Category: Commentary

Today we take on the Electoral College, one of the most misunderstood pieces of our government. It is much in the news recently, as an initiative is afoot to undo it without amending the Constitution. The idea is to get enough states to commit their electors to whomever wins the national popular vote, regardless of how the votes in a particular state go. So, for example in the last election, if the people of Colorado voted overwhelmingly for Donald Trump (they didn’t), the electors from Colorado would still have cast their votes for President for Hillary Clinton, based on the fact she received more votes in the national vote totals. If enough states pass similar rules, the electoral college becomes irrelevant, and the winner of the national popular vote becomes President.* Simple, yes?

Now if you were shocked (everyone was) and appalled (some were, some weren’t) by the results of the November 2016 election, it is entirely understandable why you might blame the Electoral College. But should we change it on that basis, and why do we even have this (very unique) institution? You be the judge!

A quick review of the Electoral College: you don’t vote for President. You vote for a name associated with a slate of state electors who then convene and award the electoral votes from your state to a candidate. Sounds redundant, and it is. Each state determines how its electoral votes are awarded. The most common method is “winner-take-all,” although Maine and Nebraska use more elaborate methods which apportion their votes by congressional districts. The number of state electors is equal to the number of the state’s federal representation (House & Senate) meaning every state gets at least three (two senators and one representative), and more populous states then get more.

One reason the founders created the college was to balance against the tyranny of very large states. At the time, the founders feared Virginia and New York, the two largest states, might get together and trade votes between each other, ensuring the President always came from one or the other. While this threat seems quaint now, it is paralleled in the notion today that absent the Electoral College, a candidate might only campaign in New York city, Los Angeles, and Chicago (for example) in hopes of running up such a large vote advantage in metropolitan areas they could ignore large portions of the country.

Critics say this already happens: they charge that Democratic party voters are disenfranchised in red states as their votes don’t count, and it makes no sense to campaign in such states. First I would note that of course all the votes count, just some people voted for a winner and others voted for the loser. Second, Virginia was once one of those wasted-vote states until enough Democratic party voters moved there, turning it purple and now (perhaps) blue. So electoral reality changes, as it should. Finally, the difference between not needing to campaign (i.e., being able to ignore a state) and not wanting to campaign (because it is a lost cause) is an important one. No system which intentionally ignores large sections of the country can long endure.

Which leads to the chief criticism of the Electoral College: it is anti-democratic. This is 100% correct. As I noted before, the founders were very suspicious of the simple voting majority, and one of the reasons for creating the concept of electors was to have a group of reasoned, thoughtful citizens second-guess the popular vote: you can’t get much more anti-democratic than that! Doesn’t this ignore the wishes of “large sections of the country,” the claim I just described as unsustainable? No. Even in the last election, the country was evenly divided, and the electoral college less so. The national popular vote majority collected by Senator Clinton (three million votes) was dwarfed by the majorities she achieved in California and New York (six million votes). Stated another way, absent those states, candidate Trump “won” a majority of the popular vote in the other forty-eight!

So is the Electoral College just an unnecessary anachronism which gets in the way of our democratic process? We won’t know how necessary it is until we change it, which is always a hard way to learn (see constitutional amendments 17, 18, and 21). It is no more an anachronism than our constitution is: both are old, both still work. Does the electoral college get in the way of our democratic process: Yes, just as the founders intended.

There have been critics of the college from the very beginning. They surge in number and volume after any election when the winning candidate did not win the popular vote, which has happened five times out of fifty-eight elections. Consider the following question: is the drive to eliminate the college a principled effort to fix a longstanding problem, or an emotional reaction to a shocking election result?

Recall that prior to the 2016 election, it was then-candidate Trump who opined he might lose due to the “rigged system.” And it was then-candidate Clinton (and then-President Obama, among others) who rightly criticized him for attacking the system simply because he didn’t like the probable outcome. That debate was not specifically about the electoral college, but the principle holds: we don’t make drastic, summary changes to a system which has worked so well for so long, simply because we don’t win.

*Eagle-eyed observers may note that the movement to circumvent the electoral college has not been ruled on in the courts. If someone from a state adopting the approach sues for relief, the Supreme Court would have to rule whether the entire concept is an unconstitutional route to amending the existing constitutional system. ¡Ay Caramba!

The never-ending immigration debate continues to shed more heat than light. I see more vague, heartless, and ill-informed opinions on this topic than just about anything else. As a pro-immigration conservative, I often feel like my views aren’t reflected in all the noise. Here they are; I hope they are specific, compassionate, and informed.

America is just different. I am not implying necessarily better, but no sane person can deny the core attractiveness of the concept of America. We are a creedal nation: one defined not by blood or religion or geography, but by an individual’s commitment to espousing a common set of beliefs. If you wonder what they are, re-read the Declaration of Independence and the Constitution. More people want to come to the United States and live there than anywhere else in the world, and the numbers are not even close. Some immigrants already espouse the American creed; others just want to get away from whatever ills plague them in their own country. All we ask of those who arrive in America is they (eventually) share our creed.

Alas, more people want to come and live in the United States than the United States can reasonable digest. It is not a matter of space or jobs: it is a matter of culture. Just as America changes everyone who comes to live in it, every immigrant (legal or not) changes America. The vast majority of immigrants make America better. A tiny minority make it worse, or even intend to do it harm. Regardless of good intent, cultural changes take time.

If you look throughout American history, the greatest anti-immigrant movements happen not during large swells in immigration, but just after, as the new immigrants settle down and spread throughout the country. Thus has it always been; thus it is today. Foreign-born residents made up 13.7% of the US population as of last year, the highest level since 1910 (14.7%). When the first foreign immigrant lands in your small town, he is a curiosity; when several hundred follow, you begin to wonder why you can’t find white bread at the corner “supermercado.”

Asking such a question is not inherently racist or anti-immigrant. Racism requires intent (I know some academics posit a whole different theory of implicit racism: I disagree, but let’s leave that for another post, another day). As an expat in Mexico, I often hear expats complaining that we as expats should not change the local culture. These same voices call people racists when Americans say immigrants should not change America’s culture. Consistency, anyone?

Since the wave of immigration has passed, a wall is not the solution, as I have previously noted. That said, a wall is neither moral or immoral, it is just an object of policy. A wall can trap innocent people in utter subjugation: see “Curtain, Iron.” A wall can keep sadistic murderers from harming innocents: see “Prison, SuperMax.” Some immigration proponents state that the existing US-Mexico border wall is immoral because it forces immigrants to the desert where they are more likely to perish. These same people claim the wall is ineffective. Logic, anyone?

America has less physical border control than almost anywhere. I say almost anywhere, because contrary to FaceBook memes, the tiny Vatican state has none. Due to the amiability of our neighbors (and despite our occasional extra-territorial forays), America has few walls or fences, and only recently (post 2001) became interested in tracking people coming and going. America didn’t even have immigration laws until the late 19th century; our view was “if you can get here, good on you!”

Today, America’s immigration system is designed to be difficult to pass. There is simply too much demand, from too many places, and Americans see no reason to to make it easier. We have to screen against drug smugglers, foreign terrorists, child-traffickers, routine criminals, and folks who just want to come to America despite not qualifying. We have to screen people from everywhere, with every language, dialect, religion, race, and culture. We have to move hundreds of thousands of people and millions of dollars of products across our borders instantly everyday to fuel our trade-based economy. And we have to do all this while remembering–in our creedal nation–you can’t spot a “real American” by how they talk, dress, pray, or behave. Some humility for the challenge facing our immigration and customs officials, por favor?

Some people think immigrants (legal or not) get a free ride of generous benefits at the cost of American taxpayers. Most immigrants would admit their material life is better in America, at least eventually. But immigrants qualify for only the most basic public services, such as the right to children’s education, emergency medical care, some anti-poverty programs, and various legal protections. Mostly they work multiple (lousy) jobs, have taxes and Social Security taken from their pay (which if not legal immigrants, they will never be able to file for and recover), and send as much of their paycheck home as possible to support a family.

I hope I never hear the phrase “We are a nation of immigrants” again. It is true and utterly specious. The phrase is trotted out as some kind of justification, but for what? The Native American peoples came to the hemisphere from elsewhere, and they were not uniformly welcoming of the newly arrived European settlers. Subsequent groups of migrants arrived in accordance with the few laws and limits on immigration, but were more often threatened than welcomed. Hardly a history anyone should cite to support any position in the current debate.

Likewise, spare me your tired, huddled masses of Statue of Liberty quotes. The statue, a gift from France in 1886, is a monument to the American ideal of Liberty (remember, our creed?). It’s official title is “Liberty Enlightening the World” and its design is based on the Roman goddess Libertas, calling to mind the connection between the Roman and American Republics. By coincidence only, it sits on Liberty island, not far from Ellis island, where millions of immigrants later processed to enter the United States. What about the famous “give me your tired, your poor, your huddled masses, yearning to breathe free?” It is inscribed on a plaque at the base, in the museum. Emma Lazarus wrote the poem to promote the acceptance of refugees as part of a fundraiser to pay for the base of the monument. The Statue is about why people would want to come, not whether they should be allowed to.

If overall immigration is at modern lows, why are we having a debate? For one reason, the time to solve any political issue is when there is no crisis. You fireproof the building when you can, not once the fire rages. There is a surge in the number of families and children from Central America arriving at the US-Mexico border. Some suggest it is the fruit of America’s long involvement in Latin American affairs. If that were the case, we would expect to see the greatest number of immigrants from the countries where America was most recently involved. Most of the immigrants come from Honduras, Guatemala, and El Salvador. America supported several coups in Guatemala in the early 1980s. Yet America invaded Panama in 1989; where are those refugees? America supported a coup against Honduran President Zelaya when he suspended the constitution and tried to remain in office in 2009; so why did Honduran emigration increase ten years later?

The reality is all these countries are experiencing increasing violence and decreasing economic opportunity. The migrants who arrive at the American border frequently tell media sources they ‘just want a better future for their families’. Given the demand to immigrate to America, ‘wanting a better future’ is not going to get you into the country legally. Legal immigration is handled in the immigrant’s home country and strictly regulated by national quotas. These migrants are showing up at the border and claiming asylum as refugees from a “well-founded fear of persecution.” I’ll spare you the legal details surrounding this phrase and just note that high crime and no good jobs won’t qualify, meaning most of these asylum-seekers will be denied. But if that is so obvious, why did they risk so much? How do poor people from underdeveloped, violent nations suddenly decide to risk everything to walk with their children to the United States?

There are two groups responsible for spreading the word: human-traffickers and pro-immigration activists. Agustin Gomez, the Guatemalan father of the young boy who died in ICE custody after crossing the border, said, “We heard rumors that they could pass (into the United States).They said they could pass with the children”. The coyotes who organize and move people across the border are actively recruiting and offering discounts for migrants who bring their children with them. One coyote told the foreign press, “Everyone took advantage and sent them (the children) over. Some coyotes charge less because they know if you turn yourself into immigration, there is no problem. You will always go through.”

Meanwhile, groups like Pueblo Sin Fronteras (People Without Borders) have been visiting communities in Central America for fifteen years, helping organize groups to reach the United States in protest of American immigration laws. Desperate people are told they will be welcomed; they are used: by the coyotes for profit, by others as political tools. The numbers of such immigrants are not yet a crisis, but they are taxing America’s ability to detain, care for, and process them. They are increasing, and there is no logical reason for them to stop coming.

If you care, I have covered my views on immigration previously here. I would only add that the problem of families with children showing up to request asylum will only grow worse. It got bad once before under the Obama administration, and it was only brought under control by a combination of carrots (foreign aid, direct support to Mexico, catch-n-release) and sticks (family detention, some child separations, threats to without foreign aid). Sound familiar? That administration was (I believe) embarrassed by what they did, but they still did it; the current administration seems proud of it. In any event, some of those policies have been ruled unconstitutional, so there are fewer tools to address the situation.

The plight of these refugees is horrific. Imagine how bad things must be to decide to walk hundreds of miles with your children to an uncertain future. It is immoral to separate children from families just to deter immigration; it is just as immoral to encourage families to take their children on such a trek without any reasonable hope of success. Those who simply say “welcome them” must answer the questions: what solution do you propose? how many will qualify? why favor those that can walk to the border (Latin America) over those who can’t (Africa and Asia)? how will we pay for it? and, where will they go? There is nothing compassionate about the moral hazard of encouraging poor people to undertake great risk neither they, nor their chosen host nation is prepared for.

Part of the reason the immigration debate is so nasty, is it isn’t just about the immigrants, but about who we as Americans are. The nature of the American creed is up for debate: what are we asking the immigrants to profess to believe in? Compassion or the rule of law? The right to life, liberty, and the pursuit of happiness? Individual autonomy, diversity, and acceptance? Different views of who we are color how we approach the problem. Either way, the people who suffer most are those most vulnerable: the would-be immigrants themselves.

While we were on pilgrimage, the US Supreme Court (SCOTUS) held forth its opinion in the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission (CCRC), popularly known as the “anti-gay bakery case.” I would like to revisit it now, because the popular views of the court’s ruling (both for and against) were so misinformed as to be unintelligible, and to consider what this case portends with respect to the ongoing crisis of incivility.

First, to the facts of the case. It is important to understand that what I write  in this paragraph is not an opinion of mine or anyone else.  The facts of this case were never in dispute: neither the plaintiff nor the defendant disagreed about them. Those facts were: Mr. Phillips was a Colorado baker who makes both normal, daily bakery items and custom-ordered designs. Mssrs. Craig and Mullins were a homosexual couple living in Colorado and planning to get married in Massachusetts, and they went to Phillips’ Masterpiece Cakeshop to order a custom cake to celebrate their impending nuptials. Phillips refused to create such a cake, due to his religious beliefs that marriage was only between a man and a woman. Phillips admitted he had no religious obligation to refuse them normal service, and offered any off-the-shelf product to his customers. Mssrs. Craig and Mullins filed a civil complaint before the CCRC contending that Phillips violated Colorado’s law against discrimination. The CCRC held Phillips in violation of the statute and fined him.

SCOTUS held for Phillips, the plaintiff, voiding the penalties applied to him by the CCRC under Colorado law. Conservatives of various stripes hailed this as a victory for personal religious liberty; progressives cited it as a legitimization of hate. Most news coverage highlighted these viewpoints, even though both views were wrong. Let me explain.

The plaintiff’s case relied heavily upon freedom of speech, and only secondarily on freedom of religion. Phillips’ argument was that making a custom cake was artistic expression (already held to be freedom of speech by SCOTUS), and he could not be compelled to express a belief (gay marriage) he did not hold simply because his services were for sale. While all the opinions discussed this issue, it was not the basis of the decision. Writing for the 7-2 majority (an important point, that), Justice Kennedy never resolved the discrimination vs. religious liberty issue, although he did concede that freedom of speech was at risk. What he focused on was the CCRC ruling, or more specifically, what the CCRC did and said in making that ruling. This is where it gets very interesting.

Citing the transcripts of the CCRC hearings, Kennedy found that the commission–which is responsible for protecting against all unjust discrimination, including anti-religious discrimination–had in fact engaged in anti-religious hostility. Commissioners “endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, implying that religious beliefs and persons are less than fully welcome in Colorado’s business community.” One commissioner  “even went so far as to compare Phillips’ invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust.”

I mentioned the outcome was 7-2. Unlike some of the controversial 5-4 SCOTUS decisions recently announced, Masterpiece Cake shop’s majority included Justice Kennedy (who established Gay rights in his former majority opinions) along with Justices Breyer and Kagan! The last two published a concurring opinion which emphasized that it would be ok for a state to punish the baker’s refusal, but in this case the state had engaged in religious hostility. Thus this aspect was not narrow, and the outcome even more striking.

Contra much public reporting, this case neither established a religious exemption for behavior nor legalized hate.  What it did do was more important, in my opinion. SCOTUS held that suggesting religious believers, even individual ones, cannot express and act on their views in public is a form of anti-religious bigotry. Further, suggesting “religious people” are inherently no different than Nazis or slave holders is inappropriate. One can hear these arguments made regularly on social media.  It is heartening to know that in the United States, such views are beyond the pale, and subject to civil sanction.

Civility demands we not question each other’s motives. Everyone is free to bring ideas forward for consideration, and those ideas will fail or succeed based on the merit in them. The Reverend Martin Luther King, Jr., hoped for a nation where one was not judged by the color of one’s skin, but on the content of one’s character. It goes without saying our ideas should not be judged by the religion (or irreligion) of whoever proposes them, but by the quality the ideas possess.

 

 

Those who regularly follow my blog know I rarely venture into political commentary, as that field is overgrown with poisonous weeds and nasty critters. Sometimes, stuff happens that you just can’t ignore; this is one of those times.

The current US administration policy requiring the separation of illegal migrant children from their parents–for whatever reason–is an abomination. The DHS Secretary and others claim that this is simply the inevitable result of a series of court findings and laws passed under previous administrations. That is a technicality, and irrelevant. If it were the case, the separations would have commenced back in January 2017. Attorney General Sessions has admitted part of the reason is ‘to send a signal’ to deter further illegal immigration. You do not send a signal by mistreating children, unless you are the Mob, or MS-13.

This is an administration choice: a conscious policy decision. It must be reversed.

Why is the administration doing this? I contend that President Trump is irritated that he cannot get his border wall funded by Congress. Further, the policies of President Obama set a precedent that children illegally entering the country would be treated more favorably, and this predictably caused the latest immigration challenge of minors (with or without parents) arriving at our borders. It was a crisis in 2014; it is less so today, but still a challenge. We must be honest about the conditions that created the opportunity for this vile policy.

All that said, nothing justifies the current policy: it is abhorrent. We have to come to grips with several real issues.

First, the Unites States cannot accept all families and children who are threatened by violence in their native lands. It sounds sweet, but it cannot be. Thus we have to give our immigration officials guidance to determine who does qualify for asylum under such circumstances, and who does not. This will be hard, and will result in some sad cases. Anybody who wants to join the argument must answer the question “where would you draw the line?” If you just want to post pictures of children crying, you disqualify yourself from the debate. Posit a solution.

Second, we need to clearly publicize our policies in those countries which are the primary source of such immigration, mostly in Central America, and we need the cooperation of local governments with our policy. We also need to improve our relationship with Mexico, as this is the means for such migration and when we have poor relations, the Mexican government feels no need to assist us in reducing it.

Third, we probably need to fund President Trump’s wall. Notice I didn’t say “build it,” just fund it. It won’t work; I explained why here. But as long as it remains unfunded, he will continue to search for ways to leverage any issue into a trade for funding. That is what is happening now, in my opinion. It is a huge infrastructure project, it won’t get done anytime soon, and we can pull the funding as soon as the chief proponent is gone.

Fourth, we need a rational policy for temporary workers from Mexico. We had a good guest worker program (Bracero) for years until President Kennedy went along with spiking it in the 1960s. Re-institute it, which will immediately improve the US- Mexico relationship, help ICE re-direct to more important matters (like violent criminal aliens), and provide needed workers in agriculture (we are approaching full employment, meaning soon there will be more jobs than people to do them).

Fifth, whatever rules we come up with for families with asylum requests, or for entering illegally, we will need to have some way to detain them. Anyone arguing to resume the failed “catch-and-release” policy of past administrations is being irresponsible. While there is no immigrant crisis, the notion that we can simply detain such people then release them in the country until they eventually (could be years!) get a hearing is unworkable. Think it doesn’t cost us much? It led to the Trump phenomenon. Ponder that for a moment. Therefore, detaining families or unaccompanied minors is going to mean some type of camps, and we need to be clear-eyed about the conditions. They need to be safe, secure, and comfortable (remembering the standard of comfort migrants expect). The camps we have now are pretty good; don’t believe me, read this from the Washington Post. When we compare them to the Holocaust we undermine the case. The camps are not the problem; the stupid, immoral policy is the problem.

I will not apportion blame in this case; there is plenty to go around. Both sides are playing to their bases, using images and sound-bites to fire up the crowd. Since Mr. Trump is President and the Republicans are in control of both houses, it is incumbent on them to lead. The Democrats must stop using this issue as a tool for the mid-term elections. If anyone really cares about the people, the children, they will stop scoring political points and act, by compromising.

This is difficult, not impossible. This is unspeakable, not unsolvable.