Mike Kueber's Blog

August 24, 2015

What to do with eleven million illegal immigrants

Donald Trump’s strong stance against illegal immigration continues to dominate the contest for the GOP presidential nomination.  Because Trump is the dominant front runner, some of his opponents have been taking potshots at him, but even more forcefully, the media went after him this past weekend.

The principal anti-Trump argument on the Sunday TV shows didn’t concern his bold argument against birthright citizenship, but rather the media asserted that it was not financially and logistically possible to remove eleven million illegal immigrants.  According to cited studies, it would cost hundreds of billions of dollars and take years.

When confronted with these numbers, Trump gave a fuzzy answer that this challenge could be met through his excellent “management.”  Although that answer generally quieted his questioners, I suggest that there is a better answer, which was developed by a man much smarter than Trump – i.e., Mitt Romney.

In 2012, Romney concluded that millions of illegal immigrants would “self-deport” (a) if an effective e-verify system prevented them from securing employing in America and (b) if an improved detection and apprehension process made living in America less safe and secure (no sanctuaries).  At some point, America’s laws could also be tweaked to deny birthright citizenship and educational benefits to illegal immigrants.

I realize these measures are draconian, but if America wants to end illegal immigration, then the magnets that attract illegal immigrants must be eliminated.  Of course, millions of America don’t think that illegal immigration is a big problem, and they will be willing to leave things pretty much as they are.

Elections matter.  I will be surprised if the GOP selects a nominee who is soft on illegal immigration (Bush, Rubio, Walker), but I will also be surprised if the GOP nominee who is hard on illegal immigration (Trump, Cruz, Carson) is able to win a general election.  I think I’m shifting my support from one Cuban (Rubio) to another (Cruz).

June 12, 2012

The Texas GOP takes a stab at immigration reform

Filed under: Issues,Politics — Mike Kueber @ 2:54 pm
Tags: , ,

A few days ago, I blogged about Fareed Zakaria’s proposal to break the immigration-reform gridlock.  According to Zakaria, the gridlock has resulted because Democrats oppose skills-based legal immigration and Republicans oppose a path to citizenship for illegal immigrants.

Since my posting, the Texas GOP held their convention in Fort Worth and passed a controversial immigration-reform plank to the party’s platform.  Although the plank doesn’t address Zakaria’s proposal for the expansion of H1-B visas for skills-based immigration, it does call for a robust guest-worker program. 

The Texas Tribune recently attempted to do an in-depth article on the guest-worker plank in the GOP platform.  According to the Tribune article, the plank has been declared dead-on-arrival by progressives because it is merely a “Band-Aid” that fails to provide a path to citizenship.  Thus, despite general agreement about the merits of a more robust guest-worker program, the gridlock that Zakaria lamented promises to remain in place – because one side blocks the admittedly good ideas of the other side unless there is agreement on comprehensive reform.

The only other GOP plank discussed in the Tribune article is the call for repealing birthright citizenship.  The author of the article, Julian Aguilar, reveals his bias by describing this repeal as “a polarizing issue that has been linked to extreme terms like ‘terror babies.’”  And then in an attempt to cement the gridlock, he quotes from the immigration advocacy group that rejected the guest-worker program as an unacceptable Band-Aid.  Regarding repeal of birthright citizenship, the El Paso advocacy group makes the following irrational, emotion-laden diatribe:

  • “It is really just tailored for agricultural workers,” Cristina Parker, a spokeswoman for the group, said of the GOP platform measure. “And that may work for some, but it’s not a solution to the fact that we have 12 million undocumented people” living in the United States.  She said she appreciated the GOP’s slight shift, but that the amendment item highlighted a desire to “have it both ways.”  “I am glad that the GOP is recognizing that there is a problem,” she said. “But the idea of repealing birthright citizenship, it’s so radical, it’s so ridiculous. That’s just a tin-foil-hat idea.”

 Julian, I suggest you look for sources who are better able to defend the progressive position.  I confess, however, that I have never heard a sensible explanation in defense of birthright citizenship.

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.

October 11, 2011

Rick Perry and birthright citizenship

While contemplating Rick Perry’s difficulty in adequately defending his position on in-state tuition for illegal immigrants, it dawned on me that he might have an even bigger problem with his position on birthright citizenship – i.e., children born in America to illegal immigrants.  Democrats are generally unable to defend birthright citizenship to their electoral base, so how could Rick Perry possibly defend it to the Republican base?

But then I don’t recall Rick Perry ever discussing this issue, and that is not surprising because the liberal media in Texas has gone out of its way to avoid pushing Republican candidates to the right by asking divisive questions.  Although Perry’s position on birthright babies was not well known, surely he has said something at some time.

The internet Bible for all things immigration is NumbersUSA.com, an anti-immigration advocacy organization.  The site breaks down the subject of immigration into 12 components and then reports everything that candidates have said on each of those 12 components.  Surprisingly, in-state tuition is not one of the Big 12 of immigration issues.  (That is so yesterday.)

What does NumbersUSA say about Rick Perry and birthright citizenship?  Overall, Governor Perry received a grade of D-.  Romney received a C-, which was the highest grade except for Michele Bachmann’s B-.  Obama got the worst grade, F-.   More importantly, on birthright citizenship, Gov. Perry has made no statements regarding the ending of Birthright Citizenship.

That is amazing for a man who, as the governor of Texas for ten years, has been on the front-lines of immigration problems.  That says a lot about the lack of transparency and openness in the Perry administration.  He is obviously not the kind of guy who says what he believes and then lets the chips fall.  Instead he takes positions only when doing so is helpful or necessary to his political success.

I hope he is forced to describe his position during the Republican debate tonight.  Romney hasn’t taken a position either.  Why hasn’t this question been put to the candidates?

Although I am pretty loyal to the Republican Party and its values, I don’t think I have ever voted for Perry because he always managed to do something that pissed me off.

Things haven’t changed.

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.

February 23, 2011

The status of illegal immigration in San Antonio

An article in today’s edition of the San Antonio Express-News reflects the status of illegal immigration in San Antonio.  According to the article, Lone Star Bakery fired 200 employees after it was notified by Immigration and Customs Enforcement (ICE) that the employees were undocumented.  ICE made its determination during an audit of the bakery’s employment records.

What does the article tell us about the status of illegal immigration?

  • Employer complicity.  Lone Star Bakery has 500 employees at this location, and 200 of them were undocumented.  This suggests that the bakery didn’t care about the employees’ illegal status.  I wonder what sort of documentation it required to hire these workers.  It obviously didn’t go to the trouble of checking the workers’ status through the federal government’s voluntary database – E-Verify. 
  • Employer penalty.  The article noted that there is a law against hiring illegal immigrants, but there is no indication in the article that Lone Star Bakery was being fined.
  • Obama complicity.  The article quotes from an immigration lawyer who says the Obama administration prefers to use audits as an enforcement mechanism that results in job termination instead of raids that result in deportation.  As Representative Lamar Smith says, these workers will now walk down the street to the next employer who will hire them.  
  • America is not quite a sanctuary country, but we are getting there.  San Antonio’s Hispanic Chamber of Commerce argues that the firings will disrupt the business and the families of the 200.  How can anyone feel sorry for the bakery?  But, yes, there are human costs that need to be considered.  Some of these people had worked at the bakery for more than 15 years.  There needs to be a statute of limitations for enforcing illegal immigration.     
  • Illegal immigrants take jobs from Americans.  The employees were paid between $8 and $16 an hour, plus benefits, to work in a bakery.  Don’t tell me that Americans were unwilling to do that work for that pay.
  • Birthright citizenship.  One of the workers has been in America seven years and now is the mother of two young American children.  We need to stop birthright citizenship; the children should not have rights any greater than the mother’s.

Not surprisingly, the on-line edition of this article drew a lot of attention.  By noon, there were already more than 70 comments.  The majority of commentators were incensed – some at the federal government for not enforcing the law, but most at the bakery and its workers for breaking the law (no fine, no deportation).  Some pointed out that it was not just Democrats to blame.  According to them, some fat cats in the Republican Party oppose a mandatory E-Verify law because it might disrupt their business practices.  

In matters of principle, there is sometimes no middle ground (e.g., homosexuality, abortion), and those matters are destined to be fought for years.  Other matters can be resolved in the middle.  Illegal immigration can be resolved if we can compromise on how inhospitable America will be to (a) its current illegal immigrants, and (b) its future illegal immigrants.

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.