Monday, December 31, 2018

The Government Shutdown Is Not About The Wall

As 2018 came to a close, President Trump and the Democrats in Congress remained locked in an impasse over whether to allocate $5 Billion in funding for Trump's border wall along the southern border with Mexico. With both sides dug in, multiple agencies are as of this writing effectively shut down because Donald Trump will veto any funding bill that does not also provide for the wall.

At least, that is what the popular narrative proclaims. I am unconvinced. In this battle the border wall is little more than a MacGuffin. It is merely a focal point for the animosity between the Democrats and the President--if the wall were not an issue there would be another of similarly existential significance. This shutdown has happened because the Democrats have categorically refused to work with Donald Trump on pretty much anything--and they certainly are not about to support a signature Trump campaign pledge.

This is where the Democrats have made a major tactical mistake. Their rhetoric is all about the wall--whether the wall will work, whether there are better uses for the public fisc, whether Trump has been efficient in the wall funding already granted. What they do not acknowledge is that a sizable portion of the American electorate wants the wall, period. By and large, Donald Trump's supporters are fully on board with shutting the government down in order to secure border wall funding; 63 million people--all those who voted for Donald Trump, want the wall that badly. Whether it works as they anticipate is, for now, not the issue. This is what they want, and this is what they elected Donald Trump to secure. The border wall was a signature campaign promise if not the campaign promise.

The irony of campaign promises is that no candidate--not for President and not for Congress--has the power in and of themselves to keep those promises. Campaign promises require both President and Congress to work together to pass legislation. Donald Trump was never going to secure the border wall funding on his own; he was always going to require the cooperation of Democrats in both houses of Congress. Yet when Democrats in Congress are so utterly opposed to Donald Trump they refuse to even concede that he is the President, cooperation has been the one thing they will not (dare not?) give him. For the Democrats, his campaign promises matter not at all.

In a representative democracy, such as the United States, however, they should matter.  When 46.1% of the electorate says they want something by voting for someone who has promised to obtain it above all else, the government is expected to take notice.  Trump voters might not have voted for Democratic congressmen in 2016 or 2018, but the Congress is still obliged to address their concerns, speak to their issues, redress their grievances. When the Preamble to the Constitution decrees one purpose of our foundational governing document is to "promote the general Welfare", it obligates the organs of government, including the Congress, to heed the expressed desires of the electorate.

46.1% of the electorate want a border wall built. 46.1% of the electorate want the government to build that wall. 46.1% of the electorate are being told by the Democrats that their desire is of no consequence, in flagrant disregard of what the Constitution demands of them.

The voters understand this all too well. There is a reason why Donald Trump's Favorable/Unfavorable poll numbers are significantly above Nancy Pelosi's and even more so above Chuck Shumer's. Whatever flaws Donald Trump may have as a President and as a politician, for the moment he has the high ground of actually striving to make good on a promise. For the moment, the voters are content to shut down a government that does not heed their expressed desire, to shut it down and leave it shut down.

Which is why Donald Trump is under no pressure to reopen the government. Which is also why Senate Majority Leader Mitch McConnell has been unusually disengaged during this shutdown. They are doing the will of the people, and the Democrats are not, and that means the pressure is on the Democrats to break this impasse, not the Republicans and not Donald Trump.  Whatever favorability hit Donald Trump takes over this shutdown, the Democrats have already taken larger hits and very likely will continue to do so.

Until the Democrats can speak credibly to the reality of what American voters expect from the federal government, they will continue to be on the defensive on this issue. Until the Democrats can acknowledge the real substance of this shutdown is not border wall funding, but the willingness of Congress to execute the will of the American voters, there will be little impetus to reopen the government.

As a consequence, barring a significant change in circumstances, the Democrats will have little choice but to give Donald Trump and the American voters funding for the border wall.

Tuesday, December 25, 2018

No Politics, Only Prayers.

Today in the town of David a Savior has been born to you; he is the Messiah, the Lord.
Luke 2:11
Every December 25th, Christians everywhere celebrate the birth of Jesus Christ--the Son of God, through whom all of Mankind is offered eternal Salvation and life everlasting.

Every December 25th, people of all faiths unite in sharing this Christian holiday, joining the religious observance with interfaith wishes of peace on Earth and good will towards all men.

Every December 25th, we are called--regardless of faith--to reflect upon what truly matters in this world, and what truly does not matter. 

Some keep the holiday with lavish festivity and expensive gift giving. Some keep the holiday by going to church. Some keep the holiday as a time for family and friends. Some keep the holiday in solitude.

Some keep the holiday by railing against the injustices of this world, and how humanity still does not enjoy the peace promised in the Gospel. Some keep the holiday by arguing the holiday is a fiction, that neither God nor His Son exist, or ever existed. Some keep the holiday in anger. Some keep the holiday in tears.

However a man keeps the holiday, it surely is among the greatest testimonies of Jesus that, in some fashion, nearly all the nations of the world keep some observance of the holiday. Perhaps that is the true holiday spirit, the real holiday message--that this one moment can be shared by all. One does not need to be a Christian to wish for peace in the world. One need not be baptized to wish for blessings of health and prosperity among all men, and an end to poverty, disease, crime, and violence. Such desires are not "Christian", but rather "human". Regardless of what we believe, it may be fairly presumed we all want a better world.

Ultimately, that is the "Christmas spirit"--the hope that a better world can be achieved; that the lion can lay with the lamb; that people can be generous,  can be benevolent, can put aside violence, and anger, and hate. We can form a more perfect Union among men, we can establish Justice, we can insure Tranquility, promote the general Welfare, and secure the Blessings of Liberty for all men and all generations. No matter wide of the mark we yet are, no matter how many times we have tried and failed, we can do these things.

This is how I choose to keep the holiday: with a simple prayer for all Mankind, that all these things which we can do, we yet will do. I pray that our failures will not discourage us, that our sins will not defeat us, that our vices will not overmatch our virtues. I pray that we will make, not a perfect world, merely a better one.

Merry Christmas.

Monday, December 24, 2018

The Federal Reserve's Christmas Gift: A Bear Market

Wall Street has little to celebrate this Christmas holiday, courtesy of a recklessly stubborn Federal Reserve. During the previous week, from 17 December to 21 December of 2018, the Dow Jones Industrial Average shed 6.8 percent of its total--the worst such performance since the 2008 "Great Recession." Such has been the turmoil among the major stock exchanges that Treasury Secretary Steve Mnuchin caught many observers by surprise when he called the major US banks on 23 December to address concerns of financial stability and the general availability of credit.

Yet is any of this really so surprising?

Consider a few basic facts:
A reasonable question to ask at this juncture is why would interest rate hikes precipitate stock market declines? The immediate answer is simply this: money.

The total supply of money in any economy varies inversely with interest rates. Lowering interest rates expands the money supply, and raising interest rates shrinks the money supply. The Federal Reserve's tweaking of interest rates is quite intentionally an effort to manage the total money supply in the United States. During 2018, Fed Chairman Powell opted four times to shrink the money supply.

When the money supply shrinks, prices are inevitably pushed downward, for when there are fewer dollars in circulation, each dollar has greater purchasing power, all else being equal. Stock markets, where prices fluctuate by the second, display this phenomenon faster than other portions of the economy, where prices are slower to change.

When the money supply shrinks, there are also fewer dollars available to lend--a reduction in the money supply is a reduction in the availability of credit.

Given that Powell's past two interest rate hikes have precipitated a deep and persistent stock market decline, and given that interest rate hikes are by definition a reduction in the availability of credit, is it really so outrageous that Secretary Mnuchin would be concerned about financial stability and credit availability? Is it not more outrageous that Jerome Powell is not concerned about these things? 

Certainly, Powell has a duty to be concerned, because the primary stated mission of the Federal Reserve is to conduct "...the nation’s monetary policy to promote maximum employment, stable prices, and moderate long-term interest rates in the U.S. economy." A price drop among stocks of 6.8 percent in a single week is not exactly what one would call price stability.

Yet Powell has been amazingly "tone deaf" to the consequences of Federal Reserve rate hikes. Within the mission of maintaining stable prices, the time to raise interest rates is during periods of significant inflation--something that has been conspicuously absent from the US economy. When there is no inflation, raising interest rates is an action calculated to destabilize prices--by causing them to drop.  Powell has even acknowledged this by his assertion that the economy is "strong enough" to absorb the rate hikes and corresponding money supply and credit reductions. The stock market decline was what he wanted--he unilaterally decided that stocks were "overvalued" and so elected, on his own initiative, to erase a few trillion of market capitalization.

No wonder President Trump would like to fire him--Trump has been clamoring against the rate hikes, correctly predicting that the money supply shrinkage would precipitate a stock market collapse. Market turmoil and declining share prices are not the way to "...promote maximum employment, stable prices, and moderate long-term interest rates in the U.S. economy." By all appearances, Jerome Powell has been seriously derelict in his duty as Federal Reserve Chairman. If he were the Controller or CFO of any major US company, he would have been fired by now.

Sadly, this bit of financial Kabuki has been played out time and again throughout America's history--dereliction is rather the norm at the Federal Reserve.  Pushing interest rates too high too fast catalyzed bursting the 2006 housing bubble, and thus the subsequent 2008 financial crisis--the metastasis of which was itself the product of both government mistake and lax execution of established government regulatory responsibilities.  

Similar errors occurred in 1999 and 2000, when the Federal Reserve raised interest rates in the face of stock market declines, precipitating a recession beginning in March of 2001.

Even the calamitous stock market crash of 1929, widely viewed as the onset of the Great Depression, was triggered by an abrupt change in monetary policy by the New York Federal Reserve Bank, which raised interest rates to 6 percent.

That interest rate hikes catalyze stock market declines and crashes is absolutely established by the constant correlations between them.  One can view this correlation in one of two ways: The Federal Reserve erred by letting the money supply grow too much, causing the stock market to overinflate into a bubble, forcing a correction to be taken, or the Federal Reserve erred by deflating stock prices in the absence of any signs of price inflation in the broader economy.  One theme, however, is consistent--that the stock market declines and subsequent recessions are the consequence of Federal Reserve error.

Which begs the question of why we continue to empower the Federal Reserve to manipulate interest rates and the money supply in this fashion. Invariably, they get it wrong, and because they get it wrong there has there has not been a single decade of American history since the creation of the Federal Reserve in 1913 when there has not been major stock market and economic turmoil. Too much or too little, but never just enough is the basic pattern of Federal Reserve regard for interest rates.

One could even argue that the Federal Reserve's mission is impossible to complete.  Every interest rate adjustment by the Federal Reserve is an intrusion into the marketplace. Every interest rate adjustment is therefore a disequilibrium of the marketplace--and stable prices require equilibrium. The very thing the Federal Reserve does to carry out its assigned task is the very thing that causes it to fail at its assigned task. At the very least, expecting the Federal Reserve to ward off financial crisis by intruding into the markets is quintessentially insane behavior--repeatedly doing the same thing expecting different results.

Instead of constantly fiddling with interest rates and triggering economic upheavals, perhaps the Federal Reserve should adopt a novel approach to maximizing stability--do nothing.

Or is that expecting too much common sense from government bankers?

Sunday, December 16, 2018

With Flynn, Mueller Has Exchanged Prosecution For Persecution

Flynn has been persecuted,
not prosecuted
There is a steady drip-drip-drip of scandal emanating from Robert Mueller's Special Counsel investigation into all things Trump and Russia. Unfortunately, the scandal is about Robert Mueller, not Donald Trump. Nowhere is this more evident then in Mueller's pursuit of Michael Flynn, retired US Army Lieutenant General and briefly Donald Trump's National Security Advisor.

From its outset, investigations by the FBI and the Department of Justice into Flynn's activities during the transition period between Donald Trump's 2016 election victory and his January 2017 inauguration have been a study in controversy. 

After a scant 24 days as President Trump's National Security Advisor, Flynn resigned amid allegations that he lied to Vice President Pence about the nature of telephone conversations he had had with the Russian Ambassador, Sergey Kislyak. That scandal arose because un-named government officials leaked the contents of surveillance recordings of Kislyak's phone calls to the media, which dutifully began questioning why an incoming National Security Advisor would have conversations with the Russian Ambassador. At the time of Flynn's resignation, The Washington Post threw more fuel on the fire by speculating that Flynn's conversations were part of a larger scheme within the incoming Trump Administration to advantage Russia.

Lost in the hysteria was the inconvenient fact that the leaks driving the scandal were themselves a serious crime, under 18 USC §798, a crime that has never been either investigated or prosecuted.

When Robert Mueller was appointed Special Counsel by Deputy Attorney General Rod Rosenstein, he quickly revisited Flynn's phone conversations and presumed false statements surrounding them. On December 1 of 2017, Mueller persuaded (or coerced, depending on one's perspective) Flynn to plead guilty to one count of lying to the FBI when interviewed about those conversations in January of that year.

Lost in the furor surrounding that guilty plea was another inconvenient fact: The FBI agents who actually interviewed Flynn--one of whom was the now infamous Peter Strzok--did not think Flynn lied to them. Even former FBI Director James Comey, before his firing by Donald Trump, testified before Congress that the agents did not think Flynn lied

Mueller had Flynn pleading guilty to a crime that, according to the FBI, never happened.

Despite having pled guilty in December of 2017, Flynn has only recently come before a federal judge for sentencing, Mueller having postponed it multiple times, prompting Judge Emmett Sullivan to inquire as to why so many delays.

When Mueller finally presented filed his sentencing memorandum with the court, one supporting document was noticeable by its absence: Peter Strzok's original Form 302 interview summary of the January 2017 interview with Michael Flynn. The 302 summary that was filed was an exit interview summary of Peter Strzok, shortly before he was fired from Mueller's investigation team for having exchanged a considerable number of politically biased text messages with his then mistress Lisa Page. That interview summary was dated August 22, 2017, seven months after Strzok's interview of Flynn, and only makes reference to Strzok's original interview summary. That original 302 has yet to be produced.

To summarize: Robert Mueller pressured and finally persuaded Michael Flynn to plead guilty to a crime the FBI has said under oath before Congress did not happen, and, a year after obtaining that guilty plea, has failed to present the FBI's actual evidence on the matter.

Not only does Mueller not have evidence of the crime, but the main witness for Flynn's defense would be the FBI itself, the very agency to whom Flynn is accused of having lied.

In Judge Sullivan's courtroom, the cloud of suspicion hangs over not Michael Flynn but Robert Mueller. Mueller coerced the guilty plea from Flynn not with evidence but a threat that Flynn's son would be indicted for various non-crimes. Arguably, the criminal is not Flynn but Mueller, who would stand in violation of 18 USC §§241 and 242, both of which make it a crime for any government official to deprive someone of their constitutional rights, and especially the right of due process.

Can any investigation, by any government official in or out of law enforcement, prevail when its own credibility has been so thoroughly shredded in this fashion? Can any conclusion Mueller might reach--about President Trump, about Russia, about any electoral improprieties that may or may not have occurred in 2016--be taken seriously as the fruits of a serious investigation and not as the result of a political witch hunt, an extended (and taxpayer-funded) exercise in lies, corruption, and serial violations of basic civil liberties?

To call Mueller's pursuit of Flynn a prosecution is to make a mockery of the rule of law. It is turning a blind eye to Mueller's total contempt for the principle of due process, for the presumption of innocence, and for the rights of the accused. This has been no prosecution, but a persecution. Mueller targeted Michael Flynn, intentionally bankrupted him with the expense of defending himself against allegations of a crime that never happened, threatened his family, all for the sole purpose of gaining Flynn's cooperation in the Russia probe--a probe that, after two years, has utterly failed to establish even the existence of conspiracy or "collusion" between the Trump campaign and the Russian government in 2016.

Instead of sentencing Michael Flynn, Judge Emmett Sullivan should reject his guilty plea, toss the entirety of Mueller's "investigation" of Flynn out the window, and appoint new investigators to probe the length and breadth of Mueller's outrageous assault on the Constitutional order.  This is not Stalinist Russia; our tradition is the presumption of innocence, not the cavalier "show me the man and I'll find you the crime" arrogance of Lavrontiv Beria.  Mueller seems to be unaware of this, despite his legal and law enforcement bona fides.

There is indeed conspiracy and collusion afoot in Washington D.C., but it is against the Trump Administration, not by the Trump Administration. That is the one thing Mueller has proven beyond any and all doubt.

Sunday, November 11, 2018

America Is Diverse, Not Divided

Consider this headline on Bloomberg: "Election Shows That U.S. Divisions Are Only Growing Wider -- Social discord, partisan rancor and government sclerosis are about to get worse."

Or this headline in The New Yorker: "America’s Fever Is Still Rising"

Consider also this map of "Red" and "Blue" states based on the recent mid-term election results:

Or this map of Congressional distict results:

Where in either map is there a modern-day equivalent of the Mason Dixon Line, which set the northern border of the pre-Civil war "slave" states and then the northern border of the short-lived Confederate States of America? Where is the divide?

How many of the fifty states are wholly "Red" or wholly "Blue"? Even presumably "deep blue" California and New York have noticeable swaths of Republican Red.

Contrary to the breathless hyperbolic headlines, what these maps illustrate is not division but diversity. Both Republicans and Democrats look to Washington DC for national leadership. Both Republicans and Democrats, in seeking power within the Federal government, evince an awareness of a truly united nation. Implicit in all the electioneering, the preening, the posturing, is the premise that these United States are still as we proclaim to be in our Pledge Of Allegiance, "...One Nation...Indivisible, with Liberty and Justice for all."

Republicans and Democrats do not agree on what constitutes "justice". Conservatives and progressives do not agree on what meaning we should have for "liberty."  Yet there is still much upon which Republicans and Democrats do agree, and we see this in the mid-term elections and the aftermath:
  • Republicans and Democrats agree that elections matter.
  • Republicans and Democrats agree that all votes are important.
  • Republicans and Democrats agree that electoral outcomes set the agenda, the direction, and the tone of each administration and session of Congress. 
  • By their politicking and even by their pandering, Republicans and Democrats alike acknowledge the eternal truth of Hamilton's assessment of American democracy: "Here, Sir, the people govern."
The legacy media--deservedly and derisively termed the "Fake News Media"--are championing a false vision of the United States. Through hyperbolic headlines such as mentioned above, through such blatant propaganda, they exacerbate disagreement into division. They have transformed worthy debates into "wedge issues" and then hammered relentlessly on those issues to produce the signs of division they so hypocritically bemoan today.

There are real issues and real disagreements among Americans. There are pressing issues for which our governments must devise solutions--our immigration system needs reform, our infrastructure needs repair--and there are real concerns about foreign policy, trade relations, healthcare, just to name a few. Americans do not see eye to eye on any of these issues.

Americans have never seen eye to eye on issues. Americans have disagreed and debated since the founding of the Republic. In virtually every decade since the Constitution was drafted in 1787, there has been passionate and partisan debate over contentious issues, ranging from the role of the Federal government to slavery to Manifest Destiny to the New Deal to the Civil Rights movement of the 1960s. Americans disagreed over Operation Iraqi Freedom. Americans disagreed over TARP and the bank bailouts of 2008, giving rise to the Tea Party, and disagreed over Obamacare, resulting in the wave election of 2010.

Yet the Republic has endured. The government stands. We The People are still here.

That is something the Fake News Media and anyone else who would promote the propaganda of rampant rancor and petty partisanship would do well to remember. Despite their very best efforts, the Union is still standing.

Wednesday, November 7, 2018

America Voted, And The Winner Was...."None Of The Above"

The results are in, and once again the American electorate has voted for gridlock.

With a number of races still to be called in the House, the Democrats thus far have an absolute minimum of seats needed to control that chamber.  The Republicans, meanwhile have added at least 3 seats to their majority in the Senate.

The legacy media is already giving their typical partisan spin on the results: Dana Milbank at the highly left-leaning Washington Post titled his assessment "America Steps Back From The Abyss". Fox News, ever the reliable establishmentarian conservative outlet, reaches the opposite conclusion with "Thanks to Trump, the Blue Wave Becomes a Ripple.".

Ultimately, both are wrong.

One of the enduring myths of government in the modern era is the notion that Americans want government to do much. Historically, Americans take a dim view of activist government. Since World War II, there have been only 14 out of 37 sessions of Congress (including the upcoming session) where the same party controlled the Senate, the House, and the Presidency:


During that same period, America has had 20 sessions of Congress with a Republican President and only 17 sessions with a Democrat President. Republicans have controlled the Senate for 13 sessions and the House for 11 Sessions. Only once has America voted to give a President a unified Congress, and that was in 2002, when President George W. Bush was handed a Republican Senate to go with a Republican House. In 2010 and now again in 2018 the voters have responded to unified government by giving control of the House to the opposition party.

What America rejects is not so much Democrat and Republican politicians, but rather unified and effective government under either.  If there is any historical consensus among the electorate, it is for a Republican President with at least one chamber of Congress in Democratic hands. Partisanship is not the expressed will of We The People, not over the long term.

America's notion of good government, then, is not government that is either Democrat Blue or Republican Red. Good government in this Republic is Democrats and Republicans together addressing the nation's issues and attending to the nation's business.  Divided government produced the 1986 tax reforms under Ronald Reagan, and the 1996 welfare reforms under Bill Clinton.

In contrast, the unified Democratic administration of Lyndon Johnson ended in the social upheaval and chaos of 1968. The unified Democratic administration of Jimmy Carter resulted in "stagflation" which ushered in the Reagan era. The unified Republican administration of George W. Bush authorized Operation Iraqi Freedom. The unified Democratic administration of  Barack Obama resulted in Obamacare.

America's experience of unified government does not encourage us to indulge in it often.

If there is an election mandate arising from the 2018 midterm election results it is this: Democrats and Republicans must work together, and the Congress must work with the President to conduct this nation's business. If there is an electoral rebuke to be derived from these results it is to the notion that either party is much trusted by the American electorate with untrammeled power.  America prefers government that does what is necessary but no more than that--Americans prefer government to do too little than too much.

When given the choice between Democrats in power and Republicans in power, the choice of We The People has been once again "none of the above."

Hopefully, our elected officials in Washington will understand this and will behave accordingly.

Sunday, November 4, 2018

Still "We The People"

On November 6, 2018, just two days from now, America will have an election.

In just two more days, America heads to the polls, in what is undoubtedly the most closely watched mid-term election at least since World War Two, if not in the history of the United States.

In just two more days, the entire House of Representatives will be (re)elected, and one third of the Senate will be (re)elected.

In just two more days, the political composition of our nation's government will be decided, and we will know how many Democrats and how many Republicans will sit in either house within the Congress.

There has been prognostication, punditry, and arrogant analysis on both sides ad nauseum. As of this writing, both sides are alternately acting as if they are on the cusp of electoral greatness and teetering on the brink of electoral disaster.  

As regards to which party might take control of either the House of Representatives or the Senate, my sentiment is best expressed by Clark Gable at the end of Gone With The Wind--"Frankly, my dear, I don't give a damn."

The Democrats may take control of the House. It is unlikely they will take control of the Senate. In no likely scenario do they have enough votes to impeach President Trump and throw him out of office.  

Regardless of the electoral outcome, Democrats and Republicans and President Trump will still have to work together to advance American interests and cultivate American prosperity.  In this regard the election of 2018 is exactly like every other mid-term and Presidential election we have had since the founding of the Republic.  On November 7, just like on every day after an election, the government will still have to govern, and the rest of us will still have to get up, go to work, and work to move our individual lives forward in whatever direction we have chosen.

Regardless of the electoral outcome, I hope the public discourse will shift away from politics and  towards policy.  Instead of discussing the merits and demerits of this or that political figure, the fitness or unfitness of Donald Trump for the Oval Office, let us instead discuss the merits and demerits of this or that policy. Let us sound off on whether more tax cuts are needed, on whether President Trump's border wall should be funded, on whether the government should continue to use tariffs as a weapon in internecine trade warfare with the world. Let us voice our opinions on immigration reform and on birthright citizenship. Let us turn our energies away from perfecting politics and towards perfecting policy.

Regardless of the electoral outcome, let us realize that we are defined by things other than how we cast our ballots. We are defined by our jobs, by our communities, by our families, and we are defined by our country. 

We The People are not merely Americans, we are America.  Whether we vote for Democrats, Republicans, Conservatives, Libertarians, Greens, or for any other political party, we are still just Americans--one people, not many hyphenated subdivisions of a people.

President Kennedy, speaking to the 1963 graduating class at American University, stated that "...our most basic common link is that we all inhabit this small planet. We all breathe the same air. We all cherish our children's future. And we are all mortal." 

A quarter century later, President Reagan, in his Farewell Address at the conclusion of his Presidency, reminded us that our government begins with us, with "We The People":
"We the People" tell the Government what to do, it doesn't tell us. "We the people" are the driver - the Government is the car. And we decide where it should go, and by what route, and how fast. Almost all the world's constitutions are documents in which governments tell the people what their privileges are. Our Constitution is a document in which "We the People" tell the Government what it is allowed to do. "We the people" are free.
Regardless of the electoral outcome, we still inhabit this one small planet. We still inhabit this one nation. We still breathe the same air. And we are all still mortal.

Regardless of the electoral outcome, we are still one people. We are still one nation. We are still the masters of our government, and never its servants. We still tell government where to go, how to get there, and how fast to go.  We are still free.

Regardless of the electoral outcome, we will never fully agree on either politics or policy. We will never, as a people, be unanimous in either support or opposition to a President, to an Administration, to a Congress, or to any act or policy they might seek to enact. We are one people, but not of one mind, and we are not meant to think and act in perfect uniformity. 

We are one people, and as a people we are meant to discuss and debate, to share ideas, to let ideas compete with ideas so that the best thoughts will prevail. Our more perfect Union was formed by debate, and it grows by debate. The true American Revolution came not on the battlefields of Lexington, Concord, Trenton, or Yorktown, but in the meeting hall in Philadelphia where Americans joined together to create a constitution and thereby recreate a government. 1787 was the first time in history men redefined their government without a shot fired in anger--a true political revolution unlike any before or since.

Let us remember that, let us be mindful of that, and let us always strive to live up to that. Let us be, now and always, "We The People".

Friday, November 2, 2018

"Subject To The Jurisdiction" -- What The Words Mean


President Trump, in his peculiarly Trumpian fashion, ignited a firestorm of debate and controversy when he speculated in an interview with Axios that he would end so-called "birthright citizenship" with an executive order. In the world according to Trump, he can end that practice with a single stroke of his pen.

Trump's speculation is controversial not because, as many commentators have suggested, the law surrounding birthright citizenship is settled and beyond contestation, but because in fact there are large swaths of gray surrounding the policy.  As I pointed out in my last posting, the existing case law is far narrower in its language and scope than many want to believe.

The one point of agreement on all sides is this: the nub of this question is the meaning of a particular phrase in Section 1 of the Fourteenth Amendment--"and subject to the jurisdiction thereof".  For clarity, here is the full first sentence of that section:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 
In order to fully apprehend the legal principles established by this sentence, we must first understand its grammar.  The subject of the sentence is "persons", the verb is "are"--present tense of the infinitive "to be"--and the modifiers of "persons" are "All", "born or naturalized in the United States", and "subject to the jurisdiction thereof." The complement to the verb is "citizens of the United States and of the State wherein they reside."

With this structure, "subject" is an adjective (because it modifies the noun "persons").  Here we must now ask the question: how does this adjective modify persons?  We can ascertain that by inspecting the other adjective and participle that also modify "persons", "born" and "naturalized".  An equivalent construction for each would be "All persons who are born..." and "All persons who are naturalized...." Given the parallel grammatical structure employed, we may apply this same alternate construction to "subject"--All persons who are subject to...."

That "subject" is an adjective is of crucial importance, because it governs what we can make of the prepositional phrase "to the jurisdiction thereof".  If "subject" were a verb, we would have to apply a transitive verb meaning, of which Merriam-Webster offers up three:
1a : to bring under control or dominion : SUBJUGATE
b : to make (someone, such as oneself) amenable to the discipline and control of a superior
2 : to make liable : PREDISPOSE
3 : to cause or force to undergo or endure (something unpleasant, inconvenient, or trying)
However, as an adjective "subject" has these meanings:
1 : owing obedience or allegiance to the power or dominion of another
2a : suffering a particular liability or exposure
b : having a tendency or inclination : PRONE
3 : contingent on or under the influence of some later action
Which of these meanings do we apply to the first sentence of the Fourteenth Amendment?  The general principle is that dictionary definitions are arranged chronologically--that is, the oldest (and therefore the original) definition appears first, and subsequent definitions appear thereafter. Absent any clear contextual reference to infer otherwise, we should generally apply that first, or denotative, definition. Thus, in the Fourteenth Amendment, "subject to the jurisdiction thereof" means "owing obedience or allegiance to the power or dominion of the jurisdiction of the United States."

Moreover, we have positive proofs this is the correct definition.  One of the Fourteenth Amendment's primary authors, Senator Jacob Howard of Michigan, made this declaration regarding the phrasing:
The first amendment is to section one, declaring that all "persons born in the United States and Subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside. I do not propose to say anything on that subject except that the question of citizenship has been fully discussed in this body as not to need any further elucidation, in my opinion. This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country.
Senator Lyman Turnbull, another of the principle framers of the Fourteenth Amendment, and the actual author of the "subject to the jurisdiction thereof" phrase, amplified Senator Howard's commentary thus:
The provision is, that ‘all persons born in the United States, and subject to the jurisdiction thereof, are citizens.’ That means ‘subject to the complete jurisdiction thereof.’ What do we mean by ‘complete jurisdiction thereof?’ Not owing allegiance to anybody else. That is what it means.
From these proofs that "subject" is to be understood as "owing obedience or allegiance", we may also conclude the proper meaning of "jursidiction" in this regard is the second "the authority of a sovereign power to govern or legislate". The original definition of jurisdiction is focused on the operation of courts and judicial bodies, which is simply too narrow a definition to be coherently applied in this sentence.  

These definitions also comport with the notions of "subjectship" that formed the bulk of the reasoning in the pivotal Supreme Court Case United States v Wong Kim Ark (169 US 649 (1898)). Much of the reasoning in English common law in this realm dealt not with citizenship per se, but with subjectship--i.e., under what circumstances was a person deemed a subject of the British Crown?  

Interestingly, a number of legal commentators disregard both the grammatical construction of that first sentence in the Fourteenth Amendment and the substantive ramifications thereof.  Attorney and legal scholar James Ho, writing in the Los Angeles Times, offered this assessment:
When a person is "subject to the jurisdiction" of a court of law, that person is required to obey the orders of that court. The meaning of the phrase is simple: One is "subject to the jurisdiction" of another whenever one is obliged to obey the laws of another. The test is obedience, not allegiance.
The "jurisdiction" requirement excludes only those who are not required to obey U.S. law. This concept, like much of early U.S. law, derives from English common law. Under common law, foreign diplomats and enemy soldiers are not legally obliged to obey our law, and thus their offspring are not entitled to citizenship at birth. The 14th Amendment merely codified this common law doctrine.
There are two problems with this view.  First there is the obvious contradiction when considering the particular case of the illegal alien: The dictate of the law--and therefore of the orders of any court--is that said illegal alien not be in within the borders of the United States at all; if the requirement is obedience, and the person refuses to obey this most basic of instructions, the clear implication is they are placing themselves beyond the obedience necessary for conferring birthright citizenship.

Further, this view ignores the implicit social contract in subjectship as defined by Sir William Blackstone and referenced in Wong Kim Ark (emphasis added):
Two things usually concur to create citizenship: first, birth locally within the dominions of the sovereign, and secondly, birth within the protection and obedience, or, in other words, within the allegiance of the sovereign. That is, the party must be born within a place where the sovereign is at the time in full possession and exercise of his power, and the party must also, at his birth, derive protection from, and consequently owe obedience or allegiance to, the sovereign, as such, de facto
In other words, obedience and allegiance arise from the premise that the duty of the sovereign authority is to protect the inhabitants of the realm.  Yet the illegal alien is not protected by any sovereign authority--quite the contrary, if placed within the grasp of the sovereign authority he is presented with detention and deportation. If a person, at his birth, does not derive protection from the sovereign authority, how can there be a consequential owing of either obedience or allegiance, and thus a basis for bestowing citizenship?

Akhil Amar similarly ignores both the documented legislative background of the Fourteenth Amendment and the legal implications of the grammatical construction, even as he relies on the same formulation to (mis)state his case:
 ...the Fourteenth Amendment’s text is more capacious—speaking not just of African Americans, but of “[a]ll persons.” This sweeping language grants U.S. citizenship to everyone born here and subject to our laws. The only relevant exception today (given that Native Americans no longer live in the same kind of tribal regime that existed in the 1860s) is for those who owe their allegiance to another sovereign, such as the children of foreign diplomats.
Amar is relying on a specious inference that "subject to" relies on the secondary connotative meaning "suffering a particular liability or exposure." Even if we did not have the commentaries of the Fourteenth Amendment's authors declaiming this very posture, the grammatical construction of this first sentence within the Amendment simply does not allow for the expansive interpretation Amar desires. Again we are confronted with the paradox: if the test is obedience to the law, the illegal alien daily fails that test, for his presence is by definition a defiance of the law. If the test is allegiance, the illegal alien fails that test as well, by that same defiance. As a matter of law and of logic, if the illegal alien wishes to be subject to the laws of the United States, the first step he must take must necessarily be to remove himself from the United States.

As I have stated before, "...immigration is almost exclusively a matter of law, of what the law is, and what the law should be." Citizenship, birthright and otherwise, is likewise a matter of law--of specific law, of statutes, and precise language within the Constitution. All law is first and foremost an exercise in language--an assemblage of words whose meanings combine to elucidate the principles by which a society is to be governed.  As laws are devised in a specific place and time, forever fixed to that place and that time, so too is the language of the law fixed to that place and that time. It is quite proper to debate what the language of the law (and the law itself) should be, but that debate is fatally flawed if we conflate what the language is and what we desire the language to be.

If one wishes to discuss or debate a law, one must first understand the language of that law.  A law says whatever the words mean. This has always been the order of things; this shall always be the order of things.

Wednesday, October 31, 2018

President Trump's Radical Notion on Birthright Citizenship: Enforce The Law

Wong Kim Ark
Without a doubt, President Trump excels at one thing above all else: a perverse capacity to make liberal heads explode with a word. Witness his latest triggering of progressives in both government and the media with his contemplation of an executive order to curtail birthright citizenship.
"It was always told to me that you needed a Constitutional amendment–guess what? You don’t," Trump said. "Number one, you don’t need that. Number two, you can definitely do it with an act of Congress. But now they’re saying I can do it with just an executive order. Now, how ridiculous–we are the only country in the world where a person comes in, has a baby, and the baby is essentially a citizen of the United States for 85 years with all of those benefits? It’s ridiculous. It’s ridiculous–and it has to end."
However, there is one important facet of President Trump's speculations the media shamefully neglects in its pearl-clutching about birthright citizenship: the actual state of the law.

United States v Wong Kim Ark (169 US 649 (1898)) was the case that brought legal clarification to the 14th Amendment's citizenship clause, and the meaning of the pivotal phrase "subject to the jurisdiction". The standard elucidated within Wong Kim Ark is that a child born within the United States of parents with permanent legal residence and a permanent domicile within the United States, can claim citizenship at birth.  Permanent legal residence excludes transient migrants, "birth tourists", and illegal aliens from this class of persons. Wong Kim Ark makes repeated reference to this distinction, and clearly establishes the distinction as relevant in determining upon whom birthright citizenship may be conferred.

The closest we come to a judicial ruling that erases the distinction between children born of legal immigrants vs illegal aliens is Plyler v Doe (475 US 202 (1982)).  In that decision, Justice William Brennan asserted in a footnote to the ruling that there was no discernible difference "between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful".

However, Plyler's concern was not citizenship, but the applicability of laws (and thus the 14th Amendment's stricture for the equal protection of the laws).  Certainly even illegal aliens charged with crimes are liable to arrest and prosecution under US law--in this regard Plyler's observation is almost common-sensical.  Moreover, Brennan's assertion draws upon language within Wong Kim Ark that implies equivalence between the phrases "subject to the jurisdiction" and "within the jurisdiction", yet ignores the repeated use of the term "resident alien".  

The US Customs and Immigration Services uses the term "resident alien" with respect to three categories of persons: Permanent Resident, Conditional Resident, and Returning Resident.  All three categories are categories of LEGAL immigrant status.  An "illegal alien" is not (nor can be understood to be) a "resident alien". 

Thus Brennan's assertion is flatly contradicted both by current US law and regulation as well as by the broader language of Wong Kim Ark.

Where does this leave Trump's proposed executive order?

Intrinsically, executive orders enjoy shaky legal foundations, simply because no executive order can withstand the passage of contravening legislation. If Congress passes a law that negates an executive order, there is no doubt but that the law will prevail.  Thus any executive order drafted by President Trump would, much like President Obama's execrable DACA order, be ever at the whim of subsequent presidents as well as the Congress.

However, the order President Trump has described would be addressing illegal aliens and transient migrants, neither of whom qualify as "resident aliens", which qualification is clearly established by Wong Kim Ark as the essential predicate for birthright citizenship.  Thus, the particulars of the proposed executive order would appear to be in line with existing law and the 14th Amendment, and would amount to little more than a directive to the Departments of Justice and State to stringently apply existing legal standards with regards to acknowledgment of birthright citizenship.  Such an order, while amenable to the legislative acts of Congress, is unquestionably within a President's scope of Constitutional authority to see that the laws are faithfully executed.

Contrary to the media hype, President Trump is operating within the scope of existing law. It is his opponents and the media who are seeking to unilaterally (and illegally) nullify existing law.

Sunday, September 23, 2018

Women Refuse To Report Rape--But The "System" Is NOT To Blame

The "#MeToo" movement shone a media spotlight on workplace sexual harassment. Now Christine Blasey Ford is shining a media spotlight on sexual assault.  Social media even has a hashtag, "#WhyIDidntReport", as women share unreported sexual assault experiences.

What are the facts about reporting of rape and the prosecution of rape?
  1. According to RAINN (Rape And Incest National Network), only 310 of every 1,000 rapes are reported. For comparison, 627 of every 1,000 assaults are reported, and 619 out of every 1,000 robberies are reported. 
  2. Of 310 reported rapes, 57 (20%) result in an arrest, and 11 (3.5%) proceed to prosecution. For robberies, the percentages are 27% and 6%, respectively, and for assaults the percentages are 40.7% and 16.7%, respectively.
  3. Of every 11 prosecutions for rape, 7, or 63.6%, result in conviction. The conviction rates for robberies and assaults are 59.4% and 39%, respectively.
  4. The average sentence for sexual assault is between 8 and 9 years, nationwide (Note: this is a broad average and does not distinguish among categories of sexual assault).
  5. The reasons given for not reporting rape and sexual assault generally are as follows:
    • 20% feared retaliation
    • 13% believed the police would not do anything to help
    • 13% believed it was a personal matter
    • 8% reported to a different official
    • 8% believed it was not important enough to report
    • 7% did not want to get the perpetrator in trouble
    • 2% believed the police could not do anything to help
    • 30% gave another reason, or did not cite one reason
The reasons for not reporting deserve discussion. 

48% of unreported rapes are for reasons unique to the victim. 8% of unreported rapes are reported to someone besides law enforcement. Together, over half of unreported rapes are a simple choice not to report them to police. 


Only 15% of unreported rapes are because the victim believes the police can or will do nothing about the crime. 


These statistics prove that most who do not report a rape do not believe the legal system will ignore them.

The facts prove a prosecution for rape is more likely to result in a conviction than one for either robbery or assault. With a decade of incarceration the likely result from such a conviction, the facts also prove the prosecution of rape is taken very seriously in this country. 

The facts also prove that building the case for prosecution is far more problematic for rape than for robbery or assault. Rape cases are simply more difficult than robbery or assault cases. Still, when people make a credible case for their accusations of rape, they are the most likely of crime victims to see justice done.

Here we must acknowledge a fundamental truth: our criminal justice system is not an arbiter of truth. It is not intended to be. Our entire legal system focuses on two outcomes at trial: proven and unproven. 

This is why criminal verdicts are returned as either "guilty" or "not guilty". The verdict does not offer any commentary on the truth of a charge, merely on the evidence given. As David French points out in the National Review:
Anyone who tells you that we can statistically peg the number of “false” rape claims is peddling a fatally flawed statistic. There’s a simple reason why: Our system does not adjudicate whether a claim is true or false. It adjudicates burdens of proof. 
French highlights a study showing that 44.9% of reported rape cases were classified as "Case Did Not Proceed", the criteria for which were defined as follows:
This classification was applied if the report of a sexual assault did not result in a referral for prosecution or disciplinary action because of insufficient evidence or because the victim withdrew from the process or was unable to identify the perpetrator or because the victim mislabeled the incident (e.g., gave a truthful account of the incident, but the incident did not meet the legal elements of the crime of sexual assault).
If one excludes cases that did not proceed from the statistics, the percentages of rape reports leading to arrest and trial are higher than those for robbery. If we impute the reasons for non-reporting as potential reasons for victims withdrawing from the process, then half of the cases that do not proceed potentially are because the victim backs out. If we exclude half of the "do not proceed" cases from the statistics, the rape reports leading to arrest and trial are on par with robbery. By that measure, rape victims who report the crime to the police have the same expectation of justice as any other crime victim.

All this is speculation, but it serves to make clear a brutal reality about reporting rape: the lack of criminal sanction for rape stems mainly from the choices of rape victims either to not report or to not proceed. 

The choice to report a crime is a personal choice. The essence of liberty is choice. The essence of freedom is choice. A free people must be allowed to make choices for themselves, including the choice to report or not report rape. 

However, no choice is free from consequence, good and bad. Consequence always proceeds from choice. People must choose whether or not to report rape, but that choice determine the consequences they will have.

When rapes are reported, the system does respond. Even those who choose not to report acknowledge this. When there is evidence, the system works more for rape victims than for other victims of violent crime. The statistics prove this.

Another fact deserves mention: 0% of unreported crimes result in arrests, trials, or convictions. When crimes are not reported, the guilty are guaranteed to go free; with crimes are reported, their odds of escaping incarceration decline significantly. This is true even for rape cases. 

When people refuse to report rape and then proclaim that "the system" is somehow broken, they argue an absurdity. Refusing to report rape--or any crime--prevents the legal system from working. Refusing to report gives the criminal a free pass, something the legal system would not do.

#WhyIDidntReport should really be #WhyIConsented.