi and Sam ize Hun Sen as a Vietnamese puppet Rainsy with political choices that are using the derogatory term, yuon. Soon not palatable to an international audi- afterwards, race riots broke out in ence. Hopefully, Aung San Suu Kyi which four Vietnamese people were does not make the same choices that murdered, allegedly by Sam Rainsy’s Sam Rainsy did at the conflictingly supporters.50 named Democracy Square, where he gave polemical anti-Vietnamese Continued violence occurs against speeches in 1998 and called for the Rohingyas, an ethnic minority in American military intervention to save western Myanmar. While Aung San Cambodia’s democracy in 2003.54 Aung Suu Kyi has not expressed antagonism San Suu Kyi’s domestic weaknesses toward the Rohingyas, she has ex- are similar to Sam Rainsy’s and it will plicitly stated that she will not take a be difficult for her to make drastically stand for or against the recent ethnic different choices in such a similar violence between them and the Bur- political climate. mans.51 Her stance shows insensitivity towards the plight of an ethnic minority that the UN classifies as one of the Conclusion world’s most persecuted peoples.52 Although Aung San Suu Kyi’s opposi- This is also an example of the emerg- tion movement could build momen- ing political complex from which Aung tum and stimulate the formation of a San Suu Kyi cannot be separated. functioning democracy in Myanmar,

72 H ILL the movement will need to overcome Aung San Suu Kyi will not win elec- challenges that opposition parties in tions, regardless of whether they are Cambodia have failed to overcome, free and fair, and her behavior should even with the support of the interna- be scrutinized to the same degree as tional community. the Tatmadaw.

The uneasy peace agreements among As Sam Rainsy’s party was accused of previously warring parties, increasing corruption and abuse of party funds, levels of natural resource depletion, the international community needs to poor prospects for rural people’s liveli- be aware of the blacklisted Tatmadaw hoods, powerful government monopo- businessmen making donations to lies, low levels of education, Aung San Aung San Suu Kyi’s political party.56 Suu Kyi’s and Sam Rainsy’s deceptive- Finally, the personality cult devel- ly weak nationalist credentials, ethnic oped around her will be tested by the violence, and the resultant emerging political decisions she must make. political complexes of Myanmar and If she fails to live up to expectations Cambodia all present challenging like Sam Rainsy did while confront- prospects for the future. ing Cambodia’s emerging political complex, the international community President U Thein Sein seems to should rethink its strategy for engag- sincerely support the creation of a ing with Myanmar. functional civil society in Myanmar without undermining the inﬂuence Engagement with Myanmar is not of the Tatmadaw. Many international necessarily engagement with Aung observers make the mistake of char- San Suu Kyi, and the complexities of acterizing any victory against the Myanmar’s development have not fully CPP as a victory for democracy in surfaced. Q Cambodia.55 The same can be said for the Tatmadaw in Myanmar as long as they continue to reform. However, the Tatmadaw have a vested interest in maintaining the undemocratic status quo. Therefore, a comparison of the mistaken support that the international community provided to Sam Rainsy as the embodiment of democracy in Cambodia, and the nature of the support that Aung San Suu Kyi has received, is germane.

P OST- C O N FLICT C AMB ODIA A N D M YAN MAR 73 (Endnotes) (New York: St. Martin’s Press, 2000), 9. 12 Ibid. 1 Burman refers to the majority ethnic group in Myanmar, whereas Burmese 13 Douglas Pike, “The Cambodian Peace refers to all citizens of Myanmar. Process: Summer of 1989.” University of Californai Press: Asian Survey 29 2 James C. Scott, The Art of Not Being (1989): 842. Governed: an Anarchist History of Upland Southeast Asia. (New Haven: 14 Mary P. Callahan, “Political Authority Yale University Press, 2009), 13. in Burma’s Ethnic Minority States.” East-West Center Policy Studies, no. 31 3 David I. Steinberg, Burma/Myanmar: (2007): xiv. What Everyone Needs to Know. (New York: Oxford University Press, 2010), 88. 15 Ibid. 4 David I. Steinberg, Burma/Myanmar: 16 Mary P. Callahan, “Political Authority What Everyone Needs to Know. (New in Burma’s Ethnic Minority States.” York: Oxford University Press, 2010), 155. East-West Center Policy Studies, no. 31 (2007): xiv. 5 Ibid. 17 Ibid. p. 32. 6 Mark Dufﬁeld, Patricia Gossman, and Nicholas Leader. “Review of the 18 Ibid. p. xiv. Strategic Framework for Afghanistan.” 19 David I. Steinberg, Burma/Myanmar: Afghanistan Research and Evaluation What Everyone Needs to Know. (New Unit: Report. (2001), iv. York: Oxford University Press, 2010), 7 David I. Steinberg, Burma/Myanmar: 101. What Everyone Needs to Know. (New 20 Ibid. p. 96. York: Oxford University Press, 2010), xxv; Douglas Pike, “The Cambodian 21 Ian Holliday, “Voting and Violence Peace Process: Summer of 1989.” in Myanmar.” Asian Survey 48, no. 6 University of Californai Press: Asian (2008): 112. Survey 29 (1989): 849. 22 Ibid. p. 113. 8 Ian Holliday, “Voting and Violence 23 Mary P. Callahan, “Political Authority in Myanmar.” Asian Survey 48, no. 6 in Burma’s Ethnic Minority States.” (2008): 111. East-West Center Policy Studies, no. 31 9 Douglas Pike, “The Cambodian Peace (2007): 38-39. Process: Summer of 1989.” University 24 Ibid. p. 44. of Californai Press: Asian Survey 29 25 Ibid. p. 53. (1989): 847. 26 Kirk Talbott and Melissa Brown, 10 Mary P. Callahan, “Political Authority “Forest Plunder in Southeast Asia.” in Burma’s Ethnic Minority States.” Environmental Change and Security East-West Center Policy Studies, no. 31 Project Report. (1998): 55. (2007): xiv. 27 Mary P. Callahan, “Political Authority 11 Douglas Pike, “The Cambodian Peace in Burma’s Ethnic Minority States.” Process: Summer of 1989.” University East-West Center Policy Studies, no. 31 of Californai Press: Asian Survey 29 (2007): 53. (1989): 847; Pierre P. Lizée, Peace, Power and Resistance in Cambodia, 28 Kirk Talbott and Melissa Brown,

74 H ILL “Forest Plunder in Southeast Asia.” 44 “Human Development Index (HDI)- Environmental Change and Security 2012 Rankings,” United National Project Report. (1998): 53. Development Programme, accessed 29 Mary P. Callahan, “Political Authority April 14, 2013, http://hdr.undp.org/en/ in Burma’s Ethnic Minority States.” statistics/. East-West Center Policy Studies, no. 31 45 Douglas Pike, “The Cambodian Peace (2007): 18. Process: Summer of 1989.” University 30 Global Witness. “A Disharmonious of Californai Press: Asian Survey 29 Trade.” Report. (2009): 2-3. (1989): 852. 31 Kirk Talbott and Melissa Brown, 46 David I. Steinberg, Burma/Myanmar: “Forest Plunder in Southeast Asia.” What Everyone Needs to Know. (New Environmental Change and Security York: Oxford University Press, 2010), 96. Project Report. (1998): 59. 47 Ibid. 32 Ibid. 48 CIA World Factbook. “Cambodia.” 33 Mary P. Callahan, “Political Authority Accessed May 3, 2012. in Burma’s Ethnic Minority States.” 49 David I. Steinberg, Burma/Myanmar: East-West Center Policy Studies, no. 31 What Everyone Needs to Know. (New (2007): 27. York: Oxford University Press, 2010), 34 Kirk Talbott and Melissa Brown, 38. “Forest Plunder in Southeast Asia.” 50 Caroline Hughes, The Political Economy Environmental Change and Security of Cambodia’s Transition, 1991-2001. Project Report. (1998): 59. (RoutledgeCurzon: London and New 35 Global Witness. “Cambodia’s Family York, 2003), 203. Trees.” (2007), 6. 51 Anjana Pasricha. “Aung San Suu Kyi 36 Ibid. Explains Silence on Rohingyas.” (Voice of America, November 15, 2012). 37 Ibid. p. 36. 52 BBC. “Q&A: Unrest in Burma’s 38 Ibid. p. 44. Rakhine State.” (Modiﬁed October 26, 39 “Than Shwe’s Daughter Wedding,” 2012). Youtube, accessed Oct. 27, 2012, 53 Ian Holliday, “Voting and Violence http://www.youtube.com/ in Myanmar.” Asian Survey 48, no. 6 watch?v=s6YPsycc6Lc. (2008): 1042. 40 Global Witness. “Cambodia’s Family 54 Caroline Hughes, The Political Economy Trees.” (2007), 9. of Cambodia’s Transition, 1991-2001. 41 David I. Steinberg, Burma/Myanmar: (RoutledgeCurzon: London and New What Everyone Needs to Know. (New York, 2003), 202. York: Oxford University Press, 2010), 100. 55 Caroline Hughes, The Political Economy 42 Ibid. of Cambodia’s Transition, 1991-2001. (RoutledgeCurzon: London and New 43 “Corruption Perceptions Index,” York, 2003) Transparency International, accessed April 14, 2013, http://www. 56 The Associated Press, “Myanmar transparency.org/research/cpi/ Opposition Holds First Party overview. Congress,” March 2013.

P OST- C O N FLICT C AMB ODIA A N D M YAN MAR 75 Interview Charlie Meyer City Manager of Arizona City Council

Interview by Henry McCaslin, Sarah Gardner Evans

Charlie Meyer was appointed by the Tempe, Arizona City Council to serve as City Manager in December of 2007 and served in this role until January of 2013. As City Manager, Meyer oversaw a staff of more than 1,600 full and part-time employees and was responsible for implementing all City Council policy decisions. Throughout his career, he has been committed to establishing high performing and ﬁnancially sustainable organizations. Previous to his work in Tempe, Meyer was the Chief Operating Ofﬁcer for the City of Virginia Beach, Virginia; City Man- ager of St. Louis Park, Minnesota; and County Manager of Genesee County, New York. He is a graduate of New York University with a Master of Public Administra- tion. Charlie Meyer visited the Cornell Institute for Public Affairs as a speaker in its Colloquium series on March 28, 2013. As part of his Colloquium involvement, Mr. Meyer shared his insights on performance management with staff at The Re- view, included in the following interview.

In your March 28, 2013 presentation little misleading because it implies at Cornell University, you described that it is out there to be discovered. performance management as the The real truth is that it is yet to be “Holy Grail” of public administration, built and it will take an act of faith versus a “trust-me” attitude that to believe that it can even be done. In elected ofﬁcials may adopt. In broad the story that I told at the colloquium terms, what are your arguments for presentation, a 30+ year high-level implementing performance-driven veteran of State government service city management, particularly in questioned whether his career had politically-charged contexts? been wasted because the systems of performance management that he Meyer: Describing performance man- had put in place several times did not agement as the pursuit of the “Holy sustain beyond his tenure in the post. Grail” of public administration is a He concluded that it was worth doing

76 M C C ASLIN A N D E VAN S anyway because he had trained others ing to serve the same purpose. They in the methodologies and disciplines serve all members of the community of performance management and he and not just a select few; they drive believed that they would carry on. continuous improvement in efficiency They will uncover a few more meth- and effectiveness and provide com- ods and build on the past and work munities with the ethical governance toward the day when it becomes the they deserve. norm. To be clear, I do not argue that rela- As for my argument for implementing tionship building has no place in a performance-driven city management, high performing organization—quite particularly in a politically charged en- the opposite. Relationships help to vironment, it is quite simple: because determine who the individuals most it is the right thing to do. We learn capable of delivering results are, and the theory and the methodologies of relationships are what hold great public administration, i.e. statisti- teams together. The distinction is that cal analysis, personnel management, relationships should build on and aug- budgeting etc., so that we can apply ment performance management, and these tools fairly and consistently in not be considered a substitute for it. the work setting. However, we often Performance management considers find in the work setting that these not only tangible factors such as tools are not always valued and tend dollars spent and revenue gained, to be displaced by relationship-based but intangibles such as citizen decision-making, i.e. “trust-me.” My satisfaction associated with advice to the audience—and frankly particular policies. In advocating for to any employees with whom I have information-based decision-making, worked—when they question the how can performance measurement efficacy of performance-driven man- systems fairly and accurately agement in light of the countervailing measure or communicate non- forces is “do it anyway.” pecuniary benefits? Performance-driven city management Meyer: Ah, the infamous intangible goes back to the foundations of the benefits. The problem with intangible Council/Manager Plan, which was benefits is not that it doesn’t exist, but ushered in to replace the political pa- rather it is too often used as a wolf tronage system, which was highly dis- in sheep’s clothing. Special interest criminatory, ineffective, and inefficient groups often use the intangible benefit and usually corrupt. Performance argument as subterfuge to hide the management tools today are much self-serving benefit they would derive more sophisticated, but are continu- from the public policy decision.

I N TERVIEW WITH C HARLIE M EYER 77 We have increasingly more sophisti- and the community gets high marks cated tools to measure citizen satisfac- on that question, then you have the tion as a performance management foundation for a very real “trust-me” tool. If most members of a commu- relationship between the City and nity report that a community festival its citizens. However, in order to get provides them with a greater sense high marks on that question, the of hometown identity, and they are community leaders must have been aware of the costs of doing so because delivering high-quality services in a community leadership has honestly highly effective and efficient way, and shared the information, then the communicating that success to com- intangible benefit of community pride munity members in a balanced way. has been measured. Data can be used The community “watchdogs” will be to expand or contract services, and sniffing out the data and judging how can be used to make the intangible hard it is to get access to data, and the more tangible. community, at large, will draw the right conclusions every time because How important is it that the public of the “wisdom of crowds” effect. The understands and uses the term tragedy occurs when the community “performance management” to becomes indifferent, borne of distrust, encourage public officials to pursue and the public officials then interpret data-driven decisions? Is the demand the silence as “things must be okay for high-quality services at a low- because I’m not hearing any com- cost enough, in your opinion, to plaints.” Beware the silence. keep public office transparent and responsive to data? I don’t believe that community members will come forth in large numbers Meyer: I believe that the public has asking for performance management, been subjected to so many cynicism- but public officials and managers inducing buzzwords that they would should do it anyway. It pays untold not be impressed with one more. I stat- dividends in the long-run by building ed at the colloquium that whenever I real trust with the community. hear the word “transparent,” I expect that the speaker is hiding something. In your talk, you drew a distinction So understanding and using the term between techniques that get the ‘performance management’ will not be public to vote, versus techniques the driver. that foster public participation in decision-making. What is this When a community survey asks some distinction from your perspective, version of the question, “Do you feel and in your career as a City Manager, as though you can have an impact what are some of the strategies on the decisions made by the City?’

78 M C C ASLIN A N D E VAN S you pursued to increase public stands up at a public meeting on a participation in decision-making? project or policy that impacts them and asks the question “who asked for Meyer: I have already mentioned com- this project?” and the answer given is munity surveys as a very important that their fellow citizens and neigh- foundational tool that can be used as bors asked for it. a basis to gauge citizen satisfaction with services, where to increase or As a city manager, you’ve been decrease service levels in budgeting, at the nexus of city politics and and how effectively services are deliv- management. How have your ered. I have had the good fortune to experiences informed your opinion work with elected officials who were on the relationship between elected very comfortable pulling the general officials and public administrators? public into community-based visioning processes and showing open- Meyer: When the right balance oc- ness to truly listening to the input. curs between elected officials and A technique that has been used with appointed public administrators it is great success in community visioning truly a thing of beauty. It is very pos- is called ‘appreciative inquiry,’ which sible today and I have recently seen asks community members to identify the alignment occur in a city in the what is right about their community Phoenix metro area, and the results and then builds on that. Focus groups, have been nothing short of remark- task forces, and citizen committees are able. At the same time, I would also very effective in honing and interpret- acknowledge that the environment in ing the broader community feedback. which that chemistry needs to occur is different today. The most powerful tool in fostering public participation is creating an To engage in stereotypes momentarily, environment in which members of the when I began my career most city public come to believe that their public councils were likely white, middle officials—elected and appointed—are class, male businessmen with rela- listening and care. Just as there can tively homogeneous language, experi- be a gap that occurs between elected ences, and views. officials and staff, there can be a gap Councils today are more diverse, between the public and city officials. and council members have more of That gap is bridged by trust borne out a tendency to think and act more of the public interfacing with public independently, rather than placing officials who listen and care. I have greater value on consensus building. experienced some of those magic mo- There also may be more of a tendency ments when a community member for elected officials to go deeper on a

I N TERVIEW WITH C HARLIE M EYER 79 narrower range of issues than to en- Do you have any closing comments gage less deeply on a broader range of or advice for the next generation of issues with a greater reliance on staff public administrators? to cover the deep and narrow. Many of my colleagues note a greater level of Meyer: There are plenty of reasons for rancor today between elected officials, not pursuing performance-based, data- as well as between elected officials driven decision-making, including my and staff. If that is true, and I am not Letterman Top Ten list shared at the convinced it is, then it could be a con- colloquium, which highlights some of sequence of the factors stated above. the major challenges in implementing this kind of work: In my presentation I spoke about the s$ECISIONSAREOFTENMADEBASEDON complexity theory that John Nalban- political relationships. dian of the University of Kansas has developed. He cites that over time s4HE*OHN.ALBANIANCOMPLEXITYGAP the nature of staff work has become mentioned above. increasingly complex, and commu- s-OSTLYTHEPUBLICDOESNTCARE nicating that complex information unless the results of the decision has become increasingly challenging, impact them adversely, and then the often causing an element of distrust facts are mostly just ammunition typical of parties not speaking the against the unwanted decision. same language. s 0ERFORMANCEMEASUREMENTISHARD work, so if decisions are not made In order to counter the complexity gap, on performance measures then the public administrators need to figure hard work is for naught. out how to communicate complex issues in understandable terms while s &ACTSGETINTHEWAYOFTAKINGCREDIT at the same time do the necessary for “good” ideas. due diligence to ensure that all the s #OMPARATIVEDATAINLOCALGOVERN- background analysis has been done ment is hard to come by. properly. s %XECUTIONSYSTEMSFORIMPLEMENTING My example was a budget report in goals based on performance mea- which each line was marked with sures is even rarer. green (good), yellow (watch), and s .OBODYWANTSTOPUBLICLYADMITTHAT red (unfavorable) with comments to they are performing below standards. explain. The report can be reviewed in s %VENTSANDTRENDSARECONSIDERED a matter of minutes and the elected of- out of the administrator’s control. ficial seeking more detail could simply drill down in the report. s 4HEREARENTYETENOUGHADVOCATESTO keep it going.

80 M C C ASLIN A N D E VAN S My argument in favor of data-driven de- My plea to you as students of public cision-making is despite all the above: administration: do what you love and do it anyway, because it’s the right make a difference. Q thing to do. Decisions made through thorough research and analysis, which then informs good judgment, will usu- Henry McCaslin is a second-year MPA ally be the best decisions for the public student at Cornell University with good. When there is alignment between a concentration in Environmental elected officials and public administra- Policy. His studies have focused on tors, the speed and degree of what can how local government policy can be accomplished is astonishing. impact sustainability in a way that is innovative, cost-effective, and I am an unabashed advocate for local equitable to all citizens. Previously, government service. Having worked Henry worked with the Chicago- 39 years in city and county govern- based Urban Sustainability Directors ments, I would absolutely recommend Network and the Tompkins County it as a richly rewarding career choice. Government in Ithaca, New York. He I am also an advocate for developing has a Bachelor’s Degree in Politics highly qualified and motivated people from Oberlin College. to move into leadership positions in public administration at all levels of government to backfill the exodus of Sarah Gardner Evans is a second- baby boomers and to bring with them year MPA student at Cornell even more advanced means of imple- University concentrating in Public and menting good public policy. Nonprofit Management. She serves as the Editor-in-Chief of The Cornell A civil engineer that worked for me Policy Review. Sarah is interested told me her story of having worked her in social policy and organizational way up to vice president of a private development broadly, and nonprofit engineering firm only to find that she development specifically. She holds found insufficient reward in generat- a BS in Women and Gender Studies ing revenue for the firm. She took an from SUNY Brockport and a MA in entry-level engineering position in the English Literature and Rhetoric from city and found reward in feeling like Binghamton University. she was helping people get projects done in the community. Needless to say, she quickly worked her way up in the system and is now in charge of overseeing all city capital projects. She was doing what she loved.

I N TERVIEW WITH C HARLIE M EYER 81 Submission Guidlines

e solicit contributions for consideration with a view to publication. The Cornell Policy Review is the public policy journal of the Cornell WInstitute for Public Affairs (CIPA). We are a student-run, non- partisan journal dedicated to publishing interdisciplinary work that focuses on a range of political, social, economic, and environmental policymaking issues. The Review welcomes submissions that will advance the journal’s mission to showcase critical work shaping the body of knowledge of policymaking and administration issues in the years to come. Submissions should present a well-supported point of view and offer provocative policy recommendations.

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