Blog Archive

Thursday, February 4, 2016

Let's Play Twenty Questions, the Constitution Edition

What follows will not convince you of anything. I am not trying to force you to accept my views on the subject at hand. Rather, I offer this entry to provide a framework that a constitutionalist, a conservative, may recognize as appropriately respecting the Constitution as crafted, drafted, and ratified by the Framers of our federal government.

Some blog writers, radio talk show hosts, television personalities, and politicians simply sweep aside the constitutional questions raised by Ted Cruz's candidacy for election to the office of the President of the United States.

Oddly, those same bloggers, pundits, and politicians recoil at the identical behavior of gun control enthusiasts who would sweep aside the Second Amendment's true meaning and purpose in favor of the gun control agenda. These same folks rebuke Congress for the hubris of ordering Americans to purchase products of any kind (health insurance being the bell weather for determining whether Congress has the right to bully Americans into becoming consumers of any product or service). In fact, as the last Term of the Supreme Court came to a close, with decisions contorting language, history, law, and fact, these individuals could be found decrying the piracy of the swashbuckling Robertson Court.

These very people, quite rightly, usually seek to hold the agents of government to a strict and unyielding read of the Constitution as a document of fixed and determinable meaning. Yet, when confronted with the reality that such an approach to the Question, the question of Ted Cruz's eligibility to be elected President, they engage in slighting of the issues and attacks on the competence of those whose identical views about the Constitution, on how that document is to be read, to be understood, and to be applied, have, in this sole instance, led them to the conclusion that Cruz's Canadian birth to an American mother disqualifies him from holding the office of the President.

Here's a video of Mark Levin engaging in the sort of sleight of mouth on the topic:


Well, okay, that was the Wizard of Oz, but Mark's snarkish, breezy, off the cuff, and unsupported dismissal of the Eligibility Question is hard to distinguish from the frantic efforts of a Kansas medicine man doing his level best to disguise his smoke-and-mirrors distraction from The Question, and, I suppose, The Answer.

So, if you are happy with smoke-and-mirrors, hit the "next" button up above.

If you don't really care about the meaning, scope, and application of the Constitution, hit the "next" button up above.

But, if you claim to be a constitutionalist, a conservative, a supporter of limited government, or a proponent of an invigorated federalism that returns stolen or abdicated powers to the States, I hope you will read the rest of this entry.

Thinking about the Constitution, about the role of that document in understanding the structure of the general, federal government of the Nation, about the limitations that document sets out on the powers of, the scope of, that government might be a lost art, like the study of "dead" languages, important to those that study them, but not to anyone else. 

Or, it might be that, just as the Queen's English was lost to the Cockney-accented Eliza Doolittle, Americans come to the Constitution ham-fisted and stumbling because our families and schools have failed to make the language and meaning of the Constitution a vital component of civic participation.

Because of the dissing, dismissive, snarling, and unsubstantiated rejection of constitutionally based concerns about the eligibility of Ted Cruz, I offer a series of questions that may illuminate what matters to you about how the Eligibility Question should be developed and discussed. If you are inclined to prefer a WWE or UFC style attack on those that are asking these questions, again, please hit the "next" button above. Otherwise, let's begin.
Question 1.
Does the Constitution matter?
Question 2.
Is the Constitution a document of fixed meaning?
Question 3.
Are judges, Congresses, and Presidents able to change the words/meaning of the Constitution by any means other than the amendment processes set out in Article V of the Constitution? 
Question 4.
Is the Constitution a creation of the States and of the People establishing a federal government of limited, fixed, and defined powers?
Question 5.
Do the President, the Courts, and the Congress have any power or extension of power other than those expressly stated in the Constitution?
Question 6.
If the Constitution does not grant a power or authority to the Congress, the Courts, or the President an express power, may they nonetheless exercise powers not granted?
Question 7.
If the terms of the Constitution are of fixed and definite meaning, how do we determine their meaning and how do we understand their terms?
Question 8.
Does the Constitution define the qualifications for the office of the President?
Question 9. 
Does the Constitution provide definitions of the terms it uses to define the qualifications for the office of the President?
Question 10.
If the Constitution is of fixed and determined meaning, and if the Constitution provides the Qualifications for the Office of President, and if the Constitution does not define the terms used to describe the qualifications for the Office of President, how do we determine the meaning of those terms?
Question 11.
If we define the meaning of the terms of the Qualifications Clause using ordinary meaning at the time of the ratification of the language, what is the meaning of the term "natural born citizen" in the Clause?
Question 12.
If the meaning of "natural born citizen" at the time of the ratification of the Constitution was "any person born in the United States, except children born to foreign diplomats and emissaries on duty in America," is that still the meaning of that language today?
Question 13.
If "natural born citizen" now includes a class of persons larger than "any person born in the United States, except children born to foreign diplomats and emissaries on duty in America," what caused the expansion of that class of persons beyond the original meaning of the language of the Qualifications Clause?
Question 14.
Is the expansion of the class of persons included within the definition of the term "natural born citizen" the result of congressional Acts granting status as "citizens" to certain persons born abroad to US citizens?
Question 15.
If the expansion of the class of persons included within the definition of the term "natural born citizen" is the result of congressional Acts granting status as "citizens" to certain persons born abroad to US citizens, what is the basis of Congressional authority to enacts legislative acts expanding that class of persons?
Question 16.
If Congress exercise power under its authority to do so under the Uniform Rule of Naturalization Clause, then isn't citizenship obtained at birth under such statute citizenship by naturalization rather than by natural birth as a citizen?
Question 17.
If Congress has power to make "natural born citizens" of the United States out of certain persons born outside the United States to citizens of the United States, what limiting principle exists to prevent Congress from exercising it Naturalization Clause power to redefine "natural born citizen" to include other persons or classes of persons favored for natural born citizenship?
Question 18.
If Congress has power to make "natural born citizens" of the United States out of certain persons born outside the United States to citizens of the United States, what limiting principle exists to prevent Congress from exercising it Naturalization Clause power to redefine "natural born citizen" to include other persons or classes of persons favored for natural born citizenship?
Question 19.
If Congress can grant natural born citizenship status under the Constitution as it is presently written, can Congress grant natural born citizen status to others, for example, to persons that have, although born outside the United States, been elected to serve as a Governor, Representative, or Senator?
Question 20.
What will you do with your conclusions to these questions? 
Concluding Thoughts

These are the questions that Mark Levin mocks, that Glenn Beck ignores. 

These are the questions that I have repeatedly requested Senator Ted Cruz to answer. These are the questions not addressed by Paul Clement and Neal Katyal in their blog post on The Harvard Law Review's Forum blog. These are the questions that Thomas Sowell won't answer. These are the questions that Fox News doesn't address.

Many who pooh-pooh the questions, readily deliver withering blows against those that call for gun controls because such controls ignore the constitutional dimension of the right to keep and bear arms. These same folks that demonstrate here that they just don't care about the meaning of the inconvenient Constitution rightly excoriate the Congress for leaving legislative duties to administrative agencies, correctly lambaste the President for his imperial adventures in rule by regulation, and properly skewer the Supreme Court for its trespasses of the bounds of that very Constitution.
The Constitution! They cry.
The Constitution! They demand.
The Constitution! They implore.
The Constitution! They accuse.
And, for the most part, I am with them. The Congress lacked power to turn administrative agencies into sub-legislatures via regulation. The president lacked power to adopt by regulation what belongs to Congress via statutory enactments alone. The Supreme Court lacks power to sit as a super-legislature. The entire framework is askew, legs akimbo, government run amok. On that, no doubt, they are right.

But, in being right there, their wrong here is compounded and confounding. How can their pleas for respect and observation of the Constitution be anything but a mockery if, where most inconvenient, in respect to the eligibility of the presidential candidate with whom I have the closest policy affiliation, the pundits, conservatives, professors, Solicitors General, and assorted others do not speak with a single voice: 
"The Constitution puts this office out of your reach, Senator Cruz. Your value to the cause is great, and great purposes lie before you to be filled, but we cannot and will not grant to others the right to ignore the Constitution by our act of doing so here."

Tuesday, January 26, 2016

Another Page from Aesop's Fables

As a black couple, you have been highly frustrated. Saving and scrimping, you accumulated the funds for a healthy down payment on a home.

Several neighborhoods near good schools, close enough in for commuting, but every house you try to view comes off the market after you view it. In fact, your realtor seems to be ignoring your criteria and directing you toward mixed urban areas, not as good schools, higher crime rates, but lots more black folks.

Being a naif, you suspect nothing.

After a few months of searching, your crazy, one-eighth black uncle is talking with you, and you tell him about your frustrations. You think nothing of the conversation.

Unbeknownst to you, your uncle has a suspicion that racial profiling and steering are occurring. Of course, such practices violate federal and state discrimination statutes. He can't get a government agency -- not one, from AAA to ZZZ -- to take interest and investigate.

So he takes the task on himself.

He buys lapel cams and microphones. He hires a couple of actors and actresses. He rents some vehicles. He creates a couple of identity records with varying levels of creditworthiness.

He springs his trap.

White couples with poorer credit always seem able to buy the houses.

Black couples with better credit always seem to be frustrated in their efforts.

More disturbing, he has his white test couples ask questions about racial mixing in the neighborhoods. The realtors admit that racial steering is a regular practice, and that the entire process can, in fact, be quite lucrative.

Over a 6 month period, quite to your surprise, your crazy uncle conducts a series of public press conferences and informational releases. His investigation shames agents with Superwhizbang Realty and the Bank of the Lilies.

Ultimately, your State Attorney General announces that she will be investigating Superwhizbang and the Bank of the Lilies. Both agencies are put through a regulatory wringer each time they are part of a realty transaction.

Then, one day, a press release comes out:
"Investigator Behind Video Investigation of Racist Realty Practices and Racist Lending Practice Indicted, Realtor and Bank Exonerated."
Moral

No one cares about children being murdered by abortion.

Why would they care about selling their bodies ... unless they find out the buyers supply products to Chinese restaurants?

Monday, January 18, 2016

Don't Be A Billy: Don't Vote For Bernie!

I have five dollars. You have five dollars. Fred has five dollars.

Billy?

Billy doesn't have five dollars. Billy says that it is unfair that we each have five dollars, and that he has none.

Billy joins with Sue and Tom and Lisa and hundreds of thousands more. They talk about the immorality of disproportionate wealth. They talk about how those who are "the haves" are besting the system and using it to their advantage to keep others from having their own five dollars.

With sufficient numbers, Billy and his political following form a political alliance, call it a party. They pass a law requiring everyone to contribute a "fairness" assessment. The purpose of the "fairness" assessment is to provide those who have been locked out of opportunity with a ready pool of cash.

The effect of the "fairness" assessment is that Fred, you, and I question why we worked hard, scrimped, saved, did without, deferred gratifications, etc., and we decide to reduce our labors and efforts. After all, thousands and thousands have joined together and made our actions seem most unseemly, perhaps immoral.

The "fairness" assessment cannot keep pace with the outflow of cash that was committed to by those that adopted it. They march on the printing operation where the money is actually printed. They seized the presses and begin a 24/7 operation creating additional dollars that do not reflect the product of a "fairness" assessment.

What a wonderful new world! If only we could have realized this sooner.

A problem develops.

There are SOOOOOOOOOOO many dollars on the market now, everyone is buying more and demand goes up. As demand rises, the price rises. Higher prices demand more money. More money means re-evaluating the "fairness" assessment. Maybe one should be attached to the the value of estates when people die? Maybe one should be attached to interest earned on savings and investment? Maybe one should be attached to the earnings of corporations?

With "fairness" assessments imposed on savings, there is a perverse incentive and people stop saving, but they do keep spending and spending creates demand and demand justifies increases in prices and increases in prices requires additional printing of dollars, whether funded by "fairness" assessments or whether covered by a new invention devised by the Billy Party. They came up with the idea of using IOUs to provide value for the dollars. They'll just promise to be able to pay the thousands, millions, billions, and trillions of accumulated promises to pay that the newly minted dollars represent.

Soon, the price of milk is $8.00, the price of a loaf of bread is $ 5.00.  The price of toilet paper? Well. Actually. Since no one can afford to purchase trees to make pulp to make paper no one has seen toilet paper in months.

The Billy Party begins to distrust its own members. It sees greed in their eyes, their constant hectoring for more, more, more, while doing less, less, less. So the Billy Party imposes a framework of controls:

  • Wages are fixed at set rates by the Billy Party.
  • Prices are fixed at set rates by the Billy Party.
  • The Billy Party orders farmers to produce X gallons of raw milk each day.
  • The Billy Party orders bakers to produce Y loaves of bread each day.
  • The Billy Party orders toilet paper manufacturers to produce Z rolls of toilet paper each day.

The result?

The people living in the nation ruled by the Billy Party water their milk down 3 parts water to 1 part milk to make it last and to make it affordable.

The people living in the nation ruled by the Billy Party think of white bread as a luxury, nearly a dessert in character. A child that wants the crust peeled off is forced to watch as parents and siblings eat their piece of bread to teach them not to be picky.

The people living in the nation ruled by the Billy Party wipe their asses with their hands, and they aren't even Arabs, because ordered toilet paper manufacturers to make toilet paper will not force trees to grow, to chop themselves down, to be ground into pulp, to be shipped to the nation ruled by the Billy Party, and to be milled into toilet paper.

No one shakes hands with the people living in the Nation ruled by the Billy Party.

And it all started with Billy claiming it was unfair that three others had five dollars that he didn't have!

The moral of the story:

Venezuela is a festering cesspool that proves the vapidity of socialism. If you are voting for Bernie Sanders​ U.S. Senator Bernie Sanders​ We Want Bernie Sanders​, you ought to go live in Venezuela so you can look into the future you want to create here in America.

Saturday, January 16, 2016

Schwartz v. Cruz: Mr. Eligibility Clause May Get His Day in Court


  • Planned Parenthood rues the day that Kermit Gosnell's house of horrors came to light.
  • Pro-life activists rue the day that someone shoots and kills an abortionist.
  • Reasonably minded Muslims rue the day when ISIS, in the name of Islam, sliced heads off nonbelievers, crucifies non-believers, burns non-believers alive in a cage.

What do these folks all have in common?

Each has a core belief, one that, at least putatively, is shared by another person, a person that has committed some kind of heinous, despicable, publicly repudiated action. The horrific act of another doesn't move them from their essential faith in that core belief, whether it is a belief in the innate right to life of every person, the inviolability of a woman's right to choose, or the transcendence of the truths of Islam. They don't see their core belief as corrupted, they see the unhinged act of another as such.

Why do I mention these points?

Because Schwartz Newton Sr Atty​ has filed a lawsuit in the US District Court in Texas against Senator Ted Cruz​. That lawsuit seeks a judgment on the question of whether Cruz meets the constitutional requisite qualification -- being a natural born citizen -- to be elected president.

I have reviewed the complaint. I mean no disrespect to Mr. Schwartz, and I certainly cannot predict the outcome of the litigation at this time , but for two decades I served as Senior Counsel at the American Center for Law and Justice​ and in that time, I drafted many federal lawsuits, and reviewed drafts of many more drawn up by colleagues, younger associates, and the like.

No colleague of my acquaintance would have brought this particular draft to me and presented it with satisfaction in its essential nature or execution. They would have said, "I'm having trouble pulling this together. Can you review it and give me some guidance on how to turn this complaint into a workable piece of craftsmanship?"

The complaint is loquacious, uncertain, and at times, self-defeatingly so. I could easily see the lawsuit initiated by this document being dismissed by a trial court on an early motion to dismiss for failure to state a claim on which relief may be granted. A hundred fifty years ago, the courts of this nation required litigants to cross every "t" and dot every "i" in a "just so" fashion, referred to as "code pleading." Litigants bounced from courts higher than a Superball and faster than an Olympian in the 40 yard dash because technical flaws -- not essential justice -- plagued their pleadings.

Today, a more relaxed rule results in a better survival rate for lawsuits when a defendant moves for an early dismissal. Courts require, rather than jots and tittles, a short, plain statement of the facts and the grounds on which relief should be granted.

Mr. Schwartz raises an issue I believe to be of great importance.

I realize that Cruz supporters disagree with me on the importance of that issue. I have examined the question thoroughly, and brought to that examination the same legal skills, training, and experience that I employed in representing litigants in many other cases pressing for interpretations and re-interpretations of the Constitution, federal laws, and federal regulations. I have concluded
that Cruz's birth outside the US makes him ineligible to be president, though it does not make him ineligible to serve in the Senate (although it does not bar Congress from doing as it did, making him a naturalized citizen of the US at the time of his birth, because his mother was a citizen who met the statutory preconditions to be able to extend that status to him); 
that the Constitution does not empower Congress to redefine the meaning of "natural born citizen" by enacting a statute expanding that term to circumstances of birth such as Cruz's (and McCain's, and George Romney Mitt Romney​'s father); 
that even if the Constitution did give that power to Congress, Congress has not used that power to redefine "natural born citizen" to persons in Cruz's circumstances (in one, and only one instance, the 1790 Naturalization Act, Congress used its power to provide a uniform rule of naturalization to declare that certain offspring born abroad to US citizens would be "natural born citizens" at their birth; just five years later, in the 1795 Naturalization Act, Congress repealed their earlier statute and replaced it with one granting status as "citizens" to such persons; Congress has never again used its naturalization power to grant, by express terms, "natural born citizen" status to persons in Cruz's circumstance).
These are important questions.

We have lived through seven years of disregard for the Constitution by this administration. The President has no recognizable sense of the limits of his authority. He has been sat back on a few occasions, most notably when the Supreme Court declared that certain "recess appointments" he had made violated the clause of the Constitution that allows the President, during a congressional recess, to make temporary appointments to fill vacancies in offices that arise during those congressional recesses.

The problem is that such overreach that ignores the terms and meanings of the Constitution result in government that goes outside its limited purposes and scope. We move from, in the appointments cases, a nation whose bureaucratic functionaries get at least some basic level of screening to the half-cocked and most controversial appointments just because the President suspects he can get away with it.

We cannot risk compounding the problem by ignoring the Constitution or making light of the concerns raised here just because we hope to have the upper hand by doing so. It is unprincipled to do so, and it bears the seed of its own destruction. The Constitution will become a byword, not a marvel, if we simply ignore its inconveniences.

So, I am glad to see the lawsuit. Sort of glad, in any event.

Still, because it is heavy, wordy, and murky, I am concerned that even if its basic assertion -- that the status of Cruz's eligibility is, at best, uncertain and needs be resolved by resort to a judicial construction of the Presidential Eligibility Clause -- is correct, there is every possibility that a dismissal resulting from having failed to mount the best available challenge will translate into an erroneous and powerful message that the challenge to Cruz's (and McCain's and Romney's father's) eligibility was unwarranted and unfounded.

On top of the unwieldy wordiness of the complaint, there are additional problems presented by the Schwartz complaint that could result in dismissal early in the proceedings. Such a dismissal would not depend on the rightness of those that say that Cruz is a natural born citizen, or the wrongness of those that disagree. Rather, such a dismissal could result from either of two common approaches that courts often take in highly controversial litigation related to the political process.

First, every lawsuit in federal court must relate to an actual "case or controversy." Courts are not supposed to take on hypothetical disputes, forecasting what would be right or wrong about some as yet to be taken future action by a person or organization or agency.

If you are worried, for example, that the Division of Motor Vehicles would refuse your vanity license plate application for a tag that reads, "GoGod," the chances of getting a substantive decision, rather than a dismissal of your suit, are substantially enhanced by filing your plate application at the DMV and waiting on their decision denying your tag request. Then you go into court. Then the facts are certain. Then the parties affected and needed for resolution are known. Courts were never intended to play the role of the Government's Palmistry or Crystal Ball reader.

Part of the search for whether an actual case or controversy is involved in a particular lawsuit examines whether the person bring suit "has standing." I won't get into technicalities, but it suffices here simply to say that, for example, when a person goes to court they have to show that they suffer a particularized and unique injury separate and apart from that suffered by all others.

Here, attorney Schwartz has actually filed his lawsuit both for himself and as  "Class representative and/or on behalf of all eligible Texas and nationally United States registered eligible and/or qualified voters for voting in the 2016 fifty state election primaries and in the November 1, 2016 general presidential and vice president 2016 elections." By proposing that his complaint be treated as a class action for himself and every other eligible voter, he suggests, quite powerfully, that his injury in facing a primary or general election ballot with Cruz as a candidate on it is NOT unique, not an individualized injury, and is not likely to provide a basis for him to have standing to complain.

Second, courts often decline to decide a category of cases that courts conclude are best and properly decided by the elected branches of government.

While courts are not barred from doing so, prudential considerations often drive the Supreme Court and lower federal courts from deciding cases that present "political questions." Again, I won't drag you into a detailed legal discussion. The essence of the political question doctrine is that, where a matter brought before a court is one that, as presented, is left to resolution by the "political branches" (Congress and the Executive), courts will refrain from deciding the case.

Here's a quick illustration. The Constitution grants each chamber of Congress the power to make its own rules of procedure. If Congressman X, as a result of rules of the House, undergoes a censure by the House, he might file a lawsuit complaining that the House censure violated his rights. Undoubtedly a court in such a case would agree that his injury is individual, unique. But the Constitution does make the House the judge of its own rules, and, as a consequence, courts have often declined cases of this sort because they are best resolved in the political branches.

There are at least two separate indications that Attorney Schwartz's lawsuit presents just such a political question.

Basic questions regarding eligibility to be placed on a ballot are, typically, resolved by state statutes setting out that such requirements must be met and to what official or agency  satisfactory proof of eligibility must be provided. In Virginia, for one example, state law requires that would-be candidates for local office provide proof of eligibility for office to the local board of elections and that candidates for state wide office provide proof of eligibility to the State board of elections.

The sole exception to that proof requirement is the one in dispute here. Candidates for election to the presidency are not required to provide any evidences of their eligibility on any ground ... not age, not duration of residency within the United States, and not status as a natural born citizen. If Virginia, or other States chose to do so, they could require candidates to the presidency to provide such proof when submitting their papers to be placed on the ballot. Because the state legislatures of the Nation could resolve this dispute by requiring such proof in the candidacy process, a court could justifiably refrain from deciding such a political question.

There is an intervening body of actions between a decision by a candidate to stand for election and their inauguration as President. Primary election processes, convention processes, general election processes, Electoral College processes, and the congressional role in certifying the results of the Electoral College. These intervening political agencies all provide ample alternatives to judicial resolution of the question of eligibility such that a court might refrain from making a decision on that ground.

Were I responsible for quarterbacking the resolution of this contentious question, I wouldn't be filing Mr. Schwartz's lawsuit. Rather, I would be seeking a political solution in which a state board of elections refuses the candidacy registration of Cruz on the ground of his perceived/real ineligibility because of not being a natural born citizen. In that case, no doubt, Cruz would suffer an individual, particularized, and unique injury. He alone would be denied access to the ballot, and the judgment denying him access would be based on the particular facts of his birth. Such a case would certainly meet the requirement of standing. It aught also to avoid the political question doctrine because resolution of disputes over the meaning of the terms of the Constitution -- rightly or wrongly, for better or for worse -- is viewed as the particular provenance of the courts.

Schwartz seeks a rapid decision from the trial court. He does so because, ultimately, of course, if any court decides this case on its substance and excludes Cruz from the ballot, there is virtually no likelihood that the Supreme Court will stay out of the dispute when the case comes to them. Still, the improbably short time between now and the first caucuses and primaries set a hard path for any court taking this dispute on substantively and for the litigants seeking such a court's decision on the questions.

Though I am not typically a betting man, I come away from reading the complaint in Schwartz's case with the view that his suit is not likely to succeed, or to be long-lived in the federal court in Texas.