Im-Politic: VP Debate Questions That Should be Asked

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1619 Project, African Americans, Barack Obama, Biden, budget deficits, CCP Virus, censorship, China, Confederate monuments, Constitution, coronavirus, COVID 19, education, election 2020, Electoral College, filibuster, Founding Fathers, free speech, healthcare, history, history wars, Im-Politic, inequality, investment, Kamala Harris, Mike Pence, national security, Obamacare, police killings, propaganda, protests, racism, riots, semiconductors, slavery, spending, Supreme Court, systemic racism, Taiwan, tariffs, tax cuts, taxes, Trade, trade war, Trump, Vice Presidential debate, Wuhan virus

Since I don’t want to set a record for longest RealityChek post ever, I’ll do my best to limit this list of questions I’d like to see asked at tonight’s Vice Presidential debate to some subjects that I believe deserve the very highest priority, and/or that have been thoroughly neglected so far during this campaign.

>For Vice President Mike Pence: If for whatever reason, President Trump couldn’t keep the CCP Virus under control within his own White House, why should Americans have any faith that any of his policies will bring it under control in the nation as a whole?

>For Democratic candidate Senator Kamala Harris: What exactly should be the near-term goal of U.S. virus policy? Eliminate it almost completely (as was done with polio)? Stop its spread? Slow its spread? Reduce deaths? Reduce hospitalizations? And for goals short of complete elimination, define “slow” and “reduce” in terms of numerical targets.

>For Pence: Given that the administration’s tax cuts and spending levels were greatly ballooning the federal budget deficit even before the virus struck, isn’t it ridiculous for Congressional Republicans to insist that total spending in the stimulus package remain below certain levels?

For Harris: Last month, the bipartisan Congressional Problem Solvers Caucus unveiled a compromise stimulus framework. President Trump has spoken favorably about it, while stopping short of a full endorsement. Does Vice President Biden endorse it? If so, has he asked House Speaker Nancy Pelosi to sign on? If he doesn’t endorse it, why not?

For Pence: The nation is in the middle of a major pandemic. Whatever faults the administration sees in Obamacare, is this really the time to be asking the Supreme Court to rule it un-Constitutional, and throw the entire national health care system into mass confusion?

For Harris: Would a Biden administration offer free taxpayer-financed healthcare to illegal aliens? Wouldn’t this move strongly encourage unmanageable numbers of migrants to swamp U.S. borders?

For Pence: President Trump has imposed tariffs on hundreds of billions of dollars’ worth of Chinese exports headed to U.S. markets. But U.S. investors – including government workers’ pension funds – still keep sending equally large sums into Chinese government coffers. When is the Trump administration finally going to plug this enormous hole?

For Harris: Will a Biden administration lift or reduce any of the Trump China or metals tariffs. Will it do so unconditionally? If not, what will it be seeking in return?

For both: Taiwan now manufactures the world’s most advanced semiconductors, and seems sure to maintain the lead for the foreseeable future. Does the United States now need to promise to protect Taiwan militarily in order to keep this vital defense and economic knowhow out of China’s hands?

For Pence: Since the administration has complained so loudly about activist judges over-ruling elected legislators and making laws themselves, will Mr. Trump support checking this power by proposing term limits or mandatory retirement ages for Supreme Court Justices? If not, why not?

For Harris: Don’t voters deserve to know the Biden Supreme Court-packing position before Election Day? Ditto for his position on abolishing the filibuster in the Senate.

>For Pence: The Electoral College seems to violate the maxim that each votes should count equally. Does the Trump administration favor reform? If not, why not?

>For Harris: Many Democrats argue that the Electoral College gives lightly populated, conservative and Republican-leaning states outsized political power. But why, then, was Barack Obama able to win the White House not once but twice?

>For Pence: Charges that America’s police are killing unarmed African Americans at the drop of a hat are clearly wild exaggerations. But don’t you agree that police stop African-American pedestrians and drivers much more often than whites without probable cause – a problem that has victimized even South Carolina Republican Senator Tim Scott?

For Harris: Will Biden insist that mayors and governors in cities and states like Oregon and Washington, which have been victimized by chronic antifa violence, investigate, arrest and prosecute its members and leaders immediately? And if they don’t, will he either withhold federal law enforcement aid, or launch such investigations at the federal level?

For Pence: Why should any public places in America honor Confederate figures – who were traitors to the United States? Can’t we easily avoid the “erasing history” danger by putting these monuments in museums with appropriate background material?

For Harris: Would a Biden administration support even peacefully removing from public places statues and monuments to historic figures like George Washington and Thomas Jefferson because their backgrounds included slave-holding?

For both: Shouldn’t voters know much more about the Durham Justice Department investigation of official surveillance of the Trump campaign in 2015 and 2016 before Election Day?

For both: Should the Big Tech companies be broken up on antitrust grounds?

For both: Should internet and social media platforms be permitted to censor any form of Constitutionally permitted speech?

For Pence: Doesn’t the current system of using property taxes to fund most primary and secondary public education guarantee that low-income school children will lack adequate resources?

For Harris: Aren’t such low-income students often held back educationally by non-economic factors like generations of broken families and counter-productive student behavior, as well as by inadequate school funding – as leading figures like Jesse Jackson (at least for one period) and former President Obama have claimed?

For Pence: What’s the difference between the kind of “patriotic education” the President says he supports and official propaganda?

For Harris: Would a Biden administration oppose local school districts using propagandistic material like The New York Times‘ U.S. history-focused 1619 Project for their curricula? Should federal aid to districts that keep using such materials be cut off or reduced?

Now it’s your turn, RealityChek readers! What questions would you add? And which of mine would you deep six?

Im-Politic: The Supreme Court Mess II

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Antonin Scalia, Constitution, diversity, Federal Reserve, identity politics, Im-Politic, Joe Biden, Robert Bork, Ruth Bader Ginsburg, Senate, Supreme Court, term limits, Trump

Since the Supreme Court Mess that I analyzed yesterday really is a Supreme Court Mess and not simply a Ruth Bader Ginsburg Mess, today let’s dive right into problems with how Americans deal with the top of the federal government’s judiciary branch other than the means of picking the late Justice’s replacement.

First and maybe most obvious comes an inconsistency in the position of the Democrats and especially of their presidential nominee this year, former Vice President Joe Biden. From that party and candidate comes the insistence that it’s wrong for President Trump to choose a new Justice so close to the November election because it could strap the country with a new Justice and Court line-up that flout the popular will that would be revealed by a Biden win on major policy issues (like abortion or the future of Obamacare).

Leaving aside the (clear un-) Constitutionality of this position, it’s not entirely unreasonable. But it would become much stronger substantively, and much less vulnerable to charges of hypocrisy and pure partisanship, if Biden enabled voters to assess their actual Supreme Court-related choices at least as clearly as Mr. Trump has with the list of Ginsburg replacement possibilities he’s released. Biden has promised that he’d put forward an African American woman (though maybe not this time?). But which ones is he considering (if it is this time)? He hasn’t told us. So the criterion of fairness should oblige him to release his own list ASAP, to permit voters to weigh the alternatives fully. After all, even if they don’t like any of the Trump candidates (which the President has subsequently announced will be restricted to women), Americans might like Biden’s choices even less.

The second problem, though, has precisely to do with the identity politics of Supreme Court nominations that both Biden and the President are practicing. Not that I have any inherent objection to another female Justice or the first African American female Justice. But these announcements raise any number of divisive questions that Americans could do without in these divisive times. Just a few examples:

>During the Obama years, there was much talk that the Court needed an Asian-American Justice. (Full disclosure: Denny Chin, the federal appeals court judge mentioned here, is a college friend.) So many valid reasons were cited (e.g., they’re “the fastest growing population of color in the country, with a voting electorate expected to double in the next 25 years”). Exactly when, therefore, did this proposal become obsolete? And why?

>Regarding the Biden pledge to nominate an African American woman, that would move the Court’s makeup closer to the gender composition of the entire U.S. population, so this promise can be justified by the goal of making the Court “look like America.” (So would the President’s promise to choose a woman whose race or ethnic background he hasn’t specified.) But an African American woman would bring the number of African Americans on the Court to two (along with Clarence Thomas). Since they amount to only some 13 percent of all Americans, they’d be way over-represented.

>The same outcome would result from if Mr. Trump picks Cuban-American federal appeals court judge Barbara Lagoa from Florida. She’d be the second Latino woman on the Court (along with Sonia Sotomayor). But that decision would create another over-representation situation (though not one as sizable as those for African Americans, at least in the early part of a Biden administration). And what about Latino men? They’d remain completely shut out. How come?

Again, I agree broadly with the idea that the leadership ranks of major American institutions, especially public, but also private, should be diverse enough in terms of all the major population categories to make sure that the widely varying experiences of these groups contribute to decision-making. In my view, that’s a major plus, since the idea of objectively optimal policies or practices is impossibly naive, and because the choices made by public institutions are bound to affect different groups differently.

But although all these stakeholders deserve a say, when diversity – and especially specific diversity formulas – become explicit, you unfortunately enter a world in which the kinds of potentially ugly identity politics-related questions just mentioned tend to come to the fore, and vital issues of merit tend to move to the rear.

As a result, though doing so is somewhat hypocritical, certain kinds of fictions do serve important purposes. So I hope that from now on, diversity promises for public appointments at least become less explicit, and the results become the product of informal political pressures and other considerations. (Privately owned institutions should be able to do whatever they want within the bounds of anti-discrimination laws. Even so, diversity can benefit them, too, since especially in the case of businesses, they’re trying to win and keep customers, and diverse leadership ranks are likely to provide important insights into appealing to various population groups.)

The third big part of the Supreme Court Mess: The American political system clearly has moved way too far away from the crucial idea that, since elections matter, Presidents have the right to appoint whoever they wish to fill positions the Constitution entitles them to fill unless their choices are flagrantly incompetent, or utterly dismissive of Constitutional and ther legal standards, or ethically or criminally compromised. If Senators simply don’t agree with nominees on legitimate Constitutional and legal controversies – too bad.

Thankfully, this idea isn’t completely dead. For example, three Democrats did vote to approve Trump Supreme Court nominee Neil M. Gorsuch in April, 2017. At the same time, three isn’t much. Vastly more encouraging: In August, 1993, Ginsburg was confirmed by a 96 to 3 vote (one Senator abstained), which means that plenty of Republicans supported here even though she surely wasn’t their legal and Constitutional cup of tea.

At the same time, Republicans controlled the Senate when Gorsuch was considered, and Democrats enjoyed a majority when Ginsburg came up. So a better example of this ideal would be the 1990 vote in favor of David H. Souter. He was a George H.W. Bush nominee, yet won the nod of a Democratic Senate – in a 90-9 landslide. (This time, one Senator didn’t vote.) 

Or was it? After all, Souter arguably received this margin precisely because his views on major subjects were so unknown – largely because his lower court opinions and other legal writings were so plain vanilla or so scarce or both. As widely (and convincingly) supposed, Souter (and his supporters) had learned the big lesson of the failed nomination of Robert Bork: Don’t leave a conspicuous “paper trail.”

Bork, whose bid for the Court failed in 1987, was rejected by a Democratic-controlled Senate largely because his prodigious writings were so controversial. His reputation as a Watergate-era villain surely didn’t help, either.

But were Bork’s views so out of the mainstream, as his opponents charged? Just a year earlier, another doctrinaire judicial conservative nominated by President Ronald Reagan – Antonin Scalia – was elevated to the Court. And he won unanimously. (Two Senators didn’t vote.)  But that year, Republicans ran the upper chamber.

As a result, it’s easy to conclude that the tradition of “Borking” is very much alive, and that overly political Supreme Court nomination fights will continue for the time being.

The final big aspect of the Supreme Court mess: This drift away from the respect for legitimate presidential prerogatives no doubt results from both the prominent role the Court has played in deciding issues (like Obamacare) that elected politicians should be figuring out, and this prominence, and the towering stakes thereby created, in turn stem from the lifetime nature of Court terms. In other words, once a Justice is confirmed, he or she can serve literally for decades, and for just as long decisively influence policy decisions that shouldn’t be legalized.

Therefore, although I’m super-hesitant to support Constitutional changes in response to developments that are probably transient, I fear that the too often vicious and hyper-partisan nature of American politics is here to stay for the foreseeable future.  Therefore, I’d support at least considering an amendment that would limit the Justices’ terms.  One possible model: the Federal Reserve, another government body that’s supposed to be shielded from politics, and whose seven Board members serve for fourteen years, and whose Chair and Vice Chair are limited to four (although this curb doesn’t count against their Board service).

Not that I love the Fed’s degree of autonomy.  But the temperature of national politics clearly needs to be lowered to safer levels, and term limits on the increasingly supremely powerful Supreme Court are the best place to start I can think of.     

Im-Politic: The Supreme Court Mess I

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Antonin Scalia, Barack Obama, Biden Rule, conservatives, Constitution, Democrats, election 2020, elections, Ginsburg, Im-Politic, Joe Biden, lame duck Congress, liberals, Merrick Garland, Mitch McConnell, Republicans, rule of law, Ruth Bader Ginsburg, Senate, Supreme Court, Trump

I call this piece “The Supreme Court Mess I” rather than “The Ginsburg Mess I” because the fix in which the nation finds itself regarding the replacement of the late Supreme Court Justice Ruth Bader Ginsburg reflects a number of much deeper problems America is suffering. These stem from the firestorm-like nature of some recent battles over the roster of this nearly (but not quite paramount) arbiter of the Constitution, which makes it a the nearly last word regarding the entire U.S. legal system and its often decisive, lasting effects on every dimension of American life. (The Roman numeral tells you that there will be another post on this subject coming real soon, probably tomorrow.)

Today we’ll focus on the immediate question at hand: whether the Senate should vote on President Trump’s nominee for a new Justice. To me, the only answer with any merit: Absolutely. Indeed, nothing could be stronger, and more important to affirm, than the conclusion that any President has every right to nominate a new Justice at any time during any of his or her terms in office (i.e, through Inauguration Day, January 20), and that the Senate has every right to vote on his choice during this time. Why? Because it’s what the Constitution says, and neither the Framers nor any American leaders have ever formally tried to change the system since 1789. That is, there are no exceptions made – including for presidential election years, as many Democrats are calling for now.

If you think about it non-hysterically, you can see why. Abandoning this standard opens the door to the kind of bizarrely and indeed laughably convoluted and self-serving case being made now by Republican Senate Majority Leader Mitch McConnell of Kentucky to explain why (a) he’s decided to allow a vote on a Supreme Court nominee this presidential election year, but (b) refused to allow former former President Obama’s appointment of Supreme Court nominee Merrick Garland be considered during the previous presidential election year.

According to McConnell, the governing principle for Court nominations is the result of the latest Senate election. As he wrote right after Ginsburg’s passing:

“In the last midterm election before Justice [Antonin] Scalia’s death in 2016, Americans elected a Republican Senate majority because we pledged to check and balance the last days of a lame-duck president’s second term. We kept our promise. Since the 1880s, no Senate has confirmed an opposite-party president’s Supreme Court nominee in a presidential election year.

“By contrast, Americans reelected our majority in 2016 and expanded it in 2018 because we pledged to work with President Trump and support his agenda, To

To which the only serious reaction has to be “Seriously”? Not only is this position even further from the Constitutional standard than the presidential carve-out position. If it’s followed, it’s easy to see how other unscrupulous politicians could use even more arbitrary maxims like this to completely paralyze the Supreme Court nomination process.

After all, if it’s the Senate’s makeup that counts most of all, then why not bar nominations during the run-up to such elections – which of course take place every two years (when a third of the Senate faces reelection). For by McConnell’s logic, it wouldn’t be possible to know the people’s will on such matters for certain until those Senate results are in. And how would anyone define “run-up”? A month? Two? Six? A full year? On what objective basis could anyone distinguish among these possibilities? The only reasonable answer? None.

Lest you want to blame Republicans alone for this kind of sophistry, keep in mind that its origins lie in the so-called “Biden Rule” – when in 1992, the former Vice President and current Democratic presidential nominee argued that “once the political season is under way, and it is, action on a Supreme Court nomination must be put off until after the election campaign is over.” And in an example of poetic justice, McConnell and many other Republicans and conservatives cited this reasoning to justify their own Supreme Court positions when former President Barack Obama in March, 2016 nominated senior federal judge Merrick Garland to fill the seat left by Scalia’s death in February.

Three final observations: First, any number of politicians and pundits are citing various supposed historical traditions for justifying their stances on election year Supreme Court votes. (See here for Republicans and conservatives, and here for Democrats and liberals.) To which I can only say, “Tradition, shmadition.” As indicated above, although interpretation is possible and often needed for all laws and many Constitutional provisions, when the latter set out clearcut procedures – as for the nomination and approval of Supreme Court Justices (but not so much for impeachment) – Americans drift away from them at their peril. If you don’t like these procedures, then use the amendment process of the Constitution to change them, rather than pretending that traditions and non-legal precedents and other practices are adequate substitutes.

Second, equally ludicrous and even more dangerous is the claim that the nation’s current divided circumstances justify waiting until after the presidential election to fill the Ginsburg seat. That’s essentially warning that violence may erupt if the President and Senate exercise their Constitutional prerogatives, and in effect supporting a surrender to the threat of mob rule.

It’s absolutely true that practically all decisions made by political leaders – elected and unelected alike – are at least partly political in nature, and can profoundly affect the national interest short term and long term. It’s entirely legitimate, therefore, and even important for President Trump to take into account in his Ginsburg approach non-Constitutional considerations.

But it’s something else entirely, and far more dangerous, to contend that such judgment calls are or should in any way be legally binding. As with federal government personnel choices, Constitutional procedures can be used to protest and overturn presidential or other decisions that are entirely legal but unpopular for whatever reason. They’re called elections, and Americans would do far better to focus on taking all (legal) steps to ensure that their candidates and viewpoints prevail, rather than dreaming up spur-of-the-moment rationalizations for ignoring settled law that may create momentary advantages, but that contain equal backfire potential, and that can only erode the rule of the law to everyone’s ultimate detriment.

Third, my only strong preference in this matter is that a Senate Supreme Court vote not take place during a lame duck session – which would be convened after the presidential election. That’s because a possibly decisive number of Senators who would be considering the nomination would be Senators who have been voted out of office. What an offense to the idea of representative government that would be! At the same time, it’s only my preference. These sessions themselves are entirely legal, and I’m not about to claim that my views should substitute for Constitutional procedures.

Im-Politic: A Worrisome Hole in U.S. Free Speech Protections

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civil liberties, Constitution, First Amendment, free speech, freedom of expression, Im-Politic, mob rule, Oregon, peaceful protests, Portland, protests, Supreme Court

However crazy it sounds, an idea that came to me in high school bears heavily on the burst of recent, overlapping national controversies about free speech, peaceful protests, and political violence. In fact, it spotlights what looks like a gaping, increasingly important, and increasingly worrisome hole in U.S. Constitutional protections not only for legitimate expressions of opinions, but for exercises of other significant liberties.

The idea: That public authorities have an affirmative obligation to protect the expression of unpopular and even disgusting viewpoints even, and especially if, they might ignite violent reactions, and when those violent reactions were taking place.

You might think that this is longstanding Constitutional principle, policy, and practice on the federal, state, and local levels, but that’s not so. And the result is nothing less than an invitation to mob rule that thankfully hasn’t been taken up often during American history, but seems all too tempting nowadays.

I first became aware of the problem when my senior year history class focused for a while on civil liberties and we read about a 1949 Supreme Court case called Terminiello v. City of Chicago. The question at hand was whether local authorities could prosecute a speaker expressing views in a public place to that created “a condition of unrest, or…a disturbance.”

Writing for the majority, Justice William O. Douglas, a staunch defender of civil liberties, argued that the Chicago speaker, a suspended and indeed horrifically bigoted Catholic priest named Arthur Terminiello, and others like him, were entitled under the First Amendment to voice opinions even which (in the words of the presiding local judge) “stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance.”

The Douglas opinion, in my view, was especially valuable because it held that no one – either private citizens outraged for whatever reason, morally legitimate or not, or government at any level – could censor, otherwise prevent during the fact, or punish the expression of any view belonging in the category of Constitutionally protected speech. As a result, the majority wound up expanding that realm of protected speech.

Unfortunately, this legal standard only lasted for some two years. In a 1951 case called Feiner v. New York, the Supreme Court ruled that, as described in this summary, “The First Amendment permits the government to take action against speech when there is a clear and present danger that it will cause a disturbance of the peace.”

In the 1969 case Brandenberg v. Ohio (about two years before my high school class), the Justices seemed to narrow the grounds for suppressing speech that created this kind of “clear and present danger” (a broader category of circumstances that could justify curbing speech and other forms of expression) to speech likely to incite “imminent lawless action.”

But it was only in 1977 that a truly decisive blow seems to have been struck against what I consider a blaming the victim approach when the Court ruled that government couldn’t prevent the expression of most repugnant ideas for fear of threatening public order before the fact either. The case was called National Socialist Party of America v. Village of Skokie, and upheld an Illinois Supreme Court decision that prevented a heavily Jewish municipality from preventing a demonstration by a group of (as the name makes clear) Nazis. udeupheld the defended

All the same, the group of questions I wound up asking in high school about Terminiello remains unanswered. Specifically, if hateful ideas like Terminiello’s are Constitutionally protected speech, didn’t government’s First Amendment obligations logically extend further than affirming his right to express them amid the threat or use of violence? Wasn’t government Constitutionally obliged to make sure that such expression actually take place – for example, responding to threats of violent responses by declaring that such actions themselves would be prosecuted, and following through? Wouldn’t failing to require these protective actions too often threaten to turn the act of expressing protected speech into a test of physical courage, and thereby convince too many who hold unpopular views to hold back?

Which brings us to the tragic killing last weekend in Portland, Oregon of right-wing protester Aaron Danielson amid a spate of violence that resulted from the entry into the city’s downtown of a motor vehicle caravan carrying many individuals of this ilk.

The caravan has been widely described as needlessy provocative, but the grounds seem shaky at best. According to some Mainstream Media accounts, the vehicles “descended on the city and sparked confrontations with Black Lives Matter counterprotesters.” But this phrasing raises more questions than answers. For example, what exactly about the caravan’s trip “sparked confrontations”? Were the opening clashes completely simultaneous? If not, who acted first?

One answer – and revealingly, from the now-conspicuously woke New York Times – is that “As the vehicles displaying Trump flags and signs enter downtown Portland, protesters [gathered] along the street to confront the caravan and in some cases block its route.” I’ve yet to see any accounts blaming the caravan-ers for starting the clashes.

The caravans could legitimately be blamed for knowingly, and even illegally, inflaming an already volatile situation. But no Portland or Oregon officials have declared that the act of driving through downtown itself was illegal, or even constituted a permit-less protest. Certainly, the city’s police had no plans to stop it.

And why would they? Since when has transiting a public thoroughfare not explicitly declared off-limits by the authorities been “provocative,” much less of dubious legality? Which is where the Terminiello point comes in.

The authorities in Portland knew beforehand that the caravan would take place. Their “goal” was to restrict their route to surrounding Interstates – and away from that downtown core. But what the heck is that about? They were afraid of confrontations? If so, didn’t they have an affirmative obligation to make sure that this event could take place safely? In fact, why wasn’t protection offered in advance? And P.S.: These questions pertain whether the caravan was considered by the police to be a protest, or simply an attempt to visit a public place. Finally, regarding the right to access public spaces like downtown Portland for lawful reasons – which seems like a pretty foundational civil right – why in the first place has the area’s government permitted these blocks to become a dangerous near-combat zone for months and even longer?

Of course, decisions about most effectively allocating available resources in a given situation allocation – which need to be left up to the authorities – will always prevent police or other law enforcement agencies from protecting every exercise of Constitutionally protected freedoms adequately. The challenge, moreover, is especially great in these fraught times. At the same time, what better argument could be made for more, rather than fewer, law enforcement assets?

More important, though, the notions that travel through a public street as such, whether simply expressing an agenda or not, amounts to a provocation that is somehow illegal or even improper, and that government has no duty actively to safeguard it, should be completely unacceptable to everyone who values free expression. Because if legitimate authority doesn’t make sure that threats or acts of violence don’t shut down free speech and the exercise of similar rights, you can be certain that the mob – or mobs – will quickly take notice.

Im-Politic: How to Deal with the Confederate and Other Now-Controversial Monuments

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A.P. Hill, Abraham Lincoln, Arlington National Cemetery, Aunt Jemima, Civil War, Confederacy, Confederate monuments, Constitution, cross-burning, Elizabeth Warren, First Amendment, Franklin D. Roosevelt, George C. Wallace, George Washington, Im-Politic, Ku Klux Klan, Mexican War, military bases, Pierre Beauregard, racism, Reconstruction, Robert E. Lee, Stonewall Jackson, Theodore G. Bilbo, Thomas Jefferson, treason, Trump, Tucker Carlson, Woodrow Wilson

Not that anyone’s asked for it, but the Confederate and other allegedly racist monuments issue is back in the news, so here’s my handy dandy guide for figuring out which of these memorials should be taken down or removed, which should remain publicly displayed (and how), and which should be left alone. (This guide, which only covers the major controversies that have reappeared recently, will of course include naming decisions for public buildings and spaces like parks and squares and streets.)

Some major misconceptions need to be cleared up first. Right off the bat, everyone should agree that whatever actions are taken (removal or alteration), they must result from legal processes. Unauthorized teardowns and inflictions of damage are simple vandalism and should be punished as such. No private person or group has the right to take these matters into their own hands, precisely because no one’s voted for you. As for public officials, unless laws specifically empower them to act unilaterally, they should always work through legislation or established rule-making procedures.

In addition, let’s drop the dishonest nonsense about statues and plaques on public grounds, and choices of names for public buildings or military bases and spaces like parks and squares, being simple descriptions or illustrations of history. Nothing could be clearer than that they’re meant to express honor and pride.

Similarly, making changes (including removal) has nothing to do with “erasing history.” To take one example, if Robert E. Lee’s name is taken off a high school or highway or whatever, there’s no chance that Lee will be forgotten. Every American who takes a public school course in U.S. history will learn about his role as commander of the Confederate army during the Civil War. And if you happened to cut or sleep through that class, you can always access one of the upteen gazillion books about that conflict that have been written for the last roughly century-and-a-half since it ended.

It’s true that public school students may not encounter the names of lesser Confederate figures. To which the only adult reply is “Big deal.” The reason that folks like Generals A.P. Hill or even Stonewall Jackson may be overlooked is because, in the end, they weren’t such big deals.

Also a no-brainer: If Americans want to honor controversial or despicable figures or movements or ideas on their own property, that’s in virtually all cases their Constitutionally protected right. Ditto for private businesses. If your neighbor is flying a Confederate flag or has painted a swastika on his property, you’re free to shun him, and to urge others to do the same. If you’re offended by Aunt Jemima, switch your pancake syrup brand, ask the company to use a new image or character, or encourage boycotts and trust in the market and consumer choice to settle the issue. (Cross-burning on one’s own private property, a la the viciously racist and anti-semitic Ku Klux Klan, is legally treated somewhat – but only somewhat – differently.)

More complicated is the question of which level of government should be making which decisions where public property is concerned. For instance, should a federal ban be enacted on using Confederate names on any public grounds, including state and local? I can see an argument for that proposition (as indicated below, it provides encouragement for treason, a Constitutionally designated crime or, alternatively, creates a discriminatory environment). But I can also understand the case for leaving the decision to the states and localities – and ultimately letting the market decide (mainly in the form of privately organized boycotts of the type that has pushed several states to drop anti-LGBT measures).

So having cleared away this intellectual brush, here’s the guide – at least for some of the major cases:

>Confederate leaders – they’re the easiest call of all. They were traitors. They took up arms against the U.S. government. No decent American should want to honor them in any way. Yes, there’s an argument that some of these naming decisions (e.g., for U.S. miIitary bases) were made in order to promote reconciliation between North and South after the Civil War. Indeed, President Trump just made it.

But the U.S. decision not to prosecute the leaders of the Confederacy – and execute them if found guilty – was a strong enough gesture of reconciliation. In addition, nearly all Confederate veterans – including senior officers – were soon permitted to vote and hold public office once more. And the same states whose rebellion ignited the war were admitted back into the Union.

As a result, naming numerous U.S. military bases after Confederate generals represents a grossly mistaken (at best), and I would argue utterly perverse and continuing slap in the face to all American citizens and legal residents of the country, and especially to the soldiers who fought and died to preserve the Union and their families and descendents. There are plenty of other American military leaders who served their country in actually patriotic and genuinely heroic ways. Their names belong on these bases instead.

But what about the graves of Confederate veterans (including rebels from “ordinary” backgrounds who may not have been slave owners or even racists) currently lying in U.S. military or other national cemeteries, including Arlington? There’s no doubt, as made clear here, that a number wound up there because of mistakes in identifying very partial physical remains. But it’s also clear that many were placed in or actually moved to these plots and the graves specially marked as signs of respect – and that Congress approved.

Massachusetts Democratic Senator Elizabeth Warren has recently introduced legislation to “remove all names, symbols, displays, monuments, and paraphernalia that honor or commemorate the Confederate States of America and anyone who voluntarily served it from all military bases and other assets of the Department of Defense.” Presumably (though I haven’t found the full text) this includes the markers.

Fox News talker Tucker Carlson (who I generally admire) condemned this measure as grave “desecration.” That’s reckless hyperbole, but if Warren would actually remove the markers, that looks excessive as well, since at least according to the official description in the National Parks Service post linked above, they simply identify the deceased as Confederates.

My bottom line: It’s not possible to figure out which of these veterans were bad guys and which were at least reasonably good guys, and the bodies are already interred. So I’d leave them be.

Not so, however, for the Confederate Memorial at Arlingon Cemetery – which even its official website says “offers a nostalgic, mythologized vision of the Confederacy, including highly sanitized depictions of slavery.” The Cemetery authorites go on to contend that “The Confederate Memorial offers an opportunity for visitors to reflect on the history and meanings of the Civil War, slavery, and the relationship between military service, citizenship and race in America.”

But given the monument’s clear glorification of the Confederate cause and its rose-colored view of slavery, and given that visitors have lots of other opportunities to reflect on the meaning of the Civil War and related issues, I’d ship this slab of stone out of there. It has no place on arguably the most sacred ground of this nation’s civic religion.

What to do with it, however, from that point – along with other Confederate monuments on federal grounds? Here I fully agree with those who would put them in museums instead of simply destroying them. Wouldn’t it be best to show them in a setting that could describe them fully and explain the context of their creation? And I’d deal with these statues and plaques on state and municipal lands in exactly the same way.

>Let’s move to American historical figures who didn’t revolt against their country, but nonetheless owned slaves and/or expressed racist views or supported racist policies. Here I’ll restate the argument I originally made in this post. If these figures were known only or best for racist views and positions – like former segregationist Alabama Governor George C. Wallace, or former (if you can believe it) even more racist Mississippi Governor and U.S. Senator Theodore G. Bilbo, I’d remove any statues etc from public grounds and stick them in museums, displayed as described above.

>The same would go, by the way, for Civil War leaders who for various reasons were widely seen after the conflict as personifications of honor or other military virtues, or who actually repented in word and/or deed after the war. Lee is the leading example of the former. However gentlemanly he might have been, or however well he may have treated his soldiers, and even however distinguished his record in the U.S. Army during the Mexican War (which, to complicate matters further, was in large measure a war of annexation), few would have paid much attention to him, or even known of him, if not for his Civil War role. So let’s get him and his name out of public spaces.

A prime example of the latter is Pierre Beauregard. This former Confederate general actually led the troops in South Carolina who fired on Fort Sumter and for all intents and purposes started Civil War. After the conflict, according to the official website of his hometown of New Orleans, he became “an early proponent of equal rights in Louisiana, serving as the outspoken leader of the short-lived and ultimately failed unification movement.”

Since I do believe in redemption (and hope everyone else does, too), I’d go along with a monument of some kind. But not the kind currently standing in the city – which depicts “the uniformed general astride his horse.” How about moving that statue to a museum, complete with a full bio, and putting up a new monument portraying him in civvies and celebrating his efforts to champion equality? Ditto for any similar cases.

As for those leaders with troublesome racial pasts and/or policy records who nonetheless are (rightly) known for much more (as I argued in the RealityChek post linked above) , I’d leave their monuments in place, too – but make the maximum feasible effort to add some explanations that mention these blemishes. By the way, such leaders include not only former slave-owning Presidents like George Washington and Thomas Jefferson, and outspokenly racist former Presidents like Woodrow Wilson, but even former Presidents generally seen as race relations heroes – like Abraham Lincoln and Franklin D. Roosevelt. 

A final point about dealing with the Confederate and especially other controversial monuments: If anything should be obvious about this discussion of the issue, it’s how complicated much of the history is, and therefore how complicated many of the monuments et al decisions are. Some are indeed easy calls and should be made promptly. But no one should favor anything resembling a rush to judgment on the others.

Im-Politic: An Impeachment Red Herring from House Judiciary

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Constitution, Democrats, executive privilege, House Judiciary Committee, Im-Politic, impeachment, Jerrold Nadler, Mueller Report, Nancy Pelosi, Robert Mueller, Special Counsel, Trump

You know the Shakespearian expression, “The lady doth protest too much, methinks”? A wonderful way of describing someone who makes an argument that’s so over-the-top that it undercuts credibility?

I couldn’t help but think of it while reading the new report from the House Judiciary Committee’s Democratic staff on “Constitutional Grounds for Presidential Impeachment.”

I’m not talking about the substantive credibility of the case for President Trump’s impeachment (and/or removal from office). Instead, I’m talking about the case’s political credibility. Because this new study makes nothing so clear as the belief of the Committee’s majority Democratic members that they haven’t yet convinced enough of the American people that their efforts to oust the President are justified. And no doubt this conclusion applies to numerous others in the party’s House majority and in the Senate.

No one can have any legitimate issue with the Committee releasing such a report. As Chairman Jerrold Nadler of New York notes, the full committee staffs put out similar studies in connection with the 1974 impeachment proceedings against President Richard Nixon, and those against President Bill Clinton in 1998. (One important difference: Unlike the previous reports, this new study was the product only of one party’s staff.) And scholarship has of course advanced since then.

But in the process of “Addressing Fallacies About Impeachment,” the Democratic staff created some itself – that impeachment proponents are maintaining that impeachment “is not part of democratic constitutional governance”; that because a presidential election is coming up, a chief executive “is entitled to persist in office after committing ‘high Crimes and Misdemeanors’”; and that such a President’s voters consider themselves “entitled to expect that their preferred candidate will do so.”

These arguments are transparently fallacious because none of the President’s backers has questioned the legitimacy of impeachment per se, and none believes that, whatever the political calendar, any office holder deserves to keep on serving after committing impeachable offenses.

To use an obvious but instructive example, just ask yourself: If Mr. Trump had committed a crime in public view – e.g., stood “in the middle of Fifth Avenue and [shot] somebody,” as he once suggested during his campaign, in a (typically) hyperbolic efofrt to describe his popularity with his base – does anyone seriously think that even the staunchest Trump-er would respond (if there were no extenuating circumstances, like self-defense) “Nope, nothing impeachable here. Let’s just let him serve out his term.)

(Interestingly, outside the impeachment context, the President’s lawyers have argued that Mr. Trump, or any President, couldn’t be criminally indicted for such an act while in office, but that’s a separate issue from impeachment.)

What Trump supporters are saying is that, after literally years of investigations – by Congress and by a Special Counsel (Robert Mueller) whose integrity no Trump opponent questioned – no conclusive evidence of impeachable transgressions has emerged. And that given the approach of a new election that would give the public a chance to decide the President’s fitness for office (an opportunity that was not available for second-term Presidents Nixon and Clinton), the best course for the country’s sake is moving on from the current proceedings. In other words, they’re making a political and policy argument, not a Constitutional argument.

For example, the Mueller report specifically concluded that “the evidence was not sufficient to charge that any member of the Trump Campaign conspired with representatives of the Russian government to interfere in the 2016 election” and, more controversially, regarding obstruction of justice allegations:

“[I]f we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, however, we are unable to reach that judgment. The evidence we obtained about the President’s actions and intent presents difficult issues that prevent us from conclusively determining that no criminal conduct occurred. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.”

As numerous impeachment backers have pointed out, in his post-report press conference, Mueller did note, in the course of explaining the substantive and Constitutional obstacles to accusing a sitting President of criminal behavior, that “the Constitution requires a process other than the criminal justice system to formally accuse a sitting President of wrongdoing.” And of course that was a reference to impeachment.

But neither Mueller nor his report has stated that Mr. Trump actually has committed an impeachable defense, or explicitly said that enough evidence exists to warrant an impeachment inquiry. The Special Counsel simply observed that, if Congress has enough further problems with the President’s actions, it has a Constitutionally permitted avenue for pursuing these concerns.

It’s true that Congress has not yet had the chance to question under oath current and former administration officials who might be able to provide first-hand evidence of impeachable Presidential wrongdoing, and that the initial obstacle has been Mr. Trump’s refusal to permit them to testify.

That opposition could well stem from the President’s fear of what these figures might say. But it could also stem from legitimate concerns about executive privilege – a President’s recognized right, originating in the separation of powers created by the Constitution, to keep under wraps, including from Congress, internal deliberations of his or her administration.

This privilege is by no means absolute, and such Executive-Legislative branch disputes can be refereed by the courts. But Congress’ Democrats have declined to go this route either to compel such testimony, or free up impeachment-relevant records. In this regard, therefore, they so far have no one to blame for the absence of a “smoking gun” but themselves.

So why are the Judiciary Democrats serving up this red herring? I’m not a mind-reader, but Congress’ Democratic leaders acknowledge that they’re following the polls, and they show plain as day that, since late October, public support for impeachment and removal has fallen steadily – to the point where it’s clearly under 50 percent and still shrinking. And some evidence shows that the numbers are worse for the Democrats on this issue in key presidential election battleground states and Congressional districts crucial to their continued control of the House.

I’m not questioning whether House Judiciary Democrats, or any other Trump opponents, sincerely believe that the President has committed impeachable offenses, or whether they view the evidence as clearcut and even overwhelming. But the new Judiciary report’s baseless charge Trump supporters would oppose impeachment under any circumstances is strong evidence that, in this ultimately political debate, they’re far from making the political case.

Im-Politic: America Needs to Get Its Citizenship Act Together

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Alexander Hamilton, Census, citizenship, Constitution, Founding Fathers, Im-Politic, immigrants, Immigration, national identity, naturalization, non-citizens

Despite all the heat that it’s generated, the most important citizenship-related issue facing Americans today is not the one revolving around whether long Census form should seek this information from residents of the country. Instead, given all the clashing views of national identity that have emerged in recent years, the most important issue is developing a coherent concept of citizenship – what it should entail in terms of rights and responsibilities, and why .

Suggesting that the United States – a 243-year old country with a history that’s been a rousing success by any reasonable standard – hasn’t been thinking clearly about citizenship certainly seems odd. But the history actually couldn’t be clearer. And the confusion begins at the beginning. Although the Constitution refers to “the Privileges and Immunities of Citizens,” the document says remarkably little about what these are and, more important, about the reasons that such privileges and immunities should be enjoyed by one group of residents in the country but not others.

Even the choice of some of the most prominent privileges and immunities that are specified are peculiar, to put it mildly. For instance, the framers of the document designated citizenship as a requirement for holding the offices of President, U.S. Representative, and U.S. Senator. But nowhere does the Constitution’s body say explicitly that the Vice President must be a citizen – that provision had to wait until the ratification of the Twelfth Amendment in 1804. Nor does the document explicitly require federal judges to be citizens. 

At the same time, the Constitution’s federal office-holding criteria obviously assume that some citizens are more equal than others.  In the best known example, only “natural born” citizens (a term never defined in the Constitution or by the Supreme Court, and still debated, though it’s widely thought to mean a citizens born in American territory or born outside the United States or its possessions to citizens parents) are eligible to be President.  That’s why former Secretary of State Henry Kissinger or former California Governor Arnold Schwarzenegger could never realistically dream of becoming President.  They, and so many other prominent Americans, were foreign born and naturalized.   

But not just any natural born citizen can serve in the White House.  He or she needs to be at least 35 years old, and have lived in the country for fourteen years.  

As for voting in federal elections, it’s now a crime for non-citizens, but that’s only been the case since 1996. It’s by no means grounded in the Constitution, which generally authorized the states to decide eligibility for elections at all levels in the federal system. And the states have a long history of permitting voting by non-citizens.  (See here for a detailed history of non-citizen voting – by a supporter of this policy.)

Further muddying the situation: Many citizens have long been denied rights and privileges extended to other citizens, at the federal, state, and local levels alike. Women have expressly been classified as eligible for citizenship since the earliest immigration and naturalization laws, which were passed shortly after the Founding. But for more than a century afterward, female citizens faced all manner of limits (mainly at the state level but including on the national level) on their “privileges and immunities” that didn’t apply to male citizens – notably, the right to vote and the right to own property. (See here for some key milestones in the history of such limits and the pushback.) Children born in the United States are unmistakably citizens, yet they still don’t enjoy many of the rights of adults.

Equally confusing are the obligations of non-citizens legally resident in the country. They can’t vote for the federal (and in most cases, the state and local) officials who make tax policy. But especially if they hold green cards, they’re considered “tax residents” upon legal entry and must declare their total income and pay taxes required under U.S. tax law. 

The same goes for questions of war and peace: Legal non-citizens can’t choose the politicians who make these decisions, but they’re potentially required to live with the gravest consequences, since they’re obligated to register for the military draft (unless they’re women – who can’t register even if they are citizens) – and have been often during American history.  (See, e.g., here and here.)

It’s not that the Founders didn’t think about citizenship seriously at all. The very first Article of the Constitution (Section 8) very prominently sets out “establishing a uniform Rule of Naturalization” as one of Congress’ powers. As early as March, 1790, the first Congress in U.S. history followed suit by passing a naturalization act to establish a process and criteria for grants of citizenship. Approved – revealingly – during the same month that that year’s Census was mandated, the law held that foreign-born persons could become U.S. citizens only if they were free, white, lived in the United States for at least two years, resided in the state where they filed the application for one year, proved their “good character” to a court, and swore allegiance to their new nation. Children of citizens born outside American territory would be considered citizens, too. Five years later, the U.S. residency requirement was raised to the current five years.

The residency requirement – and its durability – hints at one possible answer to the question of why citizenship matters. This category was valued because it identified residents judged (to paraphrase an article by former law professor and current U.S. Congress-person Jamin Raskin) “fit to govern” – and by extension (quoting directly now) deserving of “the opportunity to participate in the essential and representative act of democratic politics [voting].” The flip side of this coin, as observed by a much more conservative legal authority, Alexander Bickel, was a position found in western political theory since classical times – which inspired so much of the Founders’ political worldview: “It is by virtue of of his citizenship that the individual is a member of the political community, and by virtue of it that he has rights.”

The reference to a political community is crucial, because what little the Founders collectively said about citizenship often focused on precisely this aim, as did the (admittedly minimalist) legislative and Constitutional record they created. Jefferson and Hamilton embodied fundamentally different approaches to arranging political power within the new nation and equally clashing ideas about the optimal future for the economy (largely because of their political philosophies). But they both agreed that great dangers were likely from a large influx of newcomers from countries whose views and political traditions diverged much further still from those prevailing in the existing U.S. population – and whose national loyalties might be suspect – and that a major response was needed.

The residency requirement that became law clearly reflected Hamilton’s belief that “Some reasonable term ought to be allowed to enable aliens to get rid of foreign and acquire American attachments; to learn the principles and imbibe the spirit of our government; and to admit of at least a probability of their feeling a real interest in our affairs.” (See here for the case for the Constitution as a key part of the Founders’ exercise in political community-building. Interestingly, the author’s main thesis is that membership in this community should be expanded to include non-citizens.)  

And yet, from literally the beginning, so many opportunities to link the creation of such a community to citizenship were went ungrasped. The Constitution could have specified that Congressional apportionment (determining the numbers of House of Representatives districts would be given to each state) must be based on numbers of citizens. Instead, it simply holds that the count should consist of “the whole number of free persons,” indentured servants, and “other Persons” (meaning slaves), who would be treated as three-fifths of the other two categories. Native Americans who were “not taxed” were the only category of resident explicitly excluded.

Moreover, because there is no Constitutionally mandated connection between citizenship and Congressional apportionment, there’s no link between citizenship and the allocation of electoral votes, either, since that figure is based in part on the number of House districts per state.

A third missing link – which seems a matter of recent bureaucratic custom rather than law: As of 2015, more than a hundred federal programs used Census data to determine the distribution of $675 billion in taxpayer funds to pay for everything from Medicare Part B to Medicaid to school lunches to highway construction.

And despite the loyalty oath required for naturalization, and the Founders’ concerns about divided or competing national allegiances, neither the Constitution nor any code of federal law has ever prohibited dual citizenship. Stranger still – many American citizens today legally serve in the militaries of foreign countries not engaged in hostilities with the United States, and even in senior government positions in foreign governments.

Numerous observers believe (and even hope) that these glaring contradictions in the treatment of citizens show that the concept is weakening.  I fervently hope that they’re wrong.  For I believe that the Founders were right.  In other words, as clearly, and as consistently as possible, it’s essential that the law define citizens as that segment of the population that enjoys a specific set of (mainly voting- and governing-related) rights in exchange for supporting the nation’s core political values. Otherwise, Americans will never preserve what one commentator has called “the cohesiveness and sense of community…vital to the success of popular government.”

But the bitter divisions that have opened recently in America’s politics and society demonstrate that the wildly incoherent approach to citizenship that’s evolved until now is giving the nation the worst of all possible worlds. If a completely chaotic disintegration of the country into a gaggle of hostile, quarreling groups is to be avoided, a clear choice needs to made – and the sooner the better.

Im-Politic: Why Illegal Aliens Feel So Entitled

Tags

Constitution, Equal Protection Clause, Fourteenth Amendment, ignorance of the law, illegal aliens, Im-Politic, immigrants, Immigration, Supreme Court

At first glance, Thursday’s Supreme Court decision holding that an illegal alien couldn’t be convicted for possessing a firearm because he didn’t understand his status looks like the height of illegals’ coddling at the expense of common sense – not to mention obvious public safety considerations, and the legal principle that “ignorance of the law is no excuse” for violating it.

In fact, although the 7-2 ruling is defensible on the narrowest possible legal grounds (grounds that are entirely legitimate and time-honored bases for Court decisions, especially for believers in what’s known as the doctrine of judicial restraint), it reveals something at least as disturbing: how thoroughly and dangerously recent decades of lax pre-Trump immigration policies have fostered a sense of entitlement among illegals. And only slightly less disturbing: The law itself that’s in question contains its own evidence of illegal aliens coddling.

The majority’s opinion turned on the specific question of whether a law barring illegal aliens from owning firearms permits conviction only if the defendant “knowingly” violates the statute. Although this conclusion seems to overlook completely the venerable “ignorance of the law” maxim, as the majority importantly reminds, this principle (like most others worth following) isn’t absolute. I also find convincing the argument that the statute’s wording makes clear that, in this particular case, lawmakers intended the “knowingly” criteria to apply to illegal aliens’ awareness of their immigration status under the law.

But at this point, I get off the boat policy-wise. Because how on earth does any illegal alien in the United States who can pass a sanity test get the idea that he can live his or her life without being acutely aware of their immigration status? Similarly, why did the defendant believe that he had just as much of a right to own a (substantially regulated) deadly weapon as any legal American resident? Especially when he had just been told that his legal immigration status was hanging by a threat – at best. And if you think that the second and third questions are exaggerations, get a load of this description (from the dissenting opinion) of the defendant’s actions after the college he was enrolled him told him by email that, because of poor academic performance, “he was no longer enrolled and that, unless he was admitted elsewhere, his status as a lawful alien would be terminated”:

“Petitioner’s response was to move to a hotel and frequent a firing range. Each evening he checked into the hotel and always demanded a room on the eighth floor facing the airport. Each morning he checked out and paid his bill with cash, spending a total of more than $11,000. This went on for 53 days.”

To me, the answer obviously is that for so long it has been so easy to enter the United States illegally, and for legal entrants to stay once their visas have expired, that many believe that they have every right to be in the country and to be treated exactly like legal residents and citizens.

In some instances, they’re correct. Principally, the Supreme Court has ruled that the Equal Protection Clause of the Constitution’s Fourteenth Amendment means that everyone in the United States at any given moment, no matter what the conditions, is entitled to the full range of protections offered by U.S. law. But these convictions also frequently extend to assumptions that illegals are also due any number of welfare state benefits, privileges like drivers’ licenses, and even the right to vote.  And of course, these assumptions have constantly be aided and abetted – and often created by – Open Borders-oriented illegal aliens’ advocacy groups and even state and local governments.

It’s equally obvious that the federal gun ownership law (which is found starting on p. 13 of the opinion linked above), unwittingly or not, betrays the illegals-coddling mindset mentioned above. After all, why specify that illegals need to violate the statute “knowingly.” They’re not supposed to be here in the first place. Systematic knowledge about them is lacking – including criminal records in their home countries. Why should they be granted any right to possess a gun under any circumstances?

So it’s clearly time to rewrite the law – especially since the “knowingly” standard is even more absurd for many other categories of individuals it denies gun ownership, like “fugitives from justice” and recipients of court orders restraining them from harming or harassing their “intimate partners” and the children thereof.

After all, one of the clearest lessons about immigration policies taught over the decades since the 1986 amnesty is that the messages sent by Washington’s words and deeds greatly influence foreigners’ willingness to enter the United States illegally. If a reasonable degree of control over U.S. borders is to be reestablished, it’s time to send out a new one: From now on, within the legal bounds set by the Equal Protection Clause, American law is going to start making it harder for illegal aliens to behave in ways that endanger citizens and other legal residents, not easier.

Im-Politic: Why the Crucial Abortion Debates are (Long) Over

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abortion, abortion rights, Constitution, Gallup, heartbeat bills, Im-Politic, Kaiser Family Foundation, National Opinion Research Center, Pew Research Center, Planned Parenthood of Southeastern Pennsylvania v. Casey, Quinnipiac College poll, Robert G. McCloskey, Roe vs. Wade, Supreme Court

If only most of the major challenges facing Americans were as easy to meet as arriving at a satisfactory compromise over abortion. In fact, in the key respects, the challenge has already been met, as a general consensus is staring the nation in its collective face, has been in place literally for decades, and looks guaranteed to remain solidly in place for the foreseeable future.

Sounds crazy, doesn’t it, given the political and policy brawl that has erupted in recent weeks over a handful of states’ approval of laws dramatically reducing the circumstances in which abortion will remain legal?  But this contention is backed up strongly by the national legal regime regulating abortion right now, by all the polling, and by everything known about how the Supreme Court – which it’s thought on both sides of the issue could well transform the status quo it’s created since its 1973 Roe v. Wade decision – historically has handled such explosive questions. Moreover, abortion is one of those matters in which the politics, the law, and the history powerfully reinforce each other.

Let’s start with the law. The major Supreme Court decisions are of course the Roe case – which established a Constitutional right to abortion but also authorized states to infringe on it in various ways during a pregnancy’s second and third trimesters – but also a ruling in the 1992 Planned Parenthood of Southeastern Pennsylvania v. Casey case. In it, a 5-4 majority of the Court created a standard to govern such state restrictions on abortion, holding that such measures could not impose an “undue burden” on women seeking abortions that “created a substantial obstacle” to undergoing the procedure “before the fetus attains viability.”

Revealingly, that guideline nicely describes the current U.S. consensus on abortion rights: Women deserve a fundamental right to abortion, but (like most other rights), it’s not absolute. More specifically, the most widely agreed on exceptions involve what are clearly exceptional (and exceptionally tragic) – mainly rape, incest, serious threats to the pregnant woman’s health, and a high likelihood that the new baby would suffer from serious defects. (See this recent Gallup summary for some representative data.)

Still more revealingly: These public attitudes have been remarkably stable over time. At least three separate polls – shown in the aforementioned Gallup summary, by Pew, and by the National Opinion Research Center (NORC) – make this point emphatically.

And at least as important – NORC’s findings show that a sizable gap has existed between public support for the “tragic” exceptions to the right to abortion on the one hand (which have demonstrated at least 70 percent backing for the four decades examined), and other proposed exceptions (whose support generally has remained between 30 percent and 50 percent).

In turn, these legal and political considerations both create towering obstacles even to a Court now featuring a conservative majority overturning either the Roe or the Casey regimes. And least plausible of all is the wish-dream of abortion rights opponents and the nightmare of abortion rights supporters – that the Court bases such a reversal on cases brought deliberately in order to uphold the highly restrictive new state laws. For outlawing abortion even in the aftermath of rape and incest, for example, would seem the epitome of creating a Casey-violating undue burden on the fundamental right to abortion. The various “heartbeat” bills for their part can’t be squared with the Court’s determination in Roe and other decisions since that a fetus isn’t viable until long after the six weeks at which this function can first be detected.

Indeed, such laws repeatedly have been struck down in various courts, and the Supreme Court has refused to consider the two that reached it on appeal. And don’t think it’s a coincidence that the high court’s recent record tracks well with public opinion (including on the heartbeat bills, according to Kaiser Family Foundation and Quinnipiac University survey results presented in this sweeping summary of decades of abortion poll findings).

But couldn’t the Supreme Court’s new conservative majority decide the time is ripe to get rid of Roe and follow-on decisions? Not if it bears any resemblance to its predecessors since the New Deal era. For one of the seminal findings about the Court came back in 1960, in Harvard political scientist Robert G. McCloskey’s classic study, The American Supreme Court. As McCloskey argued compellingly, the Court is most successful when it pays attention to public opinion, and runs into its greatest troubles when it gets too far ahead of or too far behind these attitudes. If you’re skeptical, just think of the tumult that followed the pre-Civil War Dred Scott case and its invalidation of crucial pieces of New Deal legislation during the Great Depression.

None of this is to say that lots of thorny abortion-related decisions will continue to face Americans – like federal funding for Planned Parenthood and other organizations that provide a wide range of women’s health care services, including abortion services; and about what kinds of reproductive health services like birth control religious organizations should be required to provide for female employees in their health insurance plans. And few of them have generated enough polling evidence to identify consensus with any justifiable confidence.

But the broadest, most important abortion-related questions have been decided – especially in the court of public opinion. The procedure will remain a strongly protected Constitutional right early in pregnancy, and a more weakly protected right in later phases. Throughout pregnancies, this right will receive virtually absolute protection in genuinely traumatic circumstances, and be subjected by states to curbs on its availability that don’t “substantially” nullify it in practical terms — and that therefore should not be reflexively condemned as stepping stones to wide-ranging bans.

So abortion rights supporters need to give up on extending strong protections deep into pregnancy. And abortion rights opponents should forget about overturning Roe and Casey. It’s true that medical advances that keep pushing fetal survivability (if not viability without pervasive support) back closer to conception will one day resume adding fuel to the abortion debate fire. And public opinion is by no means set in stone. But for more than forty years since Roe, Americans collectively have been saying that the general abortion debate is over, and the courts have plainly agreed. It’s high time that politicians and activists across the spectrum got the message.

Im-Politic: Mueller, Barr, and Beyond

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2016 election, Access Hollywood tape, Adam Schiff, collusion, Constitution, executive privilege, high crimes and misdemeanors, Im-Politic, impeachment, James Comey, Jerrold Nadler, Justice Department, Mueller Report, Nancy Pelosi, obstruction of justice, removal, Robert Mueller, Roger Stone, Russia, Russia-Gate, Special Counsel, Trump, Trump-Russia, William P. Barr

Yesterday, Attorney General William P. Barr released his summary of Special Counsel Robert Mueller’s investigation of the Trump presidential campaign’s “links and/or coordination” with the Russian government, and of related obstruction of justice charges. The big takeaways: In the Mueller report’s own words, the investigation “did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities”; and (in the Attorney General’s words), Mueller and his team “ultimately decided not to make a traditional prosecutorial judgment” regarding a number of Presidential actions that “potentially” raised obstruction of justice concerns.

A more resounding defeat for the legions of Democrats, Republican and conservative Never-Trump-ers, and Trump haters in the Mainstream Media can scarcely be imagined for two major reasons. First, according to Barr, not only did the Special Counsel investigation fail to find any Trump campaign conspiracy or coordination with the Russian interference effort. It concluded that such actions never took place “despite multiple offers from Russian-affiliated individuals to assist the Trump campaign.”

Second, although Mueller and his staff (in their words) made sure to state that “while this report does not conclude that the President committed a crime [i.e., obstruction], it also does not exonerate him,” the failure to recommend such charges is stunning. After all, this hasn’t been a team of investigators that’s been exactly reluctant to hand down such indictments – including for so-called process crimes that are clearly serious in normal circumstances, but that look especially dubious now considering the failure to find any underlying crime.

Constitutionally speaking, where this leaves remaining desires in Congress and throughout the country to impeach the President is way up in the air right now. For as the impeachers – and others – have often rightly reminded us, the Constitution doesn’t define the “high crimes and misdemeanors” that can warrant impeachment (and removal from office) aside from “treason” and “bribery.” Therefore, from a Constitutional standpoint, there’s a strong case to be made that impeachment and removal can take place in the absence of a criminal offense, and that the process is above all else political (a term I’m not using pejoratively in this case).

As a result, any lawmaker deciding to proceed along these lines even after the above Mueller conclusions would be acting completely within his rights and even arguably fulfilling one of his highest duties. House Judiciary Committee Chair Jerrold Nadler (D.-New York) was right when he stated:

“The job of Congress is much broader than the job of the special counsel. The special counsel is looking and can only look for crimes. We have to protect the rule of law, we have to look for abuses of power, we have to look for obstructions of justice, we have to look for corruption in the exercise of power which may not be crimes.”

Indeed, that’s why Congress has been granted broad oversight authority over Executive Branch actions and policies. It’s a central feature of the checks and balances principle at the heart of the country’s Constitutional government.

Similarly, however, because impeachment is an ultimately political process, House Democrats (whose control of the chamber empowers them to initiate such proceedings) will have to make ultimately political decisions whether to go ahead, how far to take these matters, and the extent to which they’re willing to permit impeachment to dominate their agenda and the public perceptions they create. As I see it, those Democrats chomping at the bit to head down this road remain far from the starting gate, especially given House Speaker Nancy Pelosi’s judgment well before this weekend’s events that Mr. Trump “is just not worth” impeaching. The same conclusion applies to the determination of Rep. Adam Schiff (D-California), Chair of the House Intelligence Committee to keep examining whether the President “is somehow compromised by a foreign power.”

Yet for all the comment and analysis flooding out this afternoon, there’s still one question I think needs more attention: When exactly did the Mueller team recognize that neither the collusion nor the obstruction allegations wouldn’t pan out? More specifically, did this situation became clear to the Mueller team before last year’s U.S. midterm elections?

Here’s what I’m driving at: The entire Special Counsel exercise was launched to find answers to some of the biggest and scariest questions ever raised in American history. Like whether a successful candidate for President and/or influential members of his campaign cooperated with an unfriendly foreign power to win the White House – which raises the possibility (as per Schiff above) of a President doing that power’s bidding for fear of blackmail. And don’t forget the allegations that Mr. Trump obstructed justice in order to cover up these actions and relationships, and that Moscow has him over a barrel for a second reason – due to financial transactions that kept the President’s business empire afloat before and during his White House run.

Given these astronomical stakes, of course all Americans of good will would want to leave no stone unturned. But there inevitably comes a point at which the stones start looking like pebbles, inherently incapable of hiding much. In that vein, Mueller has indicted plenty of Russians and some Americans, but as even the Trump-loathing Vox.com notes, none of these found that “Trump advisers criminally conspired with Russian officials to impact the election.” Indeed, the last such Trump-er brought up for charges was Roger Stone (in January) – and the Stone actions that caught Mueller’s attention (between July and October, 2016) came a year after Stone officially left the Trump campaign.

In other words, it looks as if sometime in the second half of 2018, Mueller’s investigation was reaching a point of diminishing returns. Did Mueller and his staff continue their business as usual (including keeping their findings closely held) because they had strong reasons to believe that major revelations were just around the corner? That would be highly unusual, for at least according to Barr, none of them panned out.

But if the investigation was producing such modest results after so many witnesses interviewed and search warrants executed (approximately 500 each, according to Barr), subpoenas issued (more than 2,800), and communications records obtained (more than 230), shouldn’t Mueller have let the public know that sooner rather than later? Especially considering that a major vote was coming up in November? These questions deserve to be asked even if Mueller was pursuing a typical prosecutorial strategy of targeting little fish first in the hope that they’d flip and disclose misdeed by progressively bigger fish.

Granted, several policy statements can be cited making clear that the determination of the Justice Department (the final authority over Special Counsel investigations) to avoid even creating the appearance of interfering with elections in any way. As this shown in this analysis, “interference” includes issuing reports shortly before elections (a standard previous Special Counsels, and former FBI Director James Comey in 2016, failed to meet). But the informal “60-Day Rule” cited here still would have enabled Mueller to issue some kind of statement (perhaps an interim report?) by Labor Day. I’d sure appreciate him explaining why this option wasn’t chosen, and if it was even considered.

Of course, it’s true that the President faces legal jeopardy on a variety of other matters, ranging in seriousness from hush money payoffs to floozies (which supposedly violated campaign finance laws) New York-area examinations of his inaugural committee’s fund-raising and of his family’s charitable foundation and of the possibility of insurance fraud to a groping accusation dating from 2007. But do these collectively, much less individually, endanger the Trump presidency? Given the President’s victory shortly after the release of remarks on the Access Hollywood tape suggesting sexual assault, that’s doubtful, especially with the Russia collusion and obstruction charges out of the way legally speaking.

Focusing on doubts concerning Barr’s decision to drop criminal obstruction charges against Trump seems no more promising. After all, authorizing Congress to seek impeachment for actions that are not crimes is essential because, as per the Nadler statement above, offenses like abusing power and creating conflicts of interest can endanger democracy and the public interest even if they violate no specific statutes. But obstruction of justice is a defined crime. Therefore, the failures of not only Barr but Mueller to indict on this score would require an obstruction-centric impeachment drive to insist that a political definition of guilt outweighs its clearcut legal counterpart. Good luck coming up with a politically riskier, more divisive course of action.

What about next steps? I strongly favor release as soon as possible of as much the actual Mueller report as consistent with the need to protect intelligence sources and methods. Watergate-era precedents seem to refute the idea that any materials violating executive privilege must be excluded. As Nadler rightly reminds, the Supreme Court’s Nixon tape case ruling specified that this Constitutional principle can’t be justified to hide wrongdoing. Nor do I have strong objections to publishing information either in the report’s body or in supporting documents that might invade the privacy or impugn the reputations of unindicted individuals (including the President). I would imagine that Barr and Congressional Democrats have enough common sense and decency to agree on which disclosures would harm the truly innocent. But the public should definitely have the right to know whether or not the President has surrounded himself with fools and knaves – and/or has acted this way himself.

Ultimately, however, I feel confident that Mr. Trump will survive these disclosures as handily as the non-aforementioned Mueller investigations. After all, a critical mass of the American people was ready to entrust Mr. Trump with the powers of the highest office in the land knowing full well he was no angel personally or in business. I strongly suspect he’ll fare equally well in 2020 now that it’s as clear as possible that, whatever his flaws, he was never the Manchurian Candidate or a Nixonian-style crook.