Saturday, July 4, 2015

Kathryn Steinle: Sad Death in a City of Refuge and How Congress Can Address the Failure of CoRs to Protect The Public

The City and County of San Francisco sacrificed one of its newer residents as part of its on-going flaunting of US immigration laws. Across the Nation, as we learned the identity of the accused shooter of Kathryn Steinle, we felt the anger burning in our minds and hearts. How is it possible that a convicted (five times), violent criminal was released by the City Sheriff's Department on the thin excuse that ICE detainer requests are "not legal?" How is it possible the ICE surrendered the accused to the Sheriff "as a courtesy" so that the City could prosecute him on outstanding warrants, while ICE knew that the Sheriff's Department would NOT honor ICE detainer requests?

Much of this Kafkaesque insanity derives from the City and County of San Francisco suffering under a delusion. Its delusion is that it is responsible for the determination of United States immigration and naturalization policy. Under the Constitution of the United States, however, the City and County of San Francisco has no power to determine immigration and naturalization law. Only the United States Congress, pursuant to Article I of the Constitution, has the power to make such law.

The City and County of San Francisco may view its status as a matter of high principle. In fact, here is what the City says about its City and County of Refuge status:
In 1989, San Francisco passed the "City and County of Refuge" Ordinance (also known as the Sanctuary Ordinance) which prohibits City employees from helping Immigration and Customs Enforcement (ICE) with immigration investigations or arrests unless such help is required by federal or state law or a warrant. The Ordinance is rooted in the Sanctuary Movement of the 1980's, when churches across the country provided refuge to Central Americans fleeing civil wars in their countries. In providing such assistance, faith communities were responding to the difficulties immigrants faced in obtaining refugee status from the U.S. government. Municipalities across the country followed suit by adopting sanctuary ordinances.
In recent years, the Sanctuary Movement has experienced a rebirth, as grassroots organizations, faith communities, and local government have stood firmly against repressive immigration proposals in Congress and immigration raids that separate families. In February 2007, Mayor Gavin Newsom reaffirmed San Francisco's commitment to immigrant communities by issuing an Executive Order that called on City departments to develop protocol and training on the Sanctuary Ordinance. 
So San Francisco adopted its City and County of Refuge Ordinance. Its ordinance quite directly declares the City's refusal to cooperate with federal law enforcement. But San Francisco's neat principle comes with a price and Kathryn Steinle appears now to be the latest known victim of San Francisco's "principled" stand.

Before government officials begin spinning their lines, YOU NEED TO KNOW that THERE IS SOMETHING THAT CONGRESS CAN DO about American cities that choose to sacrifice the lives of American citizens in the name of "Sanctuary." Congress can CONDITION THE RECEIPT OF FEDERAL FUNDS on COMPLIANCE by program recipients with ICE detainer requests.

The Congress has the SPENDING CLAUSE power to coerce Cities of Sanctuary to comply with detainer requests. Understand, I am not saying that Congress can, or should, simply enact a law demanding that Cities, Counties and States provide that cooperation. Rather, I am saying that Congress can require that cooperation of cities, counties and States as a condition of the receipt of federal program funds by them.

On several occasions, the Supreme Court has confirmed that Congress can condition the receipt of federal program monies on compliance with federal program requirements. For example, back in late 1970s, Congress conditioned receipt by the States of a portion of highway funding on States raising the legal drinking age to 21 years. South Dakota complained that the condition violated the 21st Amendment, the one which ended prohibition, and gave, essentially, plenary power of the sale and distribution of alcohol to the States. In South Dakota v. Dole, affirming the constitutionality of the requirement and the program, the Supreme Court explained the interplay of the Spending Clause power and such federal program requirements:

The Constitution empowers Congress to "lay and collect Taxes, Duties, Imposts, and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States." []. Incident to this power, Congress may attach conditions on the receipt of federal funds, and has repeatedly employed the power "to further broad policy objectives by conditioning receipt of federal moneys upon compliance by the recipient with federal statutory and administrative directives." []. The breadth of this power was made clear in United States v. Butler, [], where the Court, resolving a longstanding debate over the scope of the Spending Clause, determined that "the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution." Thus, objectives not thought to be within Article I's "enumerated legislative fields," [], may nevertheless be attained through the use of the spending power and the conditional grant of federal funds.
The spending power is of course not unlimited, [], but is instead subject to several general restrictions articulated in our cases. The first of these limitations is derived from the language of the Constitution itself: the exercise of the spending power must be in pursuit of "the general welfare." []. In considering whether a particular expenditure is intended to serve general public purposes, courts should defer substantially to the judgment of Congress. [] Second, we have required that if Congress desires to condition the States' receipt of federal funds, it "must do so unambiguously . . ., enabl[ing] the States to exercise their choice knowingly, cognizant of the consequences of their participation." [] . Third, our cases have suggested (without significant elaboration) that conditions on federal grants might be illegitimate if they are unrelated "to the federal interest in particular national projects or programs." []. Finally, we have noted that other constitutional provisions may provide an independent bar to the conditional grant of federal funds. [].

Essentially, South Dakota v. Dole (and other Supreme Court cases) allow Congress to pursue policy goals by a "carrot and stick" approach. In the South Dakota case, the goal Congress sought was to raise the legal drinking age across the Nation; the carrot was a portion of reserved federal highway funding; the stick was the loss of that portion of funds reserved for States that brought their legal drinking age limit into compliance with federal policy.

To be clear, as South Dakota quoted above makes clear, Congress cannot tie just any carrot to just any stick. In other words, as the opinion above explained, "several general restrictions" limit that power. Of those restrictions, one that is important here is that "conditions on federal grants might be illegitimate if they are unrelated 'to the federal interest in particular national projects or programs.'" In the South Dakota case the connection between drinking age, drivers' licensing, and highway funding was sufficient to permit Congress to apply that carrot and stick.

So what can Congress do?

Congress can condition the receipt of relevant funding on actual cooperation of program recipients with special, related requirements designed to serve policy goals identified by Congress. In South Dakota v. Dole, the receipt of a portion of highway funds depended on raising drinking ages as desired by Congress. In the first Supreme Court decision on the constitutionality of Obamacare, the Court actually rejected a portion of the statute that condition receipt of ANY MEDICAID FUNDING BY THE STATE with the State's expansion of Medicaid as proposed by the Patient Protection and Affordable Care Act. Chief Justice Roberts' opinion, mostly remembered because it saved the challenged individual mandate by identifying it as a tax, rather than a penalty, concluded that COMPLETE DENIAL OF MEDICAID FUNDS was too big a stick, and that the proper stick might have been to limit MEDICAID funding to pre-Obamacare levels.

So Congress can identify the funds that it is appropriating that relate to immigration, naturalization, law enforcement, community policing, and justice programs. Then, Congress can condition receipt of a relevant portion of funds (not necessarily all, but that would have to be decided on, as a matter of policy, and in keeping with the Supreme Court's decisions on the subject). Having forecast how the money it appropriates will be distributed and for what purposes, Congress need only adopt a statutory requirement of cooperation with ICE detainer requests as a condition on the receipt of funds.

How would this impact the City and County of San Francisco?

Well, of course, that depends on the size of the carrot and the size of the stick. 

Here is what we know for sure. San Francisco receives a relatively princely sum from the federal government.The City and County of San Francisco receives about a QUARTER BILLION DOLLARS in federal funding annually. But that is only about 5% of the City's general funds each year.
Perhaps not all of that $250,000,000.00 in federal funds would be affected by a congressional "carrot and stick," or perhaps it would. That determination belongs to Congress, guided by an understanding that the Supreme Court does give such programs a careful review to insure that relevant Tenth Amendment interests are preserved, and that Congress has not overstepped.

But, had Congress the will to do so, it could invite San Francisco and other federal grantees to respect our Constitutional order, and to give place to national policy over its own preferences about immigration and naturalization. Whether Congress will act, of course, remains to be seen.

Thursday, July 2, 2015

McConnell: Powerless to Resist SCOTUS Marriage Decision. Oh Really?

In a stunning 5-4 decision, the Supreme Court of the United States struck down the laws of 39 States by which those States limited the issuance of marriage licenses to opposite sex couples. In Obergefell v. Hodges, Justice Anthony Kennedy, writing for the Court's bare majority, directly held:
The Court now holds that same-sex couples may exercise the fundamental right to marry. No longer may this liberty be denied to them. Baker v. Nelson must be and now is overruled, and the State laws challenged by Petitioners in these cases are now held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite sex couples. 
Predictably, the decision was broadly celebrated by supporters of same-sex marriage, and criticized by opponents.

In the aftermath of Obergefell, many questions remain, and likely will have to be answered over the course of the coming years. Some of these questions will be profound, some pedestrian:
  • Will opening the definition of marriage to include same sex partners actually benefit those same-sex partners, in matters of commitment, health, and the like?
  • Will opening the definition of marriage to include same sex partners actual harm the "institution" of marriage?
  • What will the impact of the decision, which imposes on each State the duty and obligation to recognize the legitimacy of marriages licensed in other States have on State programs providing assistance and support to families? 
  • What will the impact of the decision be on the judicial processes of States be as the dockets of State Courts are expanded to cover this new species of marriage?
  • What will the impact of the decision be on collaterally related fields of law, such as adoption, estates and trusts, and the like?
  • What will the impact of the decision be on religious institutions that, by reason of their faith and doctrine, disapprove same sex marriage, and that, in practice, enforce doctrines and policies inconsistent with the Court's conclusion that the Fourteenth Amendment guarantees as a fundamental right the right of same sex couples to marry? Will churches and other religious bodies be at risk for loss of their federal income tax status as 501(c)(3) organizations? Will contributors to such religious bodies lose the tax deductibility of their donations as a consequence?
  • What are the implications for businesses, large and small, resulting from this decision?
  • Will businesses particularly involved in the wedding industry be required to provide support services -- the design of wedding apparel, the design of wedding cakes, the design of wedding announcements and invitations, the provision of wedding facilities such as banquet halls, wedding chapels -- or suffer severe economic harms if they decline to do so?
These questions cannot be avoided forever. Past experience with this issue tells us that those who have gotten a victory on the central question -- whether same sex couples have a constitutionally protected right to marry -- are not likely to surrender the battlefield just because the big skirmish seems to have been won. Disputes such as the one involving Sweet Cakes by Melissa -- an administrative proceeding predates the Obergefell decision -- point the likely path to be taken as the victors in Obergefell pursue ultimate cultural dominance.

In the face of the uncertainty resulting from the Court's creation of this newly minted fundamental constitutional right, many have wondered whether there is anything that Congress could do to address the Court's decision, and the legal uncertainties it creates. Is there, in fact, anything that the United States Congress can do to answer the Supreme Court's decision?

Before answering that question, we should take note of the fact that there are government officials that have demonstrated their intention to resist what they have determined to be a lawless decision by the Supreme Court and their resolve with regard to that intention. Among those officials are the Governor of Texas, the Attorney General of Texas, the Chief Justice of the Alabama Supreme Court, and the Attorney General of Arkansas.

Governor Abbott, of Texas, sent out a message via Twitter within minutes of the Court's announcement of its decision in Obergefell. His message explained, "Marriage was defined by God. No man can redefine it. We will defend our religious liberties."

Ken Paxton, Texas Attorney General, also expressed his views via Twitter, two days after the Court's decision. Paxton's message advised, "The reach of the Court’s opinion stops at the door of the First Amendment and our laws protecting religious liberty." General Paxton also responded to a request for a legal opinion regarding the impact of Obergefell on the religious freedom rights of government employees that may be called on to issue marriage licenses to same sex couples, or provide other services of a similar nature. In his Opinion Letter, General Paxton concluded:
In Alabama, the Supreme Court concluded that it would require parties to litigation there to provide briefing on the meaning and application of Obergefell. In light of their Order for additional briefing, Chief Justice Moore explained that clerks would not be required to issue licenses immediately: "What the order means is that within that 25-day period no (probate judge) has to issue a marriage license to a same sex couple."

In Arkansas, Attorney General Leslie Rutledge, while stating that the decision would have to be followed in Arkansas, assured Arkansans that her office would work to insure that religious liberties not be harmed. General Rutledge stated, "Moving forward, it is critically important that the rights of religious freedom be protected, and I am committed to doing so."

Additional responses from Governors and Attorneys General in other States, while expressing their profound disappointment in the decision and disapproval of the Court's reasoning, left no impression that those officials would look for the means to resist the decision, or were currently considering how to protect either religious liberties or economic liberties of those that might be affected by a conscientious opposition to same sex marriage.

So, then, we should turn to see what the response of the other, co-ordinate and equal branches of the federal government may do to respond to the lawless decision of the Supreme Court in Obergefell.

Because one of those branches has undoubted powers and means to address the decision, and to discomfit the Court and its Justices over it, I begin with the other branch, The President.

What can we expect from the White House in reaction to the Obergefell decision?

Well. Candidly. You can expect the rainbow:

No, silly, not Rainbow Brite!
And NOT Reading Rainbow, either! NO!

Well, then, what rainbow?

No, sorry, not even Skittles!

Here's the only kind of response that you can expect from the Obama White House:

I suppose, given that the "successes" of this administration can be stated only in terms of excesses, this preposterous recasting of the White House as the place of magical wonders is unsurprising.

So, then, what about the Congress, the Legislative Branch of the federal government? What might Congress do to address the Obergefell decision and the lawless Court that uttered it?

Senator Ted Cruz, currently seeking the Republican nomination for the 2016 Presidential election, has called for Congress to propose to the States the adoption of a Constitutional Amendment defining marriage as between a man and a woman. In addition, Senator Mike Lee (R-UT) introduced a First Amendment Defense Act in the Senate, S. 1598 and Congressman Raul Labrador (R-ID) introduced the identical bill in the House as House Resolution 2802, the First Amendment Defense Act.

The possibility of a constitutional amendment, however, was quickly given the wet-blanket-reception by Senate Majority Leader Mitch McConnell. In an interview on TV in his home state, Kentucky, McConnell said, "It isn't going to pass. It's one thing to talk about a constitutional amendment," he said. "We've only done that 27 times in the history of our country. It's not going to pass."

McConnell's observation about the amending of the Constitution is true as far as the number of amendments that have succeeded and over what time. His observation, however, doesn't do much to dispel the fact that 27 amendments in the life of the Nation equates with an amendment every 8 years or so, or, if you treated the first ten amendments, taken together as the Bill of Rights, as a single instance of amendment, that still equates with an amendment every 13 years or so. In either case, based on lifetime averages, we are currently past due for an amendment to the Constitution.

Of course, McConnell's surrender before the first volley only constitutes his frank recognition that he, in the Senate, and Speaker Boehner, in the House, could not muster votes of two-thirds of the members to adopt such a proposed amendment. That super majority is the constitutional requirement under Article V of the Constitution, for the Congress to propose an amendment for consideration by the States:
The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.
McConnell's white flag on an amendment speaks volumes for the Republican leadership on Capitol Hill. Speaker Boehner, while expressing disappointment, appears only to have done that, and thus far, has not laid out any road map for the House to follow in response to the Supreme Court's decision. Boehner stated:
All human beings are created equal by God and thus deserve to be treated with love, dignity and respect. I am, however, disappointed that the Supreme Court disregarded the democratically-enacted will of millions of Americans by forcing states to redefine the institution of marriage. My views are based on my upbringing and my faith. I believe that marriage is a sacred vow between one man and one woman, and I believe Americans should be able to live and work according to their beliefs
So, then, while the iron is hot is when wisdom normally commands that the smith strike. Here, it appears that neither McConnell nor Boehner can see their way to forge an appropriate response or responses to the Supreme Court decision.

Because I was specifically asked by a correspondent to answer McConnell's claim that there was no way to roll back the decision of the Supreme Court, I will use a post that follows this one to lay out a specific set of proposals that are directly responsive to the Supreme Court decision, that Congress possesses constitutional authority to undertake, and that can bring about the result of returning to the States the question of how, within their separate, sovereign borders, they will choose to define marriage.

To close, however, I simply ask Senator McConnell and Representative Boehner, "How is it possible that Buford Pusser could rein in an out of control jurist, and you say you can't?"

Secret Clinton Emails We Know They Won't Let Us See


TO:          H. Abedin
FROM:    SoS Clinton
DATE:     01/22/2013 09:09.30


SB emailed earlier.

He has some talking points that he thought might be helpful and wanted to send them to me. I suggested a courier, but he said screening would take forever. He thinks immediacy is real.

He suggested that he could FRACK the documents to me.

I am not sure about our current policy on FRACKING. I know that our allies in the progressive community are opposed. Please clear this question so that I can respond.


TO:          SoS Clinton
FROM:    H. Abedin
DATE:     01/22/2013 09:12.30

Madame Secretary

Doesn't that title just rock?  :-)  :-)

I wonder if SB might have been meaning to ask about FAXING a document?

FRACKING (that's shorthand for hydraulic fracturing) is an oil/gas extraction process that uses high pressure liquids to create fractures in oil and gas beds. Those fractures then allow more complete extraction of oil and natural gas.

Just a reminder, G. Soros has told BO that we LIKE natural gas and that we DON'T LIKE oil. So when it comes to FRACKING, our administration's position is that we are for it, except when we are against it.

In any event, is it possible that SB was asking about FAXING documents, not FRACKING them?


TO:          H. Abedin
FROM:    SoS Clinton
DATE:     01/22/2013 09:16.25


Well, Madame Secretary strikes me as terribly demeaning. First of all, I don't run a brothel. And second of all, I'll be damned if I'm anybody's typist!

It is almost as bad as when I used to be referred to as the First Lady. Heaven knows I wasn't his first lady, and Monica knows I wasn't his last. Why they couldn't just admit my role in things and call me co-President is beyond me.

These idiot glasses are not really helping. But I took another look at SB's email, and, you know, he was asking about FAXING documents.

Do we have the ability to do that?

PS To clarify, the FRACKING we support produces natural gas? And the one we are against is oil? Do they actually work differently? Or is this really just about limiting domestic production of oil so that we can continue our dependent connection with Saudi Arabia and Venezuela?


TO:          SoS Clinton
FROM:    H. Abedin
DATE:     01/22/2013 09:22.30

Maybe I could just start calling you POTUS45?

We do have the ability to receive FAXES and to send them too!

Your private fax number is (202) 666-6969. If you are okay with SB having that FAX number, he can send things through to your Administrative Assistant. Just remember, he loves the sound of his own voice and the sight of his own words. He may send more documents than our friends in the Old Growth Forest Community will tolerate!

On fracking, just to clarify, fracking has been around for a very LONG time. The first experiment involving fracking was conducted more than SIX DECADES ago, in 1947. Our friends in the environmental community would never be happy to know that all evidence indicates that current methods of FRACKING are considered environmentally safe. I hadn't given thought to that fact until you pointed it out, but yes, I think the main reason we support natural gas FRACKING and oppose oil FRACKING is because of the global dangers of an energy-independent USA.


TO:          H. Abedin
FROM:    SoS Clinton
DATE:     01/22/2013 09:25.15


1. I think you may simply refer to me as 45.

2. When you refer to the extended history and long-time existence of FRACKING, and how a process first tested in 1947 has been around A LONG TIME, I believe you are forgetting that I was BORN IN 1947. That means that I have been around "a very LONG time" and that I was born "more than SIX DECADES ago"!!!!

3. Bring me some ice tea.

Sunday, June 28, 2015

"Bigot" and Other Words of the Lazy Mind

The word “bigot” is being tossed about frequently in posts by those celebrating the same sex marriage decision, Obergefell v. Hodges.

Seeing that use of the language, I am reminded why a wise parent doesn't allow a toddler to play with guns.  They don't know what they're doing and someone is likely to get hurt. In the case of the careless tossing about of a charge such as “bigotry,” the posts I’ve seen demonstrate bare familiarity with the English language, and definitely show the bully’s penchant to win by sucker punch rather than fair fight.

So then, what is a “bigot?”

Ambrose Bierce rendered the most telling definition of a bigot:
“One who is obstinately and zealously attached to an opinion that you do not entertain.”
A more common, but perhaps not nearly so true, definition found in dictionaries for “bigot” is
"one who regards or treats the members of a group (as a racial or ethnic group) with hatred and intolerance"
Are there anti gay bigots?

Undoubtedly, there are. Just as there are racist blacks, the church undoubtedly has within its ranks those whose hearts are unconverted, who ignore the teachings of their faith, and that, thus, entertain hatred and intolerance in their hearts. The Westboro Baptist Church has gained notorious attention by attending the funerals of soldiers killed in foreign wars, in Iraq and Afghanistan, and claims that God is pleased with the death of those soldiers because of America’s approval of sexual sin.

But that isn't the case of many or most Christians, just as most blacks are not racists.

The Catechism of the Catholic Church, for example, provides a clear insight into the teaching of that Church on the status of homosexual attraction. The Catechism does not teach or condone hatred or intolerance of gay men and lesbian women. Rather, it offers hope to them, guidance for life, and instruction to the Church to respect the dignity of those who are oriented in attraction toward members of the same sex.

Is that “bigotry?” To teach welcoming of the person, to command respect for their dignity, while at the same time adhering to the truth as their lights permit them to see truth?

No, that isn’t bigotry.

To call that approach, “Bigotry,” is to invoke a Humpty Dumptidian power to make words mean what YOU say they mean, rather than what they are known to mean by common acceptance and usage.

Archie Bunker, of course, was a bigot, and, in a humorous twist, so was George Jefferson. We know that there are those who do not look across the divide and see persons whose value and worth is measured in the work of the Cross, where Christ gave His life, not just for heterosexual, but for all human beings. That is what makes a bigot.

But Ambrose Bierce did get this one right. 

Posts charge “bigotry” against those who, in an honest and humble examination of their faith, have concluded that they cannot celebrate Obergefell v. Hodges because it is a decision that proposes a constitutional right that they believe to be a moral wrong.

Their opinion being different than yours might feel like a sound basis for charging them with bigotry, but only in Bierce’s definition does that make sense. They hold their opinion but not yours, after such consideration, thought and examination as they have devoted to the subject at hand. Because their opinion differs from yours, you charge “bigotry.”

One need not share their views to understand the difference between such faith-filled folk and those who drop gay men off tall buildings in Iraq, or those who force gay men in Iran to undergo – involuntarily – sex reassignment surgery so that they have a physical body resembling a woman in pertinent aspects (breasts, no testicles, penis reduction to resemble the female clitoris, and a pouch where possible for sexual contact).

Shame on you, if you are in the business of recklessly charging others with bigotry as a consequence of their views on this question. Your resort to the “bigotry” charge is a shameless attempt to silence those with whom you disagree, rather than to engage them in an honest conversation about your views and theirs. Why do you blind yourself in your bullying rejection of the right of others to disagree with you? Why do you choose to bully others by calling them the most dread of names, "bigot?" You only have two eyes, can you really afford to poke one out in this way?