Mike Kueber's Blog

August 21, 2015

An open letter to Bill O’Reilly

Filed under: Law/justice,Media,Politics — Mike Kueber @ 10:43 pm
Tags: , ,

Bill, the word for the day is “sophomoric.”  Used in a sentence, “Your reportage this week on anchor babies was sophomoric.”

Why do I think your reportage was “conceited and overconfident of knowledge but poorly informed and immature”?  The Bill of Particulars against you contains two items:

  1. False statements.  In your Trump interview on anchor babies, you paraphrased the 14th Amendment as saying, “If you are born in America, you are a citizen.”  Your omission of the critical middle clause, “and subject to the jurisdiction thereof,” is flagrant journalistic malpractice.  Then you imperiously declared the sentence could have only one legal meaning.  Yes, the sentence you read could only have one meaning, but what is the meaning of the clause you didn’t read?  In law, there is a strong presumption against construing a clause to be redundant or irrelevant.
  2. Two days later, you attempted to buttress your legal opinion by interviewing two legal experts – one a conservative and one a liberal – who agreed with you. In law, a judge will pit two advocates against each other and then decide.  Couldn’t you find anyone to articulate an argument contrary to your position?  What about one of America’s most popular constitutional authorities, Mark Levin, who earlier in the week spoke out strongly against your position?  What about one of America’s most respected federal judges, Richard Posner, who opined about anchor babies in a 2003 appellate decision, “Congress would not be flouting the Constitution if it amended the Immigration and Nationality Act to put an end to the nonsense.  A constitutional amendment may be required to change the rule whereby birth in this country automatically confers U.S. citizenship, but I doubt it.”

It’s not too late to redeem your reputation by apologizing to your viewers and presenting them with a full-throated argument on the meaning of “and subject to the jurisdiction thereof.”  Is it directed narrowly at foreign diplomats or more broadly at anyone who has allegiance to another country?

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.