Just One Voice

Birthright Citizenship: Key Arguments and Legal Challenges

February 26, 2025 / WES / 0 Comments

“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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Section 1, Fourteenth Amendment.

On July 9, 1868, the Fourteenth Amendment of the Constitution was ratified to, in part, insure the perpetuation of the provisions in the Civil Rights Act of 1866 that extended citizenship to previously enslaved, as well as free, black people…citizenship that had been denied under the 1852 Supreme Court ruling in Dred Scott v Sanford.

Since its ratification a great deal of debate has centered around the meaning of the phrase, “subject to the jurisdiction thereof,” which is found in the citizenship clause. That is because it is key to determining who is and is not covered by the implicit, seemingly blanket, promise of unrestricted birthright citizenship to anyone born on US soil. (See Note 1)

Fast forward to January 20, 2025, the date on which President Donald Trump signed Executive Order 14160, titled “Protecting the Meaning and Value of American Citizenship.” (See Note 2) The goal of the order: to end unrestricted birthright citizenship, as defined in the Fourteenth Amendment of the Constitution, for children born in the United States to non-citizen parents, including those lawfully present on temporary visas. The executive order specifies that individuals born on U.S. soil on or after February 19, 2025, would not automatically receive citizenship if their parents are either unlawfully present or in the country temporarily. It essentially challenges the notion that people who enter the country illegally or are legally here on a temporary basis are, in fact, subject to the jurisdiction of the United States and places them in the same category of children born here to diplomats and ambassadors or to hostile occupiers of the US. This marks a significant shift from the longstanding interpretation of the Fourteenth Amendment, which has traditionally granted citizenship to nearly all individuals born in the U.S., regardless of their parents’ immigration status.

Not surprisingly a number of legal challenges were mounted by various states questioning the constitutionality of the executive order. Those challenges resulted in the issuance of nationwide preliminary injunctions blocking its implementation. And more recently, the Ninth Circuit Court of Appeals upheld a Washington state lower court ruling thereby holding the executive order in abeyance. This insures that the issue of birthright citizenship will find its way to the Supreme Court for a final adjudication.

How will the current Supreme Court rule? What will be the basis for its ruling? What judicial lens will be applied by the Supreme Courts in coming to a majority opinion? An originalist view which considers the plain language of the amendment while also considering the legislative record leading up to the ratification of the amendment? Or will it be a living constitutionalism view which takes into consideration the evolving nature of immigration legislation and processes, as well societal and cultural conditions?

What arguments and counter arguments might be advanced to support and/or curtail continued unrestricted birthright citizenship? Here are a few.

1. Slaves transited to the US after 1808 (when the importation of slaves was outlawed) were brought here illegally, and their children were ultimately covered by the fourteenth amendment, therefore it follows that the children born to current day illegal immigrants are covered by the fourteenth amendment.

The counter to this argument is that it ignores a distinction between those brought here involuntarily by others in violation of the law and those who themselves voluntarily come here in violation of the law.

2. If citizenship is not granted under the doctrine of “jus soli” (defined as “right of the soil”) children born to illegal immigrants would be stateless.

In fact, most countries from which illegal immigrants come grant citizenship based, in part, on the doctrine of “jus sanguinis” (defined as “right of the blood”)…so very few children born here to illegal immigrants would be stateless. This effectively marginalizes this argument.

3. The simple language of the Fourteenth Amendment completely severs the child’s status from that of their parent since it talks only about “all persons born or naturalized in the United States.”

This argument holds that, since the amendment does not talk about the status of the parent but only focuses on where the person is born, who the parents are and their citizenship status is of no import.

But how do you reconcile this stance with the fact that, if 1) a child is born to US citizen parents while they are traveling outside the country, citizenship is extended to the child solely on the basis of the citizenship status of one or both parents or 2) the child is born outside the United States to immigrant parents who later become naturalized citizens and the child is under 18 at the time citizenship is earned by the parents it is also extended to the child. In the latter two cases reliance on the principle of “jus sanguinis” seems to contradict on its face the assumption of unrestricted birthright citizenship for those born in the United States as it, in fact, relies on the parent status. This dissonance begs the question of whether there is room to apply a combination of both standards depending on the situation.

4. Supreme Court precedent specifically supports birthright citizenship for children born in the US to illegal immigrants.

Supporters of the extension of automatic citizenship to those born here to illegal immigrants consistently cite the favorable ruling in one Supreme Court case…US v Wong Kim Ark. In that 1898 case the court found that “a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China”, automatically became a U.S. citizen at birth.

But, as specified in the ruling, it is notable that Wong was born to parents who were here legally and had a “ permanent domicile and residence” in the US at the time of his birth. In contrast, undocumented immigrants are here illegally and are subject to deportation ( US citizens are not subject to deportation) so regardless of how long they may reside in the US it is far from a “permanent” situation. Moreover there are no other cases ruled on by the Court since Wong that explicitly deal with the issue of those born to illegal immigrants. The fact is that continued extension of birthright citizenship to children born to illegal immigrants has been based in large part on administrative decisions tied to what some might say is a very liberal and faulty interpretation of the Wong decision.

Taking all the above into consideration, there are a few paths the court could take in arriving at a decision.

1. Maintain the status quo based on the simple text of the fourteenth amendment and how it has been applied in the past which supports automatic birthright citizenship for those born here, regardless of their parent’s status.

2. Reject past precedent by finding that the facts and circumstances of the Wong case do not apply to those born to parents who are here illegally. Rule that children born to illegal immigrants, (including to those with expired visitor visas, work visas, or student visas) are not subject to the birthright provisions of the Fourteenth Amendment because it contemplated that the parents would be here legally at the time of the birth, which was implicit in the Wong case. At the same time, reassert that anyone born to someone who is here legally, regardless of whether it is temporary, is eligible for birthright citizenship.

3. Rule that children born here to illegal immigrants or to those here legally, but temporarily on visitor visas, work visas, student visas, are not eligible for birthright citizenship. Those born to individuals here on a permanent visa would continue to be eligible for birthright citizenship. Justify their ruling by recognizing that at the time the Fourteenth Amendment was drafted immigration laws were minimal and the concept of illegal immigration as it is understood today did not exist pointing out that there were no immigration enforcement and visa systems at that time.

So which path will the Court take? I believe the justices, regardless of their judicial lens, will, in the majority, gravitate to the common sense interpretation and application of the Fourteenth Amendment presented in the third path. In doing so, the US will join other western democratic countries who have moved from a policy of unrestricted birthright citizenship to qualified birthright citizenship. (See Note 3.)

Note 1: The concept of “jus soli” (right of the soil) has its origins in feudal times and English common law where people born on a royal’s land were viewed as subjects of that royal. This concept was roundly rejected by our revolutionary forefathers who rebelled against British rule. Yet somehow the concept persisted and evolved into the Fourteenth Amendment of the US Constitution. The only acknowledged exceptions, due to their not being subject to the jurisdiction of the United States, are children born here to accredited foreign diplomats and their families (ambassadors , diplomats and embassy workers) or to those who might occupy our land as the result of war or invasion.

Note 2: Simultaneous with the issuance of the executive order, legislation titled the Birthright Citizenship Act of 2025 was introduced in the House of Representatives. Similar to Trump’s executive order, this legislation seeks to narrow the application of birthright citizenship by further limiting those considered to be “subject to the jurisdiction” of the United States under Section 1 of the Fourteenth Amendment to a person who is born in the United States of parents, one of whom is (1) a citizen or national of the United States; (2) an alien lawfully admitted for permanent residence in the United States whose residence is in the United States; or (3) an alien with lawful status under the immigration laws performing active service in the armed forces (as defined in section 101 of title 10, United States Code).” Whether Congress has the power, through legislation, to effectively narrow or qualify the application of birthright citizenship as broadly defined in the constitution or whether a constitutional amendment would need to be required is an open question which will undoubtedly find its way to the Supreme Court for a decision.

Note 3: According to research by the Library of Congress of the 94 countries that provide for some version of birthright citizenship, only 33 do so, like the United States, on an unrestricted basis. Australia, Ireland, and the United Kingdom who at one time provided for unrestricted birthright citizenship have all transitioned to a qualified version since 1983. The reasons for doing so were to curtail birth tourism and the exploitation of benefits each country provided to its citizens. Canada and Mexico still extend citizenship to those born in their respective country… without restriction. It is worth noting and ironic that apart from Canada many, if not, most of the countries that still provide for unrestricted birthright citizenship are the very countries that are the source of most of the illegal immigration that the US is experiencing.

Biden’s Supreme Court Term Limits Proposal: Judicial Independence and Debunking Political Influence on Judicial Decisions

July 30, 2024 / WES / 0 Comments

One of the character attributes most of us try to instill in our children is to accept loss gracefully…effectively, not to be sore losers. We try and explain that while we might lose today, there is always hope that a more favorable outcome is in the offing if we persevere and work hard whether it be in sports or other endeavors. We also make sure they know that it is important that they adhere to the rules and stay within the guidelines that have been set as they strive for any result they might desire and that, despite their doing so, outcomes are not always guaranteed to be in their favor. Regardless, those outcomes should be respected as long as those making the determination of who wins or loses have done so based on their honest and objective assessment.

Unfortunately what we are witnessing today are attempts to impugn the referees charged with making judicial decisions by casting unproven, subjective aspersions upon their integrity and objectivity and using those aspersions as justification to impose new rules…simply because some of us do not like the decisions that have been reached.

President Biden’s proposal to enact term limits for Supreme Court justices in direct contradiction to the “good behavior” standard as set forth in our Constitution is an attempt to manipulate a long standing constitutional principle in order to hopefully favor more liberal and progressive views. In effect, he wants justices who legislate from the bench as opposed to adjudicating whether laws passed by the legislature are constitutional…the principle of judicial review. This is not the first attempt to prevent justices from exercising their independence and judicial responsibility. Witness the failure of Biden’s DOJ to provide protection to the justices at their homes following the Dobbs decision…in direct violation of federal laws that explicitly outlaw the demonstrations and harassment of the justices that occurred.

The proposed introduction of term limits is being justified, in part, because term limits were imposed on the President in 1951. But the President is a political position while Supreme Court justices are, by design in the Constitution, apolitical…not swayed by fear or favoritism but by their informed understanding of the Constitution.

By introducing term limits the expectation is that some of the recent rulings on abortion and presidential immunity would not have come down as they have. The fact is that the decision regarding presidential immunity is relatively neutral and, despite alarming assertions by Democrats, does not provide broad presidential immunity, except for official acts taken in office and then only presumptive immunity, which can be challenged in court. The specious example of a President ordering the assassination of a political rival being offered up by Biden as well as Justice Sotomayor is designed to gin up the base and has no basis in reality. And as for the Dobbs decision, even Ruth Bader Ginsburg ( a liberal hero) questioned the basis on which Roe vs Wade was decided and thought it stood a good chance of being overturned. She actually thought it was a decision best left to the states…which is exactly the decision rendered in Dobbs.

The bottom line test of judicial objectivity, apart from these lightening rod decisions, is what the result of the appointment process to date has been on the broad array of decisions by the court.

Over the course of the past 60 years, 28 Justices of the Supreme Court have been appointed…21 by Republican Presidents and 7 by Democratic Presidents. Five of the Justices appointed by Republican Presidents are considered swing votes (someone who does not necessarily vote along ideological lines), which leaves 16 presumed solid conservatives. Three of the Justices appointed by Democratic Presidents are considered swing voters leaving four (4) presumed solid liberals or progressives. What has been the affect on the decisions rendered?

Over the same 60 year period, the Court has handed down some 9,000 decisions.

– Approximately 3,150 of those decisions were unanimous (9-0).

– Approximately 2,700 decisions were decided by the presumed Conservative majority.

– Approximately 1,350 decisions were decided by the presumed Liberal majority.

– Approximately 1,800 decisions were decided by a Mixed majority.

In summary, 55% of the cases handed down were not decided based on ideological lines, notwithstanding the fact that most Justices were appointed by Republican Presidents. Thirty percent (30%) were decided by a conservative majority. Fifteen percent (15%) were decided by a liberal majority. Expressed another way…70% of the cases decided were to one degree or the next in alignment with liberal/progressive legal views versus 85% being in alignment with conservative legal views. That relatively small 15% point difference certainly speaks to the overall objectivity of the Justices regardless of who appointed them or their presumed personal political leanings.

Based on the above, Biden’s reactionary proposal to implement term limits based on two recent decisions will do nothing to make the Court more equitable. It will, however, make it more political and undermine the independence of the justices.

I know one thing for certain…if forced to choose between the wisdom of our Founding Fathers and the “sore loser“ mentality of our current Democratic political leaders in determining how the Supreme Court should operate I am all in for our Founding Fathers.

A Corrupt Supreme Court?

July 17, 2024 / WES / 0 Comments

The other day a Facebook friend shared a meme that generally accused the Supreme Court of being corrupt. When I challenged that accusation it resulted in that same friend responding by throwing out a list of more specific accusations including levying a charge that Thomas’ and Alito’s wives are insurrectionists, Gorsuch and Kavanaugh and Barrett lied during their confirmation hearings regarding their stance on abortion, Thomas is guilty of taking bribes, and the Court’s recent opinion on Presidential immunity is unconstitutional.

No doubt there are many in our country who share these sentiments so before I respond to each charge let me start off generally by saying that making blanket across the board statements asserting that the Court is corrupt does it a disservice which is not deserved. The same applies to the language or terms used to characterize the actions of the individuals referenced above. It offers nothing to the conversation other than being incendiary with no basis in fact. As the saying goes “you are entitled to your opinion but not to your own facts.”

Are Thomas’ and Alito’s wives “insurrectionists”? Thomas’ wife went to the January 6th rally but took no part in the assault on the Capitol. Nor has anybody who has been charged with a crime on that day been alleged to have committed insurrection. More specifically, while many have been convicted of other crimes related to the riots, none have been charged under 18 U.S.C. 2383. The majority of charges filed against the “rioters were for disorderly conduct and unlawful entry. Other charges include assault on law enforcement officers; trespassing; disrupting Congress; theft or other property crimes; weapons offenses; making threats; and conspiracy, including seditious conspiracy.” Up until the assault those who participated in the rally were exercising their free speech rights. Were their views valid? No. Did they have a right to express them? Yes. Should Thomas have stopped his wife from attending the rally? I can only imagine how the public would view any woman’s actions being controlled by a man. Did Thomas’ wife exercise bad judgment in choosing to attend given her husband’s position? Yes. As for Alito’s wife, does displaying the American flag in an upside down manner make her an insurrectionist? If it does, then those who displayed the flag in this manner when the Dobbs decision on abortion was announced by the Court are also insurrectionists.

Did Gorsuch, Kavanaugh, and Barrett “lie” during their confirmation hearings about their view of the abortion issue? I watched and read the transcript of the hearings at the time they took place. While each of these justices observed that Roe was considered a precedent none characterized it as a super precedent and none stated their explicit view on or made a promise to rule in the affirmative on a case brought before them on this issue. In fact all specifically stated that nothing they said in response to questions on this issue should be viewed as anything but an acknowledgement of how the court has ruled in the past. They also stated that as a judge they do not prejudge any issue until the facts of a particular case are brought before them. So liars? I think not.

Is Thomas guilty of taking “bribes”? As far as I am aware there has been no proof provided that any of the gifts Thomas or any other justice received has influenced their decision on any given case. Are these justices guilty of bad judgement in accepting gifts? Yes. Were the gifts provided conditioned on their ruling one way or another on a case before the court? Nothing has been proved or alleged in this regard. It is more about the appearance of a conflict of interest than proof positive that there was a quid pro quo or anything that could be characterized as a “bribe.” I do believe that legislation, The High Court Gift Ban Act, recently introduced by Raskin and Ocasio Cortez should be passed so that their are explicit guard rails to prevent the appearance of a conflict of interest in the future.

Is the recent decision by the Court regarding Presidential immunity unconstitutional as you assert? I am not sure how you came to that conclusion. The Court was fairly explicit that the President is only immune from criminal prosecution with respect to his carrying out the official responsibilities of the office. No such immunity applies for unofficial acts. And, in fact, the Court did remand to the lower courts the decision as to whether certain of his acts fall into the unofficial and official categories.

A Threat to Our Democracy

July 12, 2024 / WES / 0 Comments

“Where Congress won’t act, I will.”

In consideration of the upcoming election, this statement is pretty chilling…it smacks of authoritarianism. It reflects the attitude of someone who would be a dictator rather than a President who is elected to implement the will of the people through legislation passed by their elected representatives. It portends someone who will ignore the role of Congress thereby threatening the separation of powers provisions that are set forth in the Constitution. It engenders an attitude that “I know better than others.” It assumes that “my will” is the will of the people.

I for one hesitate to vote for someone who has the hubris to make such a statement. Yet the American electorate voted overwhelmingly for the person who made this statement.

No, it was not Donald Trump. In fact, it was Barack Obama. He went on to weaponize the IRS to target religious and grass root political groups. He issued two executive orders on immigration policies (DACA and DAPA ) with no Congressional involvement …only stopped in the latter case by the Supreme Court. He unilaterally directed federal agencies to ignore deadlines specified in legislation ( the ACA) that Congress passed. He entered into a treaty with a foreign government ( the Iran Nuclear Agreement) ignoring that entering into treaties are within the sole purview of Congress.

In each of these cases, the president unilaterally expanded his power while ignoring the Constitution.

And what about Joe Biden?

With his approval, in the context of the COVID pandemic, the CDC issued a moratorium on tenant evictions. A district court subsequently found and the Sixth Circuit affirmed that the CDC overstepped its rule making authority and was not authorized by explicit language in the statute to issue an eviction moratorium order. He also sought to mandate Covid vaccinations for private businesses with 100 or more employees. This was also determined by the courts to have exceeded his authority. And more recently, he determined, incorrectly, that it was within his authority to forgive student loan debt. But no matter. Since he was stopped by the courts, he has sought different ways to achieve that goal through various questionable devices.

The fact is that Presidents throughout history have exceeded their constitutional powers in a way that could be characterized as authoritarian. The problem is that as individuals we tend to be more tolerant of and/or support their actions if we like that person or agree with the action…notwithstanding its constitutionality or legality. The end result of this acquiescence is that Presidents are emboldened to do whatever they like.

That is why I hesitate to take seriously the hyperbole surrounding the charge that Trump is a threat to democracy. I will however take it seriously when everyone, regardless of political party, is equally critical of all such actions.

In the end the rule of law will only prevail if we apply it uniformly and without prejudice. In the meantime every President who seeks to expand his or her power beyond the confines outlined in the Constitution is an authoritarian in my book.

Bipartisan Immigration Legislation: When Limits Are Not Really Limits

February 6, 2024 / WES / 0 Comments

”Limits” are a funny thing…they can be cautionary, they can serve as a challenge to be met, or they can be both.

For example, posted speed limits serve as a safety warning but they can also serve as a challenge to those who like to see the extent to which they can be exceeded before suffering the consequences of receiving a speeding ticket.

Limits may also be viewed as thresholds…points that you may or may not want to exceed depending on whether the consequence of doing so is a reward or a punishment. For example, if I am a sales person I may have to achieve a certain threshold level of sales before I start to earn a commission or bonus. If I am young child my parents may set a limit on the amount of screen time I am allowed each day. Or maybe as a teenager they set a curfew time.

Regardless of the reason for or the nature of a limit, setting it provides implicit approval, encouragement and/or permission for actions or behaviors leading up to the limit.

Moreover, limits or thresholds only work if there are consequences for exceeding or not exceeding them…a speeding ticket, a bonus, or continued access to an IPad.

When the consequence of a exceeding a limit is punitive most people get as close to the limit as possible or try to circumvent it in a way so that they will not suffer any repercussions. We are all familiar with the expression “pushing the limit.”

Sometimes limits are viewed as suggestions…not something to abide by but more guide posts to be maneuvered around or between. Moreover limits only work when there is strict enforcement.

Which brings me to the proposed bipartisan senate package on immigration.

According to Newsday, the proposed package on immigration sets limits and thresholds on the number of permissible migrants that may enter the country before our borders will be shut.

Specifically, the measure would allow the president to close the border if:

– the number of migrants exceeds 4,000 per day for more than a week.

– the number of migrants exceeds 5,000 per day for a week, or

– if it reaches a number of 8,500 on a single day.

On the face of it a quick calculation would have us believe that “only” 1,460,000 migrants would be allowed to enter illegally each year. Right? No. It’s significantly more than that.

From my reading of this it means that in a one week period (presuming a week runs Sunday through Saturday), every other week it would allow some 5,000 to enter for five consecutive days or 25,000; 8,499 to enter one day; and 4,000 to enter one day for a total of 37,499. That comes to 1,012,473 annually ( 26 weeks times 37,499). For the other 26 weeks or 182 days, 4,000 would be allowed each day or 728,000 annually for a grand total of 1,740,473. That ends up averaging over the course of the year 4,768 per day yet the border would never be closed even though the number exceeds 4,000 per day for more than a week.

The question is whether this proposed solution does anything to stem the tide of illegal immigration or simply provides guide posts that can be exploited in order to circumvent the limits that have been established. I assert it does nothing to stem the tide. Also, these limits give tacit approval to illegal immigration. Why?

In fact, the only effective way to discourage illegal immigration is to establish a rule that says anyone entering illegally between regulated ports of entry will be immediately detained and deported and sent back to their own country and have to wait 10 years in order to apply for asylum or a visa. This is the only way to control our borders and re-establish our sovereignty as a nation. Anything less just continues us on the path to becoming a third world country.

Tough? Yes. Necessary? Absolutely.

TDS, TRS and The Republican Choice

January 2, 2024 / WES / 0 Comments

As we enter the new year, there are two maladies affecting the American electorate…TDS and TRS.

The first, Trump Derangement Syndrome, affects almost all Democrats and the second, Trump Revenge Syndrome, affects so called MAGA Republicans. Both syndromes cause those affected to have a singular and myopic view of Donald Trump.

For those with TDS, Trump is someone who portends the downfall of our democracy tied to what they view as his authoritarian leanings…he is also, in their view, a racist and misogynist…to them he represents our worst instincts, morally and politically. For those with TRS, Trump is someone who is plain speaking and has been unfairly maligned, misinterpreted and persecuted…he simply wants America to be great again. To them that means replacing the progressive and socialist path the country is on and returning it to a society that adheres to law and order and the principle of hard work and earned achievement.

Those with TDS give Trump no quarter…he can do no right. His personality is their flashpoint causing a viscerally negative reaction…”hate” is probably not too strong a word when it comes to the TDS view of Trump. Those with TRS love and admire Trump without reserve…he can do no wrong. For them he represents a return to common sense.

Those with TDS will do anything to prevent Trump from acquiring power again. Those with TRS seek to exact revenge against those who beleaguered Trump’s presidency with unfounded accusations by putting him in office again thereby allowing him to attain the power needed to right the wrongs done against him.

For those affected by these syndromes there is no middle ground. They represent the extremes. The fact is that neither faction, if successful in electing their respective candidates in 2024, will enable us to achieve an agenda that will allow America to move forward again. Rather, we will continue to be bogged down in vitriol and non compromise.

If Biden is elected again it will be solely due to TDS despite his own supporters’ acknowledgment of his obvious mental and physical deterioration. If Trump is elected it will be due to TRS despite the chaos that will undoubtedly ensue.

What is the solution? Do we vote for someone who is failing and feckless or do we vote for someone who is divisive? Neither party seems to want to give up their candidate for the good of the country.

There is, however, one path that may work to the benefit of Republicans and Democrats…indeed, to the country as a whole.

As reported by The Hill early in December, according to the Messenger/Harris poll, Nikki Haley beats Biden by 4 percentage points on a head to head basis in the general election. Trump beats him by 7 percentage points. At the same time Haley attracts 40 percent of independents and Trump 37 percent. A Wall Street Journal survey later in the month had Haley beating Biden by a healthy margin of 17 points. The Real Clear Politics polling average has Haley beating Biden by 4.9 percentage points whereas Trump leads Biden by 2.9 percentage points. In essence, these polls show that Haley has a chance of beating Biden by drawing support from independents and moderate Republicans who object to Trump and his hard right allies as well as disaffected Democrats who object to Biden’s pandering to the extreme left and are worried about his ability to govern. Both of these factions encompass people who want us to be governed from the middle and who yearn for a common sense approach to government.

The upcoming primaries will be a good harbinger of Haley’s standing in the party. If she has a relatively strong showing she could prove to be the alternative that Republicans are able to turn to in the nominating convention that will put them in good stead with the general electorate despite the fact that Trump may actually beat her in the Republican primaries.

Nominating someone who does not win the majority of the Republican Party’s primaries is not without precedent. For example, in 1912, the first time a Republican primary was held, William Howard Taft was nominated despite Theodore Roosevelt winning most of the state primaries and receiving more of the popular vote. In 1932, Joseph France won most of the state primaries but Herbert Hoover was re-nominated as the Republican standard bearer. In 1936, William Borah won more of the state primaries but Alf Landon became the party’s nominee. In 1948, Harold Stassen won more primaries than Thomas Dewey but Dewey won the party’s nomination. And in 1952, Robert Taft won more primaries than Dwight Eisenhower but lost the nomination to Eisenhower.

So the questions that have yet to be answered are whether the Republican Party will, despite his assumed primary victories and lead in the polls, be willing to shed Trump for the benefit of the country and whether Democrats and MAGA Republicans are able to embrace Haley as a reasonable and viable alternative to another four years of an increasingly failing Biden and the threat of a Kamala Harris succession.

We can only hope.

Solving the George Santos Problem

December 2, 2023 / WES / 0 Comments

Unfortunately, and unbelievably, George Santos’ expulsion from the House of Representatives was not a foregone conclusion. Despite the damning House Ethics Committee Report, it was only through the exercise of conscience by 105 Republicans that it occurred at all. The question is why it took so long to bring this sorry state of affairs to conclusion.

The answer is that the Constitution (Article 1, Section 5, Clause 2) only gives the power to expel its members to Congress. The problem with that limitation is the decision to expel is fraught with politics…in this particular case, with a desire to maintain the narrow Republican majority and, in a conflict of interest, to generally protect themselves from a similar fate by citing expulsion as a bad precedent except in extremely limited circumstances. In other words it was not expedient for Republicans to move forward with an expulsion. Politics trumped moral duty. Witness the fact that 112 out of 217 Republican representatives voted “no” on the expulsion resolution despite the fact that a preponderance of voters in the Third Congressional District who had elected Santos had been calling for his resignation or expulsion throughout the past year thus making hollow Republican Party leadership and hard right remonstrations that such a decision should be left to the voters.

What is the solution?

We need to amend the US Constitution so that, in the face of inaction by our elected representatives, voters are allowed to directly “recall” their representatives when they no longer serve their interests. This includes the President, Senators and members of the House of Representatives The ability to recall an elected official before he or she serves out his or her term is an effective way to hold that person accountable directly to the voters. It is one hallmark of a true democracy. At the same time, there need to be reasonable constraints on the ability, or hurdles to overcome, to initiate a recall. Clear procedures as well as the behaviors and circumstances that allow for a recall vote to be justified and initiated would need to be specified. In this regard, it is important to note that some 19 states provide, either through their Constitutions or legislation, a recall mechanism for those elected at state or local levels that could be used as a model at the federal level.

As voters we need a way to assert ourselves outside of election cycles to insure that our elected officials continually represent our interest…allowing for a recall vote is one way to do that.

But that’s just one person’s perspective, what’s your opinion?

Could the Bragg Indictment Fuel a Trump Redux?

April 6, 2023 / WES / 0 Comments

Whether the indictment Alvin Bragg brought against former President Donald Trump is politically motivated is a matter of perspective. Rather than wade into that subjective controversy, it is more useful to focus on the three pivotal questions:

Are non disclosure agreements (NDAs) legal?

A unilateral non disclosure agreement, which constitutes a contract between two parties where one party receives compensatory consideration, is legal as long as the activity covered under the agreement is not illegal. That is why the Bragg indictment does not include the NDA itself as the basis for any of the felony charges. Rather, a primary focus of the indictment is on how the compensatory consideration Stormy Daniels received was recorded for accounting purposes and whether it violated tax law.

How are payments made in consideration of someone entering into an NDA to be treated for accounting and tax purposes?

It is notable that in all the reporting on this matter there is no mention as to how such a payment is actually supposed to be accounted for under accounting rules or for tax reporting purposes. Trump’s accountants recorded the repayment to Michael Cohen (of the money he had paid to Stormy Daniels) on Trump’s behalf as a legal expense.

In fact, non disclosure agreements are essentially settlement agreements which, under the tax code, allow related payouts and attorney’s fees to be deducted as legal expenses for tax purposes. This would be determinate in how such a payout would be characterized from an accounting standpoint.

Moreover, it was not until January 1, 2018 that Section 162 of the Internal Revenue Code was amended to prohibit such tax treatment if the payments are made under an NDA related to sexual harassment or sexual abuse. Notwithstanding that Trump’s payments to Cohen were, in fact, not related to sexual harassment or sexual abuse, any attempt to characterize them as such would fall short of a violation of the law since all of the payments to Cohen occurred in 2017. It is also notable that Bragg is, to my current understanding, not charging Trump with state tax fraud.

Does the NDA between Trump and Daniels and the payment made to Daniels constitute a violation of the federal election law prohibition relating to concealment of material facts that could affect an election?

It is Bragg’s assertion that hiding the payment is a violation of federal election law that is his basis for escalating the charges to felonies. This begs the question whether a candidate has a right to protect his or her reputation from disputed and embarrassing claims that can unfairly harm his or her reputation. The operative word here is “disputed” because Trump denies he had an affair with Daniels and, with no proof on either side, this is nothing more than a “he said, she said” situation.

We also know that in the realm of public opinion the concept of innocent until proven guilty is turned on its head. The fact is that federal election law defines election interference to include concealment of a material fact or making any false, fictitious or fraudulent statements or representations. In that context, a disputed and unprovable claim is not a material fact and would not preclude it from being concealed.

As this case against Trump moves forward, it would seem these questions would need to be adjudicated. Of course, there is also the question of whether Bragg is exceeding his jurisdiction in bringing charges related to an alleged federal election violation where both the Federal Election Commission and the DOJ have given Trump a hard pass in the matter of the Stormy Daniel payment. As mentioned above, it is this supposed violation that was Bragg’s justification for raising the charges to felonies.

Bragg’s tactic is to magnify the import of this case by bringing 34 duplicative counts. The obviousness of this approach does the opposite…it dilutes its seriousness and calls into question Bragg’s motives. Is it simply to “get Trump?” Is it Alvin Bragg himself who is interfering with a future federal election by bringing spurious allegations? Will the public spectacle and Trumps defiance serve to enhance his reputation in the eyes of his base? Will it attract others to Trump’s side because they see the charges brought as an abuse of power by Bragg? We don’t know the answers to these questions.

What we do know is that Trump is a survivor having overcome the Trump Derangement Syndrome which fueled two impeachment attempts and the Mueller investigation . Whether he survives this indictment, or not, it might very well assure a Trump redux.

Seeing the Forest through the Trees – Ketanji Brown Jackson is a Symptom, not the Cure for a Judicial System that is Increasingly Stacked in Favor of Perpetrators Who are Cast as Victims Themselves.

March 25, 2022 / WES / 0 Comments

As I watched the Senate Judiciary Committee hearings on the nomination of Judge Ketanji Brown Jackson to the Supreme Court I could not help but conclude that we are missing the point of what we are learning about our criminal justice system that goes beyond and is more important than Judge Jackson’s specific qualifications to serve as an associate justice.

From the standpoint of her qualifications, Judge Jackson is absolutely worthy of having been nominated. Furthermore, her approach to applying the law is consistent with the general pattern exhibited throughout our judiciary system. It is, however, this second larger point that is the most troubling and should give us pause relative to her confirmation yet seems to be lost on those questioning her and on the media covering the hearings.

Some of the most pointed questions posed to Judge Jackson related to her sentencing of convicted child pornographers. Those questioning her offered evidence that in passing sentences in these cases she as the sitting judge, in the majority of cases, assigned sentences well below federal sentencing guidelines and below what was even being recommended by the prosecution, which was already below sentencing guidelines. Those who support her nomination, including much of the media, point out that her sentences were in the mainstream, i.e., most judges imposed sentences below the guideline…for some reason thinking that fact is supposed to make us feel comfortable with her decisions. As Mitt Romney opined relative to this issue,” …there is no there, there.” I would characterize that as quite a cavalier attitude, one that completely misses the point. More specifically, are we, as a society, willing to appoint judges to the bench who more often than not tip the scales of justice in favor of the perpetrators as opposed to the victims of their crimes?

Of course the counter to that is the question of whether we also expect judges to exercise their discretion in meting out punishment taking into consideration various circumstances as opposed to strict adherence to the law. Certainly justice is not always served by such strict adherence; however it seems that the prevalent pattern is to exercise that discretion in favor of criminal defendants out of some misplaced sentiment that our system of justice is, in fact, unjust and must be corrected.

In the case of federal sentencing guidelines for those trafficking in child pornography the law already distinguishes between those who receive or possess (although that distinction is lost on me), produce or distribute and transport as well as whether it is a first offense or a second offense with a prior sex offense conviction. It also distinguishes between mandatory and statutory minimum sentences.

The reality is that, according to the U. S. Sentencing Commission,”federal judges feel that many child pornography sentences are too long” and (since the Supreme Court has ruled that federal sentencing guidelines are advisory not mandatory) routinely impose lesser sentences. I would ask these judges (and Judge Jackson) whether these lesser sentences are justified considering the lifetime psychological sentence imposed on the children exploited to produce the child pornography.

This brings us full circle back to Judge Jackson’s nomination. She did not refute in any way that she sentenced well below the guidelines in these cases. Rather she sought to explain it away, as did her supporters, as being consistent with the sentences being imposed by her fellow judges and well within her discretion as a judge. But her actions belie her pledge to “stay in my lane’’ and not make policy or legislate from the bench.

Certainly Judge Jackson possesses the right credentials to qualify as an associate justice of the Court. She appears to be, and by all accounts is, a decent, intelligent woman with a good, if not excellent, legal mind. But when I think of a Supreme Court justice I would prefer someone who is independent of thought who administers the law consistent with the intent of those who passed the law and those they charge with implementing it. Neutrality and adherence to the statute should be the initial basis for any judgment rendered. As they say, the exception proves the rule, not the exception is the rule. Despite the description she offered of her approach to interpreting and applying the law (which sounded like that of an originalist) I very much question the accuracy of her claims given her record.

There is no doubt that Judge Jackson will be confirmed in light of the historic opportunity this nomination offers – confirmation of the first black women to the Court. Of course, I, nor should anybody, have any issue with the goal of expanding the diversity of the court. But in doing so the person chosen needs to rise above his or her identity and be the right person, chosen for the right reasons. We already see the result of choosing a person for the wrong reason in our Vice President, a mistake that can be corrected in the short term.

Lifetime appointments to the bench however require a more sober, considered approach focused on creating a judicial system weighted in favor of the victims of crime.

Feckless Joe Biden: A Perfect Example of the Peter Principle

August 20, 2021 / WES / 0 Comments

“Don’t underestimate Joe’s ability to (expletive) things up” – President Barack Obama.”

Biden ” has been wrong on nearly every major foreign policy and national security issue over the past four decades.” – Robert Gates, Secretary of Defense, Obama Administration.

When President Obama and Robert Gates shared these insights about Joe Biden’s competency we did not realize how prophetic their assessments would prove to be.

How so?

For one thing, Biden’s campaign and inaugural promise of political unity has been betrayed by his threatened ill conceived use of budget reconciliation as a tool to pass a $3.5 trillion bill that will massively expand the welfare state. (How did the nuclear option work out for the Democrats who introduced it under Harry Reid?)

For another, his shutdown of the Keystone Pipeline has foreclosed our energy independence and resulted in higher oil and gas prices.

Further, his passage of stimulus legislation went significantly overboard in countering the economic effects of the pandemic …stimulus checks that provided a windfall to many who did not need the money or, at the very least, had no where to spend it…higher unemployment benefits which served as a disincentive for many to reenter the workforce leading to continuing shortages of help in small businesses which have been the hardest hit during the pandemic and which continues to hinder their recovery.

Add to this the record numbers of illegal immigrants crossing on our southern border based on what was effectively his campaign promise to them of an open border further facilitated by his suspension of virtually all of the prior administration’s executive orders which effectively served to stem the tide of such immigration…. or his lack of an ordered withdrawal plan ( he ignored the warnings of his advisors and the assessment of state department employees on the ground) from Afghanistan leaving our in-country operatives and American citizens at risk and the reestablishment of the country as a Taliban-controlled state for the promulgation of international terrorism.

In fact, for anyone to suggest that he and his Vice President have been anything but dismal failures with regard to both domestic and foreign policy is disingenuous at best and, at its worst, completely dishonest.

Biden’s election promised a breath of fresh air after a tumultuous four years of Trump. That, in fact, is what got him elected. While I did not vote for him I was willing to give him a chance regardless of his less than remarkable career in the Senate. I considered him and continue to consider him ” my president.”

Well, my president is a complete incompetent and I am not sure we can afford three more years of his and his party’s Democratic rule and march to the progressive left. I am hoping that the mid-term elections act as a check on this march and return us to a more centrist agenda for the country.

The country should have all gotten the hint that Joe would be a disaster when Barack Obama first failed to rally behind him as his immediate successor in the 2016 Presidential Election and instead chose to back Hillary Clinton. The second hint was provided in the delayed backing by Obama for Joe in the Democratic primaries leading to the 2020 Presidential Election.

We now have proof positive (hints are no longer necessary) that Joe Biden is in over his head. He is a stellar example of the Peter Principle…he has risen to his level of incompetence as has his Vice President.

It is time for the electorate to admit its mistake and make sure that going forward we decide who are to be our leaders based less on personality and, instead, based on exhibited ability to govern. We need to start voting for a candidate based on what he or she has actually done, what he or she has actually voted for in the past… as opposed to vacuous promises that pander to our interests and which vary based on the direction of political winds.