Category Archives: rights

e pluribus unum

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This post is adapted from a passage in Chapter 4 of my book A Conservative’s Manifesto.

What is the “many” in the title, the pluribus? When the phrase was first proposed for the Seal of the United States in 1776, it referred to the 13 States being joined into one nation. It has come to mean, in addition, the several peoples, religions, languages, heritages, and so on who come to the United States to join our great experiment in individual freedom and individual responsibility.

What is the one, the unum? That’s the point of this post.

We Americans take in and incorporate (note that verb) immigrants, and gladly so, for they bring fresh ideas as well as fresh approaches to old problems and a renewal of dedication to nation. However, we should not become our immigrants—they need to become Americans, or alternatively to recognize their resident alien status. Those who come to the United States do so for the opportunities here, and they’re welcome to share in these opportunities—immigrant and legal alien alike.   Immigrants come to America specifically for the economic opportunities, the political freedoms and opportunities, the sociological opportunities—in a word, for the American culture, which they know a priori to be different from their own—and which they understand to be the foundation of our American exceptionalism.

Immigrants need to adapt to, and assimilate into, our culture. Some will argue that this implies an imposition of a particular majority culture on minorities, but it is not an imposition. It is a recognition and an acceptance that to benefit from what America has to offer, to benefit from American opportunities, and to preserve these for Americans already present and for future Americans, native born and immigrant, it is necessary to preserve and to adapt to that which is America. Immigrants holding themselves apart denies to them the very reason they came—our opportunities and escape from the restraints of their old countries.

What immigrants must do is accept the current political structures, which they knew from the start, and take part in their new community. These new citizens, like the “original” citizens, must speak a common national language and share the commitment to maintaining and defending the nation. And so, having committed to the nation—to America—they will have their impact by engaging as citizens in our common discourse. However, this is not a demand for sublimation. On the contrary, once immigrants have become citizens, rather than having chosen to remain resident aliens, they can, they should, actively participate in that common discourse and make their influence concerning the nation’s goals and future through free discussion.

Parenthetically, the need to preserve these American attributes, these fundaments of American exceptionalism, emphasizes, also, the importance of providing civics courses that teach the American social contract and American citizenship in our schools, so as to reach all American citizens.

Freely Traveling and Peaceable Assembly

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The US government offers no adequate method for people to challenge their placement on its no-fly list, a federal judge ruled Tuesday in a case involving 13 Muslims who believe they’re on the list.

US District Court Judge Anna Brown found people lack a meaningful way to challenge their placement on the list, which bars them from flying to or within the United States. She also said the 13 people who sued the government have been unconstitutionally deprived of their right to fly.

The Federal government’s no-fly list is treated as secret, and it’s through this list that the Federal government determines who is barred from flying from or to US airports.

Brown earlier had ruled people had a constitutional right to travel and via this list, the Federal government had violated that right.

How do I get from this to peaceable assembly? These 13 innocents, by their placement—against their will—in company with terrorists who are on the no-fly list is one path. The government’s denial of their right, through denying them a pathway, to protest against that association and be removed from it is another. Preventing these 13 from traveling via a transportation of their choice—and so of associating themselves with travelers of their choice (strangers they may be, but still fellow air travelers)—is a third path.

Obama Is Legally Allowed to Enforce—or Not Enforce—the Law

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Amazingly, a professor at the University of Chicago’s law school wrote this in the New Republic, and he’s serious. Yet he cites not a single clause from the Constitution, not a single phrase, to support his…thesis.

Eric Posner wrote, among other things,

Would President Barack Obama, by refusing to enforce the immigration laws against millions of undocumented immigrants, be engaging in “domestic Caesarism,” as Ross Douthat charges [in a New York Times op-ed]?

…if he chooses not to enforce immigration laws against “up to half the country’s population of illegal immigrants,” as Douthat claims, the president wouldn’t be doing anything different from what his predecessors have done (or rather, not done).

There’s that Progressive morality, again. The rightness or wrongness of a behavior isn’t at all inherent in the behavior. No, the behavior’s morality is determined solely by whether someone else did it first or is doing it also.

And

The president cannot suspend or change the law: when he leaves office, the law will remain the same as it was, and the next president will be free to enforce it or not.

No, no president, nor Obama nor any “next president,” is free to not enforce the law (nor has any past president been, although past ones have been guilty of this, also; Posner is right on this much). Here’s what Article II, Section 3, has to say on the matter:

he shall take Care that the Laws be faithfully executed

Full stop. There’s nothing in there about taking Care if he feels like it or taking Care not to faithfully execute.

And

The executive branch spends a lot of time not enforcing laws. Congress has illegalized an enormous amount of activity without giving the president the resources to enforce the laws, so the executive has no choice but to make a list of priorities and devote its attention to law violations that, in its opinion, are the most serious.

with

Nearly all of this non-enforcement takes place with implicit congressional acquiescence….

This merely means Congress may be failing its tasks, too (“may be:” Congress has no obligation to allocate money to be spent in amounts a president might demand. A case can be made, in fact, that Congress allocates too much as it is); it in no way legitimizes Presidential lawlessness. Certainly, a lack of resources does increase the difficulty for a President. However, the difficulty in no way legitimizes choosing not to enforce.

This is, also, a straw man. This President also chooses not to enforce laws for which he has the resources: the Business Mandate and the Individual Mandate of the ACA; border security; delivery of subpoenaed documents to the Congress that subpoenaed them, including Benghazi, Fast and Furious, the IRS; refusing to comply with Congressional oversight; the list runs on.

Then there’s this:

People like Douthat wrongly think that separation of powers means that the president must do what Congress decides. That’s not the principle of separation of powers….

This is another straw man. The Constitution gave the President executive power for the purpose, among others, to take Care that the Laws be faithfully executed, not to choose among them to enforce only those convenient to him. In this guise, the President must, indeed, do what Congress decides: he must enforce the laws that they pass—and that become actual law when he signs the bill and thereby enacts it, or when they pass it again, over his veto. To do otherwise is the principle of Executive supremacy, embodied in monarchies like an earlier Britain’s, against which we rebelled some years ago.

And this:

If Congress cannot pass any laws because of gridlock, then it has violated its obligations under the Constitution, and accordingly the president has the right to use his enforcement powers to implement policies that serve the public interest.

Of course, a President has no such right. There’s that pesky Art II, Sect 3 clause, after all, which also contains no syllable of authorization for a President to create “law” on which he might then presume to act. Further, in the entirety of that second Article of our Constitution, there’s no such “right,” or power, or authority identified.

Above all that, the President has no authority to decide what “policies…serve the public interest.” That’s the province of We the People, who are the public, and we make those determinations through our elected representatives in the Congress.

Posner’s piece goes on, but you get the idea.

Appellate Court En Banc Hearings

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The DC Circuit a short time ago held in Halbig v Burwell that Federal regulations regarding Federal health plan exchanges violate Obamacare’s plain language: Federal subsidies, contrary to those regulations, are available only to health plan holders who got their plans through State-run health plan exchanges.

Adam White, in a recent Wall Street Journal piece in the context of that ruling and the Federal government’s subsequent appeal to the DC Circuit to rehear the case en banc, noted a couple of things.

One is how rare en banc (re)hearings are, especially for the DC Circuit:

The DC Circuit rehears virtually none of its cases. Each year the court’s three-judge panels make roughly 500 rulings, but the court averages roughly one en banc rehearing. This year has produced a bumper crop: two. The previous year: zero.

Then he got into why this is so.

…the court’s high standard, found in the Federal Rules of Appellate Procedure: en banc rehearing “is not favored and ordinarily will not be ordered” unless the case satisfies one of two standards. First, an en banc rehearing may be needed to “secure or maintain uniformity of the court’s decisions.” A three-judge panel is not allowed to overrule old precedents, even when precedents are in conflict; only the full court can do so, en banc.

Second, en banc rehearing is appropriate for what the federal appellate rules call cases of “exceptional importance.” For the DC Circuit, this standard has been met almost exclusively by cases raising serious constitutional issues. Over the past decade seven of the nine cases reheard en banc raised difficult questions of constitutional law, such as the rights of Guantanamo detainees or of terminally ill patients.

Cases that will substantially affect the court’s own workings also can be deemed of “exceptional importance.” In 2011, the court sat en banc to decide whether taxpayers could file lawsuits challenging IRS procedures for obtaining tax refunds.

Halbig was a straightforward application of the Obamacare law as it was written. That the 4th Circuit saw this differently isn’t relevant; the DC Circuit can only rehear its own cases, not those of sister appellate courts. There’s no precedent conflict here. Some might argue that the question has Constitutional significance, and I’d agree with them. However, neither set of litigants raised any sort of Constitutional question, and the case and the ruling turned on the law itself. There’s no Constitutional controversy here, either.

What about the case’s “exceptional importance?” Judge Harry Edwards, who dissented in Halbig, wrote this in a 1987 case [Edwards’ emphasis]:

[N]o judge agrees with all of the decisions handed down in the circuit….” But if each judge called for en banc rehearing simply to overturn a panel decision with which he personally disagrees, it would do “substantial violence to the collegiality that is indispensable to judicial decision-making.” Rather, en banc review must be reserved for “the rarest of circumstances… [with] real significance to the legal process.”

In the context ofHalbig, it’ll be instructive to see whether the DC Circuit’s newly appointed judges are appellate judges who happen to be Democrats or whether they are Democrats who happen to be appellate judges.

What about a Palestinian’s right to freedom?

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This is the headline of a FoxNews op-ed by Faheem Younus, President of the Baltimore branch of Ahmadiyya Muslim Community USA and a senior fellow at the University of Baltimore’s Hoffberger Center for Professional Ethics. It’s a fair question.

Younus asks us to

think of the current Israeli-Palestinian conflict in terms of the movie “Shawshank Redemption,” which shows the quest for freedom of an innocent banker serving two life sentences under hopeless circumstances. The cast goes like this: the criminals are Hamas, the warden is Netanyahu, Andy—the banker convicted of murder—is your average Palestinian, and Shawshank is Gaza.

His strawman includes his claim that ordinary Palestinians—Gazans, actually—are prisoners of the Israeli Prime Minister Benjamin Netanyahu. Then Younus expands his claim:

But lately, the Palestinian’s moral right to exist has become a political wrong to list.

Recently, it has become evident that millions of innocent Palestinians will serve life sentences in this Shawshank, that there is no two-state solution, that their yearning for freedom is being swallowed by the biblical dream of a Greater Israel, stretching all the way from the Jordan River to the Mediterranean.

Of course, Israel has made no such claim. Israel favors a two-state solution (which, of necessity, includes the Palestinians’ “moral right to exist”), having learned from the West’s colonial days, followed by general colonial independence and trade, that the path to prosperity, for Israelis and for Palestinians, including Gazans, is through states freely trading with each other.

While purporting to decry Hamas’ behavior, though, what Younus does not discuss is that when Hamas and Fatah merged under the Palestinian Authority and Mahmoud Abbas’ leadership, the PA became a terrorist state. Younus denies this (without substantiation), and the PA’s initial rhetoric also denied it. The ensuing empirical facts, though, prove the terrorist nature of the unity government, this new PA. The PA launched their latest terror war just weeks after the unity government’s formation; it has pursued its terrorism with rocket attacks against Israel’s nuclear facility; it has pursued its terrorism with endless rocket firings into Israel with the sole purpose of killing as many civilians and children it can; it has pursued its terrorism by storing its rockets in hospitals, UN facilities (it’s impossible to believe the UN had no complicity in this), and private homes; it has pursued its terrorism through firing from these same homes and hospitals; it has pursued its terrorism by using Gazan civilians and children as personal shields in engagements with the IDF; the list goes on and on and on.

The ensuing empirical facts also include these two: the Fatah part of the PA has been utterly silent on this terrorism. Fatah’s silence is a deafening roar of approval of the PA’s terrorism. Also, Abbas has openly stated he agrees with the attacks.

Gazans—ordinary Palestinians—are not at all prisoners of Netanyahu or of Israel generally. They’re hostages of the terrorist PA, and badly abused by it.

As to that rejection of a two-state solution and a favoring of Younus’ mythical Greater Israel, this is what Netanyahu has said:

“If we were to pull out of Judea and Samaria, like they tell us to…there’d be a possibility of thousands of tunnels” being dug by terrorists to attack Israel, [Netanyahu] said. There were 1,200 tunnels dug in the 14-kilometer border strip between Egypt and Gaza alone…. “At present we have a problem with the territory called Gaza,” the Prime Minister said. But the West Bank is 20 times the size of Gaza. Israel, he said flatly, was not prepared “to create another 20 Gazas” in the West Bank.

The Palestinians do, indeed, have their own right to freedom. And to the prosperity that goes with freedom. The path to that, though, demands that the PA release these innocents from their bondage. The path to that demands an end of terrorist wars against Israel. The path to that demands a verifiable—and verified—removal of the PA from its avowed goal of the utter destruction of Israel.