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Opinions on Text of the 14th Amendment Differ. One side has a point.

Ian Millhouser correctly denounces not only Trump’s assault on the 14th amendment but also reporters who print absolutely false assertions.

The issue is Trump’s clearly false claim that he can eliminate birthright citizenship by executive order.

In fact “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States … ” – US Constitution Amendment 14.

Millhouser’s post is too good to summarize, click the link.

Importantly he nails The New York Times tweeting the absolutely 100% false assertion that ” It is unclear whether he can do so unilaterally”.

He also catches CNN falsely saying it is “unclear” and NPR falsely claiming it”isn’t settled”.

The FBI has found no clear evidence that they are deliberately undermining the US Constitution and the very idea of Constitutions. In fact (as in the case of the dread New York Times headline) disgracefully printed 2 years + 1 day ago) they consider it safe to assert a negative. The principle that one can’t prove a negative is turned on its head. They assume it is safe to write and say “unclear” and to say “isn’t”.

I absouutely reject the claims that it is unclear whether the reporters who did this shouldn’t be roasted over a slow fire and that it isn’t settled whether the editors who allowed them too shouldn’t be skinned alive.

I just want to add a few comments.

First Millhouser doesn’t waste space noting that Donald Trump has no legislative authority whatsoever. He claims to be able to rewrite the Constitution by executive order. He can’t even rwrite the law. An executive order must be instructions as to how to faithfully execute the law written by Congress.

I think conservatives (if any read angrybearblog) may suspect me of hypocrisy since I never denounced Obama’s executive orders. They would be wrong. Obama (and his hardworking staff) always explained the basis in law and precedent for his orders. Even DAPA and DACA which seemed extreme even to sympathetic observers, were clearly authorized by the Immigrationa and Naturalization Act which grants the executive vast discretion and legally the same as an uncontroversial executive order signed by George H W Bush (not to mention that DACA was uncontroversial when issued). DAPA was blocked by an extremist judge not on the grounds that it went beyond the INA but on the grounds that it wasn’t preceded by a period of public comment as required by some other law (I think it’s called the administrative procedures act).

In contrast Bush’s absurd claim that he could create military commissions by executive order was rejected by a Conservative Supreme Court.

Another minor point — the “subject to the jurisdiction of ” phrase clearly was intended to say that Native Americans who live in territory not claimed by any great power or by the US Government are not US citizens. This is clear from the relevant context in the main body of the Constitution “excluding Indians not taxed” (search for the dread words “three fifths” and scroll left past a comma). The borders of the USA were not clearly defined when the 14th amendment was drafted. There were treaties with Mexico, Russia, and the British Empire which roughly defined approximately the current borders (except for Hawaii, Guam, Puerto Rico, the US Virgin Islands, American Samoa and what’s left of the Norther Marianas Islands after typhoon Yutu). There were also treaties with native American tribes which hadn’t yet been broken which defined a smaller but aggresively expanding country. The 14th amendment said that, for example, people born in Oklahoma are not necessarily US citizens (don’t worry doesn’t apply to the native born president eligible Senator Professor Elisabeth Warren because that treaty was broken sooner than she was born).

By the way, Don Jr, Erik, Ivanka and Barron don’t have to worry that their dad will deprive them of US citizenship. He is, to our everlasting shame, a US citizen who lived in the USA at least 6 years after turning 14, so they are native born US citizens just like Rafael “Ted” Cruz and just as Barack Obama would be even if he had been born in Mombassa.

Finally Millhouser undestated his case again when he wrote

the Fourteenth Amendment’s words are clear, and the Supreme Court settled any lingering doubts over their meaning in its 1898 opinion in Wong Kim Ark.

In fairness, Wong Kim Ark was not a unanimous opinion — it was a 6-2 decision handed down over a dissent from Chief Justice Melville Fuller. In his dissent, Fuller argued that the Fourteenth Amendment secretly contains a missing word. “Born in the United States, and subject to the jurisdiction thereof,” he claimed, means that a person was “born or naturalized under such circumstances as to be completely subject to that jurisdiction, that is, as completely as citizens of the United States” (emphasis added). Thus, the child of non-citizens may not be “completely” subject to American jurisdiction because they also may also be “subject” to a “foreign power” — their parents country of origin.

The implications of this dissent are simply breathtaking. Had it become the law — and just in case this point is unclear, a dissenting opinion is, by definition, not the law — Fuller’s dissent would establish that any child of non-citizens, even the child of two lawful permanent residents, would not be a citizen.

In fact, the dissent would imply that Don Jr, Erik, Ivanka, Barron and my daughters are not US citizens because their mothers weren’t at the times of their birth. If any taint of foreigness were poison, than one foreign citizen parent would be enough for exclusion.

But, fortunately, Fuller completely invalid assertion of “completely” was absurd and outvoted 6 to 2.

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Win for Students Having Loans From For – Profit Educational Institutions

A Federal Court cleared the way for students who have been defrauded by for-profit institutions (I hesitate to call them schools).

“This court ruling is a major victory for thousands of students across the country who were defrauded by predatory for-profit colleges taking advantage of our broken student loan system. We commend Attorney General Maura Healey for her leadership fighting for students who were left with thousands of dollars in debt after their for-profit colleges collapsed.

The federal student loan system creates perverse incentives that enable bad actors to prey on students. Without adequate protections for students, these predatory corporations will continue to base their business models on the availability of these loans, with little commitment to providing quality education.”

These Obama-era protections and remedies were being blocked by Secretary of Education Betsy DeVos. U.S. District Judge Randolph Moss rejected a request by for-profit college representatives to halt the regulations. Even with the win, the answer from the Department of Education is arrogant in response. Student loan servicers do not hesitate a moment to penalize a borrower with penalties and fees if the are late.

“DeVos and conservatives have said the Obama-era policies are unfair to colleges and too costly for taxpayers. She has proposed creating a stricter standard for fraud claims and eliminating the ban on mandatory arbitration agreements.

But DeVos’ push to finalize those revised regulations has hit an unexpected snag that will delay having a replacement policy on the books by another year. The Education Department said it won’t meet a key Nov. 1 regulatory deadline, meaning that the replacement regulations aren’t likely to take effect until July 2020 at the earliest.”

Hopefully the State Attorneys and others can convince the Judge to hold Betsy DeVos in contempt for not activating the court’s requirements in a reasonable amount of time less than 2 years.

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The Susan Collins Excuse

The Susan Collins Excuse

I listened very carefully to Senator Collins as she detailed her excuses for letting Brett Kavanaugh become a Supreme Court Justice. Two aspects of her speech were particularly absurd and kind of appalling. Her claims that Kavanaugh is a moderate akin to Justice Stevens were beyond absurd. The most appalling aspect of her speech was how she dismissed the claims that Kavanaugh sexually abused women in high school and/or college:

Some of the allegations levied against Judge Kavanaugh illustrate why the presumption of innocence is so important. I am thinking in particular not at the allegations raised by professor Ford, but of the allegations that when he was a teenager Judge Kavanaugh drugged multiple girls and used their weakened state to facility gang rape. This outlandish allegation was put forth without any credible supporting evidence and simply parroted public statements of others. That’s such an allegation can find its way into the Supreme Court confirmation process is a stark reminder about why the presumption of innocence is so ingrained in our a American consciousness. Mr. President, I listened carefully to Christine Blasey Ford’s testimony before the Judiciary Committee. I found her testimony to be sincere, painful, and compelling. I believe that she is a survivor of a sexual assault and that this trauma has upended her life.

She believes Dr. Ford but then she went on and on like a defense attorney why she did not believe her when she clearly said it was Kavanaugh. But the real stunner was when she said this:

I do not believe that the claims such as these need to be proved beyond a reasonable doubt. Nevertheless, fairness would dictate that the claims at least should meet a threshold of more likely than not as our standard. The facts presented do not mean that Professor Ford was not sexually assaulted that night or at some other time, but they do lead more to conclude that the allegations fail to meet the more likely than not standard.

I guess “the facts presented” is the key aspect as we know the FBI was not allowed to pursue corroborating evidence, which is why this episode is clearly absurd. But does Senator Collins truly grasp this more likely than not concept? I’m an economist not a lawyer but I have worked with tax attorneys and accountants on the transfer pricing aspects of tax provisions under FIN 48:

Under the Interpretation, absent the existence of a widely understood administrative practice and precedent of the taxing authority, an enterprise cannot recognize a tax benefit in its financial statements unless it concludes that it is more likely than not that the benefit will be sustained on audit by the taxing authority, based solely on the technical merits of the associated tax position. In this evaluation, an enterprise must assume that the position (1) will be examined by a taxing authority that has full knowledge of all relevant information and (2) will be resolved in the court of last resort.

Let’s key in on “full knowledge of all relevant information”. I have seen multinationals trying to convince financial auditors not to impose tax reserves based on some suspect report that key intercompany prices are arm’s length and where material information was not disclosed. In my experience, the financial auditors would refuse to give FIN 48 clearance until this information was disclosed and properly evaluated. It is well known that the latest FBI inquiry literally ran away from material information that may have corroborated Dr. Ford’s testimony. So when Senator Collins raises this More Likely Than Not standard – she should know better given the fact relevant information was not properly explored. Nicole Belle makes a strong case that the Republicans even knew ahead of time that Dr. Ford’s allegations are true:

Don’t Kid Yourself. The GOP KNOWS Kavanaugh Tried To Rape Someone … The FBI notifies the White House of the letter to see if they want follow-up. The White House declines further investigation. But now they know. And now they pass it on to GOP operatives. Early August. So now, Kavanaugh, the FBI, the White House AND GOP operatives all know. BEFORE the hearing even begins. So now the PR campaign goes into overdrive.

Read the entire thing as it explains a lot of the Republican fake anger at Senator Feinstein, which was all a gigantic smoke screen to disguise the fact that the Republican operatives were doing all they could to demean Dr. Ford, pump up Kavanaugh, and evade any real investigation. Senator Collins little More Likely Than Not sort of puts this in the domain of civil litigation rather than criminal charges where the standard is:

preponderance of the evidence – n. the greater weight of the evidence required in a civil (non-criminal) lawsuit for the trier of fact (jury or judge without a jury) to decide in favor of one side or the other. This preponderance is based on the more convincing evidence and its probable truth or accuracy, and not on the amount of evidence. Thus, one clearly knowledgeable witness may provide a preponderance of evidence over a dozen witnesses with hazy testimony, or a signed agreement with definite terms may outweigh opinions or speculation about what the parties intended.

Suppose Dr. Ford chooses to file a civil lawsuit against Brett Kavanaugh and Mark Judge. What then? We would have actual discovery if this lawsuit is allowed. Then again I bet Kavanaugh would hire some slime ball lawyers to squash this lawsuit even if they had to take it to the Supreme Court where Justice Kavanaugh could file the fifth vote in favor of his own motion.

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Sour Grapes

As I write, Brett Kavanaugh is not yet a Supreme Court Justice. I assume he will be one soon. I am going to argue that this is the best of the bad possible outcomes.

Yes this is making the best of a bad situation and pathetic motivated reasoning. Yes Collins’s speech drove me into an almost insufferable panic and despair (don’t ask me ask, my soon to be ex-wife if I don’t get a hold of myself [by blogging]). Consider this post emergency marriage therapy (or my bothering you by my recognition of her 8th amendment rights).

First it is clear that a very large fraction of the US public believe that Kavanaugh is a criminal and think it is very wrong for him to serve on the Supreme Court. In polls this seems to be a plurality not an absolute majority.

Also, on Thursday, he demonstrated that he is a raging partisan who aims to use his robe to punish his political adversaries. I think this was already clear to anyone who paid attention, but it is now clear to many people who looked the other way. They include lifelong Republican Justice John Paul Stevens a retired justice who argued against confirmation of a new one. This is unprecedented. The ABA reopened their evaluation of Kavanaugh when it was too late to influence the Senate. I am pretty sure that is unprecedented too. 2,400 law professors signed a viral petition arguing against confirmation of someone who was likely to be incredibly powerful. I suspect this is unprecedented event 3.

This means that the perceived legitimacy of the Supreme Court is in great danger (as it was in 2000 and as it was when the Warren Court decided to take the Constitution seriously). I’d also say that Justice Kavanaugh will attract attention to the misdeeds (torts not crimes) undoubtably committed by Justice Thomas and his felonious denial of those facts under oath. He was never a legitimate Justice, and that will no longer be over looked.

5-4 decisions with Kavanaugh and Thomas in the majority will be perceived to be illigitimate by a very large fraction of the population (I guess eventually reaching a majority but maybe just a plurality). This is exactly what Chief Justice John Roberts fears most — and can prevent any time he wishes. 5-4 decisions with Kavanaugh in the minority will not destroy the perceived legitimacy of the Court or endanger the constitutional order. I hope Justice Roberts (who clearly votes based on the outcome he prefers and can rationalize anything) will act accordingly.

Also packing the court is a very extreme act which would definitely endanger the Republic. It was done — in the 1860s. The congress that changed the number of justices also impeached President Andrew Johnson and refused to seat representatives and senators elected in Confederate states. This followed the Civil War — after killing each other for 5 years Americans were prepared to change the number of justices if necessary.

It was threatened by F. Roosevelt leading to “a switch in time saves nine” a sudden shift from declaring the New Deal unconstitutional to accepting it, because the alternative was a packed court. I may have made a mistake above. I guess Roberts fears court packing even more than he fears perceived illigitimacy — the two are so closely linked it would be hard to tell even with ESP.

One point is that he can avoid both by voting with the Democrats.

Another is that desperate times call for desperate measures. Court packing is preferable to submission to an undemocratic oligarchy and armed revolution and the GOP may leave us only those three choices.

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Textualism and The Exegesis of the 1982 Georgetown Preparatory School Yearbook

My understanding is that Bret Kavanaugh presents himself as a textualist, following Antonin Scalia he argues that words in the constitition and laws should be interpreted using their conventional meanings when they were written. This is in contrast to the different approach based on considering legislative history (which is impossible for the main body of the Constitution because the procedings of the Convention were secret). It is in very marked contrast to the approach based on following precedent and deferring to the interpretation made by other judges in the past. This third “living constitution” approach makes statute law like common law mainly a body of precedents. Notably over here (in Rome) no one argues for the third approach. It is a truism that “giurisprudenza non è legge” (jurisprudence is not law I translate un-necessarily since English legal terms come from right here in Rome (unlike the English legal tradition)).

Although not a lawyer, I felt the need to present pretentious introduction so that I might address the question “have I boofed yet”. Don’t worry, I have absolutely no intention whatsoever to answer this question, but I hope you are not shocked to read my confession that, at an earlier period in my life, I have, in fact, farted.

Addressing the Senate Judiciary Committee eminent judge Bart Kavanaugh argued that the slang term “boofed” which he wrote on his page of the 1982 Georgetown Prep yearbook should be interpreted as meaning “farted”. I see that he has no respect for or loyalty too textualism.

First an actual textualist would consider context. The slang term appears in the printed passage (among the oldest surviving exemplars of Judge Kavanaugh’s opus) “Judge, have you boofed yet?” Judge Kavanaugh asserts that he was publicly asking a close friend if he had, as of then, at any time in his life, farted. The word “boofed” alone doesn’t clearly refer to something other than farting. The additional (highly ironic) proper name “Judge” and the words “have”, “you” and “yet” provide enough context to prove beyond reasonable doubt that Judge Kavanaugh is a perjurer, criminal, and felon.

But a textualist considers more than the context within the document undergoing learned exegesis. It is necessary to inquire as to how the word was used by contemporaries of the author. Kavanaugh must explore, and must ask the eminent Senators to explore, 35 year old discussions of anal sex by teenagers to be true to his stated principles.

Or he could just admit that when he was 17 he publicly asked a friend if that friend had fucked a butt yet.

An embarrassing youthful indiscretion is not a felony. But Kavanaugh chose to lie, because that’s what he does.

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A Weak Defense of Citizen United: Ownership v. Control

A Weak Defense of Citizen United: Ownership v. Control

Many thanks to Peter Dorman for highlighting Citizens United As Bad Corporate Law. I guess we had to endure this comment, which is a really weak rebuttal:

Corporate shareholders are most definitely owners; they alone have the authority to sell their shares or the company’s assets. Their rights are based not on contract law but statutory rules of franchise. They are guaranteed rights of assembly abd representation, and they cannot legally surrender those rights even if they elect Directors who vote to do so.

My first thought to this attempted rebuttal was the complaints of condominium owners in San Francisco. They may own the rights to what is effectively an apartment but they have to deal with management as they really do not own the land. And even the land owner does not have that much control in a city where regulations control land use. My second thought involved the minority shareholders of Yukos Oil during Yeltsin’s Russia, which I noted in this related post:

AB noted yesterday that some of Sinclair Broadcasting’s shareholders were upset the decision of management to aid the Bush-Cheney ’04 campaign with free air time for another smear of John Kerry. Their stock, which was around $10 a share in early August, is trading now for about $7.30 a share.

Now I get that the corporate governance rules in the U.S. are not as pathetic as they were during Yeltsin’s Russia but the idea that an individual shareholder has any real control of how a corporation is run is quite naïve. Peter asked this commenter if he had read the paper. Had he done so, he might have noticed footnote 34 on page 19, which included a seminal paper by Ronald Coase entitled “the Nature of the Firm”. This paper initiated an entire literature on what this recent paper calls the “nexus of contracts theory”. If our commenter has not read this literature, he should.

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Citizens United, Thoroughly Debunked

Citizens United, Thoroughly Debunked

I admit I haven’t paid too much attention to debates over Citizens United, since I regard the direction taken by regulation, control over who may contribute to political campaigns and how much they can put up, to be misguided.  I would like to see comprehensive control over how much money can be spent on behalf of candidates, period.  (I would also like to see a mandate that all such contributions be funneled through an intermediary, like a public political finance fund, that keeps the identities of donors hidden from recipients.)  While CU has been yet another blow to democracy, the demand that plutocrats use one vehicle to flood the system rather than another is second best.

That said, I was struck by this new critique of CU.  Its authors, Jonathan Macey and Leo Strine, base their analysis on a point I was familiar with in the context of economic debates over the Jensenian shareholder rights theory of the firm, but its application to CU is obvious once you think about it.  The article ranges over a number of topics, but here’s the core, taken from the abstract:

In this Article we show that Citizens United v. FEC, arguably the most important First Amendment case of the new millennium, is predicated on a fundamental misconception about the nature of the corporation. Specifically, Citizens United v. FEC, which prohibited the government from restricting independent expenditures for corporate communications, and held that corporations enjoy the same free speech rights to engage in political spending as human citizens, is grounded on the erroneous theory that corporations are “associations of citizens” rather than what they actually are: independent legal entities distinct from those who own their stock…..[C]orporations do not have owners, they have investors who have contract-based, financial interests in the firms and limited management rights.

The best ideas often seem obvious once they are put forward, but the trick is to see them in the first place.

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BRETT KAVANAUGH: A MULTIPLE TRAIN WRECK IN MANY DIMENSIONS

by Brad Delong (originally published at Grasping at Reality with at least Theree Hands)

BRETT KAVANAUGH: A MULTIPLE TRAIN WRECK IN MANY DIMENSIONS: MONDAY SMACKDOWN

Clowns (ICP)

I confess that I have been procrastinating on various things. Why? Because I have been unable to tear my eyes away from the multiple train crash that is the confirmation process… the career… the life of Brett Kavanaugh. My view of this is a third- or fourth-hand view. It is the view of Georgetown Prep from Sidwell Friends. And it may well be wrong. But I think that it is right. So, with that warning, here goes:

The first… oddity… is Brett Kavanaugh‘s reaction to Christine Blasey Ford. It really ought to have been something like this:

 

I cannot say that I have a good memory of this, and I am not certain I am remembering the incident that was clearly very traumatic for her. I was drunk. I think she was drunk. From my perspective, we were roughhousing, and I was hoping she would let me see her tits. When it became clear she clearly was scared, Mark and I backed off.

I was in an unhealthy liberal culture in my high school and college years. When I was young and irresponsible, I was young and irresponsible. I hope I have learned to be a better person since then. I am now trying hard to be my best possible self.

I was too much of a dork and a dick back then to call her up the following day to apologize. And I have not been my best self in shirking my duty to apologize to her, to repent, to atone. It maybe too late now— better late than never Is not always true. But if better late than never is true in this case, I would like to say: I do regret my actions at what I believe was that incident and at other incidents where I was young and irresponsible. But I am not a rapist. I do not like to force myself I’m scared, struggling women.

That would’ve been the same thing to do. The non-psychopathic thing to do. The normal thing to do. The Manly thing to do.

But Brett Kavanaugh and company did not do that. Why not?

I think the balance of the probabilities has to be that he was, more likely than not, poisoned by his upbringing, and perhaps especially by his upbringing in the right wing of the Catholic Church of Pope Paul VI and John Paul II—their moral imbecility in the age of artifical birth control is truly wondrous.

I think it is more likely than not that he did and perhaps does have a particular kink: enjoying destroying female agency, through intoxication and a little light restraint, perhaps especially when women find themselves of multiple minds, with hopes, fears, regrets, and anticipation. Perhaps especially when there are no hopes and anticipations but only fears and regrets.

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Hannity as Goebbels

Hannity as Goebbels

Joseph Goebbels famously said that if you want to convince a populace of A Big Lie (fake news), then you do it by repeating it, over and over and over again.  For a long  time I have been keeping an eye on Hannity, reportedly nightly conversing with Trump after his show.  What struck me some time ago how repetitive the core pats of his introductory monologue are.  I have increasingly noticed that pro-Trump people seem to believe pretty much all of this super-repeated core Hannity-Trump lies. And I have seen no systematic or regular effort to offset this Goebbelsian Big Lie repetition.  So, here I am going to make a small attempt to point out some of the worst lies Hannity Big Lies about.

Almost all of it has to do with Hillary Clinton, a “whataboutism,” argument; Trump may have done some questionable things, but whatabout Hillary and her emails and so much more?  After all, at Trump rallies they still chant “Lock her up,” although reportedly in West VA a few days ago there was less enthusiasm and a lot of empty chairs.

A caveat is that this is not some super defense of Hillary.  One more or less accurate bit in the usual Hannity rant is that Hillary and the DNC treated Bernie Sanders badly and unfairly.  But I simply note for now that Bernie himself totally supported her, even as we know some people who voted for him voted for Trump. And, of course, she should have spent more time in Wisconsin and MIchigan rather than such effluvia as Arizona and (gag) Utah.  She was not on top of things, although in the case of the third surprise swing state, Pennsylvania, that was where she was on the last night of the campaign in Philadelphia, trying to get the vote out.  She knew that one was crucial, and she lost it.

So now we must deal with crucial issues.

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