Recess for Congress whether they like it or not?

Yesterday Trump threatened to exercise Section 2, Clause 3 of the Constitution by forcing the Congress into recess, allowing him to make recess appointments.

Majority Leader McConnell rejected the practicality of this notion.

Is the president blowing hot air, or not?

I don’t know, so I did some research. The Constitution gives the president the authority to recess Congress in extraordinary circumstances and when the houses do not agree on timing.

We know Pelosi and Schumer will cooperate on every step.

We know the Senate requires unanimous consent to take a bath room break, so Schumer can stop most procedures and force votes. Consequently, Schumer is not going to consent to disagreeing with Pelosi on a recess. So how does the president invoke the Constitution if there is no disagreement.

The only tool in arsenal would seem to be that the Vice President is the presiding officer whenever he wishes to take the chair. Can the VP as presiding officer force this question? I doubt it, so let’s see if we can construct a scenario that could work.

These pro-forma sessions that pretend to be the Congress refusing to recess last only minutes, allow the journal to be approved and set a new time to repeat the farce. Under a recent Supreme Court case this is sufficient since each house writes their own rules and the rules allow this.

So we would have to look at the Senate rules to find an opening.

When the Senate is called into pro-forma session, usually a senator sits as the presiding officer. What if the Vice President were to stride to the podium and demand the gavel. By the Constitution he would get the gavel. He would call the Senate to order and do the Pledge of Allegiance, again by rule.

Then he could turn and look at the empty floor. Any sane parliamentarian knowing Roberts’ Rules of Order would think, “Ah, there is no quorum. I have seen plenty Senate proceedings on C-SPAN2 where senators ‘note an absence of a quorum’ and the place comes to a screeching halt while the presiding officer orders the clerk to call the roll. Why not that?”

So let’s look at the Senate’s rules on quora:

VI

QUORUM - ABSENT SENATORS MAY BE SENT FOR

1. A quorum shall consist of a majority of the Senators duly chosen and sworn.
2. No Senator shall absent himself from the service of the Senate without leave.
3. If, at any time during the daily sessions of the Senate, a question shall be raised by any Senator as to the presence of a quorum, the Presiding Officer shall forthwith direct the Secretary to call the roll and shall announce the result, and these proceedings shall be without debate. 
4. Whenever upon such roll call it shall be ascertained that a quorum is not present, a majority of the Senators present may direct the Sergeant at Arms to request, and, when necessary, to compel the attendance of the absent Senators, which order shall be determined without debate; and pending its execution, and until a quorum shall be present, no debate nor motion, except to adjourn, or to recess pursuant to a previous order entered by unanimous consent, shall be in order.

So the absence of a quorum could force a recess, if all pieces were to fall into place. But what would that take with a strict reading of the rule?

First a Senator must point the absence of a quorum, not the presiding officer. Next the senators present upon finding the lack of quorum must order other senators back or move to adjourn.

So if the president has in his pocket a group of five senators to show up and ran this play, a recess or adjournment could be ordered.

How would Schumer fight this? He would need to bring his Democrats back to the Senate floor to be able to fight the next step before it is played out.

So what happens if the Democrats appear on the floor to make a show of a quorum or enough to out vote Republicans? Don’t they appear to be able to be on the floor? Why not just do their work rather than disappear from the cameras?

So Trump can win by losing. He can force a large number of Democrats back to DC to appear on the floor. He can force the sense of obstruction on the Democrats.

All the while McConnell can play the great mediator and state that he sides with the Democrats. He just needs a handful of Republicans to “fight him” on the matter.

What if Trump wants to up the ante? What if does not want play out the quorum game? Can he force a vote of some type?

The Senate can suspend the rules of the Senate by unanimous consent and without notice or it can entertain a motion to suspend the rules on one day’s written notice.

V. SUSPENSION AND AMENDMENT OF THE RULES

1. No motion to suspend, modify, or amend any rule, or any part thereof, shall be in order, except on one day's notice in writing, specifying precisely the rule or part proposed to be suspended, modified, or amended, and the purpose thereof. Any rule may be suspended without notice by the unanimous consent of the Senate, except as otherwise provided by the rules.
2. The rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules.

So at the key moment, a senator can ask for unanimous consent to suspend the rules and push a recess. Since the Democrats have a person ready to object, that likely won’t work.

What if the Senator puts written notice of a motion to suspend the rules? Again all the Democrats get recalled to DC to fight the action.

Again Trump stands to win by losing in forcing Democrats back to DC.
So if Democrats really want to avoid DC, they have two choices: suck it up and return or Trump gets his recess dispute.

What do I have wrong in this analysis? It can’t be this straightforward.

Democrats at Risk of Splitting?

This Nation article suggests problems if the Democrats go to a brokered convention in Milwaukee. The key premise seems to be, "Solidarity is a virtue that must be practiced as well as preached."

This notion seems to a derivation of "We must hang together because surely we will hang separately," which Benjamin Franklin is reputed to have uttered shortly after leaving the Continental Congress on signing the Declaration of Independence and formally being in active treason against the monarchy.

This same notion of "unity at all costs" has driven many military and political decisions over the years. The United Nations (the military version) that prosecuted the war for the Allies lived out unity at all costs every day of the war. Most political parties, like the GOP with McCain and Romney as their presidential nominees, lived out this unity at all costs mentality. The British Conservative Party played it out repeatedly trying to stuff bad Brexit bills down the public's throat.

All of these political examples called for unity against political rivals as if the next election was make or break for the whole polity. They rely on a view of politics informed by war. In war, you must win or else your civilization faces annihilation. History demonstrates that a civilization that loses 30% or more of its population to war often never recovers. It may survive the war, but not the next conqueror whether by war or political annexation.

When politicians use rhetoric, they rely on the emotionally charged speech of war time to agitate for a win at the ballot box. They see each election as the last for their side. In some respects that has been true for generations one direction more than the other. When Democrats win, they put their big government policies into effect in great leaps like the New Deal or Great Society. When the GOP comes into office, they make small changes and Democrats shriek. Little is done favoring long term GOP goals. The ratchet of movement moves toward Democrat policies and lock out real GOP counter movement. The same holds true in the UK and other countries.

Yet when did Brexit fly through Parliament? Not on unity at all costs. It was after the Conservative Party let the political dispute play out in its entirety. Teresa May was a dead prime minister walking. She had been pushed forward not on her merits but as a "unity at all costs" candidate. The candidate that no one hated but no one wanted. She called a general election and got a smaller majority. Stupid in hindsight, even if smart in foresight.

Then when Boris Johnson looked like the favored candidate of the grassroots and not the party elders, there was a problem. The Conservatives could not afford to lose anymore of the majority and the Conservatives were already at war with themselves and other parties. They needed unity no matter the cost. Even at all costs.

What did they do? They did not do a repeat of the May selection, or John Major selection or Gordon Brown selection. They followed party rules and put the vote to the wider party, knowing that Johnson would likely win. He did. Triumphantly.

What then happened? Johnson now had the mandate of his party to move toward a general election and fight in parliament, with parliamentarians knowing that Johnson would win any calls to party loyalty, so resistance was futile within the party.

Now Johnson had full and undisputed control over his party and he would press forward with a general election on terms of his choosing. No compromises with his party. He could now focus on compromises with persons outside his party. He could seek to build a broader coalition on his own terms. He did. He destroyed Labour and made the Scottish National Party powerful only in Scotland and irrelevant in Westminster Palace, where Parliament sits.

Johnson followed something similar with Trump in 2016. Trump fought through a tough and close primary, winning votes but not necessarily the loyalty of his party. When he won, he got begrudging respect, before the Russia hoax started putting the GOP and Speaker Ryan on their heels. They were constantly afraid of claiming Trump's standard because he might be gone at any moment.

Trump fought and the GOP fled. Nancy took the Speaker's gavel. Trump fought on. Chuck's stupidity on Supreme Court nominations and Nancy's whole party charade collapsed. Suddenly Trump who had followed the process and pushed his agenda forward is nearly the only man standing.

Now Trump is in the position to be able to dominate the GOP without fear from party holdouts. Trump can now reach out to his opponents' base to obtain new converts. For now loyal Trumpists. Once with Trump and they find the GOP welcoming, maybe later converts to the party itself. Maybe not. But the first step of the long journey is beginning.

So what should the Democrats do?

These examples suggest the best solution is not to short cut the process with "unity at all costs." That hides disputes and divides loyalties while leaving the grassroots without a real voice. The fight should be had all the way to and through the party convention. Only at a party convention can the grassroots' voices be heard on detailed platforms, ideas, and leaders.

A bruising and drawn out fight may not give them a good candidate. They may end up with their own Gordon Brown, Jeremy Corbyn, Teresa May, or Bernie Sanders. But having the loser candidate with the right credentials may be the first step to having real unity.

Some times bad ideas need to be played out in full to be truly demonstrated to be bad to all players, even the grass roots. Then in the next round more players of different viewpoints and attitudes will step forward to say, "Let's not go down the 2020 road and over the cliff again. I have another path. It is covered with weeds, but I think we can clear the path that can be turned into a highway over time."

That fight may be military like. It may take the destruction of 30% of the party's ideals and attitudes to never be resurrected. But then the Democrat Party of a different composition can begin to grow.

That new Democrat Party may be more socialist and purge the centrists. It may be more centrist and purge the socialists. In either case, it will be more coherent and self-consistent. The people can clearly accept it or reject it. In that situation America will be better off than a hodgepodge of compromises done in the smoke filled rooms where no one knows why one leader is up and another down.

The Democrats should burn the boats and push forward. Guarantee will be the 2024 Democrat Party will be different than 2020's, and America will be the better for it.

Trump and the Executive Order on Birth-Right Citizenship

President Trump announced that he is considering issuing an Executive Order declaring that his administration would no longer treat an illegal alien's newborn child as a US citizen just for being born in America. This has set hair on fire across Washington DC. Democrats, reporters, law professors, and the Speaker have declaimed it.

So the question is, does Trump have a leg to stand on?

I have written about this issue before. In that post, I laid out much of the argument back and forth about birth-right citizenship. Since that time, I have thought about the matter from time to time. I have just re-read that post, and I think some of the comments need to be clarified or better supported in light of the current controversy. 

So let me start again.

In essence, this addresses two questions:

1. How does a person become a natural-born citizen of the USA?
2. Who can be a natural-born citizen?

Constitution as a Legal Document 

As I read the Constitution, I see it as a legal document written by lawyers. The Committee of Detail had 4 out of its 5 members as admitted members of the bars from their respective states. Of these 4, two were future Chief Justices of the United States, one was an original Associate Justice, and the remaining lawyer was the first Attorney General of the United States. These future appointments and confirmations attest to their credibility as lawyers. So it is reasonable to expect the Committee of Detail looked at the Constitution with lawyers' eyes.

The draft went to the Convention, then to the Committee on Style. This committee chaired by William Samuel Johnson (2 degrees from Yale and a lawyer) and consisted of Alexander Hamilton, James Madison, and Rufus King. All lawyers -- except James Madison, the Father of the Constitution. 

Of the 55 delegates, I believe 34 were lawyers or had "read the law," which was the phrase for studying to be admitted to the bar.

So the Constitution in its written form was written by lawyers. The odds that the vocabulary that they knew and understood would be in the document itself is extraordinarily high. There was no movement to "write in plain English" at that time. (Ironically, documents written in "plain English" cause a lot of litigation today, like insurance policy contracts.)

If the Constitution was written by lawyers, a good method for interpreting the Constitution is to understand the legal vocabulary of the day.

Legal Terms to Analyze 

For purposes of this debate about natural born citizens that becomes a bit more difficult and dicey. The only reference to "natural born" in the original text (1787) is the requirement in Article II, Section 5 that says, "No Person except a natural born Citizen . . . shall be eligible to the Office of President." There is no definition. There is no explanation. There is no citation to explain its meaning. 

Then when the Fourteenth Amendment passes Congress (1866), the first line of Section 1 reads, "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." So the key language is "All persons born . . . in the United States, and subject to the jurisdiction thereof, are citizens . . . ." The argument is what does it mean to be "subject to the jurisdiction thereof"?

So we know that the Founders knew what it meant to be a "natural born Citizen" and the Congress amended the definition of natural born citizen to be all persons born in the US and subject to the jurisdiction thereof. This suggests that there was one meaning in 1787 that needed amending in 1866.

Defintion in 1787

So first, let's consider what the definition in 1787 was to the 34 lawyers at the Constitutional Convention.

Being well read lawyers to be admitted to the bar, the Constitutional delegates who were lawyers likely all read the great summary text of the English Common Law, Lord Chief Justice Blackstone's Commentaries on the English Common Law (1765). The most significant for our purposes is Book One ("Of the Rights of Persons"), Chapter 10 ("Of the People, whether Aliens, Denizens,

or Native").This Chapter deals with the definition of "The People." His analysis depends on three categories of people (he explains the mechanics of why this categorization, but I will omit for brevity) into Aliens, Denizens, and Native. Natives are "natural-born subjects." "Natural-born subjects are such as are born within the dominions of the crown of England, that is, within the ligeance, or as it is generally called, the allegiance of the king; and aliens, such as are born out of it."

The basic premise starting the analysis is where a person is born and what is that person's legal status due to his birth.

Allegiance, both express and implied, is however distinguished by the law into two sorts or species, the one natural, the other local; the former being also perpetual, the latter temporary. Natural allegiance is such as is due from all men born within the king's dominions immediately upon their birth[m]. For, immediately upon their birth, they are under the king's protection; at a time too, when (during their infancy) they are incapable of protecting themselves. Natural allegiance is therefore a debt of gratitude; which cannot be forfeited, cancelled, or altered, by any change of time, place, or circumstance, nor by any thing but the united concurrence of the legislature[n]. An Englishman who removes to France, or to China, owes the same allegiance to the king of England there as at home, and twenty years-358- hence as well as now.

 * * *

Local allegiance is such as is due from an alien, or stranger born, for so long time as he continues within the king's dominion and protection[p]: and it ceases, the instant such stranger transfers himself from this kingdom to another. Natural allegiance is therefore perpetual, and local temporary only: and that for this reason, evidently founded upon the nature of government; that allegiance is a debt due from the subject, upon an implied contract with the prince, that so long as the one affords protection, so long the other will demean himself faithfully. As therefore the prince is always under a constant tie to protect his natural-born subjects, at all times and in all countries, for this reason their allegiance due to him is equally universal and permanent. But, on the other hand, as the prince affords his protection to an alien, only during his residence in this realm, the allegiance of an alien is confined (in point of time) to the duration of such his residence, and (in point of locality) to the dominions of the British empire.

So Blackstone establishes that the original definition of natural born subject is one born in the king's dominion (e.g., England or Colonial America) and an alien is one born elsewhere. He establishes that a natural born subject does not lose his rights as a natural born subject by traveling abroad. His status is established by his natural allegiance to the crown by the circumstances of his birth and not the circumstances of his travels. Blackstone also allows aliens are protected temporarily by the crown while visiting the king's dominions but not beyond. The alien's allegiance to the crown is limited to his time in the king's dominion only.

Blackstone further explains that children born overseas to a British subject are equally within the king's protection.

When I say, that an alien is one who is born out of the king's dominions, or allegiance, this also must be understood with some restrictions. The common law indeed stood absolutely so; with only a very few exceptions: so that a particular act of parliament became necessary after the restoration[y], for the naturalization of children of his majesty's English subjects, born in foreign countries during the late troubles. And this maxim of the law proceeded upon a general principle, that every man owes natural allegiance where he is born, and cannot owe two such allegiances, or serve two masters, at once. Yet the children of the king's embassadors born abroad were always held to be natural subjects[z]: for as the father, though in a foreign country, owes not even a local allegiance to the prince to whom he is sent; so, with regard to the son also, he was held (by a kind of postliminium) to be born under the king of England's allegiance, represented by his father, the embassador. To encourage also foreign commerce, it was enacted by statute 25 Edw. III. st. 2. that all children born abroad, provided both their parents were at the time of the birth in allegiance to the king, and the mother had passed the seas by her husband's consent, might inherit as if born in England: and accordingly it hath been so adjudged in behalf of merchants[a]. But by several more modern statutes[b] these restrictions are still farther taken off: so that all children, born out of the king's ligeance, whose fathers were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes, without any exception; unless their said fathers were attainted, or banished beyond sea, for high treason; or were then in the service of a prince at enmity with Great Britain.

Blackstone then presents the proposition that alien's children born in the king's dominion are natural born subjects.

The children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges-362- of such. In which the constitution of France differs from ours; for there, by their jus albinatus, if a child be born of foreign parents, it is an alien

So with the general rule that all born in the king's dominion are natural born subjects, Blackstone looks for exceptions. A denizen is a person who has received royal letters patent to make him a subject of the king. But in his day, that needed a parliamentary act and an oath of allegiance before Parliament to make the person a naturalized subject with full rights to own land and give an inheritance.

So we see from Blackstone that the defining characteristic of a natural born subject was a person born in the king's dominion or born to a subject (assuming no criminal sanction against the parent) because of natural allegiance arising from the protection of the crown. The exceptions were children of aliens who were present in the king's dominion on the business of another country owed no duty of allegiance to the British crown. They were not natural born subjects.

So a reasonable interpretation is that the lawyers at the Constitutional Convention had the idea that "natural born citizen" was the same idea as a "natural born subject," but the concept of royalty was abolished and the allegiance was to the nation and not to the person of the crown. This makes sense in light of the doctrine of in pari materia (upon the same matter or subject). This would mean birth in the dominions of the United States for a citizen or alien would be enough to create citizenship, unless the alien was in the US on business of a foreign government. The duty of allegiance arose naturally by the location of the place of birth or family relationship, if abroad.

Definition in 1866

There is a general rule of interpretation of the law that use of a word should be interpreted the same way across a document, unless some reason to change the definition is explicitly set forth. So in the Constitution the word "president" is used in two different contexts. First, the President of the United States is the chief executive officer under Article II. Second, the Vice-President of the United States is also the President of the Senate under Article I. The Constitution is clear that these two uses of president don't refer to the same person or the same job.

There is another rule of interpretation of the law that an act of a legislative body is set out to fix a particular defect or mischief that the current law does not address, known as the Mischief Rule or the Rule of Heydon's Case. The idea is that judges should advance the remedy sought by the legislature and suppress the means of continuing evasion of the remedy.

The Fourteenth Amendment is largely understood to suppress the Post-Civil War southern states from attempting to define freed slaves as some other status than voting citizen. A simple solution was to adopt the existing Blackstone rule that anyone born in the United States was a citizen. To do that the Fourteenth Amendment's first sentence could have read, "All persons born or naturalized in the United States, and subject to the allegiance thereof, are citizens of the United States and of the State wherein they reside." That would have served as a continuation of Blackstone's interpretation that was well known in the legal community at the Constitution's writing and many decades thereafter.

However, the author of the amendment chose to change the key vocabulary for natural born citizens. He chose "jurisdiction" and not "allegiance." There had to be a reason for this.

Congress passed the Civil Rights Act of 1866 to overturn the Dred Scott decision (declaring slaves are not citizens) and to give freed slaves the rights of citizenship, saying that persons born in the US and not subject to a foreign power are US citizens. 

That all persons born in the United States and not subject to any foreign power, excluding Indians, not taxed, are hereby declared to be citizens of the United States ; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States....

Some doubted that the Thirteenth Amendment abolishing slavery gave Congress the authority. They further feared that a later Congress could repeal the Act. So they sought an additional amendment. 

As the debate on the Fourteenth Amendment continued, members of Congress threw around terms like "subject to the authority of the United States," "allegiance," and "jurisdiction." Some argued that Indians were subject to the jurisdiction. Others argued not. 

The lead proponent of the amendment Sen Lyman Trumball said, 

What do we [the committee reporting the clause] mean by 'subject to the jurisdiction of the United States'? Not owing allegiance to anybody else. That is what it means." He then proceeded to expound upon what he meant by "complete jurisdiction": "Can you sue a Navajoe Indian in court?...We make treaties with them, and therefore they are not subject to our jurisdiction.... If we want to control the Navajoes or any other Indians of which the Senator from Wisconsin has spoken, how do we do it? Do we pass a law to control them? Are they subject to our jurisdiction in that sense?.... Would he [Sen. Doolittle] think of punishing them for instituting among themselves their own tribal regulations? Does the Government of the United States pretend to take jurisdiction of murders and robberies and other crimes committed by one Indian upon another?... It is only those persons who come completely within our jurisdiction, who are subject to our laws, that we think of making citizens.

 The author of the citizenship clause Sen. Jacob Howard of Michigan said,

Indians born within the limits of the United States, and maintain their tribal relations, are not, in the sense of the amendment, born subject to the jurisdiction of the United States. They are regarded, and always have been in our legislation and jurisprudence, as being quasi foreign nations. 

Even in the later parts of the debate, many senators questioned whether the courts' previous actions undermined the proponents' proposed interpretation.  (In 1924, Indians were granted US citizenship by statute.)

So we can see that the Fourteenth Amendment was intended to exclude some persons from being natural born citizens because the traditional language was changed. This means that there was clearly a different intent. The debate about what that changed intent was is not easily resolved to universal satisfaction.

Most readers are likely to be less than satisfied that the use of the word "jurisdiction" is clean and clear.

I do suggest that changing from "allegiance" to "jurisdiction," using Blackstone's definition of who owes allegiance, has a significance that cannot be ignored. Blackstone's allegiance comes automatically by birth unless an exception exists: parent with foreign loyalty in government service.

Effect of Late Immigration Laws

At the time that the Fourteenth Amendment was passed and ratified, immigration rules were almost non-existent. This meant that entry rules were limited. You arrived and stayed; you were a resident. Naturalization had restrictions from almost the first Congress, but they were more about statements of intent to seek citizenship and waiting periods, not exclusion from the country. So as the debate on the Fourteenth Amendment took place, children born in the United States to aliens immigrating here was a regular occurrence. The language of the debate is consistent with this conclusion.

By 1898, the Chinese Exclusion Act (prohibiting most Chinese immigration without Chinese government emigration papers, terms negotiated by treaty) had been in effect for a couple of decades. A Chinese family lived in the states, visited China and returned to the US. When the son born in the US applied for citizenship, he was denied citizenship. The Supreme Court overturned this result based on the Fourteenth Amendment of birth in the US. The Act was found Constitutional by the Supreme Court, declaring that "the power of exclusion of foreigners [is] an incident of sovereignty belonging to the government of the United States as a part of those sovereign powers delegated by the constitution."  The act was repealed in 1943.

In 1921, the Emergency Quota Act restricted immigration to this country for Southern Europeans. No restrictions were imposed on Central Americans, including Mexico. Further restrictions were imposed in 1924. The 1924 Act required a visa for entry and imposed deportations for violators of the quotas. For the first time it was illegal to be present in the US without documentation.

So the American practice from 1790 to 1924 is to only pay attention to Blackstone's natural born citizens and aliens. With the creation of visas, we have a new status of immigration: documented, legal immigration. The Chinese Exclusion Act and following exclusionary acts prevented immigration, but in the Ellis Island fashion was handled by excluding violators. Now the law allowed entry with documents issued overseas.

Accepting Jurisdiction of the US in a Visa World

So a new problem for the definition of natural born citizen arises. Is the child "subject to the jurisdiction" of the United States if the parent is an undocumented or expired-document illegal alien? Are those parents subject to the jurisdiction?

In the debate over the Fourteenth Amendment, the question put by Sen. Turnbull about Indians being subject to the jurisdiction of the US is whether a citizen could sue an Indian in American courts. As a practical matter, this question arises anew. Can you sue an illegal alien in court? The courts would say, "Yes," because they take all comers. But as a practical matter, it just isn't so easy. Illegal aliens are highly unlikely to appear in court if they fear the outcome is negative or they will be arrested. That means they pick and choose when they want to submit to the jurisdiction of the courts.

In more forgiving definition of aliens, Blackstone would merely expect temporary allegiance from the immigrant as a basis to grant his child natural born citizen status. In the more restricted "subject to the jurisdiction" interpretation, something more is required to obtain natural born status. Illegal immigrants offer no allegiance by breaking the law by entering the country or staying without a visa, use fake IDs to hide their illegal presence or avoid taxes, or otherwise avoid obligations that a citizen would be required to uphold. They don't act as if they have accepted the jurisdiction of the United States.

In a court of law, a foreigner can be sued and avoid any liability, unless his home country has a treaty with the US on litigation. This applies to criminal law. We have seen this played out recently with the Special Prosecutor Robert Mueller's screw up. He indicted Russian spies and Russian companies. Most have snubbed their noses at Mueller. One company chose to fight. It hired an American lawyer and showed up in court. It "accepted the jurisdiction" of the American courts, meaning that it accepted the authority of the court over the company.

Accepting the jurisdiction means that you follow the legal authority and do as ordered by properly constituted agents of the government.

Do illegal alien accept the jurisdiction of the United States? If they violate its laws on entry, identification, and appearing in court as ordered, how can they be seen as accepting the jurisdiction let alone being subject to it.

If the alien won't accept jurisdiction voluntarily, why should jurisdiction and legal privileges be proffered or forced upon them? No duty owed; no privilege obtained.

Trump's Order

So all of this background to deal with President Trump's theoretical order to refuse to allow natural born status to illegal aliens' children.

These families do not accept American jurisdiction unconditionally. They pick and choose the benefits they want. They are not showing any allegiance. No matter how you phrase it, to give the children natural born status is to effectively forgive the parents of illegal actions that should have excluded them from the country or caused their deportation. Only through the luck of timing of the birth were these actions not carried out before the birth. The same child born in Mexico one day after the mother's deportation would have no claim to American citizenship. How can omission to act obtain the same result?

Put another way, to this point, we are de facto forgiving criminal acts by failing to carry out the remedy for these criminal violations. As a matter of legal principle, no legal rights can be conveyed by an illegal act. If I steal your ring, I cannot promise to sell it to a purchaser on a promissory note, then sue the purchaser to enforce the promissory note. The sale of a stolen item is illegal and cannot be the basis of a lawsuit.

The act of entering without a visa, staying on an expired visa, or using fake IDs to be here cannot convey a legal right of being under the jurisdiction of the US legally. The alien has committed at least one criminal act in violation of the jurisdiction of the United States.

That means that such person with a child born during the unremediated criminal act needs an act of clemency to reinstate their good standing and acceptance of the jurisdiction of the United States. They need a presidential pardon.

So the problem is not with Trump's theoretical order. The problem is that we have been granting citizenship to ineligible persons born in the US without a proper remedy for the problem. Trump's order would do more to restore law and order than the current elitist dismissal that there is no problem.

UPDATE: On a different website, one commenter mentioned that the phrase "and of the State wherein they reside" would also exclude tourists from having American citizen children. They presumption is that you have to be resident. To be resident, an immigrant must live there and intend to remain their indefinitely. A tourist visa does not allow the ability to remain indefinitely. 

UPDATE 11/1/2018: Interesting to see a similar argument at Fox News by Hans A. von Spakovsky of the Heritage Foundation.

Solution for Determining Who are Congressional Witnesses?

If Monica Showalter is correct, that sending letters to Congressional Committee Members on a matter before the committee can be prosecuted for perjury, that suggests a quick solution to most of these judicial committee allegations.

In a court of law, the cause of action is started with a complaint that outlines the basic facts: who, what, when, where, and how law was violated. The defendant then has a chance to address these allegations simply to identify the issues in dispute.

So I would simply suggest that the Judicial Committee for all future allegations against a judicial nominee that a letter describing any legal or ethical violations at least meet the requirements of the Federal Rules of Civil Procedure for a Complaint. At that point, the world is on notice about what she is alleging. The letter would only be accepted if it was addressed to the Chair and Ranking Committee Member. That would invoke the law. The correspondent has some skin in the game (see Nasim Taleb's book of the same name for details on why that is important).

If they are not willing to go to jail for gross lies, we should not have to suffer their potentially libelous claims as if they were true. If they are telling the truth or telling the story with a good faith belief that it is true, there is no risk of jail.

Scurrilous lies are not a basis for Congressional, Judicial, or Executive investigation or action. Failing to take a risk of perjury is a necessary first step to avoid the risk of wasting time on what could turn out to be scurrilous lies.

Why Comey memos should be released

This is very simple. Byron York has written well about it. He hits one point that is really the key.

If the memo supposes to be proof of Trump's obstruction of justice, who is the proper investigator?

The special counsel is a member of the executive branch with special dispensation from following normal protocols. As such, it is proper to investigate where conflicts of interest lie. The problem with the appointment process is that it ignores the Constitution. The president vice-president and federal judges are immune from prosecution while in office. A grand jury has no jurisdiction, no matter what court precedent would do to twist this fact.

So the House of Representatives is the proper grand jury for these immunized officers. So if the House demands access to evidence, the special counsel should respond as he would to a grand jury making such a demand.

This is simple. Occum's Razor simple. To create other arguments and stillborn claim Constitutional compliance only results in farce. Is this political? See Andrew McCarthy's book on that subject. Spoiler alert: yes, it is inherently and intentionally political.

So the House should vote a resolution ordering the Special Counsel to deliver the memos. Failure to comply should be met with an immediate Contempt of Congress citation and defunding of Mueller's office for violation of the Constitution.

Publius of the Federalist Papers expected the branches to defend their own privileges, not be a mere lapdog to the Supreme Court and the judiciary. Court precedent is irrelevant. Speaker Ryan needs to stand up and defend his committee chairs more aggressively. These votes need to be scheduled immediately. If there are concerns about national security, those can be address by procedures set forth in the House resolution and contempt citation.

Kafka trap

I find this definition of a fallacious argument intriguing.

It shows how the intolerant argue for more intolerance.

Pulling Federal Funding in Academia

If President Trump is taken seriously about his tweets (and why not at this point), he is not likely to sit idly by and let federal money to flow to Berkeley and other hell holes (see the fires blazing) of academia.

One comment that I have seen in response was very defensive about allowing federal funds to be withdrawn. "But there is so much good research going on. We can't afford to withdraw the money!"

Let's play out the thought to test the validity of the critique.

Let's say we have the cure for the common cold that is on the verge of being resolved or the next DNA sequencing to forever remove cancer as a risk in our lives. Significant issues both.

If federal funds were withdrawn from the researcher because he is being paid by Berkeley, then he cannot continue his research at Berkeley. Does that mean he is forever forbade from doing research again, I would agree with the complaint.

If federal funds were withdrawn because Berkeley was a conduit (and kept a percentage for overhead expenses), then the researcher may start strategizing on how to reopen the funds' flow. "Could I get the money directly and then pay Berkeley rent? Could I move operations to another university to serve as the conduit?" If Berkeley were forbade from any benefit, the researcher would be stuck moving.

So now we end up with a prospective tenured professor that quickly is incentivized to put himself on the open market. He can shop for a better deal. His contract with Berkeley is probably an issue, but a few precedents of professors/researchers winning because of the university failing to provide the agreed work environment should bring the costs of contract disputes down rapidly in the first year.

So now this calcified university market suddenly springs a free-market leak. What are the incentives for universities to clamp down on threats to the life, liberties, and property of university staff and students?

Sounds like it is a win-win for society-at-large. Good professors have a sudden desire to move away from nut cases. Formerly undesirable universities or liberal arts colleges suddenly have the prospect of good professors knocking on their doors. Their students get an upgrade. Professors can negotiate to maintain their tenure (oh well, it is not all perfect).

One or two high profile professors jumping ship, the universities will find the merits of law and order.

What this tells us is that the Obama Administration and Democrats in Congress were really subsidizing their rabble-rousers with student loans and federal grants. The threat of losing a few grants would likely make the rabble-rousers persona non grata on any campus or to any liberal.

Isn't the best system of government where the citizenry hold one another accountable without the call for intervention to police, courts, or school administrators? Professor to a student: "Knock off that rioting." Student: "Why should I you, old fuddy-duddy?" Professor: "I will lose my grant and my job." Student: "The man is just keeping us down!" Professor: "Write the man a letter. Draft a petition to send to the man. But quitting destroying property! I need to be able to pay my mortgage! I am not going to let your misbehavior cost me my mortgage payment. I will turn you in." Student: "Aw, professor, I am not after you." Professor: "It doesn't matter. Your behavior affects us all, even if you can't see it."

Ah, the joys of societal norms being used without court intervention.

Yes, it is clear, the professor or research seeking a cure for cancer would be inconvenienced and might have to move, but the corrective effect would be quick, profound, and manageable.

Let's do it.

Trump 845 versus 924: does he need 1237?

The supposed debate in the RNC's circles is whether Trump needs 1237 to win the nomination. Just another example of people who believe themselves to be smarter than they are.
Of course Trump needs 1237 to win. Why?
Because that is when all other options are over. If Trump has 1237 committed delegates, nobody else can get them.
There is no more gamesmanship by Cruz or Kasich that can be attempted.
There are no more articles to be written with different scenarios.
There are no more opinions to be offered that seem credible.
With 1237, any other answer than "Trump wins" sounds stupid.
So if Trump must have 1237, what is this about "less than 1237" can win? It is poor writing and thinking mascarading as Jack Handey's "Deep Thoughts" from Saturday Night Live of old.
These discussions are really about analyzing uncommitted delegates to vote Trump.
Right now Trump has 845 delegates on the first ballot. There are 924 delegates that are committed to other candidates or are uncommitted. After Pennsylvania, the number of uncommitted will go up substantially. New England offers around 104 delegates. Then Trump has to deal with some less favorable locations. No doubt he will leave those states with close to 949 delegates. Only 20 up on the field.
There will still be more than 300 delegates in play. He will like do well with those 300, but he will have to do overwhelming well to get to 1237.
In the meantime, we get to experience the joy of simple minds writing overwrought logic. Lovely . . . .

Is Trump the 21st Century Hoover?

If you read Amity Schlaes's The Forgotten Man you will learn about Herbert Hoover the great engineer and business manager. His penchant for micromanagement (duplicated by FDR) fed many of the problems worsening the Great Depression. Hoover came to office on the heals of his unambiguously great success in helping Europe recover from WWI.

Now Trump seeks office with a smimilar resume and goal. He wants to manage the bureaucracy better.

Does that make Trump the second term of Herbert Hoover?

Hoover came to regret his presidency and sought to teach others how to avoid his errors through the great Hoover Institute at Stanford.

If Trump learns the right lessons, he could lead better than Hoover without the notion of managing the economy to health. He could manage the bureaucracy to empower law and order and self sufficiency.

If Trump repeats Hoover's errors, he would be arguably Obama's third term.

I don't trust Trump. He's philosophically unmoored. He is clearly a great student of human nature and organizational management and motivation. So was Hoover.

Hoover was a poor student of economics at a national scale. He learned that too late.

If Trump learns the power of Harding, Coolidge, and Reagan in managing the economy, then his managerial skills could make Trump extraordinary in office.

If Trump's lack of learning of philosophical lessons were to hold true, he could be more damaging than Hoover. 

Trump has the big personality of Harding, who slashed the government budget in half on entering office and set off a huge economic era. While history treats Harding as corrupt, little evidence suggests this playboy was corrupt, just egotistic. I doubt Trump would have the real courage to cut the budget like Harding, so I pass on the subject. 

 Hoover is an object lesson for Trump. What lesson will he take?

Liberals will complain conservatives blame them for everything.

Today, Drudge linked to a Financial Times of London article about the squabbling between the Saudi oil minister and a leading prince. The oil minister said not to worry about falling oil prices below $80 a barrel. The prince suggested that was malarkey.

Apparently, the Saudi government budget requires 90% of revenues come from oil revenue. On top of that, the budget requires $89 per barrel to avoid dipping into the rainy day fund. Since the Saudi government has 100% of their budget in rainy day funds, the oil minister suggest there's not much risk to a short-term drop in oil prices.

At the end of the article, the author points out that the IMF is raising concerns to many Middle East countries about their high dependency on oil to meet their breakeven points.  These governments need to be careful of overly generous welfare budgets. The author emphasizes the following oil revenues could lead to social disruptions as soon jihadists start using the coming financial distress as a motivational tool. At the same time, these governments may not be able to finance the military to keep these jihadists in check.

Part of the fallen oil revenues comes from increased oil production in the US. At the same time the international energy agency is warning that the demand for oil is falling due to a collapsing world economy.

So why does the dispute between two Saudi princes have anything to do with American politics? Is there anything more than simple foreign-policy politics?

US stock market is showing signs of beginning a collapse. Many collapses begin with prices starting to shoot up and shoot down in irregular cycles. After the instability comes the fall.

Essentially, Democrats have been so interested in pushing their nonsensical political goals without any regard to its effects on people and businesses. The number of Americans who remain unemployed many years into the Obama Administration is no small part of this problem. The American consumer does not feel comfortable spending money on anything beyond the necessities of life.they feel very limited in their ability to invest in the future. Owners of businesses are not willing to hire full-time employees because of healthcare costs arising solely from Obamacare. They are cutting healthcare insurance expenses as fast as they can just to maintain a breakeven point. 

America has been the engine of worldwide growth since at least 1895. In the name of democratic political goals, we have steadily destroyed what made our economy the envy of the world. Economic strength allows deep pockets to finance the ability to create and maintain a cutting edge and powerful military. 

This military allows the use of threats of force to bring wayward regimes into line with peaceful intents. This limits the amount of war that America needs to fight. Every war avoided by a projection of force is cheaper than any war actually fought. All you need to do is simply compare the costs of the Iraq war and the Afghanistan war with what we had followed throughout the term of the Cold War. During the Cold War America could project more force around the world and limit the amount of money that was spent in any one region of the world. In the current environment, America does not have the ability to project force and has spent money in a very limited region of the world.

Democrats have used teachers unions to miseducate our youth and college age students that the military force is about empire building. Nothing is further from the truth. The projection of force is necessary whenever small groups of people are together. In cities we call a projection of force a police department. In statewide situations it includes the National Guard and state police. In federal circumstances it includes multiple law-enforcement agencies and the US military. 

From our nation's founding, it has been widely understood that the ability to project force is a necessary component of maintaining peace. The ability to project force is also one of the key characteristics that should be fulfilled by government. 

Since liberals completely misunderstand the role of force in maintaining peace they misunderstand the need for individuals to bear arms. They misunderstand the need for police to be able to maintain a threat of force to avoid actual conflict. They misunderstand the need for the US military to be able to maintain a threat of force to avoid conflict overseas and for border agents on our borders.

The ability to maintain the threat of force, the ability to pay for the threat of force, the ability to provide for oneself, and the ability to grow business enterprise or inextricably linked. When those links are broken, you end up with a series of chaotic events. 

Throughout history there have been many fools who have persuaded themselves that they can create chaos and then ride to the rescue to receive the accolades of the many for the fool's efforts at taming chaos. All too often these fools are consumed by the chaos they create. The problem is they are not often consumed quickly enough to prevent the chaos. They often are allowed to survive so that the chaos has its opportunity to reach its maximum force. 

Obama seems to be one of these fools. He has worked actively to undermine the US economy. He has always said that he was doing this in the name of equality and fairness. The result of his equality and fairness is creating a series of opportunities for thugs and criminals to end up equally stealing from all members of American society until all are impoverished, except the most criminal. He believes that all businessmen are criminals. Instead he creates an environment that creates a self fulfilling prophecy. Only crony capital behaviors can make money in the environment that Obama seeks.

He creates situations where money can only be compiled in large masses by major corporations under the thumb of US government and government agencies. Then those agents of the government, whether direct or indirect are then only allowed to use money in the ways that government allows. Each step along the way individuals have an opportunity to become the criminal that misappropriate some money.

This completely works in opposition to all tenets of American government from its founding. In those situations the individual is empowered to protect himself and his property. He is not able to accumulate nearly as large as some of wealth because other people are accumulating wealth at the same time. The competition results in better goods and services with smaller accumulations of wealth in any one person's hands.

 Large accumulation of wealth are most likely in situations where the government has tried to intercede. It happens most in current American society whenever the Security and Exchange Commission has set up rules blocking the use of small investments and less large regulatory hurdles are overcome, leading two large sums of wealth in fewer and fewer hands. Essentially government asked to lower the costs for wealthy people to acquire more assets and raise the costs for smaller competitors to be involved in the market. This is all done in the name of protecting the many.

It happens when government decides to improve everybody's health care by raising the cost to entrepreneurs for running their business. They trying to keep the cost of paying for healthcare to businesses. They played this game since World War II by creating tax deductions in high tax rate situations. The population becomes dependent on the employer to pay for healthcare. The population has no idea what the real health costs are. They just know they need a job to get healthcare. With the cost of healthcare continuing to go hide because the customer has no idea of the costs, government continually intercedes and creates repeated problems that continually escalate the cost of healthcare.

Obama only accelerated this historic process. In effect, this  acceleration provides a counterbalance to the accumulation of wealth by individuals. It makes it nearly impossible for breaking even Enterprises to stay in business. The revenue generation collapses. They're no longer able to pay taxes to the government. The government has to cut back on spending in order to justify it. In looking for cuts it looks for the biggest place that cuts can be made the voters will not feel. The first place to look is the military.those cuts or harder for an individual to see unless he is in the military. The general public feels better about themselves. At the same time the US is able to project less power.

Essentially the restriction of US economy both drives down the cost of oil and creeds and stability in runaway pricing countries such as Saudi Arabia while making the US less safe.

Democrat policies to discourage oil exportation from the US, limiting drilling in the US, and putting overly burdensome environmental regulations on any drilling efforts have served to keep the US limited on it's own oil production. Given the fact that the oil that is capable of being extracted from the US is far larger than the amount that is considered part of our oil reserves,this leads to many questions about how we serve to artificially raise the price of a barrel of oil.The recent boon in production in the US from the Bush administration energy policies has led to this new reintroduction of market economics to the international oil market.

While a short-term transition will lead to instability throughout the Middle East, over the long term it has the potential to create new stability. Unfortunately, that new stability needs the projection of force to allow the transition to move towards an orderly settlement as opposed to the increase in chaos that is most likely without a projection of force from a stable player like the US. 

And more logical set of circumstances to create long-term stability would be to reduce the burden is on American business, make drilling easier in the US, remove artificial financial support for alternative energy sources that do not generate economically efficient BTUs, and increase the size of US military. With these policies in place there would be a push on the price per barrel of oil to actually come to a economically driven equilibrium. The force available from the US military would be able to limit the effects of national and large-scale military operations for groups seeking to promote chaos.deployment of rapid response groups would be able to limit the effects of partisan military tactics by smaller military groups. Then jihadists and other chaos inducers  would be put back in their place because they would find it less useful to get killed with no gains to show for their death. The threat of their death would become more valuable for US policy. The US would need to be involved in fewer actual military conflicts.

Simply put Democrat ideals inevitably lead to chaos. They promote chaos. They aspire to chaos. They don't understand how much death and distraction they leave in their trail. They claim to be improving an individual's life. They see the individual voter they wish to persuade. They pay no attention to the unseen thousands of people that are destroyed by these policies. There is no moderation or balance in their thought. Since they cannot think past due one person standing in front of them as a possible voter, they cannot claim to actually be rational and reasonable. To be rational requires thinking through the logical consequences of inaction. The hardest part of rational thought is to seek out unseen and possible, unintended consequences. A Democrat will avoid these thoughts at all costs. The voter today and tomorrow supersedes all other concerns.

Frankly, the cost of the price of oil tells more about what is likely to come in the near future than many other elements of economic analysis. High oil prices mean more money is available for destabilizing forces that thrive on chaos. Lower oil prices lead to thriving orderly economic units. 

So tell me again, why oil is so evil?