Balkinization: How should we respond to "profound gloom"

Comments:

do any of you looking forward to McConnell's becoming Senate Majority Leader really and truly believe that that will make much of a difference, given Obama's retention of the veto power

Seriously? He isn't going to veto every single thing. He will pick his spots. It will change legislation passed, including the Overton Window. And, being later in his term helps, but yes, it will affect nominations.

And, as we saw with Bush & executive power, things suddenly won't change in a few years, even with a shift of the players. The effects will linger on.

Usage of the race is forcing the issue a tad. There is a real chance actually that McConnell will lose & a better choice, another younger voice that shows some openness to change the institution (as even a few Rs have, Paul to give him his due showing a bit of that) some with at least some new points of view.

That is actually a bit positive.

# posted by

Joe : 5:12 PM

I'm perhaps a few years older (born 1930) than Sandy. In my semi-retirement I think back to my early memories of the Great Depression and beyond to date. Before I respond to Sandy's question, I have to consider how we did respond to "profound gloom" over my lifetime. I don't mean my personal "profound gloom," but that of the nation as a whole based on history.

Regarding the current "profound gloom," I personally am troubled by Thomas Edsall's "The Great White Hope" essay in the NYTimes earlier this week.

# posted by

Shag from Brookline : 8:54 AM

E.J. Dionne's writing has always conveyed the position and mood of the Democrat establishment. The "nuclear winter" of their discontent is not at the state of our electoral discourse, but rather at the prospect of the voters conducting a mass firing of his party for the second time in four years.

The purposes of representative democracy are to elect representatives to enact our will and to hold representatives to account for misgovernance. When the governing party's policies are almost uniformly failing and have resulted in an economic depression, endemic high unemployment, spreading poverty, and higher energy and health insurance prices, it is perfectly reasonable for candidates of the opposition party to try to tie members of the governing party to their policies and for the members of the governing party to try to change the subject.

Dionne's criticism of the conduct of the 2014 election is completely partisan. Just two years ago, I do not recall the pundit making similar criticism of the president of his party offering the largest negative campaign in history demonizing his opponent as an evil plutocrat.

The voters appear ready to finish what they started in 2010 and fire the Democrat Congress. But will it make any difference in the face of a President and an unelected bureaucracy imposing or ignoring law by fiat and spending what they please when Congress refuses to appropriate the spending they demand?

I regrettably think not.

Indeed, Sandy, I have come to the conclusion that an Article V convention firmly re-leashing the government may be the only way we retain our republic.

# posted by

Bart DePalma : 9:29 AM

"the dysfunctionality of the Constitution itself."

More like, the dysfunctionality of what's taken it's place.

# posted by

Brett : 11:33 AM

Idea for a new Sesame Street animation in the style of "Conjunction Junction":

DYSFUNCTION JUNCTION, WHAT'S YOUR FUNCTION

Is this any way to run a railroad (Congress)?

Brett would harken us back to the late 18th Century or perhaps to his more recent favorite "The Gilded Age."

# posted by

Shag from Brookline : 11:50 AM

"do any of you looking forward to McConnell's defeat and Democratic retention of the Senate really believe that Congress will address any of the issues you regard as most important in the remaining two years"

I look at the long game here, including possibly another Supreme Court vacancy, so yes, I think this matters. I don't think much will be accomplished in the next two years with a presidential election coming up especially with the House controlled by the Republicans.

But, control of the Senate, especially with Republican control in the House, matters.

# posted by

Joe : 12:41 PM

You want dysfunction, here's dysfunction. Terrifying, but you want to explain how the Constitution caused it?

When we get that Convention, the very first order of business ought to be an amendment disqualifying from office every last person who has already ever held federal office.

# posted by

Brett : 12:49 PM

Brett's link suggests that DYSFUNCTION results from Congress, a creature provided for by the Constitution. Rather than Brett's total bar, perhaps term limits might suffice.

OFF TOPIC: Paul Daly has an interesting essay "Legal Academia 2.0: New and Old Models of Academic Engagement and Influence." A link is available at Larry Solum's Legal Theory Blog. [Caution: DRAFT: NOT FOR CITATION WITHOUT PERMISSION]

By the Bybee [expletives deleted], to what extent, if any, have legal academics contributed to the current "profound gloom" with the proliferation via the Internet of their diverging views on the meaning/construction of the Constitution and their influence, if any, on the Executive, Congress and especiailly SCOTUS?

# posted by

Shag from Brookline : 2:09 PM

"rightly respected Washington Post columnist E.J. Dionne."
I wish for your sake you were joking.

http://www.washingtonpost.com/wp-dyn/content/article/2008/12/22/AR2008122201847.html?hpid=opinionsbox1

http://www.washingtonpost.com/opinions/contraception-and-the-cost-of-culture-wars/2012/02/10/gIQAHTdV9Q_story.html?hpid=z4

Navel-gazing self-serving self-pity. What's your response to Stephen Carter "Dear Class of 2014: Thanks for Not Disinviting Me"
Some issues are too important to leave to academics. You confuse ideas with living people.
Pathetic

# posted by

D. Ghirlandaio : 2:15 PM

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# posted by

Joe : 3:35 PM

We know very well that our Constitution is imperfect. For example, something like the 20 least populous states have a total population equal to California's, and those States have 40 Senators to California's 2. But the partisan strife, racism, and know-nothingism of present times has always been with us, and we have always before muddle through.

# posted by

Keith : 3:41 PM

The imbalance in the Senate is to me one of the most troubling aspects of our system & much more glaring now with the greatest/least population states so much more different in size than in 1787.

The natural born citizen rule for presidents also. I think there is an argument that it is in effect an irrational classification and should be found unconstitutional as discriminatory.

I'm not really a big fan of the amendments proposed by Justice Stevens in his new book as a whole. Keith is correct but in the past we did amend the Constitution to deal with glaring issues, including to bring things up to date such as moving up the inauguration date.

There is some play in the joints. So the NEED for amendments can be debated (the 'need' for the Bill of Rights suggest this is a debate there from the start) Also some less known clauses still have some relevancy:

http://www.acslaw.org/acsblog/applying-%E2%80%98brown%E2%80%99-to-void-the-debt-ceiling

# posted by

Joe : 7:00 PM

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# posted by

Henry : 7:41 PM

"our national polity is like a Thanksgiving from hell, in which the members of the family stare at each other with daggers, insult one another, and then get drunk, while everyone resolves to try to be elsewhere come next Thanksgiving."

Very well put

# posted by

mls : 8:31 PM

"I think there is an argument that it is in effect an irrational classification and should be found unconstitutional as discriminatory."

Not to necessarily disagree with you on the merits, (We're in no danger of being taken over by a foreign prince from Europe anymore, which is what the clause was meant to prevent.) but...

What precisely do you mean by "unconstitutional", when you use the word here? I mean, the natural born citizen clause is part of the Constitution, it is logically incapable of being "unconstitutional" as I understand the term.

# posted by

Brett : 2:11 AM

As for Stevens' amendments, a pretty sad lot, and that's being charitable.

#1 has essentially two effects. First, it establishes that treaties are the supreme law of the land. So the Senate and Lichtenstein can get together and over-ride anything in the Constitution. Second, it obligates state level officials to obey federal commands, even if to do so they have to break state laws.

Now, I suppose we could have an argument about the merits of that latter, but how delusional do you have to be to think the states will ratify an amendment making themselves federal sock puppets?

#2 prohibits Gerrymandering, but makes an exception for racial gerrymandering. ("or demographic changes") Frankly, we'd be better off just implementing at large PR, and making Gerrymandering impossible as such.

#3 Makes censoring the NYT constitutional. (The NYT spends money to publish, and a good deal of their coverage in election years consists of supporting candidates they like.)

#4 Just to underscore #1, state officials can be penalized for violating federal orders, even if those orders are illegal/unconstitutional.

#5 No more death penalty. Well, at least this amendment is straightforward, and reasonably non-terrifying in it's implications.

#6 Effectively repeals the 2nd amendment.

Regarding that last, let's be clear: Most states have 2nd amendment analogs in their state constitutions. State constitutions are fairly easy to amend. Not one of these has been repealed. Gun control is political poison across most of the country.

Again, you need to be seriously delusional to think this amendment could be ratified. Even for Congress to send it to the states would produce a electoral bloodbath at the next election.

What we have here is not actually a list of serious amendments. What we have here is the agenda Stevens relentlessly attempted, while on the Court, to impose on an unwilling nation by judicial fiat. This book is not directed at Congress, in the hope of amendments being sent to the states. It is marching orders for a future liberal Supreme Court to upend the Constitution without use of Article V.

That's how I see it, and Stevens can rot in Hell.

#

# posted by

Brett : 2:30 AM

"I mean, the natural born citizen clause is part of the Constitution, it is logically incapable of being "unconstitutional" as I understand the term."

Brett, usually later parts of a document like the Constitution that are in conflict with earlier parts are thought to trump them. So, for example, where Article IV Sec. 2 says "No person held to service or labor in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due," that is trumped by the 13th Amendment.

# posted by

Mista Whiskas : 8:38 AM

That's right, if any later amendment directly contradicted the natural born citizen clause, it would be toast. None of them do.

# posted by

Brett : 8:58 AM

The Due Process Clause and perhaps other amendments (e.g., John Hart Ely Jr. argued the 9A) has an equal protection component that applies to the federal government. Irrational classifications by nationality, e.g., are illegitimate.

In 1789, there was some rationality under our constitutional tradition to have such an absolute rule as to who can be President. There really isn't now.

# posted by

Joe : 9:56 AM

The natural born citizen clause does not violate equal protection, because if somebody mugs a naturalized citizen, the cops treat it just like somebody mugging a natural born citizen. And being President is not among the privileges and imunities of citizenship.

So, no, it's not applicable.

# posted by

Brett : 10:08 AM

As for Stevens' amendments, a pretty sad lot, and that's being charitable.

Josh Blackman provides them: http://joshblackman.com/blog/2014/03/04/what-are-justice-stevenss-proposed-six-amendments/

#1 has essentially two effects. First, it establishes that treaties are the supreme law of the land.

They already are.

So the Senate and Lichtenstein can get together and over-ride anything in the Constitution.

No. I don't think, e.g., his amendment here in effect makes his anti-death penalty amendment moot if Lichtenstein and the U.S. (not that “the Senate” alone can't do anything here – treaties require the President and the Senate … putting aside perhaps some limit by using the word “treaty”).

Second, it obligates state level officials to obey federal commands, even if to do so they have to break state laws.

They already have to – the Supremacy Clause requires, e.g., state judges to “obey federal commands” even if they have to break state laws. As JB shows, the proposed amendment aims to overrule opinions such as Printz v. U.S. to apply the principle to state officials generally. So, e.g., in that case state sheriffs could have be obligated to help carry out a background check that we will assume here is not otherwise unconstitutional.

Now, I suppose we could have an argument about the merits of that latter, but how delusional do you have to be to think the states will ratify an amendment making themselves federal sock puppets?

Yes, how did we manage it in 1789?

#2 prohibits Gerrymandering, but makes an exception for racial gerrymandering. ("or demographic changes") Frankly, we'd be better off just implementing at large PR, and making Gerrymandering impossible as such.

It is not obligatory imho that racial gerrymandering would fall under “demographic” and basic principles would hold that if possible we would apply the amendment in a way not to override an earlier one – such as the barrier to illicit racial classifications, if you think they would be violated here. Still, if his proposal leads to an alternate way to solve the problem, it is not “pretty sad” to me.

#3 Makes censoring the NYT constitutional. (The NYT spends money to publish, and a good deal of their coverage in election years consists of supporting candidates they like.)

I find this amendment dubious myself including because “reasonable” (which very well might not work if the NYT is involved) is such a vague word. But, since bipartisan voices (not just “liberals”) support a range of campaign regulations, it is not “pretty sad” for him to raise the idea.

# posted by

Joe : 10:25 AM

#4 Just to underscore #1, state officials can be penalized for violating federal orders, even if those orders are illegal/unconstitutional.

If something is “unconstitutional,” they would not ultimately be liable. The purpose of the amendment is to override the idea that the “king can do no wrong” which these days apply even to state universities who violate copyrights and such. Again, not “pretty sad.”

#5 No more death penalty. Well, at least this amendment is straightforward, and reasonably non-terrifying in it's implications.

I don't find it terrifying myself though it is rather unlikely to pass, but not really gung ho about making partial lists for general principles – not a fan of the ERA for that reason honestly.

#6 Effectively repeals the 2nd amendment.

depending on what you think it means

Regarding that last, let's be clear: Most states have 2nd amendment analogs in their state constitutions. State constitutions are fairly easy to amend. Not one of these has been repealed. Gun control is political poison across most of the country.

“most” doesn't mean all and they have a variety of levels of scrutiny … gun control (especially as you use the term) is supported in various states. And, even if let's say only five states want fairly restrictive laws, if they would have the power to do so, it would be significant, especially if these would include populous states like Massachusetts which months before McDonald v. Chicago had a state supreme court rule that it did not have an individual right to keep and bear arms akin to Heller.

Again, you need to be seriously delusional to think this amendment could be ratified. Even for Congress to send it to the states would produce a electoral bloodbath at the next election.

Not sure he thinks ANY of these will be ratified. That isn't the only reason to propose amendments.

What we have here is not actually a list of serious amendments. What we have here is the agenda Stevens relentlessly attempted, while on the Court, to impose on an unwilling nation by judicial fiat. This book is not directed at Congress, in the hope of amendments being sent to the states. It is marching orders for a future liberal Supreme Court to upend the Constitution without use of Article V.

That's how I see it, and Stevens can rot in Hell.

You are fine with “judicial fiat” against including with an “unwilling nation” (I don't agree with the framing anyway – the public repeatedly has accepted judicial review, so they are “willing” to accept the consequences) on a variety of issues – that is, even if a clear majority supports something (like a gun limit in a state like Massachusetts or the DC law in Heller passed by a democratically elected legislature), so this is just ox gored stuff with your usual selective targeting of “liberal” kicker.

Stevens wrote a book on “amendments” & as to the death penalty, one of his final opinions was a concurrence saying he felt it was unconstitutional but that current doctrine did not reach that point yet, so he joined the court. Some of the things covered here involved the majority overruling long held doctrine (be it wrong or not), often conservative leaning, “upending” things. Which is sometimes the right thing to do, of course, as seen in Brown v. Bd.

# posted by

Joe : 10:26 AM

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# posted by

Joe : 10:26 AM

The natural born citizen clause does not violate equal protection, because if somebody mugs a naturalized citizen, the cops treat it just like somebody mugging a natural born citizen.

Contra to this mugging example, they are not treating the two the same here and the classification is an illicit one based on alienage -- likewise, a law that makes blue eyed people ineligible would violate equal protection.

And being President is not among the privileges and immunities of citizenship.

Current doctrine defines the term narrowly, yes, but that is far from clear to me. In fact, the average person probably rightly thinks that the possibility of becoming President in very well a "privilege" for each citizen.

The 9A and Due Process Clause routes for EP doesn't even rely on citizenship though citizenship would still be a valid classification here. OTOH, barring someone for being born in Canada and moving here as a baby, much less so.

# posted by

Joe : 10:34 AM

Brett

Would a law saying that only natural born citizens could be notaries violate the Equal Protection Clause? How about one that said only natural born citizens could concealed carry or buy a handgun?

# posted by

Mista Whiskas : 10:46 AM

For those perplexed with the current "profound gloom," take the time to read Jack Balkin's March 2, 2014 draft essay "The last Days of Disco: "Why the American Political System is Dysfunctional." It is 45 pages in length but is a fairly quick read. Those concerned with taking the time to read it should at least note the sections listed at the beginning that jut might tempt them to read the entire essay or portions thereof. Section IX. "The Side Effects of a Long Transition" with subsection A. "The Executive in a Period of Sustained Dysfunction" and subsection B. "The Judiciary in a Period of Sustained Dysfunction" should be of particular interest to the usual suspects at this Blog.

There have been in the relatively short history of America many instances of "profound gloom." Some we have muddled through. Some have been addressed head-on and resolved, at least partially. Some continue to fester. Change takes place regardless.

Consider the critiques at this Blog of Bruce Ackerman's 3rd volume of "We The People." I thought there was a tad of piling on. But Ackerman, to his great credit, provided vigorous responses. His books address changes that have taken place in America. I don't know if I'll still be around, but his planned 4th volume of "We The People," titled "Interpretation" should be most interesting, especially if it focuses upon the continuing search for the Holy Grail of Constitutional Interpretation/Construction that has resulted, with the aid of the Internet, in diverging views of legal academics on the meaning/construction of the Constitution.

Regarding Brett's take on Justice Stevens concluding " ... and Stevens can rot in Hell.", Stevens may end up in Heaven. In the meantime, Brett continues his rot here on Earth.

# posted by

Shag from Brookline : 10:49 AM

If Stevens is a dog, at least, we know that all dogs go to heaven.

http://www.imdb.com/title/tt0096787/

Have a nice holiday weekend all.

# posted by

Joe : 10:58 AM

Stevens is a standard issue progressive. At least he is proposing amendments of as opposed to judicial rewrites of the Constitution.

# posted by

Bart DePalma : 11:05 AM

Now that he's no longer in a position to do the latter, anyway.

"If something is “unconstitutional,” they would not ultimately be liable. "

That's not what the amendment says:

"Neither the Tenth Amendment, the Eleventh Amendment, nor any other provision of this Constitution, shall be construed to provide any state, state agency, or state officer with an immunity from liability for violating any act of Congress, or any provision of this Constitution."

Get that? No provision of the Constitution can be construed to permit any state officer immunity for violating an act of Congress. Congress passes a censorship law? The First amendment is a provision of the Constitution. Congress passes some law in an area it was given no authority over? The Tenth amendment is specifically over-ridden.

No, I think I've interpreted this one right. Congress says jump, every state official has to ask how high, and it doesn't matter if Congress wasn't given the authority to tell them to jump, or was even barred from doing so.

Stevens, flatly put, wants to reduce the states to mere administrative districts, and utterly abolish what little remains of genuine federalism.

# posted by

Brett : 12:33 PM

If the proposed amendment were to be adopted, it would be subject to interpretation/construction. Perhaps an "originalism" standard might be applied. If so, does " ... violating any act of Congress ... " include an act that is determined by the Court to be unconstitutional?

Consider the Supremacy Clause in Article VI of the Constitution:

"This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding."

The language of the proposed amendment should be interpreted/construed not in a vacuum but by looking at the Constitution as a whole, including the Supremacy Clause's " ... and the laws of the United States which shall be made in pursuance thereof; ...."

Perhaps Brett would like to see an addition to " ... violating any act of Congress ... " as follows:

"... that is not in violation of the Constitution, ...."

Query: Can one violate an act of Congress that is unconstitutional?

# posted by

Shag from Brookline : 1:30 PM

Per current doctrine, no, because unconstitutional laws are void "ab initio"; They are, per legal doctrine, not really laws, and never have been, retroactively.

But this is what Stevens would change with his, "nor any other provision of this Constitution" language. State officials would be bound to Congressional acts, (Which is more expansive than "laws".) regardless of anything to the contrary in the Constitution.

# posted by

Brett : 2:03 PM

Brett seems to be shifting gears but gets into reverse as a result.

It should be noted that an act can be unconstitutional on an "as applied" basis that may be distinguishable from an "ab initio" situation.

# posted by

Shag from Brookline : 4:16 PM

But the natural born citizen clause has only one application. I suppose you could yell "equal protection", if the clause were enforced against one candidate in a race, and not against another, equally applicable candidate.

Let us suppose that, contrary to the evidence, Obama really wasn't born in the US. (And, do I really have to point out again that I don't believe this?)

If the natural born citizen clause had been invoked against him, and NOT against McCain, (Who was certainly not a natural born citizen, born in Panama, and should never have been on the ballot for President.) you'd have an "as applied" EP violation.

But not if it were applied to both, in that hypothetical.

# posted by

Brett : 10:39 PM

It's cute when engineer Brett picks up on legal parlance. But "as applied" relates to an act of Congress in applying the Constitution and not fixed provisions in the Constitution, e.g., "natural born" and equal protection clauses (which may of course be subject to interpretation/construction if not crystal-ball clear).

# posted by

Shag from Brookline : 8:31 AM

Brett's critiques of the Stevens amendments include this:

"Stevens, flatly put, wants to reduce the states to mere administrative districts, and utterly abolish what little remains of genuine federalism."

Over at the Legal History Blog its weekend book reviews feature provides a link to a review of Michael Waldman's "The Second Amendment: A Biography" that includes this excerpt from the review:

"What he's addressing is the Constitution as a living document, which we interpret not according to the intent of the Framers — he's no fan of originalism — but rather through the filter of the present day. "We would be uncomfortable," Waldman writes, "with the idea that states could fight wars against the U.S. Army," which was, of course, an early draw of the militias, that they might serve as a potential check on federal power. "We would recognize that the Founders expected people to have military weapons in their homes." And yet, this is the conundrum, isn't it, since "an assault weapon is precisely the kind of armament a modern-day Minute Man might want to use."

Is this an example of what little remains of genuine federalism for Brett? Imagine, a living Constitution that facilitates dying.

# posted by

Shag from Brookline : 9:53 AM

A court would not even get to the point of applying the EPC to the constitution's qualifications for office.

General terms like equal protection enacted into law after specific laws like qualifications for office will not usually be interpreted to reverse the prior specific laws.

Generalia specialibus non derogate - "the general does not detract from the specific"

# posted by

Bart DePalma : 10:08 AM

Is Brett suggesting that Ted Cruz should not get on a presidential ballot for the reason he said John McCain should not have qualified in 2008?

# posted by

Shag from Brookline : 1:01 PM

Bart, you have made an excellent point in raising that canon of construction, and I'd say you had a slam dunk argument were it not for the extensive case law from SCOTUS treating alienage as a suspect category under the EPC. If SCOTUS has ruled that equal protection of the law includes strict scrutiny of alienage distinctions then the EPC becomes essentially in the same boat as the 13th is to the Fugitive Slave Clause.

# posted by

Mista Whiskas : 7:21 PM

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# posted by

Joe : 10:21 AM

[edited with some additional citations]

Brett uses textual and intent arguments. Stevens "wants" and the text compels.

I will simply note that I doubt he "wants" Congress to be able to violate explicit constitutional commands in the course of regulating state officials. Such as a forcing state officials to establish religion or be liable for money damages.

The wording of the amendment is to my understanding meant to deal with various arguments used to defend immunity. Whatever "genuine federalism" is, this now means that powers expressly given to Congress (part of our federalism is allotment of powers) aside, e.g., state universities can be immune to copyright infringement claims. [FLORIDA PREPAID POSTSECONDARY ED. EXPENSE BD. V. COLLEGE SAVINGS BANK is a patent example – no pun intended.]

He was on CSPAN and other avenues talking about the amendments, so perhaps someone can ask if he really means that "liability" here does not merely mean the need to raise a "that's a violation of the 1A" defense but a workaround that would give Congress the power to allow a range of things Stevens spent years saying was unconstitutional. http://www.c-span.org/video/?319106-1/words-justice-john-paul-stevens

The "king do no wrong" principle is a major concern here though federalism is too -- see, e.g., Judge John Noonan's book, "Narrowing the Nation's Power: The Supreme Court Sides with the States." Note this is not the same thing necessarily as "genuine federalism." See also, a recent book review of Stevens' book regarding “unfairness.” The king do no wrong principle was cited by him in at least one of his dissents in this area but this advances the overall concern of what he “wants” to address. http://www.nybooks.com/articles/archives/2014/jun/05/justice-stevens-refounding-father/

----

I also don't think the specificity of the natural born provision blocks my argument. The usage of the word "usually" btw is a nice bit of wiggle room.

Basic constitutional law canon would make my argument a somewhat hard one to defend since clear language is being challenged but if the case is compelling, yes, more general language like equal protection can override. As Mr. W notes, especially after the application of strict scrutiny to alienage has a long span of acceptance.

As noted, on the facts, the provision was much more rational in 1787 so the provision is not being ignored here. An explicit amendment to repeal the provision (& perhaps address something else presidential related) would be fine too, partially since as I suggest, my idea is debatable. FWIW, it recently lost in the lower courts: http://blogs.wsj.com/law/2012/09/04/the-other-democratic-candidate/

# posted by

Joe : 1:35 PM

Let's consider how the natural born clause issue might arise to trigger the impact of the equal protection clause on the former.

1. It might arise (a) BEFORE or (b) AFTER a person is nominated as a result of evidence that the person was born outside the US, including its territories.

2. It might arise during the nominating process of a person who is so exceptionally otherwise qualified to be president to challenge the natural born clause via application of the equal protection clause.

3. It might arise AFTER a person is elected president when new evidence is discovered that he/she may not have been qualified under the natural born clause (unless the equal protection clause might apply to afford relief).

[There may be other scenarios, but let's stick with these.]

In each instance, how might the challenge be made and resolved? Presumably SCOTUS would get involved at some point.

But the much larger question I have is why all the fuss? In a nation of over 300 million that includes millions in the age range to qualify a run for the presidency, is one who fails the four corners of the natural born clause that significant, that important to America?

Recall that at one point it was the GOP questioning the current viability of the natural born clause because of the supposed electability of Arnold Schwarzenegger as a GOP presidential candidate. Later, Democrats pointed to the former Michigan Governor who was born in Canada. There may be others that one party or the other may have looked to in this regard.

Perhaps the natural born clause should be formally amended, as such an amendment could provide for certain limitations that would not involve the application of the equal protection clause, i.e.,a bright line for a very bright non-natural born person.

The natural born clause seems to be intended as a hard wired provision in the Constitution. Is it so vital to America's interests and future to short-circuit it with the equal protection clause approach? This does not seem to be a high priority. But let's spin our wheels.

# posted by

Shag from Brookline : 2:29 PM

We hold these truths to be self-evident, that all men are created equal. But, once in blue moon, it's okay if we let it go?

Nah. It is notable that lots of people not born here could be President for years given the "citizen at the time of the Constitution" proviso.

I have read a few legal writers note that "hard-wired" provisions that leave a lot to be desired should not be ignored, clearly, but they should be interpreted as narrowly as possible.

I think the 14A born or naturalized provision was a new beginning that washed away old views of citizenship, including some thinking blacks could not be citizenship. If the old dinosaur is still around, so be it, like these things tend to do, bound to show its head at some point.

(e.g., the line of succession skips over the best person in some national trauma because s/he was born in Canada or something).

# posted by

Joe : 3:13 PM

"2. It might arise during the nominating process of a person who is so exceptionally otherwise qualified to be president to challenge the natural born clause via application of the equal protection clause."

I don't even know what that means. You could have somebody born in Quebec who was a combination of Jesus Christ and Einstein, a polymath who accumulated 15 degrees in real topics before he was 20, then spent the next 15 years discovering a cure for cancer and solving world hunger, and keeping him off the ballot wouldn't raise any more equal protection issues than barring Alfred E. Neumann from the ballot.

Seriously, the guy's qualifications would be utterly beside the point. Might be a good reason to repeal the EP clause, but wouldn't have a scintilla of relevance to it's constitutionality.

"Perhaps the natural born clause should be formally amended, as such an amendment could provide for certain limitations that would not involve the application of the equal protection clause, i.e.,a bright line for a very bright non-natural born person."

Nah, if we repeal it, we should just repeal it.

"The natural born clause seems to be intended as a hard wired provision in the Constitution."

More to the point, it IS a "hard-wired" provision in the Constitution, whether intended as such or not.

# posted by

Brett : 3:16 PM

I repeat an earlier comment, hoping for a response:

"Is Brett suggesting that Ted Cruz should not get on a presidential ballot for the reason he said John McCain should not have qualified in 2008?
# posted by Shag from Brookline : 1:01 PM"

# posted by

Shag from Brookline : 4:01 PM

This comment has been removed by the author.

# posted by

Bart DePalma : 4:41 PM

Mr. W:

The EPC also does not extend to the age restrictions for federal office or the principle of one man, one vote to the structure of the Senate.

# posted by

Bart DePalma : 4:43 PM

Bart: "When the governing party's policies are almost uniformly failing ..."

Can you enlighten this dim foreigner which party you are referring to? For two years (2008-2010), the Democrats held the Presidency and working majorities in both Houses of Congress, and can reasonably be held accountable for the resulting policies. Ever since then, it's been divided government, with nobody in charge. That paralysis may have been Madison's idea of a republic, but it doesn't seem to work very well.

The French called it "cohabitation" when the Fifth Republic's combination of a formally parliamentary government plus a strong elected presidency led to uncomfortable periods when the president and the prime minister were of opposite parties. In spite of being (in American eyes) impractical speechifying ideologues, the French harmonised the electoral calendars so the risk of cohabitation is now much reduced.

One reform to reduce the risk of gridlock in the US would be to get rid of off-year elections and staggered Senate terms. Have one election for the lot every four years. Most of the time, this will lead to coherent one-party government, with a loyal minority opposition in Congress. If it leads to divided government, it will be by the popular will not accident.

# posted by

James Wimberley : 7:37 PM

Very well.

When John McCain was born in the Panama canal zone, the law was such that having an American parent was not enough to be a "natural born citizen", a citizen from birth.

When Obama was born in Hawaii, the law was such that an American parent would have been sufficient regardless of the location of birth, but only if they themselves had resided in the US for a certain amount of time prior to the birth, and Obama's mother had not, so the location of his birth mattered.

When Cruz was born, the law was such that having an American mother was enough, AND she had been in the US long enough prior to the birth to not have the location issue Obama's mother had.

So, taking "natural born citizen" to mean, "A citizen from birth by the laws then in effect.", no, Ted Cruz does not have this problem.

# posted by

Brett : 8:33 PM

Bart: "When the governing party's policies are almost uniformly failing ..."

James Wimberley said...Can you enlighten this dim foreigner which party you are referring to?

The Democrats have controlled at least two or the three of the House of Representatives, Senate and Presidency since 2007. They are the governing party implementing policy during most of the past decade.

The last conservative domestic policy implemented since 2001 was the Bush tax reforms in 2003.

"Ever since then, it's been divided government, with nobody in charge. That paralysis may have been Madison's idea of a republic, but it doesn't seem to work very well.

The GOP House is only 1/3 of the elected elements of the federal government. Since 2011, they have not been able to reverse any of the progressive and socialist policies imposed by the Democrat Congress and President. They managed to stop further growth in government spending, but conceded to the Obama plan to make the tax system more progressively punitive to avoid an across the board tax increase, and have been unable to stop any of the Obama decrees and regulatory tidal wave.

# posted by

Bart DePalma : 9:23 PM

Madison's idea of a republic by my understanding was not really the two party model in place now, particularly one where Republican caucus actions promote partisan ends even when personal convictions in a "conscience vote" situation would go the other way. His Federalist 10 idea of a variety of factions arguably would be better advanced by a multi-party system. FWIW.

# posted by

Joe : 12:00 AM

In Brett's 8:33 PM comment he uses the the phrase:

" ... the law was such that ... "

in the situations of McCain, Obama and Cruz in the application of the natural born clause in the Constitution. I'm not aware of any changes to the natural born clause in either of those scenarios. Is Brett referring to decisions of the Court on the clause or on statutes? Or is Brett relying upon the views of legal scholars in each scenario? Perhaps Brett could provide cites to back up " ... the law was such that ... " for each scenario.

Keep in mind that both of McCain's parents were American citizens and that at the time of his birth his father was in the military service of America, whereas in Cruz's case only his mother was an American citizen. To me, logic suggests that McCain's situation was stronger than Cruz's.

I am aware of a broad range of law review articles on the clause, in particular one published well before McCain ran for president that concluded that a scenario like McCain's would not comport with the clause. {I don't have a cite but my recollection is that the young lady author made a strong argument.) But can we rely on law review articles to know " ... the law was such that ... " for sure?

# posted by

Shag from Brookline : 6:58 AM

The last conservative domestic policy implemented since 2001 was the Bush tax reforms in 2003.

# posted by Blogger Bart DePalma : 9:23 PM

LOL

Baghdad Bart has a lot of trouble remembering that Bush was actually president until he drove the country off a cliff in 2008.

# posted by

Anonymous : 8:48 AM

Our CO gasbag should elucidate his:

"The last conservative domestic policy implemented since 2001 was the Bush tax reforms in 2003."

as to what he thinks constituted tax reforms in 2003.

# posted by

Shag from Brookline : 8:54 AM

Shag:

The Bush summer 2003 tax reforms partially reversed the Clinton tax rate hie, eliminated the marriage penalty and increased the personal deduction. Economic and job growth immediately took off that fall.

BB:

The economy started going off the cliff in 2007 when the Clinton era government directed and subsidized subprime home mortgage market defaulted and then the financial system froze up in 2008 because banks had to report the value of their home mortgage assets at the panic driven market level as opposed to their real value because of the Democrat Congress' new mark to market rule.

The 2008 recession is what happens when progressive regulators try to run the economy.

# posted by

Bart DePalma : 9:27 AM

Baghdad, when you have control of all 3 branches of government for 6 years you don't get to blame the other side when you drive the economy off a cliff. You also don't get to whine when the people who come in to clean up your mess don't do so as fast as you would like.

# posted by

Anonymous : 10:01 AM

"The last conservative domestic policy implemented since 2001 was the Bush tax reforms in 2003."

How can this be since you also say

"The Democrats have controlled at least two or the three of the House of Representatives, Senate and Presidency since 2007. They are the governing party implementing policy during most of the past decade."

If your logic is that the governing party is that party which has 2 out of the three, then the GOP met that up until 2007, so everything from 2003-7 should have been under their governance. Did they just not do anything in that period, or just not anything conservative?

Of course, you show none of that really matters under your theory because you have a fail safe: even when a Party has been well out of power you can just blame a party that has been well out of power and their nefarious regulators ("The economy started going off the cliff in 2007 when the Clinton era government directed and subsidized subprime home mortgage market defaulted"). It's a nice, non-falsifiable bubble of protection.

# posted by

Mista Whiskas : 10:09 AM

"The EPC also does not extend to the age restrictions for federal office"

Yes, but age has never been held to be as suspect as alienage under the EPC.

# posted by

Mista Whiskas : 10:11 AM

Shag, a "natural born citizen" is a person who was a citizen from birth, rather than becoming a citizen some time afterwards. The statutory law governing who is a citizen at birth has changed over the years. At the time McCain was born, it was not enough to have American parents, you had to be born on US territory, and McCain was not.

This was changed a year or two after, and given retroactive application, but I do not believe that you can retroactively make somebody a "natural born" citizen, for constitutional purposes.

At the time Obama and Cruz were born, having an American parent was enough regardless of where you were born, but that parent had to have been resident in the US for a certain amount of time prior to the birth, and Obama's mother had left the US at an early age, so he would not, under statutory law, have been a citizen at birth, if he had not been born on US territory. This issue did not exist for Cruz.

So, "natural born citizen" means citizen at birth, but the statutory law dictating who is such has changed over the years, and there is no issue with regards to Cruz. Clear?

# posted by

Brett : 10:17 AM

Mr. W:

I can only assign responsibility to the Democrats for the progressive and socialist policies they imposed while they were in power.

Bush and his GOP Congress are responsible for the progressive policies they imposed from 2001 to 2006. The 2003 tax reforms were unfortunately the exception rather than the rule.

Our last conservative government was Clinton and the GOP Congress.

It is perfectly legitimate to blame the Bush administration for not reversing the Clinton-era subprime mortgage market policies, however you cannot attribute those policies to Team Bush.

# posted by

Bart DePalma : 10:21 AM

This comment has been removed by the author.

# posted by

Joe : 11:42 AM

There was an interesting ruling on tribal immunity decided today in the USSC, including an irregular 5-4 split.

http://www.scotusblog.com/case-files/cases/michigan-v-bay-mills-indian-community/

Ginsburg joined the dissent against tribal immunity, joining in the suggestion a key precedent [KIOWA TRIBE OF OKLA. v. MANUFACTURING] should be overruled. She dissented in that opinion joined by Stevens & Thomas. Stevens wrote then one of the core reasons against granting immunity there was:

the rule is unjust. This is especially so with respect to tort victims who have no opportunity to negotiate for a waiver of sovereign immunity; yet nothing in the Court’s reasoning limits the rule to lawsuits arising out of voluntary contractual relationships. Governments, like individuals, should pay their debts and should be held accountable for their unlawful, injurious conduct.

This not some desire to make states mere administrative units etc. is a driving concern of his, for good or will, in a consistent opposition to broad immunity.

[I personally think Justice Sotomayor's concurrence in today's ruling is strong & as noted by the majority opinion, the key point is that immunity here is a matter of congressional discretion and is tempered. Sovereign immunity can be just in that respect and to be fair even applied to states there are limitations.]

---

As to Mr. W's reply, age still would have to meet some scrutiny, so the lack of strict scrutiny doesn't appear to me that damning. It would just warrant an easier test.

I also don't grant the premise -- if the federal office regulation was a totally irrational age regulation ("federal office" covers more than members of Congress or the President, which is the only place age is cited in the Constitution proper), it is unclear why the EPC might not be violated.

The claim there is much broader than Brett's, which focuses on a specific explicit bar. There is no explicit guide on rules for "federal office" holders in general as to age.

The citation to the structure of the Senate is a better example - it is an explicit rule, one that arguably is at least rational.
After all, it was put there for that alleged reason.

A EPC claim can be made even there, perhaps, but I think it is a broader claim to make in part for Shag's reason -- the structure of the institution etc. over the possibility a person will be elected etc.

# posted by

Joe : 11:51 AM

No, Brett, it isn't quite that clear. Under Article I, Section 8, "Congress shall have the Power ... To establish an uniform Rule of Naturalization, ...."
how one becomes a citizen. But that does not empower Congress to determine whether a citizen is "natural born" under Article II, Section 1.

# posted by

Shag from Brookline : 1:48 PM

Our GO gasbag apparently takes the position that tax reform includes increasing deficits with two (2) unpaid wars going on and at the same time increasing benefits to the wealthy. The 2007-8 Great Recession was contributed to a tad by the Bush/Cheney tax cuts of 2001 and 2003. And Google the personal benefits to Bush and Cheney resulting from the 2003 tax cuts; very interesting.

Keep in mind that "trickle down" means "piss on you."

# posted by

Shag from Brookline : 2:00 PM

Shag:

You really do swallow Democrat spin without question. Here is a clue:

The economy took off, unemployment fell, revenues surged by double digits and the deficit fell to $170b after the Bush Tax reforms. We were at full employment when the subprime home mortgage market defaulted in 2007.

# posted by

Bart DePalma : 5:16 PM

"There is also a strong argument that those obtaining citizenship at birth by statute are natural born citizens."

http://www.michiganlawreview.org/articles/why-senator-john-mccain-cannot-be-president-eleven-months-and-a-hundred-yards-short-of-citizenship

See also:

http://www.snopes.com/politics/mccain/citizen.asp

Somewhat like the term "direct tax," my reading on this matter leads me to doubt there was crystal clarity on just what the line is. So, I'd leave it up to public discretion unless there is at crystal clear case. At best.

Likely to be a political question, but the debate still would be useful to guide those who decide such questions. Every constitutional question won't be decided by courts.

# posted by

Joe : 5:52 PM

Our CO gasbag swallows the Bush/Cheney guns, butter - and two tax cuts benefitting primarily the wealthy - and has a wet dream that such did not contribute to the huge deficit that contributed to the Bush/Cheney 2007-8 Great Recession. Add to this financial deregulation pushed by the GOP. Apparently the Rocky Mountain High results in loss of memories of the failures of the Bush/Cheney eight (8) years.

By the Bybee [expletives deleted], even our CO gasbag parted company with Bush/Cheney near the very end. The evidence is in the archives of this Blog.

# posted by

Shag from Brookline : 7:47 PM

Our CO gasbag's view of the 2003 Bush/Cheney tax cuts (were they true) demonstrates that he sees a "convenient" tree in the eight year "forest" of Bush/Cheney's failings ending in their 2007-8 Great Recession.

# posted by

Shag from Brookline : 8:37 AM

Shag:

For your continued education:

1) Real US GDP growth by quarter:

http://www.econedlink.org/lessons/images_lessons/1065_figure3.gif

The orange spike in growth in 3Q 2003 occurred after the tax reform. GDP growth in the two years following the tax reform was almost double that of the two years preceding.

2) U3 unemployment rate:

http://www.thefundamentalanalyst.com/wp-content/uploads/2009/04/us-unemployment-rate-mar09.gif

Note the decrease in the U3 rate from 2003 to full employment in 2007.

3) Federal tax revenues:

http://1.bp.blogspot.com/-XzSt66mxR0c/T4bGOL-eD3I/AAAAAAAABKM/0A1Up_3ujd0/s1600/FIGURE110.gif

Note the sharp increase in individual and corporate income taxes following the 2003 tax reforms, putting the lie to Democrat and CBO projections of losses.

Federal budget deficit:

http://economistsoutlook.blogs.realtor.org/files/2013/08/081213e.png

Note the collapse of the federal budget deficit to $170b after the 2003 tax reforms.

Blaming the tax reform for less economic and employment growth or less revenues and higher deficits is quite clearly false.

I won't hold my breath waiting for your admission of error.

# posted by

Bart DePalma : 9:25 AM

Our CO gasbag piles a lot of manure on that "convenient" tree (re: 2003 Bush/Cheney tax cuts) but did it really grow and for how long? (There is also the matter of cause and effect of tax cuts, which has been questionable over the years.) The Bush/Cheney 2007-8 Great Recession did not result overnight; there were many contributing factors during the eight year "forest" of Bush/Cheney, including the costa for two unpaid wars.

Our CO gasbag has opined at this Blog that the "Gilded Age" was in his view the greatest period in America. The Bush/Cheney eight years fostered the "Second Gilded Age."

# posted by

Shag from Brookline : 10:15 AM

http://economistsoutlook.blogs.realtor.org/files/2013/08/081213e.png

Note the collapse of the federal budget deficit to $170b after the 2003 tax reforms.

Blaming the tax reform for less economic and employment growth or less revenues and higher deficits is quite clearly false.

I won't hold my breath waiting for your admission of error.
# posted by Blogger Bart DePalma : 9:25 AM

Baghdad, you might want to follow that chart to the end of the Bush years in office.

# posted by

Anonymous : 10:17 AM

Shag/BB:

Shag blames the 2003 tax reforms for the 2008 recession. I noted the lack of correlation.

Also, the idea that spending less than 1% of GDP on the Afghanistan and Iraq Wars somehow caused a recession several years later is absurd.

Once again, the recession was caused by two progressive regulatory failures - the mass default of the Clinotn-era government directed and subsidized subprime home mortgage market and then the 2007 mark to market rule enacted by the new Democrat Congress requiring banks to value their home mortgage legal instruments at the market panic rate of near zero rather than the real value of the homes themselves. This eliminated the assets banks used as collateral for loans to cover daily operations. If the Fed did not loan the banks the operating money, this regulation would have collapsed the banking system.

# posted by

Bart DePalma : 10:32 AM

Baghdad, the Cheney/Bush presidency did not last from the tax cuts until 2006. You get "credit" for the entire fucking mess, as well as the aftermath.

# posted by

Anonymous : 10:48 AM

Our CO gasbag claims:

"Shag blames the 2003 tax reforms for the 2008 recession. I noted the lack of correlation."

Apparently our CO gasbag flunked comprehensive reading. I did not blame the Bush/Cheney 2003 tax cuts for the 2007-8 Bush/Cheney Great Recession. [Note our CO gasbag repeats "tax reform" for the tax cuts that primarily benefitted the wealthy. Reform?] I did say the Bush/Cheney 2003 tax cuts together with the Bush/Cheney 2001 tax cuts together together with two unpaid wars significantly increased the deficits during the Bush/Cheney eight years together with additional failures.

Maybe if our CO gasbag looks hard enough in his pile of manure he can find a pony to finally ride on away from the Bush/Cheney failures that he seemed to recognize near the end of their terms.

Perhaps our CO gasbag has actually searched through the entire Bush/Cheney eight years to find the 2003 tax cuts as the only bright spot. One swallow does not a Summer make. Recall no WMD in Iraq. Recall the deaths and injured resulting from the Iraq War. And keep in mind that the costs of that war continue to increase with our obligations to our injured military. No, the Bush/Cheney eight years were not a "Golden Age" except those with the gold (0.1%ers) who were the prime beneficiaries of the Bush/Cheney 2001 and 2003 tax cuts.

# posted by

Shag from Brookline : 2:13 PM

"the 2007 mark to market rule enacted by the new Democrat Congress"

By FASB right?

# posted by

Mista Whiskas : 2:35 PM

FASB?

# posted by

Bart DePalma : 3:12 PM

Joe, thanks for the link to Michigan Law review article by Gabriel J. Chin, which quite exhaustive Chin points to the racial aspects of immigration laws and Congress' efforts to limit opportunities for people of color to became US citizens, not only in Panama but also in the Philippines. Imagine the potential demographic changes after the Spanish-American War if US citizenship would conferred on people born in Panama and in the Philippines.

Also, Chin does a thorough job in his challenge of the opinion provided by Tribe and Olson supporting McCain as a natural born citizen. The opinion is furnished as Appendix A to the article and is relatively short in length and very short in legal analysis. I see the possibility that the opinion could be used against Cruz's situation. (To me the opinion is a political document, less of a legal one.)

The interplay in the article between the natural born citizen clause and the citizenship provision in the 14th A is of great importance. Chin notes that "United States" is not defined in the 14th A. I would add that the natural born citizen clause also does not define "United States." Query: Could one be a citizen at birth under the 14th A but NOT a natural born citizen under the natural born citizen clause?

# posted by

Shag from Brookline : 8:06 PM

Bart

http://en.wikipedia.org/wiki/Financial_Accounting_Standards_Board#Current_issues

# posted by

Mista Whiskas : 9:01 PM

Mr. W:

I stand corrected - FASB through the SEC.

I was confusing another bill which did not pass.

# posted by

Bart DePalma : 8:48 AM

I'm reading "American Founding Son: John Bingham and the Invention of the Fourteenth Amendment" by one of our bloggers here. Like GM's others books, worthwhile checking out.

As to Shag's final query, not sure how that would be & the article seems to counsel against it early on, at least under current doctrine. Some provide a sort of natural law definition of "natural born" but the article ties it to current law.

So, pre-14A, "natural born" could arguably rest on state law (Justice Curtis' dissenting opinion in Dred Scott, e.g., seems to determine citizenship based on the state law in question -- so blacks can be citizens some places, not others). Now, the 14A sets a floor, including being born in the U.S. putting aside the exceptions noted.

# posted by

Joe : 10:32 AM

Frankly, I'm not wedded to the natural born clause. It presents originalism problems (including the 14th A on citizenship). A living Constitution may be a way out. An Article V amendment process could result in creating additional issues.

So let's "Cruz" along with the conventional concept of natural born.

# posted by

Shag from Brookline : 11:04 AM

The number of people who see black and brown people as "other" is constant. Two things have changed:
1. Many previously indifferent white people noticed the injustice of the situation; and
2. All the haters unified into the GOP, when, before Nixon, they were split equally between the parties.

Optimism: there is no necessary reason why the GOP must continue to exist. In 10 years they won't be able to win statewide elections in GA or NC, let alone gain the White House. Our system requires two parties and the vacuum will be filled by a group of non-haters that can attract gays (who by then will have no obvious affiliation with Democrats) and the occasional Hispanic.

# posted by

Thornton Hall : 12:18 AM

You DO realize that the same people were predicting the same outcome of demographic trends a couple of decades ago? Sure, I know it drives the Democratic position on illegal immigration, but demography isn't really destiny.

# posted by

Brett : 6:43 AM

Brett's:

" ... but demography isn't really destiny."

doesn't mean that destiny will not be impacted by demographic changes.

And who are these "same people" Brett refers to? Perhaps a few cites? I do recall the Kissinger Commission minority report on hordes of Mexicans entering the US back in the late 70s. (The minority report included Kissinger and late John Silber.) The present demographic changes are based upon the growing populations of minorities/people of color in America as a result of birth rates compared to birth rates of whites. So who are these "same people"? Perhaps Brett has a constitutional solution to prevent the anticipated demographic changes.

# posted by

Shag from Brookline : 8:36 AM

but demography isn't really destiny.
# posted by Blogger Brett : 6:43 AM

The current GOP and tea party seem pretty determined to make sure demographics really are destiny.

# posted by

Anonymous : 9:23 AM

Another reason for optimism: political science that imagines Americans are usefully understood under the rubric of "ideology" provide as much insight as doctors who understand disease as the result of unbalanced humours. Once you start ignoring them and paying attention to empirical reality, shifts toward a more conservative electorate in the 90s disappear. Look at support for actual programs: SS, Medicare--no dip in support.

# posted by

Thornton Hall : 9:51 AM

Yes, if demographics is being used, at least, both parties are using it. Brett again would be easier to take seriously if he didn't strongly voice his dissenting tones in a partisan way.

The usage of "illegal immigration" is a bit off too. The issue here -- as used by all sides -- is immigration as a whole. The same would be if the subject was regulation of trades generally, which involves a large subset of unlicensed "illegal" activity.

But, as Justice Sotomayor and others note, "illegal aliens" are singled out specifically in this area.

# posted by

Joe : 1:16 PM

"The issue here -- as used by all sides -- is immigration as a whole."

No, it is not. The side you don't belong to is pretty emphatic about that. It's your side that insists that all immigrants, legal AND illegal, have to be lumped together.

Illegal immigrants aren't just the same people who would be immigrating legally if we permitted more legal immigration. They're a different group of people. Systematically less English literate, less educated, less law abiding.

# posted by

Brett : 2:14 PM

"The issue here -- as used by all sides -- is immigration as a whole."

No, it is not. The side you don't belong to is pretty emphatic about that. It's your side that insists that all immigrants, legal AND illegal, have to be lumped together.

I don't know what the “side you don't belong to” business is supposed to mean.

Won't try to generalize since the Democrats are made up of different factions. I'll just voice my opinion, which is that the issue of immigration – like other issues – has to be looked at as a whole. So, ultimately, yes, that should be the issue. Not trying to target “illegal” immigrants specifically.

An ideal policy would not “lump” them totally together, but trying to single them out in various ways turns out to be both misguided and problematic. For instance, given the long time presence of undocumented immigrants, “lumping” them together (along with other residents) might be a good idea in respect to driver's licenses.

Illegal immigrants aren't just the same people who would be immigrating legally if we permitted more legal immigration. They're a different group of people. Systematically less English literate, less educated, less law abiding.

I don't know how different they are ultimately but “my side” would not assume that they are totally the same, and those specifically concerned about the interests of immigrants are well aware of specific needs in that area – though again the specifics would be complicated. Thus, in the case of domestic violence, they might be “lumped together” and their undocumented status not generally an issue.

Immigration as a whole remains the issue – you simply haven't refuted my bottom line there. Just as it would be if the issue was regulation of the plumbing trade, though we don't call “illegal” plumbers “illegals” as readily as we do people here. Unlicensed trades liable to be “a different group of people,” less educated, less law abiding etc.

# posted by

Joe : 10:02 AM

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# posted by

Cicy : 10:11 AM