Who are “We The People”?

The preamble to our Constitution identifies those to whom it applies with the opening phrase “We the People of the United States”. But who exactly are these people? Recent disputes related to immigration, and in particular to illegal immigrants, make this a crucial legal issue. Focusing more closely, I want to address this question. “What exactly makes someone who is not a US citizen or a qualified alien eligible for constitutional protections?” Two Supreme Court decisions are most often quoted in reply to this question.

In Kwong Hai Chew v. Colding (1953), the Court found in an 8-1 decision that a permanent resident of the United States could not be deported without a hearing under the constitutional right to due process.

In Plyler v. Doe (1982), the Court held that a Texas statute which withholds from local school districts any state funds for the education of children who were not “legally admitted” into the United States, and which authorizes local school districts to deny enrollment to such children, violates the Equal Protection Clause of the Fourteenth Amendment. The issue of jurisdiction was found to be irrelevant.

But note that both of these cases were understood to apply to persons who are residents of the US. So the issue devolves into what constitutes residency.

Consider the following hypotheticals and see if you can discern a bright line that clearly indicates residency in the US. Have any of the following individuals established residency that is sufficient to qualify for constitution protection?

Someone who approaches the US border and plants his left foot firmly on US soil?

Someone who is standing in Mexico, while waving one foot in the air over US soil?

Someone who visits the US Embassy in Germany? (Our embassies are sovereign territory.)

Someone flying over the Aleutian Islands on a trip from Canada to the Far East?

Someone who trips on a tree stump in Canada and lands on US soil?

Someone who falls overboard into US territorial waters while exercising free rights of passage?

Can you answer these questions confidently, using a clear and unambiguous rule? I believe that I can. The writers of our Constitution never intended that incidental or even deliberate touching of US territory in and of itself confers any kind of claim for Constitutional protection whatsoever. They intended this to apply only to those who purposefully enter our territory, with our explicit or implicit permission, and with the clear intention to remain more than momentarily. There is no other possible reading of either the Constitution or our founding documents like the Federalist Papers. Thus, my answer to all of these questions is “None have established residency.” Do you disagree?

Now consider how the preceding might apply to those sneaking over our southern border. At which point will they have established residency? We have both laws and customs that grant a hearing for claims of refugee status from prospective immigrants. But as far as I know, we have no laws that grant status to those who can’t find sustenance where they now live, or who are at risk from endemic criminality in their homeland, or who simply want a better life for themselves and their families. For those with valid refugee claims, we have policies and procedures in place to process them. But none involve sneaking over our borders.

It is fair to respond that our policies are sometimes overly restrictive and are almost always ponderously slow. But if we can truly claim to be a nation of laws, then these criticisms cannot override legal considerations.

The bottom line seems to be that people trying to avoid our ports of entrance don’t achieve resident status thereby, and hence they are not yet one of “We the People of the United States”. We can grant them due process at our discretion, but I see no constitutional requirement to do so. However, it remains an open question for those clever or lucky enough to escape detection and actual take up residency within our borders.

In his usual bombastic manner, President Trump has called for prompt expulsion of those caught while violating our borders, without due process of law. This has been widely condemned, but I am not so sure that he is entirely off-base with this idea. An old Southern expression comes to mind, “Even a blind hog can find an acorn once in a while.

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“Two madmen walk into a bar …”

One can never tell when Donald Trump is joking or not, or even if it is unintentional humor. As one example, after his recent State of the Union address, he said that Democrats who didn’t clap for him were “treasonous”. As has happened many times before, his spokesman responded to the resultant furor by saying that the President was of course just joking. Do we really know? I certainly couldn’t tell from his facial expression on TV at the time.

Well, on Saturday evening, the President attended the annual Gridiron Dinner, which is an old tradition where journalists and the President trade tongue-in-cheek jabs before a constellation of Washington’s elite. One would certainly expect humor and a good time to be had by all.

But this President has often chosen off-beat stages and unusual methods for making substantial policy statements, so I am sure the press attending the dinner had their pencils sharpened and ready. And right on cue, in the midst of his joke-filled monologue, the President suggested that he was open to a meeting with North Korean dictator Kim Jong-un. Said without talk of preconditions, this is a big policy change. Or was it a joke? Hmm …

The President – and many others to be sure – have called Kim a madman. So the natural question was whether Trump was worried about meeting with a madman, and he responded, “As far as the risk of dealing with a madman is concerned, that’s his problem, not mine.” Is this clever repartee or some revealing and unintentional self-deprecation? Honestly, I don’t know. He has me as confused as the next person.

A Presidential Death Spiral

Republicans began this term with a two-seat majority in the Senate. That means that they can’t pass anything at all controversial unless they can hold on to at least 50 members of the Senate. I think that may no longer be possible. By his own antics, Trump has broken the party.

Two of their caucus, John McCain and Bob Corker, are basically now permanently opposed to almost anything that Trump wants. Neither has to worry about being re-elected and their open disdain of Trump is evident. Both are traditional conservatives who have little in common with this President, who basically hijacked their Party. In addition, Rand Paul may agree with some of Trump’s agenda but certainly not with his incoherent methods, and he probably thinks that Secretary Tillerson was right when he called Trump a moron. The female Republican senators don’t approve of some of Trump’s agenda, and they have every reason to despise him personally. Other senators have good cause to bear a grudge against Trump because his juvenile antics and insults annoyed the hell out of them during the campaign and afterward. They may be currently reluctant to take him on because of his cadre of stubborn supporters, but that will wane as the administration fails again and again to produce anything worthwhile.

The bottom line of all of this is that the only way Trump will achieve important legislative goals is by toadying up to the Democrats. He could do that, and in fact has already done so once, but as a general legislative plan this would probably be the final straw for Congressional Republicans.

I don’t think we need to wait for the fat lady to sing anymore. The Trump Presidency is toast.

The Border Wall Mystery

With respect to the proposed wall on our southern border, I think I have it right that Democrats oppose it — vehemently — and Republicans, by and large, favor it. I understand the Republican position. They seem convinced that it will help solve our illegal immigration problem. But barring building a Berlin-type barrier with electrified fences, mines and machine guns, I frankly doubt this. A complete wall built according to current proposals will likely have some effect, but people will find a way across our border if the economic incentive is sufficient.

However I am a bit puzzled by the Democratic opposition. I searched the internet and none of their spokesmen make a clear and unambiguous statement about this. I would have thought that wasting all that money that could be put to better use would be an obvious reason, but they never seem willing to put it quite that baldly. Still, I assume that this is basically their position — and mine, too.

But here’s the problem. Both of the top Democratic leaders, Sen. Chuck Schumer and Representative Nancy Pelosi, have stated in clear terms that, if funding the wall is included in a bill to raise the debt ceiling, Democrats will vote to block it. This situation will likely arise in December. They are fully aware that Democratic votes plus those of the extreme right in the Republican caucus will prevail. In other words, they are willing to sabotage the nation’s credit, drop a bomb on our economy, and risk significantly increased interest rates rather than wasting some money on the wall. On its face that doesn’t make economic sense. In fact, it defies logic unless there is something more at stake than wasting a few billions. So, what exactly is the real issue? And is it really worth that much?

Knowing Democrats, my theory is that this isn’t a money issue at all, or at least not in its essence. There is something about building a barrier on our border that strikes at the very core of progressive ideology. To many Democrats, it’s a bit like tearing down the Statue of Liberty, perhaps combined with making English our national language. The wall has become a symbol of exclusionary philosophy that is anathema to old-style Democrats. So perhaps they would indeed risk an economic catastrophe rather than conceding this point.

Of course, this is just a theory. But if it is true, then Democrats are about as nutty as Republicans, which is a standard that is rather hard to meet.

An Insightful Analogy

On Fareed Zakaria’s GPS on CNN last Sunday, a guest introduced a clever analogy to describe what is going on in Washington since Trump took over. He likened the situation to a group of pirates who have captured a massive treasure ship operated by one of the great maritime powers. There are far too few of them to operative such a large vessel, and they are somewhat unfamiliar with its sails and rigging. As a result they dragoon the ship’s crew to assist. Not unexpectedly, these captives are not exactly enthusiastic, and as a result the ship stays close to its original course and speed even though the pirate captain wants to divert to his home base. So he rages at his cohort in a vain attempt to achieve better control. His crew is understandably upset as they expected easy going and great rewards from this marvelous prize. So they squabble among themselves about the best way to “right the ship”. Being pirates, used to enforcing their will by force of arms, the internecine strife quickly turns bloody.

The consequences of such a situation are very unpredictable. The original crew might take advantage of the internal disagreements of their captors and seize control again. Or perhaps the ship, under uncertain and disputed management, might run aground and result in disaster for all concerned. It’s even possible that the pirates might get their act together, perhaps by making a deal with the original crew, and finally achieve their objectives. And lurking in the background is the possibility that privateers commissioned by enemies of the flag under which the treasure ship sailed might meddle with the outcome.

You probably can see the parallels with the political situation facing the fledgling Trump administration. At this point I wouldn’t choose any of the listed outcomes as most probable, though my hope is that the first prevails.

Is competence really optional?

Suppose you need some small home repairs or to have your nice new home entertainment system installed. You could try to do it yourself, but often it is best to find an expert. He or she would have relevant experience and would know how to best do the job. This is almost always faster and it often avoids expensive mistakes. Doesn’t that make sense? The same principle applies if you have a medical problem, some important financial transaction, or a legal issue. It is true that consulting an expert costs money but generally it is well spent, assuming you do your homework in choosing the right person. And when picking someone to treat your kid’s broken leg, I hope and assume that you restrict your search to credentialed medical professionals and don’t consider having your gardener take his best shot.

This may seem obvious, but evidently it isn’t for Donald Trump. Although I can’t believe that he hires auto mechanics to design his golf courses or shoe salesmen to run his hotels, when it comes to the business of government the only relevant criterion seems to be personal loyalty.

He just selected a hedge fund manager to be the White House Communications Director. His choice to head the HUD office for the region that covers New York and New Jersey is a party planner. The best person he could find to be the Chief Scientist of the Agriculture Department has degrees in political science and public administration. While obviously not exactly a dummy, he is a decidedly square peg in a round hole. And then there are all those close Trump relatives managing White House affairs. They seem to be talented and successful individuals, and they are probably kind to children and small animals. But running our government isn’t an amateur exercise, or it wasn’t until last January 20th. I am fairly confident that we will outlast this experiment in incompetence, but it is likely to be rocky ride.

Limitations of Presidential Power

Yesterday, Harvard Law Professor Alan Dershowitz appeared in a panel on CNN arguing a point that caused other participants to turn red with anger. I think I saw smoke coming out of their ears. His argument was that no President can be legally accused of obstructing justice as long as he is exercising his constitutional authority. And remember, the breadth of that authority is immense. But pay attention to the modifier “legally”. There is a big difference between what is legal and defensible in a court of law and what is morally right and defensible in the court of public opinion.

 

According to Prof. Dershowitz, Trump can summarily fire anyone in the executive branch, except the Vice President and employees protected by civil service regulations. He can do this for any reason or indeed for no particular reason. He can order the Justice Department or the FBI to terminate any investigation, criminal or not, regardless of who is the subject. The so-called independence of the Justice Department is custom, not law. He can pardon anyone, before or after their conviction. He can even pardon himself, though not where an impeachment is involved. No one can gainsay any of these decisions. They are not reviewable by any court or by Congress. Moreover, the President is totally immune from civil liability for any of his official acts, though impeachment can remove this protection.

This pokes a gaping hole in most of the overheated rhetoric by his Democratic opponents. There is nothing currently in the public domain that would indicate legal jeopardy for President Trump. But these are early days and the establishment of a special counsel is ominous. And of course there are limits to Presidential immunity. The President cannot commit criminal acts, destroy evidence in a case under investigation, lie under oath or suborn perjury. He must submit materials demanded under subpoena by a legal authority. But he can quite legally halt any federal case in its tracks and raise his middle finger to his opponents.

This may appear to transform the President into a virtual dictator, but there are two resources available to restrain him. Article 2, Section 4 of the Constitution provides for involuntary removal by impeachment. The legal basis for impeachment is whatever Congress says it is. So it can consist of ordinary criminal activity or such indefinable offenses as “failure to execute authority” or “unbecoming conduct.” Essentially Congress can simply use this authority to say, “Begone, scoundrel! We have no further use for you.” This isn’t easy, requiring a two-thirds super-majority of the Senate. There have been four serious attempts to remove a President in this manner and all failed, though Nixon did leave voluntarily when the outcome was inevitable.

The second resource arises from the 25th Amendment to the Constitution. The President can exercise rights under this amendment to relinquish his office voluntarily whenever he feels unable to fulfill his responsibilities. This is a temporary measure until such time as he issues a revocation. Ronald Reagan and George W. Bush employed this mechanism when they required temporary hospitalization. No President under assault by political opponents would be likely to use it. But there is another part of this amendment that permits either a majority of his cabinet or even some ad hoc group established by Congress to force a President to give up his powers, presumably though not necessarily due to disability. This might be called the Fruitcake Provision, and it seems germane to at least some of Trump’s more imaginative opponents. It has never been tried and it is unclear whether any such attempt would survive judicial review.

This is our system, as explained by one of the country’s foremost constitutional scholars. So, TV commentators, self-appointed legal experts and the like can fuss and fume but that changes reality not one whit. I don’t much like this aspect myself but I can’t conceive an alternative that wouldn’t be subject to its own serious drawbacks.