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.

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Im-Politic: Why Illegal Aliens Feel So Entitled

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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.

Im-Politic: The Real Veterans Day Hypocrites

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Armistice Day, Constitution, Emmanuel Macron, France, illegal aliens, Im-Politic, nationalism, patriotism, racism, Riverdale Park, sexism, Trump, Veterans Day, voting rights, white nationalists, World War I

Mentioning U.S. military cemeteries in France and my town of Riverdale Park, Maryland in the same sentence, or even the same piece of writing – that’s got to be a first. But due to the overlap of Veterans Day today with the hundredth anniversary of the armistice that ended World War I hostilities, both shed some light on the confused, often downright incoherent, and just as often hypocritical nature of America’s heated, intertwined political and philosophical battles over identity, nationalism, and related issues.

The military cemetery angle is clear enough, due to President Trump’s controversial decision to forego attending yesterday’s Armistice Day ceremony at the Aisne-Marne American Cemetery and Memorial outside of Paris. Mr. Trump’s administration attributed the decision to bad weather and the logistical complications it created. I’m no expert on these matters (chances are, neither are you) and for all I know, rain and the herculean task of moving American presidents in foreign countries may have genuinely rendered his initially announced schedule unrealistic. I also suspect that a major role was played by the simple exhaustion of a 72-year old man following a whirlwind last few weeks of criss-crossing America for speeches at campaign rallies aimed at electing Republican candidates in this month’s midterm elections.

Nonetheless, even though this event wasn’t the only, or even the main event on the Trump schedule, or even the only scheduled cemetery visit, I believe that the President should have sucked it up and attended. (Just FYI, he did wind up going to a second such ceremony today.) As a result, I have some sympathy for the critics’ charges that Mr. Trump’s decision undercut his high profile claims of championing patriotic values.

But I don’t have total sympathy, and here’s why: because these presidential opponents generally have a pretty dodgy, and thus often double-standard-infused, record on patriotic values themselves. Why else, for example, would they be so apoplectic about the President’s self-description as a “nationalist.” Many have not only equated this viewpoint with something they call “white nationalism” (a concept whose fatal internal contradictions are, revealingly, ignored only by them and by the fringe neo-Nazi types who have adopted it). They’ve also attacked it for clashing with the idea of diversity, as opposed to “inclusion,” and for asserting (in the words of France’s President, Emmanuel Macron), “our interests first, who cares about the others?”

At best, however, that’s a bizarre critique for at least two reasons. First, the United States exists in a world of other political units that are known as “nation-states,” and inevitably, their “national interests” (another term that’s not the least bit controversial) won’t always coincide. These interests aren’t always in conflict, either, and when they’re not, inclusion – in the form of fostering international cooperation in order to advance shared goals or repel share challenges – is a fine idea. But when these interests don’t coincide, and can’t be reconciled via diplomacy, inclusion can easily become a formula for delusion, and for harming U.S. interests. And Macron to the contrary, at that point, any national leader deserving his country’s trust would put their “interests first” and not care terribly “about the others.”

Second, Mr. Trump’s actual use of the word had nothing to do with jingoism or chauvinism, much less racism. Indeed, it had everything to do with promoting an entirely reasonable U.S. foreign policy goal. Here’s his description of the term: “All I want for our country is to be treated well, to be treated with respect. For many years other countries that are allies of ours, so-called allies, they have not treated our country fairly, so in that sense I am absolutely a nationalist and I’m proud of it.”

And here’s where Riverdale Park, Maryland comes in. This morning, the town held its annual Veterans Day observance. It took place at a pretty little patch created near the town center, complete with a memorial and a big American flag. Ever since I moved to the town in 2003, I’ve attended this ceremony nearly every year, along with the Memorial Day ceremony (when I was in town, which has usually been the case), and was proud to do so. This year, that streak came to an end.

I’m boycotting, and will continue to boycott, because earlier this year, as I’ve described, the town decided to permit illegal aliens to vote in local elections (along with 16-year olds). It’s a free country, and the decision is Constitutional, but it mainly rankled because, as I also wrote, during the debate, supporters of the idea made plain as day that they not only had no regard for the idea of citizenship, and of the community of values it has represented throughout our country’s history. They stated repeatedly their convictions that that community, along with the Constitution that organized its government and enshrined into law the liberties Americans enjoy, are nothing more than racist and sexist constructs concocted by a claque of dead white males determined to perpetuate their dominance and that of their descendants. Moreover, the town’s endorsement of non-citizen voting unquestionably represented endorsement of that perspective.

And these are folks – and the municipality – claiming to honor those currently serving in the military, and those who have lost their lives defending this political system? Sorry, but I found that proposition stomach-turning, along with the idea of taking part in this sham.

Further, these convictions are hardly confined to Riverdale Park. Polls – not a perfect measure of opinion, I know, but the best we have – show consistently that patriotic feelings are declining sharply among the American public as a whole, and among Democrats, liberals, and the young in particular – the last three categories are coming to dominate Riverdale Park’s population. (See, e.g., here and here. And according to the Gallup survey, the latter two trends predated Mr. Trump’s election as president.)

I have no evidence that most or even many of those with low patriotism levels have chortled at the President’s decision to skip the military cemetery ceremonies. But I’ll bet the number is more than a few. Ditto for a high correlation between the Trump cemetery critics and staunch opponents of his immigration policies – due to the President’s insistence that the United States as a sovereign nation, and even more important, one precious enough to be worth defending, has an absolute right to control its borders and decide who and how many are granted admission.  

There’s no obligation for any American to feel patriotic, and there’s certainly no obligation to like President Trump. Is it too much to ask, however, that Veterans Day, and associated professions of love of country, be made exempt from political football-dom?

Im-Politic: Why the Kavanaugh Solution – at This Point – Needs to be Political

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Brett Kavanaugh, Christine Blasey Ford, Constitution, Im-Politic, Republicans, Senate, sexual assault, Supreme Court, Trump

If you’re not completely depressed by the Brett Kavanaugh mess, you must be a hopeless partisan – either Democratic, because you’re exhilirated by the improved odds of derailing a Supreme Court nomination you opposed from the start, or Republican, because your main reaction is rage that Kavanaugh’s confirmation is now endangered by a shameful smear. Yet here’s a surprise: Despite the torrent of strident partisanship that’s still gushing, the often (rightly) besmirched process of “politics” looks like by far the best solution available, at least at this point in the story.

What’s most depressing, of course, is the likelihood that now each likely outcome of this nomination battle could result in a major injustice – either rewarding a sexual criminal with a lifetime post on the highest court in the land, with all the power that entails, or trashing the reputation of an innocent and possibly destroying his current family life.

Moreover, it’s entirely possible to be legitimately depressed about this situation even if you believe, as I do, that victims of sex crimes often fail to report them right away, or even for many years, for reasons that anyone with any sense of compassion should understand and accept; that for equally valid reasons, their memories of the these incidents can be flawed; that denial is a standard initial response even of the guilty; that the trauma induced by such actions is so powerful that even offenses by the relatively young can’t be soft-pedaled, much less excused; that even one-time assaulters need to be punished; and that in the court of public opinion (as opposed to the legal system), a blanket assumption of innocence shouldn’t always be made.

It’s entirely possible to be legitimately depressed despite these observations because, however compelling they are in general, it’s always less certain whether they apply to an individual case.

As a result, perhaps most frustrating and dispiriting of all, it’s entirely possible that the truth may never be known. There’s a view out there that, given enough time, resources, and energy by journalist or law enforcement officials, the full story will eventually come out. This is what we’ve just been told, for example, by former New York Times Executive Editor Jill Abramson. But with only one other person in the room at the time, according to alleged victim Christine Blasey Ford, and her apparent failure to share her story contemporaneously (and No, that’s not a criticism), this optimism seems excessive.

At the same time, the case for confirming Kavanaugh has merit as well. For example, there’s some evidence that a large percentage of sex offenders are repeat offenders, but no evidence has yet surfaced of a pattern of abusive behavior toward women by Kavanaugh at any stage of his life. (Some researchers, however, have found that most sex offenders are not repeaters.)

Less convincing, but not entirely out of bounds, is the “horseplay” argument – i.e., that the force of Kavanaugh’s alleged advances was not nearly as strong as Ford has indicated. On the one hand, I strongly agree that whenever anyone signals reluctance, an immediate stop in the activity in question is mandatory – even when teens are involved. On the other hand, as observed by Washington Post columnist David von Drehle (who wants Kavanaugh to withdraw his nomination), “adolescent boys and girls often address their awkwardness with alcohol, and sexual inexperience plus inebriation is a time-tested recipe for regrets and misunderstandings.”

So there’s plenty of powerful ammunition available to both sides in the Kavanaugh fight, and possibly towering stakes. What to do? Here’s where politics comes in. The Constitution vests the Senate with the authority to approve or disapprove a President’s Supreme Court (and many other) nominees. Although the Founders were looking for a check on presidential power from a body that they wanted largely shielded from popular pressures (by stipulating Senators’ election by state legislatures), since the advent of direct elections in 1913 (via the 17^th Amendment) these pressures (i.e., standard politics) are now the paramount standard. Here’s the essential background.

As a result, with this set of circumstances, the most legitimate way for the nation to solve this problem is to hold a Senate vote on Kavanaugh (unless he withdraws or President Trump pulls the nomination), and therefore discover what the popular will is. This vote could certainly be preceded by a new investigation that would add to what is already known about Kavanaugh from the several background checks he has gone through during his career in public life. But I would hope that the investigation is short – because of my aforementioned doubt that new evidence can be found.

Senate approval of Kavanaugh would be a clear sign that at least a plurality of Americans is comfortable with him serving on the Court – for whatever reason they choose – and vice versa. Moreover, there’s a useful recent precedent in this regard: President Trump’s election.

As many no doubt remember, shortly before the November, 2016 vote came the surfacing of the “Access Hollywood” tape, which contained a boast from candidate Trump about behavior that could well qualify as sexual assault. In addition, throughout the campaign, numerous women accused Mr. Trump of just such behavior. These charges, along with the tape, were widely reported. The public had ample opportunity to consider them. Voters ultimately deemed him fit for the highest office in the land nonetheless.

Voters have a chance to tell their Senators what they think of the Kavanaugh nomination, too, and lawmakers can also consult the polls. Is it reasonable to contend that, because Ford’s charges became public so recently, voters need more time to contact their Senators, or that Senators need more time to seek their opinions? Sure. But the resulting delay in the vote, again, should be short.

Skeptics could argue that, since Republicans hold the Senate, this exercise would be a sham. But the GOP members might run significant risk for blowing off their constituents’ opinions, especially given that the party’s ratings from women have been pretty dodgy lately. Moreover, if after any confirmation, important evidence against Kavanaugh came out, he could be impeached.

A reasonably prompt Kavanaugh vote certainly wouldn’t disburse all the clouds currently hanging over his nomination. But it would stamp it with a democratic (small “D”!) seal of approval. What more could the nation reasonably hope for?

Im-Politic: My Maryland Town Seems Keen on Non-Citizen Voting – & on Weakening Democracy

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Alexander Hamilton, assimilation, citizenship, Constitution, elections, Founding Fathers, George Washington, government benefits, illegal immigrants, Im-Politic, immigrants, legal immigrants, Louis Brandeis, Marsha Dixon, Maryland, Riverdale Park, Thomas Jefferson, voting

How thoroughly depressing to report that my town of Riverdale Park, Maryland seems about to join post-borders and post-citizenship America– that is to say, post-America America. Early next month, the town council is almost sure to approve legislation that will grant the vote in local elections to non-citizens both legally and illegally present in the United States. For good measure, the bill would lower the voting age for such elections to sixteen.

The above description should suffice to point to many of the proposal’s worst flaws. By extending the franchise to illegal immigrants, the town would create another reward for individuals who have broken U.S. law, and add insult to injury to all those outside the country’s borders who have been waiting in line and playing by the rules in order to enter. Even permitting legal non-citizens to vote on the local level would greatly empower many residents who, for various reasons, have chosen to avoid this kind of binding commitment to the American political community. In other words, both categories of canon-citizens would be able to weigh in on decisions with long-term implications for the town’s well-being without much skin in the game.

In addition, in the case of both legals and illegals, the vote would be rewarded based on residing in Riverdale Park for a grand total of 45 days. And despite the legislation’s creation of a “supplemental voter registry,” it looks like a great recipe for voter fraud given that applicants merely need to “submit a signed registration form with the town clerk in a form prescribed by the clerk.” The measure does specify that verification be provided that “the individual is eligible to vote in town elections” (by showing residency for 45 days). But how reassuring can this requirement be given that undocumented immigrants are – by definition – undocumented? Even more troubling: Applicants will be able to complete this registration process (including the supposed verification) on the very day elections are held.

As for lowering the voting age to sixteen, anyone who has ever parented an adolescent should understand why this idea should have been a non-starter.

I attended a town council meeting on March 26 to listen to and participate in debate over the bill. All manner of legitimate and specious arguments were made on behalf of legal and illegal non-citizen voting by the smallish number of residents present. Heading the first category was the compelling (though still controversial) claim that the non-citizen voting legislation would be completely acceptable on Constitutional grounds, since the Constitution says nothing explicit about the overall subject. 

Moreover, although citizenship has more recently been established as a nearly absolute requirement for voting in federal elections, the National Council of State Legislatures holds that it’s the states, with important qualifications (such as Constitutional bars on various forms of arbitrary discrimination) that posses “the ultimate authority” over elections within their borders. 

But the flurry of bogus arguments for permitting non-citizens to vote, and the conspicuous failure of most council members to challenge them, convinced me that this scheme is a done deal – unless it can be overturned by a referendum. For example, supporters claimed that enabling non-citizens of both types to vote was needed to establish Riverdale Park as a “welcoming community.” None responded to my objection that any resident is currently free to bring any concerns to the attention of any current town official, and that surely these officials would take them seriously regardless of that resident’s legal status.

I was also of course told that both legal and illegal residents were subject to taxation, and thus deserved representation (as 18^th century patriot Patrick Henry famously insisted). But of course, legal non-citizens are already eligible for a wide variety of benefits at many government levels, and illegals are eligible for a narrower but hardly negligible range – in addition to benefits (like public school attendance and food stamps eligibility) they can access indirectly because their children are permitted to attend public schools and, if born in the United States and therefore citizens. And let’s not forget – both categories of non-citizens also enjoy the less tangible but no less significant benefits of living in a freedom-loving democracy that, however flawed, ensures that power is exercised through the rule of law, not arbitrarily. Indeed, isn’t that largely why they’re here in the first place?

But most disturbing were two other categories of arguments – the first because it reflected absolutely no interest in political values central to the country’s historic success, the second because it suggested unmistakable contempt for these values.

This indifference – or what certainly sounded like it – came from the measure’s sponsor, Council Member Marsha Dixon, and was expressed after I described the legislation as a perfect example of poor governance. As I see it, a politician takes it on him or herself to solve a problem that’s been proactively identified by no one else in the town (even the non-citizens), according to all available evidence, and thus to fix a local political culture that has showed no signs of being broken.

Dixon’s response? (This is a paraphrase, since the official minutes of the meeting haven’t yet been posted.) She thought the town’s population had “evolved” (that I remember for sure), and therefore its voting rules needed to evolve accordingly.

But there’s evolution and there’s evolution. And Dixon’s version simply ignored one of the most important lessons taught by the Founding Fathers: The only hope for the long-term survival and health of an American democracy worth preserving is creating and nurturing a community of shared democratic values. And achieving this goal inevitably requires a process of assimilating immigrants that is inescapably protracted if it to be taken seriously.

Hence the fears expressed by Thomas Jefferson in 1782 about the encouragement of mass immigration:

“It is for the happiness of those united in society to harmonize as much as possible in matters which they must of necessity transact together. Civil government being the sole object of forming societies, its administration must be conducted by common consent. Every species of government has its specific principles. Ours perhaps are more peculiar than those of any other in the universe. It is a composition of the freest principles of the English constitution, with others derived from natural right and natural reason. To these nothing can be more opposed than the maxims of absolute monarchies. Yet, from such, we are to expect the greatest number of emigrants. They will bring with them the principles of the governments they leave, imbibed in their early youth; or, if able to throw them off, it will be in exchange for an unbounded licentiousness, passing, as is usual, from one extreme to another. It would be a miracle were they to stop precisely at the point of temperate liberty. These principles, with their language, they will transmit to their children. In proportion to their numbers, they will share with us the legislation. They will infuse into it their spirit, warp and bias its direction, and render it a heterogeneous, incoherent, distracted mass.”

George Washington shared many of these concerns, and believed that only exposure to American ways – a process that he suggested could take generations – could mitigate them:

“My opinion, with respect to emigration, is, that except of useful mechanics and some particular descriptions of men or professions, there is no need of encouragement, while the policy or advantage of its taking place in a body (I mean the settling of them in a body) may be much questioned; for, by so doing, they retain the Language, habits and principles (good or bad) which they bring with them—Whereas by an intermixture with our people, they, or their descendants, get assimilated to our customs, measures and laws:—in a word, soon become one people.”

Alexander Hamilton has been portrayed in the recent blockbuster musical as a champion of Open Borders and immigrants’ rights, agreed with Jefferson and Washington, and argued strongly in 1802 against a (Jefferson) proposal to completely eliminate a fourteen-year requirement for naturalization (stemming from widespread alarm about excessive foreign influence in American affairs at a time when the new nation was threatened by both British and French ambitions). Alluding to those resulting insecurities and tensions, Hamilton allowed that

“The present law was merely a temporary measure adopted under peculiar circumstances and perhaps demands revision. But there is a wide difference between closing the door altogether and throwing it entirely open; between a postponement of fourteen years and an immediate admission to all the rights of citizenship. 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. A residence of at least five years ought to be required.”

Riverdale Park Council Member Dixon’s threadbare 45-day residency requirement demonstrates just how unconcerned about this history, and these essential considerations, so many of our politicians have become – as well as how thoughtless.

Nevertheless, her arguments at least didn’t explicitly scorn the view that the Founders’ deserve any hearing. That belief was expressed by several town residents who spoke in favor of expanding the franchise. Responding to my summary of this history, one youngish woman dismissed the Founders as figures who favored denying women the vote and treating enslaved African-Americans as three-fifths of a person (as stated in the Constitution’s Article I, Section 2) for the purposes of allotting the number of Congress members for each state. (Hamilton, of course, was “accused” by many contemporaries of having a mixed race background). A similarly youngish man smirked that, he “had no idea what was in the minds of the Founding Fathers,” and suggested he didn’t especially care.

This is of course a classic instance of “presentism” – the mistake of judging historical figures entirely by contemporary standards. Worse, such sneering overlooks how leaders whose views on race and gender would of course (rightly) be regarded today as racist and sexist nonetheless recognized that times could change momentously for the new nation – and included in their new nation’s organizing framework procedures for approving comparably momentous changes.

Moreover, similar views have been expressed by someone who wasn’t a slaveholder or sexist. In fact, he’s a deserved icon of American progressivism – early twentieth century Supreme Court Justice Louis Brandeis. In a 1915 speech with a title – “True Americanism” – whose use by the left half of the political spectrum these days would be almost inconceivable, Brandeis spoke at length on the importance of assimilation.

He was no simple melting pot advocate. In fact, Brandeis explicitly stated that:

“America has believed that we must not only give to the immigrant the best that we have, but must preserve for America the good that is in the immigrant and develop in him the best of which he is capable. America has believed that in differentiation, not in uniformity, lies the path of progress. It acted on this belief; it has advanced human happiness, and it has prospered.”

But Brandeis (whose parents were foreign born) also insisted that immigrants undergo Americanization, and that at its core, this concept entailed ensuring that a newcomer’s “interests and affections have become deeply rooted here. And we properly demand of the immigrant even more than this. He must be brought into complete harmony with our ideals and aspirations and cooperate with us for their attainment. Only when this has been done, will he possess the national consciousness of an American.”

Brandeis was emphatically optimistic that this task could be accomplished – not least because he credited many immigrants are “already truly American in this most important sense; who has long shared our ideals and who, oppressed and persecuted abroad, has yearned for our land of liberty and for the opportunity of abiding in the realization of its aims.”

But Brandeis also understood that the “E pluribus” (out of many) part of America’s national motto needed to become some meaningful form of “unum” (one) If only Riverdale Park – and all the other jurisdictions in Maryland and elsewhere in the United States that have either jumped on this bandwagon or are actively mulling this step – weren’t acting so determined to evolve beyond that vital ideal, too.

Im-Politic: Was Some Unpopular Speech Just Banned in Boston?

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Boston, Boston police, Charlottesville, Constitution, free speech, Im-Politic, William Evans

“Banned in Boston” was a term widely used in the late 19^th and early 20^th centuries to describe the city’s habit of censoring books and plays that a powerful and puritanical group of its leading citizens didn’t happen to like. Yesterday, strong evidence emerged that an even more disturbing set of “Banned in Boston” impulses have staged a comeback: a policy of censoring political speech and the city’s police commissioner, and possibly the rest of its political leadership, doesn’t like.

The story begins with a charge made by John Medlar, an organizer of yesterday’s so-called rally held in Boston yesterday avowedly to support the idea of free speech. I only say “so-called” because rally attendance was pathetically low. In any event, Medlar claims that before the event’s scheduled end at 2 PM local time, “supporters were blocked by counter-protesters and by police from getting to their cordoned-off area….” (This phrasing is from a local radio station report.)

More important, later yesterday afternoon, Boston Police Commissioner William Evans was asked to respond. His own words (as quoted by that same local radio station):  “If they [people who want to talk about hate] didn’t get in, that’s a good thing, because their message isn’t what we want to hear.”

There’s definitely some ambiguity here. For example, is Evans saying that he heard that some who wanted to attend the rally just happened to fail to make it through the combination of massed counter-protesters and the heavy police presence stationed in the area to prevent violence (a presence that accomplished this crucial mission far more effectively than its counterpart in Charlottesville, Virginia, the weekend before)? Or is Evans agreeing that the police knowingly prevented rally supporters from reaching the rally site? Obviously, the first possibility would be much more excusable, especially if those wanting to attend the rally failed to make their identities known, than the second.

Yet even if the inevitable confusion surrounding such events was partly or mainly responsible for the inability of some to attend the rally, it’s still justifiable in my view to criticize the Boston police and the orders they may have received. For as I argued last Saturday, free speech can’t truly be protected adequately if protesters or rally-ers can be intimidated from or physically blocked from carrying out their planned activities (provided of course that these activities are peaceful).

As a result, local, state, and/or federal authorities have a legal and Constitutional obligation actively to ensure that these events go on as planned. Otherwise, even the right of unpopular causes to demonstrate despite possible threats their activity might pose to public safety and order (because of disorderly behavior from their opponentsdeeds) can too easily be turned into a hollow right. And this country would take a big step closer to mob rule.

So I propose that the federal government launch a civil rights investigation to find out what actually happened at the Boston Common. Satisfactorily accurate conclusions can’t be drawn based solely on the news coverage, or even on Evans’ statements. But Evans’ own words certainly indicate that his officers and those to whom they report dropped a major free speech ball of some kind here.

Im-Politic: First Thoughts on Charlottesville

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ACLU, American Civil Liberties Union, anti-semitism, Charlottesville, civil liberties, Civil War, Confederacy, Constitution, David Duke, Founding Fathers, free speech, Im-Politic, neo-Nazis, racism, Robert E. Lee, secession, slavery, treason, Trump, Virginia

It’s as tempting to offer timely thoughts about today’s Charlottesville, Virginia violence and the reactions it’s generated as it is difficult – for new developments keep taking place, and incontrovertible facts are hard to come by. That said, here are what strike me as as points worth making at present.

First, as I’ve previously written, the triggering complaint of the white nationalist/neo-Nazi/confederate revivalist/call-them-what-you-wish protest and the narrowest-gauge cause it represents should be unacceptable to all Americans who truly love their country. Confederate statues and other monuments to the rebellion (e.g., street and high school names) have no place in our national life. And removing them has nothing to do with erasing history. The history of the Civil War must of course be taught in the most intellectually honest way possible. But statues and street names etc are unmistakable efforts to honor and memorialize.

And whether you view the secession as motivated by intertwined racism and slavery issues (where in my view the bulk of the evidence points) or more legitimate federalist and states rights claims, the decision to revolt violently against the federal government was a simple act of treason, which should always be condemned in the harshest possible terms.

Moreover, please don’t respond with observations that the Founding Fathers’ ranks included slave-owners (like Washington and Jefferson) or that many subsequent American leaders were racists (like Woodrow Wilson). For slavery was, tragically, legal under the Constitution until emancipation. And as I’ve written (in the post linked above), most of the historical national figures with inadequate records on race were, first, to great extents products of their time and, second, known for playing many other roles and making many other contributions to the nation and its success.

As for the protesters’ broader supposed grievances about repressed and endangered white rights and even safety, I have no doubt that economic stresses and anxieties are at work in many cases. But feeling the need, or advisability, to fly the Confederate flag or wear the swastika simply signals a form of derangement that our society has rightly decided is beyond the pale politically and morally speaking. So public figures should decry this message and reject any association with those sending them.

Which brings us to the question of the Trump response. It was, as critics have charged, far too weak. What I can’t figure out is the “why”. Is the president a racist? He’s had too many African-American friends and supporters for that charge to stick. He and his advisers and aides also have too often argued for restricting immigration by pointing to the benefits U.S. blacks would reap.

Related anti-semitism make even less sense, given that Mr. Trump’s daughter married an orthodox Jew (who he has anointed as a top White House aide) and then converted herself to Judaism. I know that the “some of my best friends are….” argument can be and has been abused by anti-semites (as well as racists). But insisting that “some of my children and grandkids….” is much harder to dismiss.

The only explanation that makes even some sense to me (meaning of course that I’m not totally convinced) is that the president worries that a substantial part of his (largely white) base either covertly or (much likelier) subconsciously sees itself as racially repressed or marginalized, too, and would suddenly desert him if he went after the David Dukes and Richard Spencers of this country. In other words, Mr. Trump’s troubling words reflect a political calculation, not a shared bigotry.

If so, his position is not only timorous, but pathetically mistaken. Because for every hater he retains by his silence or anodyne words at times like this weekend, he risks losing many more moderates and independents who have no use for the identity-politics obsessed, and therefore intrinsically divisive, Democrats but who are disgusted by overt racists – much less neo-Nazis. In fact, Duke’s tweets today show that this arch-racist and anti-semite is infuriated by the president’s Charlottesville remarks.

More important, the president will earn much more durable support from independents and moderates – especially those who have actually lost economic ground or fear such losses – by keeping the campaign promises he made to restore living wage jobs than by even minimal pandering to prejudice.

Finally, the role of the Charlottesville police and any other law enforcement authorities tasked with handling the protests needs to be scrutinized thoroughly – along with our notions of protesters’ rights. I’m pretty certain that most Americans would agree with the right of Nazis and the like to stage a protest over the treatment of Confederate memorials (or any other reprehensible) cause, and to display symbols that should disgust all people of good will. And of course, these are Constitutionally protected rights.

But I’ve long thought that the right to protest also entails the right of protesters to be protected from those seeking to disrupt their events. In other words, once counter-protesters started physically interfering with the Nazis, the police force present should have stepped in and started making arrests. Even better, they should have taken much more effective measures to keep the counter-protesters physically apart from the protesters, to reduce the odds of violence breaking out to begin with. To my knowledge, law enforcement authorities have never been sued for such failures (not even by the American Civil Liberties Union, which admirably supported the Nazis’ etc right to demonstrate in Charlottesville). I hope the organization will consider bringing such a case in the wake of Charlottesville, if the circumstances merit this action.

For failing to establish protesters’ right to security could easily turn into an open invitation for harassment that could crimp free speech rights yet further. And what would induce the Nazis – and violence-prone lefties – to start licking their chops more eagerly?

Im-Politic: Trump’s Victory Lap after Supreme Court Travel Ban Ruling Looks Premature

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border security, Constitution, Im-Politic, Muslims, refugees, Supreme Court, travel ban, Trump

President Trump has called the Supreme Court’s ruling Monday on the second version of his travel ban a major triumph for his anti-terrorism and homeland security policies. Having read the decision, I’m a lot less sure. Moreover, it looks like the administration’s policymakers might have undercut some important principles that their lawyers had originally asserted.

First of all, it needs to be remembered that the Court specified that its reasoning in this decision was not based on the same criteria that would be used for a final ruling. Why not? Because, as it explained, it was being asked by the Trump administration to stay an injunction from lower courts preventing enforcement of the key ban provisions. In plain English, the Supremes were responding to an administration request to suspend temporarily lower court orders (injunctions) that blocked the federal government from putting into effect the revised Executive Order on the subject, and a majority of the justices agreed to do so – in part.

According to the majority, this ruling was tailored precisely to standards it considered appropriate for stay orders. It further explained that these standards were close to the already relatively low bar it found needed to be met for granting plaintiffs’ requests for injunctions. When the Court decides the final case, these Justices explained, it will rely on somewhat different legal standards and considerations.

That sounds reasonable enough. But I fear that an especially dangerous conclusion the Court arrived at could well find its way into that final ruling, and it has to do with the President’s ability to keep out of the country travelers or refugees (whose applications were also suspended by the Executive Order, and whose entry quotas were reduced) who are judged to have some significant connection with persons or institutions in the United States.

Simply put – and again, by the standards it set forth for stay decisions – the Justices held that the government has great authority (it didn’t specify how much) to control entry into the United States when the traveler or the applicant “lacks any bona fide relationship with a person or entity in the United States.” But when the traveler or applicant has such a “bona fide some connection to this country,” the government’s control over the border is significantly qualified.

The Court didn’t define “bona fide” either, but the examples it used from the lower court decisions (on whose behalf the travel ban legal challenges were pursued) include the mother-in-law of a citizen, the wife of a legal permanent resident, and students from the six countries covered by the proposed ban who were admitted to the University of Hawaii. The Court’s rationale? Barring the admission of such would-be travelers or refugees even temporarily (remember – the Trump proposals call for 90-day suspensions for travel from the six, and a 120-day suspension of refugee admissions) would “harm” the interests of the plaintiffs (the son-in-law, the husband, the students, the university) to such a degree that this harm outweighs both the government’s right to control the country’ borders and “the overall public interest” (the decision-making framework it specified for stay orders in this field).

Again, the Justices said they would use different standards, and weigh the competing considerations, in a different way in their final ruling. But the above certainly suggests that at least some of those in the majority aren’t terribly receptive to the idea, originally advanced by the administration, that the president – as the relevant statute says – without exception can “suspend the entry of all aliens or any class of aliens” to the United States “whenever [he or she] finds that the entry of any aliens or of any class of aliens…would be detrimental to the interests of the United States.”

Now it may seem entirely understandable to ask how admitting into the country someone’s wife or mother-in-law could endanger national security. Let’s leave aside the question of when in U.S. history judges won the right to question what are inevitably judgment calls in the conduct of foreign and defense policy (which the Court’s ruling didn’t broach directly). Let’s also remember that the final decision will reflect a different set of legal and other factors.

What’s still odd, however, about this argument is that one of the seminal justifications for a U.S.-style legal system is that prioritizing process in considered the best way to ensure the greatest number of just outcomes. In this stay ruling, the majority seems to be saying that the Executive Order’s legitimacy could be in jeopardy because it has simply he has “burdened” certain individuals. Further, we’re not talking about lawsuits that affect mere handfuls of people on either side. Although it’s “only” a stay decision, an anti-travel ban ruling could endanger the entire country (precisely because national security is involved). Don’t such stakes deserve special attention?

And here’s the kicker: In arguing for their focus on specific individuals and their misfortunes, the majority was able to cite the Trump administration’s own decision to mollify critics of the original travel ban by including in the second version “a case-by-case waiver system pri­marily for the benefit of individuals” who do claim “bona fide connections to Americans or American entities.” So that train could well have left the station legally.

How much better for the administration to have held firm at least for the brief durations of their travel ban and refugee suspension, and then having its unfettered authority to regulate these flows affirmed, voluntarily included a review or appeals process in its longer-term programs.

Presumably because issuing a stay order depends on such a specific set of criteria, and because judges generally prefer to decide cases on the narrowest possible grounds, this latest travel ban judicial decision failed to deal in explicitly and in detail not only with several major issues raised by the Executive Order and the challenges it has generated.

As indicated above, the ruling did not address the extent to which (if any) courts can challenge presidential foreign policy judgments where expressly Constitutional questions over defined governmental responsibilities (such as war-making power) do not arise. It also only glancingly referred to claims that the second Executive Order unconstitutionally discriminates against Muslims as such (violating their religious freedoms), and the related issue of whether a politicians’ campaign statements, including those made as a private citizens, represent valid evidence of a policy’s intent.

But when it comes to immigration- and refugee-related issues, some Justices in at least one recent case has acted in a disturbingly political and frankly ditzy way – equating lying on an immigration form about a spouse’s involvement in war crimes with lying on that form about a speeding ticket. (This case is still up in the air.) Sadly, given the rancor and division that’s infected so much of America’s public life, there’s no guarantee that the Court will keep its head any better. on the Trump Executive Orders.