Tending to Our Democracy

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It is said in some circles that this country was founded as a republic, not as a democracy. From that, they ask why we should be so concerned about how well democracy is functioning? Our Founding Fathers were indeed a group of wealthy white men who were worried about an excess of democracy in government, which they equated with mob rule. Their writings reveal a strong concern about preserving property, including slaves, from expropriation by the broad class of less fortunate citizens. Their solution was a republic that did not allow for direct election by the people of the President, Vice President or U.S. Senators.

Vestiges of this still operate two hundred fifty years later. Although their names don’t appear on the ballot, you are really voting for electors appointed by your candidate’s political party when you cast your vote for President. The original theory behind this was that wise electors could step in to choose an appropriate President if a tyrant is elected by the people. While it is still possible for an elector in many states to vote for a different candidate than the one popularly elected, this is exceedingly rare.

But since 1789, we have moved strongly toward democracy as our organizing principle. Property requirements for voting were eliminated before the Civil War. The Seventeenth Amendment established direct election of U.S. Senators in 1913. And in West Virginia, we are in love with direct democracy. We vote directly for the Governor, Secretary of State, Attorney General, Treasurer, Auditor, Secretary of Agriculture, all Delegates and Senators in the legislature, and even Supreme Court justices. While our framework is republican, our practice is fully democratic. So we should have a compelling interest in strengthening that democracy.

A healthy democracy has several components, among which are courts governed by the rule of law, a free press, and a vigorous civil society. But most would agree that the key to a healthy democracy is voting – who gets to vote and in what manner. No provision of the U.S. Constitution explicitly guarantees the right to vote for everyone. Who votes and how we vote is mostly driven by state law, although federal law imposes some basic principles on the states.

The political struggle over voting comes down to whether voting should be made easy for, and extended to, the broadest number of citizens, or whether we are more concerned with the integrity of elections. A cynic might say that how you come down on the relative importance of these things depends on whether your political party would benefit.

The cynical view might be correct, at least for supporters of the electoral integrity position. Our national story has been about the ever-increasing circle of people accepted into political participation. People of color and women are the prime examples. This national story has been supported and celebrated by both political parties. Recall that it was the Republican Party that produced the great post-Civil War Amendments, including Amendment XV, prohibiting the denial of the right to vote on account of race.

But the election integrity argument is a new phenomenon, not appearing on the national scene until Donald Trump’s false claim that he was cheated out of victory in the 2020 election. He has railed about the alleged cheating by Democrats in large cities like Philadelphia and Atlanta, without proof. He has complained about electronic voting machines and voting by mail. Right away, the Republican Party echoed these positions.

Reduced to its essence, this argument is that the government should spare no effort to prevent the tiny number of ineligible people who attempt to vote, regardless of the collateral effects on eligible voters. Election integrity measures tend to restrict who can vote and make the circumstances of voting more difficult. It is hard not to notice that those most heavily affected are the demographic groups that historically vote for the Democratic Party.

Voter Eligibility

On the issue of who should be eligible to vote, one party would vastly restrict the pool of eligible voters while the other would increase it.

A Republican Delegate has proposed HB 5037 that would restrict the definition of “voter” under West Virginia law to a “natural born citizen of the United States,” thereby disenfranchising all those citizens born in other countries who wave little American flags at emotional naturalization ceremonies.  A Democratic Delegate has introduced HB 5117 that would restore the right to vote to convicted felons who have completed their period of incarceration, even during probation or supervised release.

Voter ID

Voter impersonation fraud is virtually nonexistent in the United States. Nevertheless, the Republican-led West Virginia legislature passed a law in 2025 requiring a photo ID to vote. This replaced a 2018 law that required an ID, but not a photo ID. Strict voter ID laws complicate the voting process, intimidate some potential voters, and reduce the number of poor and less-educated voters. Strict voter ID laws are chasing a problem that doesn’t exist and discourage voter participation as a side effect.

Absentee Voting

In West Virginia, voters who cannot appear at the polls in person for various reasons are allowed to request an absentee ballot and mail it in. One reason that qualifies a voter for an absentee ballot is “physical disability or immobility due to extreme advanced age.” A proposed bill introduced by a Democratic legislator would substitute “any voter who has attained the age of 65,” thus sparing the aged from having to prove disability or immobility.

An absentee ballot must be postmarked on or before election day, but can be counted if received up to the date of canvassing. President Trump’s most recent position on mail-in ballots of any kind is decidedly negative:

Mail-In ballots are corrupt. Mail-In ballots. You can never have a real democracy with Mail-In ballots. And we as a Republican Party are going to do everything possible that we get rid of Mail-In ballots.

Responding to these sentiments, Republicans in the legislature have introduced bills that would restrict the scope of absentee voting. HB 4600, which has passed the House, would require absentee ballots to be mailed early enough to be received by 8:00 p.m. on election day. That means these voters would be required to vote before election day, losing the privilege enjoyed by all other voters to consider their vote up until that day.

Conclusion

West Virginia voter turnout is abysmal, and we should be tending to our democracy by adopting policies that improve it. Election integrity is a worthy goal, but according to our Secretary of State, West Virginia elections are clean. Any way you look at it, election integrity should be subordinate to strengthening our voting democracy. We can’t allow election integrity to be the tail that wags the dog.

ICE-Has-Violated-America

ICE Has Violated America

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Immigration and Customs Enforcement (ICE) is the hammer of the Trump Administration’s immigration policy. Public opinion is mixed on the policy, but not supportive of ICE methods. Whatever you think of the policy, ICE agents have behaved like the dreaded secret police of totalitarian regimes, and disgraced America in so many ways it is hard to count them.

ICE agents have outfitted themselves with paramilitary-style body armor and assault rifles, hidden their identity with masks and unmarked vehicles, interrogated and arrested people for their skin color or speech, invaded previously off-limits sensitive places like schools and courthouses, broken into homes without a judicial warrant, detained arrestees incommunicado for days, violated hundreds of court orders, and used aggressive tactics that resulted in the shooting deaths of American citizens. There is no daylight between this and the way totalitarian secret police have behaved.

Abusive Encounters and Arrests

ICE does not operate like a normal police force. ICE agents appear on the street out of recognizable uniform, in masks and unmarked cars. One federal case described what happened to a group of arrested immigrants:

Suddenly, four unmarked cars pulled up and surrounded [three individuals]. The cars were large and black with tinted windows and had no license plates. The doors opened and men in masks with guns started running at them aggressively. One of the men had a “large” military-style gun. The masked men wore regular clothes, they had no visible badges, and they did not identify themselves.

This type of encounter is all too frequent. It is terrorizing to the community and violates constitutional norms. Wearing masks prevents identification of ICE agents and undermines accountability for ICE misconduct. The ICE practice of using false license plates violates state laws.

The Fourth Amendment protects individuals, whether citizen or immigrant, from “unreasonable searches and seizures.” Whenever a police officer accosts an individual and restrains his freedom to walk away, he has seized that person.

An ICE agent may stop an individual only if he is aware of specific facts creating a reasonable suspicion that the individual is in the country illegally. Reasonable suspicion as to one person does not exist if the facts also apply to a very large category of presumably innocent people. But at the direction of White House advisor Stephen Miller, arrests of targeted individuals have given way to sweeps of areas where undocumented immigrants might be found. ICE is arresting thousands of people with no reason to target them.

ICE now engages in racial profiling. In Los Angeles, immigration officers made stops based solely on one or more of these factors: (1) presence at particular locations such as bus stops, car washes and day laborer pickup spots, (2) the type of work done by the individual, (3) speaking Spanish or speaking English with an accent, and (4) apparent race or ethnicity. Two lower federal courts ruled that relying solely on these factors violated the Fourth Amendment because they could not create “reasonable” suspicion, given that many innocent people would meet this description.

Invading Homes and Other Sensitive Places Without Warrants

The Fourth Amendment prohibits government entry into a person’s home without consent or a warrant issued by a neutral judge. Yet ICE has apparently issued an internal memo authorizing agents to enter private homes with only an administrative warrant issued by an ICE officer and to use force in doing so. This has led to outrageous ICE conduct, such as forcing open the door of the home of a U.S. citizen in Minnesota without a warrant, and arresting him at gunpoint.

In 2021, the Biden Administration issued guidelines prohibiting immigration enforcement in or near sensitive “protected” areas — where enforcement might restrain public access to essential services or engagement in essential activities. These included (1) schools, (2) medical or mental healthcare facilities, (3) places of worship or religious study, (4) places where children gather, such as a playground or daycare center, (5) a social service agency, and (6) a place where there is an ongoing parade, demonstration, or rally.

The Biden policy was sensitive and sensible. It recognized that there are more important factors in the overall policy balance than capturing and removing undocumented people. But the Trump Administration disagrees. It rescinded the Biden policy.

Unlawful Detention and Violating Court Orders

The Fifth Amendment secures due process to immigrants, lawful or not. Immigrants have been arrested along the West Virginia Turnpike, and elsewhere in West Virginia, and then detained in state jails without a hearing, or even notice of when a hearing might be held. The U.S. District Court in Charleston held in such a case:

In our society, freedom is the constitutional default. When the Government confines a person in a jail and, when called upon, cannot articulate the facts or authority justifying the confinement, the detention violates the Fifth Amendment. Habeas corpus exists precisely for this moment.

The detained individuals in that West Virginia case and two others were released.

On January 28, 2026 a top federal judge in Minneapolis stated that ICE had violated nearly 100 court orders in January alone, more than some other federal agencies have violated in their entire existence. These cases were habeas cases in which a person arrested by ICE was challenging his detention, as in the West Virginia cases.

The situation in Minnesota is not unique. Judges across the country have rebuked ICE for violating court orders, improperly relying on discredited legal theories and violating their obligation of candor to the courts. The extent of these practices suggests a conscious pattern of disrespect for the rule of law.

Unrestrained Violence

The online journal The American Prospect reports that ICE has killed eight people and injured nine around the country. The ICE shooting deaths of Renee Good and Alex Pretti in Minneapolis have received plenty of coverage. DHS and ICE immediately accused the victims of being terrorists intent on harming ICE agents. Thanks to citizen videos, we can see with our own eyes what happened. ICE agents were trigger-happy when they were not threatened at all. Their deadly violence has not even received an investigation, much less official restraint or accountability.

We are lucky more people haven’t died from ICE violence. It is everywhere. ICE uses chokeholds and agents kneel on the necks of detainees. They swing batons, smash car windows, and shoot into occupied family vehicles. Simply fleeing from an ICE agent does not justify that person’s assassination.

ICE in West Virginia

Not only is ICE operating in West Virginia, our state government and local police are eagerly cooperating with the agency and boasting about it. In February 2025, the West Virginia National Guard and the state police signed up to cooperate with ICE in enforcing immigration law – for the first time in our history. Governor Morrissey declared himself deeply committed to the project.

This cooperation has led to the arrest of 650 individuals in West Virginia. Some of these people were just passing through on the Turnpike. Others in Nitro, Charles Town and Nutter Fort were arrested at their restaurant jobs. Governor Morrissey claims that among those arrested were several with criminal histories, but the vast majority were simply people whose immigration status was questionable, which is not a crime but instead a civil offense like a traffic ticket.

After two of her employees were arrested at Taqueria Lou Lou in Nutter Fort, the owner said, “These men were not ‘bad guys.’ They came to work, did their job and went home. No drugs. No drinking. No kidnapping kids. No horror story. Just people.”

The Objective Doesn’t Justify These Means

In his January 31, 2026, order releasing 5-year-old Liam Ramos from ICE custody, Judge Fred Biery said

Observing human behavior confirms that for some among us, the perfidious lust for unbridled power and the imposition of cruelty in its quest know no bounds and are bereft of human decency. And the rule of law be damned.

We seem to have lost our balance and judgment. Ridding our country of undocumented foreigners, even criminals, is not a national goal – it is simply a campaign promise made by Donald Trump. Keeping that promise is not worth killing innocent people who oppose the policy or get in the way. It is not worth trashing the Constitution. It is not worth terrorizing our communities. It is not worth selling our souls.

Donald Trump, The Occupier

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I don’t mind admitting that when I was in law school I had a little trouble with all those Latin words — res ipsa loquitur, and so on. It now appears that President Trump is having his own troubles with Latin words. He recently declared a bogus emergency in Los Angeles and not only nationalized the California National Guard without the participation of the Governor, but stationed active-duty Marines in the city. Trump’s Latin problem is with the phrase posse comitatus.

Under ancient English common law, the sheriff of any county was obligated to call out able-bodied men to assist him in defending the county against the King’s enemies and to keep the peace. This was the posse comitatus. Down to our own time, the issue has become who may not be called out to assist regular law enforcement in keeping the peace. Our current distaste for having the military enforce civilian law has strong roots in the 1770 Boston Massacre, where British troops were stationed in Boston to quell civil unrest and fired on a heckling crowd.

The Posse Comitatus Act was passed in 1878 at a time when federal troops were being used to prop up Republican-controlled governments in former Confederate states during Reconstruction. As amended, the Act reads

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army, the Navy, the Marine Corps, the Air Force, or the Space Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.

But the Constitution gives Congress, not the President, the power to call out the state National Guard for limited purposes. When Congress has not acted, the President can call out the Guard only in compliance with a federal statute through which Congress has delegated its power.

In 10 U.S.C. § 12406, Congress has delegated to the President the authority to call into federal service the National Guard of any state whenever (1) the country is invaded by a foreign nation, (2) there is a rebellion or the danger of a rebellion against the authority of the federal government, or (3) the President is unable with the regular force to execute federal laws. The order calling out the state National Guard must be issued by the Governor of the state involved.

How then does Trump justify what he has done in Los Angeles? He issued a proclamation based on the statute entitled “Department of Defense Security for the Protection of Department of Homeland Security Functions.” He did not claim that the country was being invaded or that he was unable to execute immigration laws with the existing federal force. Instead, he claimed that acts of violence and disorder directly inhibit the execution of federal laws and therefore constitute “a form of rebellion against the Government of the United States.”

The sinister thing about Trump’s proclamation is that it did not refer to Los Angeles. Instead it referred to unnamed places where protests against Federal functions are occurring or are likely to occur “based on current threat assessments.” It did not identify the specific California National Guard units that were deployed. It directed the Secretary of Defense to coordinate with the “Governors of the States” in identifying and ordering into service the appropriate members and units of the National Guard. Clearly this order was designed as a predicate for a geographically unlimited use of National Guard troops.

One can deplore the acts of violence that have taken place in Los Angeles – which I certainly do – without accepting the incredible exaggeration that they constitute a rebellion against the United States. A rebellion is legally understood to be an organized attempt to change the government or leader of a country. Trump’s misuse of the concept is a dangerous, expansive interpretation of federal power that we cannot allow to be normalized. Trump is spoiling for a fight and doesn’t care what laws or guardrails he rolls over.

Neither the Governor of California nor the Mayor of Los Angeles were consulted before Trump’s power grab. In fact, they both forcefully objected to federalized National Guard troops being deployed on the streets and asserted that local authorities had sufficient resources to handle the unrest. The State of California has sued the Trump Administration, alleging Trump was without power to usurp control of the California National Guard without involving Governor Newsom, and that he is also without Constitutional power to intervene in the state’s enforcement of its own criminal laws.

In response to California’s suit, on June 12 a federal court in San Francisco issued a temporary restraining order against Trump directing him to “return control of the California National Guard to the Governor of California forthwith.”  The court focused first on whether Trump’s proclamation met the terms of 10 U.S.C. 12406. It did not. The court ruled there was no “rebellion” in Los Angeles because there was no armed, organized attempt to overthrow the government underway.  On Trump’s ability to execute the laws, the court ruled that the statute relied upon by Trump “does not allow for federalizing of the National Guard when the President faces obstacles that cause him to underperform in executing the law.” It requires him to be unable to execute the laws.

The court further ruled that “it is not the federal government’s place in our constitutional system to take over a state’s police power whenever it is dissatisfied with how vigorously or quickly the state is enforcing its own laws.” The police power is one of the primary powers reserved to the states by the Tenth Amendment.

Late in the evening on June 12, a federal appeals court stayed the immediate effect of the lower court’s restraining order pending consideration of the issues. The effect of the stay is to allow continued federal control of the National Guard until further order of the court.

None of this litigation addresses the deployment of Marines, which dangerously raises the stakes. The statute Trump has so far relied on, 10 U.S.C. 12406, does not authorize him to deploy the federal military against civilians — only to federalize National Guard troops. What would allow this is a statute called the Insurrection Act. It authorizes the President to use the military “whenever he considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings.”

Trump has hesitated to use the Insurrection Act because he will be unable to show in court that the use of Homeland Security agents and California’s regular law enforcement personnel are insufficient to enforce the laws in the normal way.

Trump’s disregard of the nation’s laws and protocols, to say nothing of ignoring the historical significance of using federal troops against civilians, is wildly out of balance. He seeks to flex federal muscle for political purposes, not to address a rebellion or an insurrection. There is, of course, nothing of this sort happening in Los Angeles. Everyone can see that. Trump is nothing more than a lawless occupier. Unless this reckless military venture is stopped now, he will occupy other cities.

 

 

Representative Riley Moore: Trump Toady

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The behavior of Rep. Riley Moore has been embarrassing – both to his constituents and to himself. Since being elected to represent West Virginia’s Second Congressional District in November 2024, Moore has not had an original thought. Instead, he has let Donald Trump do his thinking, eagerly supporting every misguided and dangerous policy spun out from the Trump chaos. But Moore will learn a hard lesson.

Trump’s “smash and grab” Administration is fueled by the fiction that he was given an unprecedented and powerful mandate for change by the American people. But his nationwide popular vote margin over Harris was only 1.5%, one of the slimmest margins ever. Trump’s electoral vote margin of 86 votes paled in comparison to Obama’s (365) or Reagan’s (525). Trump is President, not because he won a huge number of new voters but because Harris won 6 million fewer votes than Biden.

The real measure of an election victory is called the Determinative Popular Vote – the minimum number of votes in the right states that would have changed the electoral outcome. Had Harris won Michigan, Wisconsin and Pennsylvania — which Trump won by a total of 230,000 votes — then she would have been the victor. That means that only .0015 of voters nationwide made Trump the winner. So Trump has no mandate whatever. He barely squeaked into the presidency.

Nevertheless, in his first 90 days Trump has acted like a king. He has no legislative agenda, governing instead by Executive Order fiat. He has destroyed USAID and the Department of Education, gutted federal employment, threatened the tax status of universities, bullied law firms, challenged the legitimacy of federal courts, attacked the press and undermined cultural institutions. He has proposed to wreck the international trade order with “reciprocal” tariffs and caused the stock market to tank. He has snatched immigrants from the streets and deported them without due process. All this has resulted in Trump’s approval ratings dropping to the lowest point of any modern President in the first 90 days.

Back to Riley Moore. One wishes he would behave in Congress with some restraint and modesty. After all, he is so new he hardly knows where the men’s room is. Despite this, he has been an enthusiastic cheerleader for all things Trump. This is the sin of failing to look before you leap, because Trump’s outrageous policies will hurt West Virginians and there is bound to be a snapback, even here.

As an example, Moore voted to support the recent House budget resolution, saying

President Trump’s landslide victory was a mandate for change, and with passage of today’s budget resolution, House Republicans are unlocking the process needed to deliver on the America First Agenda.

This is the budget that will pave the way for continuing tax cuts for the wealthy, but only if it cuts Medicaid spending. Medicaid is the joint federal and state program for health insurance and medical services for low-income and working people. Over 500,000 West Virginians, nearly 30% of the state’s population, are supported by Medicaid.

On April 2, 2025, Moore joined President Trump at the White House to celebrate “Liberation Day,” the day when reciprocal tariffs were announced on all countries having trade surpluses with the United States, even small islands populated only by penguins. The formula for these tariffs was so childish and unprofessional that the stock and bond markets promptly tanked, eroding the retirement savings of many West Virginians. Several days later Trump folded like a cocktail napkin and “paused” these tariffs.

But the most shameful thing Moore has done is to fly to El Salvador and pose for gloating photos in front of a cell full of deportees hustled illegally out of the United States to avoid interdiction from a federal court. The Charleston Gazette called Moore’s social media post with jailhouse selfies “dehumanizing and a disgrace to the office he holds and the people he represents.”

In its April 19 issue, the Economist magazine reported that Trump already has a negative approval rating in the six swing states he flipped from Biden. As of April 24, only 44% of Americans approve of his conduct in office. In the 2018 midterm elections during Trump’s first term Republicans lost 42 seats and control of the House. Riley Moore remembers 2018 well. That year in a reaction to Trump’s excesses, voters in Jefferson County turned Moore out of the House of Delegates even though he had been picked to become the new House Majority Leader. What’s past is prologue.

What is “Due Process” and Why Should We Care?

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Recently, ACLU attorneys representing the alleged Venezuelan gang members who were deported in chains to El Salvador by the Trump Administration have asserted that these people were denied due process. But this legal concept seems elusive and hard to define. And we have so much else to worry about. Why care about this?

Trump’s rough deportation of these people occurred without determining whether they were engaged in criminal conduct or were even members of the gang. This shouldn’t surprise us. History shows that it is often the most disfavored or despised members of society whom a mob, or occasionally our government, thinks are unworthy of the basic protections the rest of us take for granted. But, hey, they had tattoos. That must count for something.

Due process is nothing more than following established rules and procedures before depriving someone of life, liberty, or property, and fairness in the penalty when laws are broken. In other words, due process requires the penalty to fit the crime. The source of our right to due process is the Fifth Amendment, which restricts the federal government from peremptorily punishing someone for a crime using irregular procedures or, as in this case, simply no procedures. The Fourteenth Amendment expands these protections to the way state and local governments operate.

Lynching is an example of the complete breakdown of due process. Our history, even into the “civilized” 20th Century, includes hundreds of lynchings of Black Americans. These victims lost their lives to the blood lust of mobs who bypassed the legal system’s method for establishing guilt in the regular, lawful way. As a nation we are still living down that shame.

Keep in mind that due process doesn’t prevent punishment where punishment is appropriate. It merely slows down the process a bit and requires the government to have its facts straight. Just maybe we will discover that the person of interest isn’t really the right one or did something far less serious than we assumed at the beginning.

That might be the case with respect to some of the deportees Trump flew out of the country in defiance of a court order. That court order would have required nothing more than delaying deportation until individualized deportation hearings could be held to get the facts straight.  The deportees were already in custody and could not have committed additional crimes, even if they were guilty of earlier ones.

One federal appellate court judge reviewing the situation said that a hearing to determine gang membership was required and that “even Nazis got better treatment under the Alien Enemies Act than has happened here.”

Some will argue – incorrectly – that aliens in this country unlawfully aren’t entitled to the protection of Fifth Amendment due process. The Fifth Amendment says that “No person shall … be deprived of life, liberty, or property, without due process of law.” Notice that these rights are not limited to citizens, or even those non-citizens lawfully here. Aliens physically present in the United States, regardless of their legal status, are regarded as persons guaranteed due process of law.

None of what I have said should be taken as a defense of criminal gangs or aliens behaving in unlawful ways. We should allow law enforcement to do its job. Sometimes imprisonment is the penalty for committing a crime. Sometimes it is deportation. But our legal system, until recently the envy of the world, requires proceeding in deliberate ways that do not make law enforcement itself unlawful.

So, why should we care about due process? Just wait until your child or grandchild is rounded up in a drug bust simply because she hung out with the wrong people and had a tattoo on her arm. Then you’ll understand.

The Folly of Trump’s Tariffs

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Over and over in American history we have tried tariffs to solve economic problems. Over and over tariffs have failed to solve those problems, while creating new ones. Sometimes it takes the passage of years for us to forget how badly tariffs hurt us the last time we tried them. Other times we have a leader who just doesn’t know or care about history and recklessly promotes tariffs to fix an imaginary problem. We have that leader now.

Usually, the U.S. government adopts tariffs for rational reasons. For example, we used tariffs early in our history to protect and encourage domestic manufacturing. But Trump’s proposed tariffs can’t be justified on that ground. He proposes blanket tariffs on all goods from a particular country, not targeted tariffs on goods in industries that need protection.

Some argue that tariffs will reverse the “hollowing out” of American manufacturing. Phil Gramm and Larry Summers, former Senate and Treasury officials who know what they’re talking about, debunk that idea in a January 23, 2025 letter in The Wall Street Journal. They point out that American manufacturing is at an all-time high. We are producing with higher productivity, meaning fewer employees but with higher wages. This is a great strength of the American economy, not a weakness.

Before 1913 when the Sixteenth Amendment established income taxation, tariffs were the main revenue source that funded the government. Our economy then was primitive by today’s standards. Today only 1.9% of our revenues come from tariffs. The U.S. government can tax and borrow with such ease that tariffs are no longer needed. Trump says that tariffs will make us rich, but have you heard any serious figures from the Treasury on the amount tariffs would raise or what spending gaps this revenue would close? Of course not.

Trump’s bizarre threats to use tariffs, and the tariffs he has so far imposed, have no connection to the traditional way tariffs are used. Instead, they are an effort to strongarm the target countries into adopting policies favorable to the U.S. that Trump cannot obtain through normal diplomacy.

So far this has been to force Canada and Mexico to supplement their efforts at the U.S. border to stop immigration and fentanyl. This bullying has not been well received in these two countries. The U.S. national anthem was recently booed by Canadian fans at an NBA game in Toronto. Only time will tell whether roughing up our closest neighbors and two largest trading partners will have lasting negative effects.

In the 1930s the Smoot-Hawley Tariff Act turned a recession into a full-blown depression. That legislation placed tariffs averaging 20% on about 20,000 imported goods, including agricultural products.  The goal was to protect American farmers. However, it raised the prices of food and other items. Other countries retaliated with tariff hikes, forcing global trade to decline by 65%.

We have already seen China retaliate for Trump’s imposition of 10% tariffs on goods they export to us. Their tariffs on our goods entering China will mean we will sell less in the huge Chinese market, so our own business income and American jobs will suffer.

American tariffs cause prices to rise here because foreign goods become more expensive. We’re not talking just luxury goods like BMW cars that we can easily avoid buying. Tariffs on Canada, Mexico and China will mean avocados, cherry tomatoes, children’s clothing, toys, electronics and all the other things we consider part of middle-class life will rise in price. Mexican President Claudia Sheinbaum warned that “one tariff will be followed by another.” Attention Wal-Mart shoppers! Stuff you like to buy will start getting more expensive.

It will not only be goods from foreign countries that will become more expensive. Experience has shown when a tariff is placed on a foreign item making it more expensive, the price of competing American items also increase because American sellers are able to raise prices and still be less expensive than the tariffed foreign item. You can count on Trump having no plan to stop that sort of thing.

Then there are longer term problems. The Economist magazine explains that tariffs on foreign goods induce American companies to “innovate less and misbehave more.” Sheltered from better run foreign rivals, American firms would have less incentive to produce superior and less expensive products. In a word, they would get lazy.

As he did in his first term, Trump is governing by impulse and chaos. I understand that many folks voted for him because of inflation. But it is unlikely they will see the payoff of lower prices. Instead, Trump’s tariff folly will add to their burden.

Civil Liberty and Football

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Lately I have been spending too much time watching football on television. It has helped take my mind off what might happen to civil liberty during the upcoming Trump administration. By civil liberty I mean the kinds of activity that are permitted or outright protected by our Constitution. Between beers – or maybe because of them – I realize that football provides some metaphors for talking about civil liberty in our political moment.

One thing I’ve noticed these days is that Americans don’t get too excited over the loss of civil liberty when it is other people who are losing it. Contrast this with the period in the 1780s when the draft Constitution was being debated in the states. It was all anyone could talk about. And ratification would have been rejected if a bill of individual rights that protected everyone had not been added.

Constitutions set out the fundamental structure for the operation of a society, which in our case includes the rights individuals can enjoy. But none of these rights is absolute. Because our Constitution is a political document, not a sacred text brought down from the mountain, the meaning of a particular provision can change depending on whether it is in the political spotlight, and whose claims to meaning are supported by political power.

So where is the boundary line for the meaning of fundamental rights at any moment? The appropriate football metaphor is “line of scrimmage.” The tug and pull of politics have moved that scrimmage line on civil liberties back and forth over the years. Sometimes this results in a “new” interpretation of the Constitution moving the line in one direction. The recent loss of a woman’s right to choose is an example. At other times powerful political movements result in constitutional amendments moving the line in a different direction. Prohibition and women’s suffrage are examples of this.

Nothing better illustrates the power of politics to determine civil liberty than the right of free speech. The First Amendment unequivocally states that “Congress shall make no law abridging the freedom of speech, or of the press.” No law means no law, right? Well, no, the whole history of the First Amendment has been one long process of carving out disfavored speech unworthy of protection at a particular moment. Obscenity and hate speech are examples. Politics drives this process.

At the outbreak of World War I, it was a federal crime to say anything that had the natural tendency to cause insubordination or disloyalty in our military forces. Under that law, the socialist Eugene Debs went to prison for praising others who had encouraged refusal to register for the draft. Fast forward to 1968, when the sons and daughters of the middle-class were in the streets protesting the Viet Nam war. Then the Supreme Court ruled that even expressly counseling draft resistance was protected speech. The connection between the political moment and the outcome of these cases is unmistakable.

Another useful football metaphor is “the red zone.” That’s when one team has the ball inside the 20-yard line of the other team. Big things are likely to happen when a team is in the red zone, but whether this will be good or bad depends on which team you’re on. I can’t help feeling that Trump is in the red zone when it comes to immigration. He has promised to deport millions of undocumented immigrants and thinks he has the mandate to do so. We’ll see if he does.

It will be a shock to many in the new Trump administration that non-citizens – even unlawful immigrants – have Constitutional rights. The Fifth Amendment says that “No person shall … be deprived of life, liberty, or property, without due process of law.” Notice that these rights are not limited to citizens, or even those non-citizens lawfully here. Aliens physically present in the United States, regardless of their legal status, are regarded as persons guaranteed due process of law.

Despite some small movement in the line of scrimmage, the Supreme Court has usually ruled that aliens are entitled to a hearing before being deported at which they must receive an explanation of the reasons proposed for their removal, have the assistance of counsel, introduce evidence and cross-examine witnesses, and appeal an unfavorable ruling. If we are a nation of laws, these deportation hearings cannot be sham proceedings where nothing matters but the government’s desire to eject the alien.

Trump suggests that he will declare a national immigration emergency — a truly fictional state of affairs — but that kind of declaration is necessary for him to use military resources for the detention and removal processing of aliens. He may use other fictional reasons to override the due process rights of detained aliens, believing that the political moment strengthens his hand.

I think the new administration will run into significant trouble in the courts if it tries to bulldoze civil liberty using overheated rhetoric and a false narrative. One or two examples of criminal aliens don’t make the case that we have been invaded. And I believe the American people will not lend political support to peremptory or cruel treatment of immigrants. We will throw a flag for unnecessary roughness.

 

 

 

 

 

 

 

 

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Trump Threatens Birthright Citizenship

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Donald Trump is back. And this time he will have a compliant Congress and a whole roster of willing Cabinet ministers. The first thing Trump promises to do — after upending international trade with tariffs — is to deport millions of immigrants. If this did not promise to be both tragic and harmful to the economy, I would feel like making a big bowl of popcorn, pulling up a chair and watching the whole debacle.

There is no question that we need to get control of our borders and reform our immigration system. If we purport to be a country of laws, then our immigration laws need to be enforceable. While I don’t subscribe to Trump’s racist and otherwise offensive reasons for deporting people, orderly immigration is an important goal. But equally so are the need to buttress our dwindling working age population and our national responsibility to behave with grace and compassion.

Listening to interviews of people who cross our borders illegally at great peril to themselves, one is struck by the ordinariness of their motivation. They just want to live more prosperous, secure lives. I’ll wager that any of our ancestors who came here voluntarily had the same motivation.

A part of the anti-immigration effort Trump promises is to eliminate birthright citizenship. This is the legal principle that if a child is born in the United States, she is a citizen of this country regardless of the citizenship or immigration status of her parents. More than thirty countries, including Canada and Mexico, recognize birthright citizenship. Others in Western Europe do not. They require at least one parent of the child to be a citizen.

Trump says birthright citizenship is a magnet for illegal immigration. He has threatened to use an executive order to eliminate it once he assumes office. There is one problem. Birthright citizenship is not a government policy that can be changed with an executive order, or even a law Congress can repeal or modify. The Constitution itself establishes this type of citizenship.

After the Civil War, the United States ratified several constitutional amendments designed to clarify the status of formerly enslaved people. Among these was the Fourteenth Amendment, which states “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” This is clear enough. The only possible ambiguity relates to the second clause regarding being subject to the jurisdiction of the United States.

Far right immigration opponents like John Eastman have urged Trump to declare by executive order that children born to illegal immigrants are not subject to the complete jurisdiction of the United States because they are not lawfully here and still theoretically owe allegiance to a foreign sovereign. Recall that Eastman, the criminally indicted and disbarred lawyer, was the one who came up with the theory that Mike Pence could simply refuse to certify the results of the 2020 election.

Of course, no established precedent or once-secure right seems safe with the current Supreme Court. But in the case of United States v. Wong Kim Ark, decided in 1898, the Court established that the Fourteenth Amendment creates birthright citizenship even for the children of non-citizen residents. The case arose while federal Chinese exclusion legislation was in force. The government argued that Wong Kim Ark, although born in San Francisco, was the child of two Chinese non-citizen parents who were subjects of the Chinese emperor making him also a subject of the emperor. He was thus not subject to the jurisdiction of the United States, or so the argument went.

But the Supreme Court wasn’t buying this argument. It ruled, with two exceptions not relevant to today’s immigration debate, that anyone born within the territorial boundaries of the United States and residing here was “subject to the jurisdiction of the United States.” The jurisdiction of a country within its territorial boundaries is complete. So our “jurisdiction” applies to children born to illegal aliens — they are required to pay our taxes and are subject to criminal penalty for failure to comply with our laws like the rest of us.

It is hard to imagine West Virginians with serious concern about the practical effect of immigration on their lives, lawful or unlawful. In 2023, there were 32,309 foreign-born people in West Virginia, which is about 1.8% of the state’s population. This is lower than the national average of 14.3%. As a recent article in The Wall Street Journal put it, “there is little evidence that many recent immigrants – either those who entered legally or those who didn’t – have any inclination to go to West Virginia, the only state with fewer residents than it had in 1940.”

The same article pointed out that West Virginia has one of the two lowest labor-force participation rates in the country, while having the second highest rate of job openings and the fourth-highest rate of vacant housing. In other states eldercare is provided disproportionately by immigrants. And the National Association of Home Builders reports that while our native-born workers remain reluctant to join the industry, one in three craftsmen in the construction trades come from outside the U.S. Don’t we need more workers to care for our elderly and build our homes?

Other states with workforce problems like West Virginia’s and an aging population are trying to recruit immigrants. Maine’s government has a dedicated office to welcome and support immigrants. Utah has extended in-state college tuition to refugees, asylum seekers and other migrant groups.

But reason and good public policy don’t seem to matter as much these days as the appeal to emotion. The Trump juggernaut is set to roll. It’s just that when it comes to West Virginia, don’t count on good things happening from the President-elect’s attack on immigration and birthright citizenship.

Trump Fans Want to Talk About Anything But This — He’s Guilty

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It  started immediately after Donald Trump’s indictment. First there was the “whataboutism” and false equivalencies. What about Hillary’s emails? What about the classified documents Joe Biden had? Then the claim that the Justice Department has been weaponized to prosecute only Republicans. Then the claim that the communist, Democrat deep state is determined to take down the leading candidate to oppose Joe Biden in 2024.

This is all deflection. Just like Trump himself, his supporters are grasping at shiny, manufactured grievances but don’t want to talk about the big issue — he is guilty of the serious crimes charged in the indictment.

Whataboutism is the practice of responding to an argument, not with a counterargument, but with an attack that requires the opponent to go on the defensive about another issue. This avoidance maneuver happens often in political debate driven by partisan bias. Sometimes, and our present situation is one of those times, whataboutism is calculated wholly to avoid acknowledging an opponent’s valid point.

We shouldn’t reward whataboutism by taking it seriously. But, okay, what about Hillary’s emails and Biden’s documents? That’s where false equivalency comes in. The gist of Trump’s indictment is that he intentionally retained classified documents, repeatedly refusing to return them or even acknowledge he had them. Then he covered up and lied about having done so. Neither Clinton nor Biden was ever accused of that kind of conduct.

In fact, both Clinton and Biden fully cooperated when asked to do so. Biden actually self-disclosed that he had some classified documents from his time as Vice President. Nevertheless, Biden’s Attorney General Merrick Garland has appointed a special counsel to investigate. The conclusion of the Clinton investigation was that she had been careless but had no criminal intent. So no crime and no indictment. The investigation into Biden’s handling of classified documents has not reached a conclusion.

And here is another key point — Trump has not been criminally charged for taking to Mar-A-Lago any of the classified documents he returned when requested to do so, even though he had no right to possess them. If he had simply given all the documents back he wouldn’t be in this fix.

A person who claims that the Justice Department has been “weaponized” by the Democrats to indict Trump simply does not understand the special counsel mechanism. Or perhaps doesn’t want to understand. A special counsel like Jack Smith operates without political interference.

Special counsel are appointed by both parties. In fact, Trump’s Attorney General William Barr appointed John Durham as special counsel to investigate intelligence gathering and law enforcement activities directed at the 2016 election. The Biden Administration did not interfere with Durham’s investigation after Biden took office. Likewise, the Biden Administration has not influenced Jack Smith’s charging decisions.

The weaponization charge boils down to the fact that Donald Trump has been indicted, as if he is some sacred cow. The allegation is really driven by the result of Smith’s investigation, not the misuse of the process. But after reading the indictment, it is hard to imagine any other result.

The one serious argument made against indicting Trump is that in an evenly divided and polarized country a sitting President should not be seen as prosecuting his predecessor and current rival. The claim is that indicting Trump is political overreach by the Biden Administration of the sort common in third world countries. I am not persuaded.

In the first place, the argument loses steam in light of the independence of the special counsel. Jack Smith is a career prosecutor with an international reputation, not a political tool. Yes, there will be a cost to taking action against Trump — our exemplary system of justice will lose legitimacy among enraged Trump supporters. But where issues of grave national importance are involved there is also a cost in not acting. We would be more like a third world country if we failed to hold Trump accountable as any normal person would be. In the end, if he pays a price for his criminal behavior it will be a triumph for democracy and the rule of law, not a stain.

And by the way, why does the fact that Trump is the leading candidate for the Republican nomination matter? He has been the leading  candidate for months, even announcing early so he could be in the race when the expected indictment came down. Evidently, he thought this would protect him, but he has learned that being a candidate doesn’t give him a pass for crimes committed.

As far as the Democrats worrying about him as a candidate, nothing could be further from the truth. Biden’s advisors are crossing their fingers in hopes that Trump will be Biden’s opponent in 2024. As the Wall Street Journal aptly put it, if Republicans nominate Trump again, they won’t “own the libs,” the libs will own them.

Should the U.S. Lease St. Helena Island?

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Recent legal events have led me to recall St. Helena, one of the most remote places in the world. St. Helena is a small volcanic island in the Atlantic, about 1,200 miles off the coast of Africa and 4,000 miles from the coast of Brazil. The island was, of course, the final place of penal exile for Napoleon Bonaparte, the self-crowned Emperor of France.  St. Helena is now a British Overseas Territory, and I’m sure the Brits would welcome a new revenue stream from an old business — a small but very special penal colony.

St. Helena wasn’t the first place the world sought to stash Napoleon. In 1814 he was exiled to Elba, an island in the Mediterranean. Elba had a population of 12,000 and Napoleon was allowed the somewhat humiliating title of Emperor of Elba. Arriving at Elba he immediately began plotting his escape, which he accomplished in 1815 by slipping past his guards and eluding British ships.

Once back in France Napoleon began drawing huge crowds. French police forces were sent to arrest him, but upon arriving in his presence, they kneeled before him. Does this remind you at all of the fealty shown to a certain political cult leader in America today?

It wasn’t until after his defeat at Waterloo in 1815 that Napoleon was exiled to St. Helena.undefined That island was chosen because it was believed that escape was virtually impossible since the British Royal Navy controlled the Atlantic. Still, the British put Napoleon under armed guard, stripped him of most of his companions and placed him a lonely, windswept house named Longwood.

While at Longwood House, Napoleon constantly complained about the damp and windy structure, alleging that his captors were trying to kill him by means of the rather primitive conditions. Finally the British agreed to improve things and built him a new residence, but he died from complications from an ulcer in 1828 before it was completed.

Penal exile is not an option under the federal criminal statutes of the United States, but it is an intriguing idea for a President who fomented an insurrection and coup attempt. We may simply have to be satisfied with the thought that he could make new friends at a prison within the country.