Mike Kueber's Blog

October 20, 2011

Illegal immigration and the 14th Amendment

Illegal immigration became a major factor in the 2012 Republican presidential contest because (a) Rick Perry became a surprise front-runner and (b) he was on record as authorizing in-state college tuition for illegal immigrants.  Front-runner status as a Republican cannot co-exist with pro-illegal immigrant policies.  If you don’t believe me, ask the last two Republican standard-bearers, George W. Bush or John McCain.

Now that Perry has been knocked out of front-runner status, it remains to be seen if any other Republican candidate will dare to stake out a position that shows any empathy for illegal immigrants.  In the Las Vegas debate earlier this week, Rick Perry went on the offensive by telling an old story about Romney hiring some “illegals” for domestic help many years ago in Massachusetts.  Romney seemed to give a reasonable explanation, and post-debate the pundits declared that it was much ado about nothing.  Personally, however, I was struck by Perry’s tone in using the term “illegals.”  In making his charge against Romney, I thought Perry sounded like a redneck who didn’t consider “illegals” to be full-fledged human beings.  Later in the exchange, Romney sloppily used the term, which was unfortunate.  It reminded me of a congressional opponent of mine who said during a candidate forum in the border city of Del Rio that “America shouldn’t worry about mopping up the mess until we turn off the spigot.”  That is the tone of a bigot.  I don’t think Perry or Romney are bigots, but their tone in the middle of a hot debate can sound that way.

Throughout the various presidential debates, the immigration focus appears to have shifted away from the cliché about creating an impregnable border and toward the issue of eliminating magnets for illegal immigrants.  Romney continually mentions e-Verify as a magnet for illegal immigrants, and then he points to Perry’s in-state tuition as another type of magnet.  Other candidates mention various welfare benefits as magnets.

Las Vegas moderator Anderson Cooper tried to discuss another notorious magnet that has been overlooked in the debates up to now – i.e., birthright citizenship.  Hearst Newspapers described Cooper’s earnest attempt as follows: “Perry, meanwhile, found a discipline that had eluded him during the previous three debates. The governor stuck to the topics he wanted to address, side-stepping questions on birth-right citizenship for the children of illegal immigrants and uninsured Texas children. His refusal to discuss certain subjects raised the ire of moderator Anderson Cooper of CNN.”

  • “Let me ask the question of Gov. Perry: The 14th amendment allows anybody, a child of illegal immigrants born here is automatic an American citizen.  Should that change?” Cooper asked.
  • “Let me address Herman’s issue,” Perry responded.
  • Cooper said he’d rather have him answer the question.
  • “I understand that,” Perry retorted. “You get to ask the questions. I get to answer like I want to.”

Cooper went on to pose the same 14th-Amendment question to Bachmann and Santorum.  Bachmann seemed evasive, but ultimately said that, while birthright citizenship was wrong, its elimination could be effected by statutory enactment and did not require a constitutional amendment.  I have studied Bachmann’s argument, and although she may be right, I think she is wrong.  Santorum gave a “bleeding heart” response that suggested he would leave the law as it is.  I’ve previously stated that I have never heard a reasonable defense of birthright citizenship, and that remains true after listening to Santorum.

My hope is that moderators everywhere remember Rick Perry’s heavy-handedness in dealing with Anderson Cooper’s question and that they all resolve as a matter of moderator principle to not let Perry get away with stonewalling the question.  That means the birthright-baby question should be posed and posed and posed to Rick Perry (and Romney and Cain) until he answers it.

As pure coincidence, one of the lead columnists at the San Antonio Express-News wrote a heart-rending column yesterday on birthright citizenship.  Ricardo Pimentel wrote that he was ashamed of American immigration policy that forced a 13-year-old local girl to choose between living with foster parents in Texas or living with her Mexican mother and siblings in Mexico.  Of course, I am not the writer that Pimentel is.  He described the issue thusly – “What separates Angela from her biological family is U.S. policy that dictates that her mother may not legally live where her daughter’s best fortunes lie.”  If the NY Times ever loses Maureen Dowd as a columnist, they might want to consider Pimentel as a replacement.

Pimentel closed his column by revealing his disdain for the term “anchor babies”:

  • In some circles, she is called an “anchor baby,” her presence allegedly ensuring she is surrounded by undocumented family members. A laughable term in any case,
    but particularly so in Angela’s case.
  • The Smiths anticipate no compensation, but act as part of a ministry that emphasizes compassion. I am humbled by their action. And I am simultaneously ashamed of the choice that Angela and her family had to make.

Pimentel, who is new to San Antonio, is thoroughly reviled by his column’s readers, at least those who write comments in the on-line edition.  The comments attached to the on-line edition of this column are typical of those that he regularly receives.

This issue is not going away.  Yes, jobs and the economy are more important, but economic debate quickly becomes abstract and esoteric for most voters.  They would rather listen to and become mentally engaged in a debate on a subject that doesn’t require a college degree to understand.  Furthermore, the Republican debates are really just the preliminaries.  Eventually Barack Obama and the Republican candidate will be going toe-to-toe, but these preliminaries are a good place to find out who is ready for prime-time.

October 19, 2011

The Republican presidential debate in Las Vegas

Tonight I decided to watch the presidential debate while sitting on a friend’s patio.  Actually, Tuesday night is the night that I normally have drinks with a couple of friends, and I decided to maintain that routine rather than modify it because of the debate.

My Tuesday night drinking friends are football fans, so we typically drink and talk football.  Tonight we drank and listened and talked politics.  The transition was easy for one friend because he is a conservative talk-radio junkie, but the transition for the other was more difficult because he is an apathetic rust-belt type.

Our take-away from the evening is that Romney did excellent (an eight) while Perry did poorly (a three), but at least Perry exceeded expectations (a two).  Gingrich again
showed that he deserved to be in the first tier, but his baggage precluded it.  Santorum (the Boy Scout), Bachmann (the priss), and Paul (the ideologue) cluttered the stage.  Herman Cain again showed that he is the only serious alternative to Romney.

The issue that most frustrated us was “birthright citizenhsip.”  Finally, after all these debates, some candidates were asked to opine.  Unfortunately, the first candidate asked the question chose to specifically state that he was going to ignore the problematic question and go back to answer a question for which he had prepared a mini-speech.  When Anderson Cooper tried to bring Perry back to the problematic question, Perry told Cooper to go pound salt because he was going to use his response time however he wanted.

That’s the first time I have heard a candidate blow-off a question so directly.  Cooper, thinking on his feet, tried to pull Perry back, but he was totally ineffective.  I suspect in the future, moderators will develop a more compelling response.

Following Perry’s nonresponse, Cooper attempted unsuccessfully to get Santorum and Bachmann to answer the question.  Both fudged.  If anything, this stonewalling should motivate future moderators to redouble their efforts to get the Republican candidates to indicate whether the 14th Amendment should be amended to prevent birthright citizenship (anchor babies).

I’ll be watching.

June 29, 2011

The U.S. Constitution – does it still matter?

The title of this posting was a question posed on the cover of Time magazine this week.  Fortunately, only the first few paragraphs are available on-line.

No, that was not a typo.  I said “fortunately” because the article was so poorly written that its author could have been a college kid submitting a
term paper.  The author was, in fact, Richard Stengel, the managing editor of Time magazine, which probably explains how such a sophomoric article found its way into Time magazine.  Either his editors were too cowed to do their job or Stengel haughtily rejected their help.

I am blogging about the article because it raised an important topic – i.e., the relevance of the U.S. Constitution toward four transcendent issues in America:

  1. Making war as applied to Libya
  2. Defaulting on the national debt
  3. Interstate commerce as applied to ObamaCare
  4. Birthright citizenship

Making war

The first issue revolves around the War Powers Resolution.  The Resolution, which became law in 1973, was designed to prevent another Vietnam and end the string of undeclared wars since WWII.  It allows the president to initiate military action without a declaration of war, but requires the military action to cease if Congress doesn’t give its approval within 60 days.  This seems like a very reasonable accommodation of (a) modern exigencies and (b) the Constitutional provision, “The Congress shall have power… to declare war.

The Resolution was passed despite a presidential veto, and every president has asserted that it is unconstitutional because it infringes on his constitutional power to “be commander in chief.”  But President Obama is the first president to engage in an extended military action (Libya) without obtaining Congressional approval.

Stengel’s take on this issue – he mildly chides President Obama for ignoring the following position staked out by candidate Obama: “The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.”  And he lamely excuses Obama because, “since 1973, Presidents have at best paid lip service to the resolution.”  The excuse is lame because, although previous presidents have claimed that the resolution was unconstitutional, they nevertheless complied with it, including George W. Bush in Iraq and Afghanistan.

Stengel complains that our Founders created this problem by drafting provisions that are conflicting.  That is hogwash.  If this issue ever gets
before the Supreme Court, they will certainly be able to reconcile the Congress’s power to declare war with the President’s power to be the commander in chief.  Without explanation, Stengel concludes this section by saying, “this matter will not end up in the Supreme Court.  Congress does not really want the responsibility of deciding whether to send troops to places like Libya.  It just doesn’t want the President to do so in a way that makes it look superfluous and impotent.

Washington Post columnist Charles Krauthammer recently addressed the application of the War Powers Resolution to the military action in Libya.  Unlike Stengel, he provided an explanation for why the courts haven’t resolved this issue – “Moreover, the judiciary, which under our
system is the ultimate arbiter of constitutionality, has consistently refused to adjudicate this ‘political question’ (to quote one appellate court judge) and thus resolve with finality the separation-of-powers dispute between the other two co-equal branches

Like Krauthammer, I think the War Powers Resolution was a reasonable reconciliation of the constitutional provisions.  It reminds me of the Roe v. Wade decision on abortion, in which the Supreme Court balanced the privacy interests of women against the public interest in protecting the life of a fetus.  That is the type of public-policy decision, however, that should be made by legislatures, not the courts.  I wish President Obama would do what all previous Presidents have done – respect the law.

Debt ceiling

My conservative drinking friend thinks that the Founding Fathers had no idea that Congress would become such a profligate spender and, if they had, they would have included a balanced-budget provision in the Constitution.  In fact, however, the Founding Fathers knew that America had incurred huge debt during the Revolutionary War and they specifically approved the practice in Article 1, Section 8 of the Constitution – “The Congress shall have power … to borrow money on the credit of the United States.”

Regarding the possibility of default because on Congress’s failure to raise the debt limit, Stengel makes a suggestion that I haven’t previously heard – i.e., that the Constitution doesn’t allow government to default on its debt.  His suggestion is based on Section 4 of the 14th Amendment, which reads, “The validity of the public debt of the United States… shall not be questioned.”  The Amendment, which was passed shortly after the Civil War, was intended to affirm the Union’s Civil War debt while repudiating all Confederate debt.

According to Stengel, if Congress refuses to increase the debt ceiling, President Obama would be constitutionally authorized to take extraordinary measures such as ordering “the Treasury to produce binding debt instruments … sell assets, furlough workers, freeze checks.”  I have never heard of this possible scenario, and during President Obama’s press conference today, he did not refer to it when he was asked about the possibility of default.  Let’s hope that this doomsday scenario never occurs.

Interstate commerce

The U.S. Constitution authorizes Congress the power to regulate interstate commerce.  During law school, I learned that the Supreme Court has interpreted this provision extremely liberally, once holding that the provision authorizes the federal government to regulate a farmer who is growing grain for his own consumption.  In recent years, however, there has been push-back by constitutional conservatives against this expansive interpretation on the basis of the 10th Amendment, which says that all powers not expressly granted to Congress shall be reserved to the states, and with respect to ObamaCare, several federal judges have bought this argument.

Stengel’s legal defense of ObamaCare includes several glaring faults:

  1. He fails to mention the 10th Amendment.
  2. He notes that government can compel us to buy car insurance, but fails to recognize the important distinction that car insurance is compelled under a state’s police powers, not the federal government’s power over interstate commerce.
  3. He says it’s silly to argue that health care – which accounts for 17% of the U.S. economy – doesn’t involve interstate commerce, but fails to recognize that conservatives are arguing that the individual mandate is unconstitutional, not the entire law.

Birthright citizenship

The principle objective of the post-Civil War 14th Amendment was to grant citizenship to former slaves.  It reads, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside.”  The problem with that wording is that it creates so-called birthright citizenship, i.e., if you are physically born in
the United States, you’re a citizen.  The United States is one of the few countries in the world that grants birthright citizenship.

Birthright citizenship has become extremely problematic in America because there are millions of illegal immigrants who are having babies, so-called “anchor babies.”  The anchor babies are American citizens entitled to a vast array of welfare and can eventually, as adults, sponsor their parents into the United States.  Until then, however, their parents are entitled to little more than deportation.

Stengel concedes that Congress was not thinking about illegal immigration when it drafted the 14th Amendment, but he gives short shrift to the argument from constitutional conservatives that the Amendment doesn’t apply to illegal immigrants because of the term, “subject to the jurisdiction thereof.”  Stengel haughtily asserts without explanation that “this argument doesn’t hold up under scrutiny.”  I have reviewed the judicial precedent on this issue, and there is nothing definitive.

Stengel also concedes that birthright citizenship makes no sense, yet he asserts, “There are liberals and conservatives alike who oppose changing
birthright citizenship
It’s seen as a core American value.”  That is hogwash.  I don’t know of a single well-known conservative who endorses birthright citizenship.  If there were, why didn’t Stengel name the person?

Ultimately Stengel concludes that resolving the birthright-citizenship issue will not resolve the bigger issue of illegal immigration.  For that, he recommends a carrot-and-stick approach.  The carrot is to make immigration easier and to give a path to citizenship to undocumented young people who go to college or join the military.  The stick is workplace enforcement and better enforcement.

Stengel concludes his article by quoting Judge Learned Hand, one of the greatest non-Supreme Court jurists in American history, who said the following in a speech during WWII:

  • “I often wonder whether we do not rest our hopes too much on our constitutions, upon laws and upon courts.  Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it.”

Stengel rephrased this sentiment by warning, “The Constitution does not protect our spirit of liberty; our spirit of liberty protects the Constitution.  The Constitution serves the nation; the nation does not serve the Constitution.  That’s what the framers would say.”

Sounds like Stengel is not a constitutional conservative.  Rather, he sees the Constitution as a living document that “is more a guardrail for our society than a traffic cop…. a st of principles, not a code of laws.”  I think the framers wanted the Constitution to live and grow through amendments, not through the liberal thinking of arrogant jurists.

If the Constitution is construed to provide citizenship to children born to illegal immigrants, the Constitution should be amended.  If the Constitution is construed to empower the federal government to force individuals to buy health insurance, the Constitution should be amended.  If the Supreme Court determines that the War Powers Resolution is unconstitutional, then it should reconcile the Congressional power to declare war with the Presidential power as commander in chief.  And finally, if Congress fails to raise the debt ceiling, the Supreme Court will decide whether the President has extraordinary powers to avoid default.

The U.S. Constitution is not as dysfunctional as liberals like to think.

November 28, 2010

Gerrymandering in Texas

Every ten years, the federal government spends billions of dollars conducting a census.  This activity is not caused by idle curiosity; it is a constitutional mandate.  According to the 14th Amendment, congressional seats must be apportioned every ten years “among the states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed.”  This amendment was required because the original language in Article I of the U.S. Constitution provided for “adding to the whole Number of free Persons… and excluding Indians not taxed, three fifths of all other Persons.” 

How do illegal immigrants factor into the decennial census?  Historically, they have been counted, and because of this counting, states that serve as magnets for illegal immigrants – like New York, Florida, California, and Texas – have been awarded more than their fair share of congressional seats.  Congress has the power to modify this practice, and many conservatives have this modification on their “to do” list.

But the act of counting of illegal immigrants is a side show compared to the nationwide redistricting that follows every census.  In about ten states, redistricting is performed dispassionately by a nonpartisan or bipartisan group, but in most states it is passionately conducted by the state legislature.  Unfortunately, Texas is one of those states where the legislature jealously guards its privilege to create districts that serve their political interests.  In such states, redistricting becomes gerrymandering.

Gerrymandering is almost as old as the United States.  It started in Massachusetts in 1812 (Governor Gerry shaped a district to look like a salamander), and it has continued unabated to this day.  It is one of those practices that all good-government types can agree to hate – things like vote-trading, omnibus bills, deficit spending, and straight-party voting – but can never eradicate. 

How effective is gerrymandering?  Highly effective.  For example, because Texas congressional districts were gerrymandered to favor the Democrats, the 2002 congressional elections resulted in 17 Democratic wins and 15 Republican wins, even though Republican candidates received 59% of the total votes and Democratic candidates received only 40%.  Then the Republicans (at the behest of Tom Delay) gerrymandered the districts in 2003, and the next election resulted in 21 Republican wins and 11 Democratic wins, although the Republican candidates received 58% of the total votes against 41% for the Democratic candidates.  (Personally, the 2004 results don’t seem significantly gerrymandered in favor of the Republicans.  A presidential candidate who wins the popular vote 58%-41% would be expected to win at least two-thirds of the states or congressional districts.)

Just a few weeks ago at the fitness center, I bumped into a good-government type who started talking politics and redistricting.  Surprise – he had a simple solution, which was to program a computer to design the Texas districts to minimize the length of the district boundaries.  (He liked his idea so much that he resisted my suggestion that the computer would also have to be programmed to comply with the Voting Rights Act requirements vis-à-vis minority-majority districts.  In 2006, the VRA was extended was 25 years, so it is not going away anytime soon.) 

I like my friend’s objective of minimized boundaries, and this conforms to the legal term “compactness.”  Unfortunately, Texas law, unlike the law in many other states, does not require or even suggest compactness as a desirable result in redistricting.  Furthermore, any map of congressional-district boundaries in Texas shows that compactness was not even an afterthought.  The only time that compactness is relevant is when the federal government reviews minority-majority districts.

The Texas Republican gerrymandering in 2003 that was designed to reverse the Texas Democratic gerrymandering of 1990 was reviewed by the U.S. Supreme Court in 2006 – League of United Latin American Citizens v. Perry.  Although the Court held that the redistricting of Congressional District 23 violated the Voting Rights Act, it also held that a state can redistrict as often as it wants (presumably anytime a political party retakes control of the state legislature).  Unfortunately, it deferred deciding whether partisan gerrymandering was unconstitutional. 

Although I hate gerrymandering, I would prefer that politicians resolve these matters instead of turning them over to judges to decide whether the practice violates the equal protection clause of the 14th Amendment.  One of San Antonio’s politicians is attempting to do this, as reflected in the following SA Express-News article.  I wish him success.   


August 31, 2010

E-Verify in Arizona

Despite the vitriol surrounding the illegal-immigration issue in America, most people agree that illegal immigration needs to be stopped.  Unfortunately, many liberals think the only way to stop illegal immigration is to open our borders to nearly unlimited immigration (either permanent status or work visas).  Whereas, conservatives think that more border security can and should make our border impenetrable.  I think neither is correct.  The key to stopping illegal immigration is, not only to strengthen our border security, but also to reduce the incentive for illegal immigration and to apprehend and deport those who sneak themselves through our border security. 


Currently, there are at least four major incentives for illegal immigration:

  1. Jobs;
  2. Free public education;
  3. Free medical care; and
  4. Birthright citizenship.


Congress and the Department of Homeland Security (DHS) have attempted to reduce employment opportunities for illegal immigrants by creating a database called E-Verify that employers can check to determine whether an employee or potential employee is a legal resident of America.  Although the federal government has made use of the database voluntary, several states have enacted laws requiring employers to use E-Verify.  One of those states is Arizona.

In 2007, Arizona enacted its Legal Arizona Workers Act, which requires employers to check E-Verify before hiring an individual.  Although federal law (the Immigration Reform and Control Act of 1986) prohibits employers from knowingly employing illegal immigrants, it does not require them to use E-Verify.  Not surprisingly, DHS Secretary Janet Napolitano challenged the constitutionality of Arizona’s E-Verify law (CPLC v. Napolitano), just as she has done with the HB 1070, and the legal rationale is the same – i.e., the federal law is supreme and pre-empts any state legislation on this issue.  However, unlike HB 1070, a federal district judge has upheld the constitutionality of AZ’s E-Verify requirement and that ruling has been upheld by the liberal 9th Circuit Court of Appeal.  On June 26, 2010, the U.S. Supreme Court has agreed to review the matter – now styled as U.S.  Chamber of Commerce v. Candelaria

Legal commentators have suggested that, although AZ’s HB 1070 has received much more publicity, the E-Verify case may be more important because it is much further along in the review process and a Supreme Court decision will likely provide much guidance to the state legislatures that are attempting to craft legislation that attacks illegal immigration without being subject to preemption by the federal government.  A decision is due before June 2011.    

Free public education

I have previously addressed in my blog the incentive created by free public education for illegal immigrants.  (See “Bad law – stuck on stupid”; June 25, 2010.)  A Supreme Court decision in 1982 – Plyler v. Doe – required Texas to provide free education to illegal immigrants, and that decision can be reversed either by the Court recognizing that its reasoning is no longer appropriate or by Congress declaring that public education for illegal immigrants is contrary to sound immigration policy.

Free medical care and birthright citizenship

Although free, high-quality medical care is an incentive for illegal immigration, it would be contrary to American values to deny emergency care to anyone, even if that person has illegally entered America to have her baby in America.  But there is absolutely no persuasive argument for granting American citizenship to that baby.  Of course, the best interests of the child would be to receive citizenship, but America can’t be responsible for the best interests all of the children of the world.  Unfortunately, Texas politicians seem to be standing in the way of clarifying the 14th Amendment.  Maverick Senator Lindsay Graham from South Carolina has bravely proposed hearings on clarifying the 14th Amendment, but Texas Senator John Cornyn recently reversed his prior support for these hearings after meeting with some South Texas politicians. 

Detecting and deporting illegal immigrants

Eliminating incentives for illegal immigration will cause a lot of self-deportation, as even liberals concede that illegal immigration has diminished because of the recession in America.  But the elimination of incentives needs to be supplemented by detection and deportation.  In the past few years, there have developed many pockets of protection for illegal immigrants – so-called sanctuary cities.  Illegal immigrants in those cities have no fear of detection by local authorities because those authorities are expressly prohibited from reporting illegal immigrants to federal authorities.  Some argue that Houston and San Antonio are sanctuary cities because of their “don’t ask, don’t tell” policies.  

Arizona’s HB 1070 is essentially an anti-sanctuary law and is the most robust attempt by a political entity to detect illegal immigrants.  But the law is being challenged by the federal government, and even worse, there are recent news reports that the Obama administration has virtually ceased deportation of illegal immigrants unless they are caught violating criminal laws.  Thus, even if local officials detect illegal immigrants, the federal government may decline to deport them. 

If HB 1070 is upheld, the continued refusal of the President to enforce our nation’s immigration law could result in a constitutional crisis or even impeachment.

August 6, 2010

Same-sex marriage and California’s Proposition 8

California’s Proposition 8 proposed prohibiting same-sex marriage by amending the CA constitution to provide, “Only marriage between a man and a woman is valid or recognized in California.”  Prop 8 became law in November of 2008 when it was approved by 52% of the voters.  Earlier this week, a federal judge in San Francisco held that Prop 8 was an unconstitutional denial of due process and equal protection under the 14th Amendment.  The holding in Perry v. Schwarzenegger, Brown, et al. was a pleasant surprise to many same-sex proponents who had concluded that the issue should be resolved in one state at a time instead of obtaining a decision in federal courts that would have nationwide implications.  Their state-by-state efforts for same-sex marriage had been successful in Connecticut, Iowa, Massachusetts, New Hampshire, Vermont, and the District of Columbia.

Prop 8 was defended in the litigation by a private party because Governor Arnold Schwarzenegger and Governor-to-be Attorney General Jerry Brown declined to do so.  In fact, Attorney General Brown conceded that the law was unconstitutional.  Despite their personal disagreement with the law, it is shocking that neither politician was willing to defend something that a majority of the voters approved. 

The private-party Defendant of Prop 8 appears to have put on a half-hearted defense, “eschewing all but a rather limited factual presentation.”  While the plaintiffs presented eight lay witnesses and nine expert witnesses, the defendants presented only two expert witnesses.  Essentially, the Defendant of Prop 8 merely repeated the explanation that had been provided to voters on the ballot:

  • “Proposition 8 is simple and straightforward. * * * Proposition 8 is about preserving marriage; it’s not an attack on the gay lifestyle. * * * It protects our children from being taught in public schools that same-sex marriage is the same as traditional marriage. * * *.”

I don’t question bare-bones defense strategy because I have some experience trying to accomplish things on a shoe-string budget.  The Prop 8 proponents probably didn’t think it would be cost-effective to present facts to a judge who was predisposed to disregard their facts.  

Federal Judge Vaughn Walker, a Bush-41 appointee who is rumored to be a homosexual, ultimately (a) found that all of the Plaintiffs’ witnesses were credible and neither of the Defendant’s witnesses was, and (b) ruled that there was no legitimate government interest in prohibiting same-sex marriage.  The decision was based on equal protection and due process under the 14th Amendment.

  • “Each challenge is independently meritorious, as Proposition 8 both unconstitutionally burdens the exercise of the fundamental right to marry and creates an irrational classification on the basis of sexual orientation.”

Under the Due Process analysis, Judge Walker first rejected the Defendant’s argument that same-sex marriage was a new right and accepted the Plaintiffs’ argument that it was an off-shoot from the existing freedom to marry.  This is important because the U.S. Supreme Court has already declared that the freedom to marry is a fundamental right and, therefore, any limitation placed on this right is subject to strict scrutiny.  Under strict scrutiny, the state must present evidence that showing that the law is narrowly tailored to a compelling government interest.  Judge Walker noted that the government Defendants (Schwarzenegger and Brown) declined to advance such arguments, and held that the private-party Defendant not only failed to meet the heavy burden of production to show that Prop 8 was narrowly tailored to meet a compelling government interest, but also didn’t even produce enough evidence to withstand a rational-basis review.

Under the Equal Protection analysis, Judge Walker suggested, without holding, that any classification relating to sexual orientation was the same as a classification relating to sex.  This is important because the U.S. Supreme Court has already held that any law that classifies by sex is a suspect classification and must be subjected to strict scrutiny – i.e., narrowly tailored to a compelling government interest.  Judge Walker did not make this holding because it was not necessary:

  • “As presently explained in detail, the Equal Protection Clause renders Proposition 8 unconstitutional under any standard of review. Accordingly, the court need not address the question whether laws classifying on the basis of sexual orientation should be subject to a heightened standard of review.  Although Proposition 8 fails to possess even a rational basis, the evidence presented at trial shows that gays and lesbians are the type of minority strict scrutiny was designed to protect.”

Instead of applying a strict-scrutiny standard, Judge Walker made his holding based on a rational-basis standard:

  • “The Equal Protection Clause of the Fourteenth Amendment provides that no state shall deny to any person within its jurisdiction the equal protection of the laws.  The guarantee of equal protection coexists, of course, with the reality that most legislation must classify for some purpose or another.  When a law creates a classification but neither targets a suspect class nor burdens a fundamental right, the court presumes the law is valid and will uphold it as long as it is rationally related to some legitimate government interest.  The court defers to legislative (or in this case, popular) judgment if there is at least a debatable question whether the underlying basis for the classification is rational. Even under the most deferential standard of review, however, the court must insist on knowing the relation between the classification adopted and the object to be attained.  The court may look to evidence to determine whether the basis for the underlying debate is rational.”  (Citations omitted.)

Judge Walker correctly notes in his opinion that law enacted by proposition, just as law enacted by legislation, must be reviewed by courts to ensure the rights of minorities are not trampled upon.  One wonders, though, what role Judge Walker’s lifetime appointment made in this decision.  Can you imagine an elected judge declaring that the California voters had no rational interest in prohibiting same-sex marriage?  This might be a good argument for keeping judges off the ballot.

Another interesting aspect of this decision concerned whether the liberal domestic-partner law in California should satisfy the needs of same-sex couples.  Although I never noticed Judge Walker using the analogy, I kept thinking of the “separate, but equal” arguments that were used in earlier Civil Rights cases.  “Separate, but equal” arguments were horribly flawed with respect to civil rights, but I wouldn’t be surprised to see the conservative majority on the U.S. Supreme Court conclude that the domestic-partner law in California is an acceptable substitute for same-sex marriage.

August 4, 2010

One person, one vote – part II

When is the last time you had an original idea?  As I have been often reminded by a friend, it is highly unlikely that any of us ever think of something that hasn’t been thought before.  I received another example of that today. 

As you may recall, on July 24, 2010 I posted a blog entry titled, “One Man, One Vote in San Antonio.”  In the post, I described how the City Council districts in San Antonio had widely varying numbers of voters because (a) some districts had minimal population growth and (b) those same districts had relatively large numbers of non-voters (illegal immigrants).  I ended the post by suggesting that Congress should “instruct the decennial census to distinguish between legal and illegal residents.  The Constitution appears to give the Congress such latitude, and there is no good reason for granting representation to people who are in this country illegally.”

Today, while reading a website relating to UT-Austin’s new affirmative-action lawsuit, I stumbled across some information about a pending federal lawsuit that is addressing this very “one person, one vote” issue – Lepak v. City of Irving.  If you want an example of America turning into a country of litigation, Lepak is perfect.

In 2007, the City of Irving was sued by an Hispanic who claimed that because the city council was elected in at-large districts instead of single-member districts, there were no Hispanic councilpersons even though the city was over 40% Hispanic.  Benavidez v. City of Irving.  According to existing federal law, single-member districts must be created if a district can be reasonably drawn so that a minority group constitutes a majority in that district.  Thornburg v. Gingles.   Benavidez won his lawsuit against Irving, so the city designed six single-member districts, with one of them having a majority of Hispanic residents.  The court rejected the city’s argument that, although a majority of the residents in the district were Hispanic, they were not a majority of the voters.

Shortly after the Benavidez case was resolved, the Fifth Circuit Court of Appeals made a ruling that conflicted with the Benavidez result.  Reyes v. City of Farmers Branch.

In Reyes, the Fifth Circuit declared that for purposes of requiring single-member districts, the minority must be able to reasonably draw a proposed district where the minority comprises a majority of “voting-age citizens.”    

So what should the city of Irving do?  Don’t worry, because within two months of the Reyes decision, Irving was sued by Anglos in the new minority district.  Lepak v. City of Irving.  But Lepak did not sue to eliminate the single-member districts.  Instead, he claimed that, because 60% of Hispanic residents in Irving are not citizens (according to census data), it violates “one person, one vote” equal protection under the 14th Amendment to draw districts based on population instead of “voting-age citizens.” 

Apparently, the issue of re-districting by counting all residents vs. counting only voting-age citizens has never been addressed by the 5th Circuit or the U.S. Supreme Court.  A decision clarifying this issue would be hugely significant because most areas with large numbers of illegal immigrants vote for Democrats.  I wonder why the Republican Party isn’t working this issue.

July 6, 2010

Due process for an erstwhile Facebook aficionado

In the past few weeks, I have become a Facebook aficionado.  I loved staying in touch with lifelong friends and growing a network of new friends.   

Then, just before the Fourth of July holiday, I received a shocking notice from Facebook saying my account had been “disabled.”  When I requested an explanation, I was sent the following email message:

Hi Mike,

Your account was disabled because your behavior on the site was identified as harassing or threatening to other people on Facebook. Prohibited behavior includes, but is not limited to:

• Sending friend requests to people you don’t know

• Regularly contacting strangers through unsolicited Inbox messages

• Soliciting others for dating or business purposes

After reviewing your situation, we have determined that your behavior violated Facebook’s Statement of Rights and Responsibilities. You will no longer be able to use Facebook. This decision is final and cannot be appealed.

Please note that for technical and security reasons, we will not provide you with any further details about this decision.



User Operations


Although the Facebook email said the decision was “final and cannot be appealed,” I couldn’t believe that a mainstream American institution would act so arbitrary and authoritarian.  The U.S. Constitution guarantees that we cannot be deprived of life, liberty, or property without due process, and the Facebook process for disabling members would clearly not satisfy due-process requirements.  Unfortunately, due process in the 5th Amendment applies only to the federal government, and due process in the 14th Amendment applies only to the state governments.  Neither of these amendments applies to actions taken by private businesses.  Fortunately, in capitalistic countries, most businesses act with some semblance of compliance with due process because the public insists on it.  Inexplicably, there has been no public outcry over Facebook’s clearly un-American process for disabling.   

After reading the Facebook’s Statement of Rights and Responsibilities, I wrote as follows to Jayden:


I am shocked that Facebook would consider its decision final without even hearing from me.  How else would it avoid glaring oversights?

Regarding the prohibited behavior, I have never contacted strangers through unsolicited inbox messages or solicited others for dating or business purposes.  Although I have sent friend requests to people I don’t know, these people were friends of friends of friends.  I was building a network of interesting people, and I had no idea that such contacts were prohibited.  If I had known that these contacts were not permitted, I would have immediately stopped.

Although you say this decision is final, please reconsider.  Facebook is very important to me, and I would appreciate being a part of your community.

Mike Kueber

While waiting for Jayden to respond, I dug a little deeper by to see what was happening to other people.  Not surprisingly, a lot of people describe being disabled in an abrupt, arbitrary manner, but the typical fix is a simple work-around – i.e., opening a new account.  Apparently, there is little that Facebook can do to prevent this because they can’t distinguish one Mike Kueber from another Mike Kueber (unless they have developed a JackBauer-esque, face-recognition application). 

Several websites listed some potential reasons for disablement, and Mari Smith’s was the most helpful for my situation:

  1. You send “too many” friend requests in one day/session.
  2. You make “too many” wall posts in one day/session – especially with verbatim content and with links.
  3. You copy and paste the same friend request message “too many” times.
  4. You send too many identical emails to individual friends and/or friend lists.
  5. You message your Group members “too many” times.
  6. You message your Event invitees “too many” times.

Mari’s Reason #1 is probably why I was disabled.  I remember that I sent out a large volume of friend requests shortly before being disabled.  In fact, I remember feeling good about increasing my number of friends from 500 to 600 in about a week.  Little did I know that, while growing my network, I had planted the seeds of destruction.  

Mari’s recommended action steps to avoid disablement are:

  1. Take your time to build up a strategic network of friends on Facebook. Focus on quality, not quantity.
  2. Send no more than approximately 20 new friend requests at any one time. Also, be sure to mix up the friend request messages.
  3. Use your own opt-in email system.
  4. Build out your Facebook Page.
  5. Include Facebook in your overall marketing strategy. Don’t put all your social networking “eggs” in one basket. Build up a following on Twitter, FriendFeed, Plaxo, LinkedIn, etc.
  6. Remember there was life before Facebook.

I don’t want to go back to life before Facebook.

June 25, 2010

Bad law – stuck on stupid

“Bad facts make bad law” is an old adage taught in law school.  It means that a court’s opinion is often dictated, not by legal reasoning, but rather by the ultimate result that the court wants.  In other words, the court first decides which party should win and then writes an opinion that leads to that result.  Bush v. Gore is often mentioned as an example of this.  

Bad law also results when a judicial decision is based essentially on the court’s preferred public policy, not on legal principles.  This is sometimes called “legislating from the bench,” and a good example is the landmark affirmative action case, Grutter v. Bollinger, 539 U.S. 306 (2003).  In Grutter, Justice O’Connor approved reverse discrimination by a university, but warned:

  • “Race-conscious admissions policies must be limited in time….  The Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”

Although the Supreme Court is bound by the concept of precedent, the Grutter opinion supports the proposition that earlier decisions should be revisited when the historical context changes or underlying assumptions are shown to be incorrect.  Nearly 30 years ago – in Plyler v. Doe, 457 U.S. 202 (1982) – the United States Supreme Court declared that Texas must provide a free public education to children who were illegal immigrants.  I suggest that, based on historical developments, the well-intended Plyler decision should be revisited and reversed because it improperly restricts the ability of states to discourage illegal immigration.   

Plyler struck down a Texas statute that attempted to prevent children who were illegal immigrants from attending public schools.  The Court found that where states limit the rights afforded to people (specifically children) based on their status as aliens, this limitation must be examined under an “intermediate scrutiny” standard to determine if it complies with the Equal Protection clause in the 14th Amendment.  A law satisfies “intermediate scrutiny” if it furthers a substantial goal of the State.  (“Strict scrutiny” is applied to laws that involve “suspect classes” or a “fundamental right” and requires that the law be precisely tailored to serve a compelling government interest.  All other laws require only that the classification at issue bears some fair relationship to a legitimate public purpose.)

The Supreme Court in Plyler determined that a law that tended to deny the education of illegal immigrants deserved intermediate scrutiny because of the Court was concerned about the creation of a permanent underclass:

  • “Sheer incapability or lax enforcement of the laws barring entry into this country, coupled with the failure to establish an effective bar to the employment of undocumented aliens, has resulted in the creation of a substantial ‘shadow population’ of illegal migrants – numbering in the millions – within our borders.  This situation raises the specter of a permanent caste of undocumented resident aliens, encouraged by some to remain here as a source of cheap labor, but nevertheless denied the benefits that our society makes available to citizens and lawful residents.  The existence of such an underclass presents most difficult problems for a Nation that prides itself on adherence to principles of equality under law.”

This language from the Court clearly suggests that its motivation is to ameliorate the consequences of a dysfunctional federal government and its ineffectual immigration policy. 

The Court in Plyler went on to explain why the Texas law fails to further a substantial goal of the state:

  • “First, appellants appear to suggest that the State may seek to protect itself from an influx of illegal immigrants. While a State might have an interest in mitigating the potentially harsh economic effects of sudden shifts in population, 21.031 hardly offers an effective method of dealing with an urgent demographic or economic problem. There is no evidence in the record suggesting that illegal entrants impose any significant burden on the State’s economy. To the contrary, the available evidence suggests that illegal aliens underutilize public services, while contributing their labor to the local economy and tax money to the state fisc.  The dominant incentive for illegal entry into the State of Texas is the availability of employment; few if any illegal immigrants come to this country, or presumably to the State of Texas, in order to avail themselves of a free education. Thus, even making the doubtful assumption that the net impact of illegal aliens on the economy of the State is negative, we think it clear that ‘charging tuition to undocumented children constitutes a ludicrously ineffectual attempt to stem the tide of illegal immigration,’ at least when compared with the alternative of   prohibiting the employment of illegal aliens.”
  • “Second, while it is apparent that a State may ‘not . . . reduce expenditures for education by barring [some arbitrarily chosen class of] children from its schools,’ appellants suggest that undocumented children are appropriately singled out for exclusion because of the special burdens they impose on the State’s ability to provide high-quality public education. But the record in no way supports the claim that exclusion of undocumented children is likely to improve the overall quality of education in the State.  As the District Court in No. 80-1934 noted, the State failed to offer any ‘credible supporting evidence that a proportionately small diminution of the funds spent on each child [which might result from devoting some state funds to the education of the excluded group] will have a grave impact on the quality of education.’  And, after reviewing the State’s school financing mechanism, the District Court in No. 80-1538 concluded that barring undocumented children from local schools would not necessarily improve the quality of education provided in those schools.  Of course, even if improvement in the quality of education were a likely result of barring some number of children from the schools of the State, the State must support its selection of this group as the appropriate target for exclusion.  In terms of educational cost and need, however, undocumented children are ‘basically indistinguishable’ from legally resident alien children.”

Both dot points above contain examples of a court substituting its judgment for the judgment of legislators.  The most jarring were the assertions that “few if any illegal immigrants come to this country… to avail themselves of free education” and that “charging tuition to undocumented children constitutes a ludicrously ineffectual attempt to stem the tide of illegal immigration, at least when compared with the alternative of prohibiting employment of illegal aliens.” 

With the benefit of hindsight, these judicial assertions seem ludicrous and laughingly simplistic.  Jobs are not the only magnet for illegal immigrants.  America also offers free education and medical care, reduced crime, and freedom.  It takes a lot of chutzpah for the Supreme Court to criticize legislators for ineffectively controlling immigration, while brazenly shooting-down a good-faith effort by Texas legislators to address the problem.

When the government response to Hurricane Katrina was floundering, a John Wayne-like character appeared on the scene and took charge.  Among Lt. General Russel Honore’s most famous comments was, “We aren’t stuck on stupid.”  I believe that our evolving Supreme Court knows more than it did in 1982, and Texas should give it another chance.  Let’s pass a law that addresses education and employment of illegal immigrants, and then give the Supreme Court a chance to show that it isn’t stuck on stupid.