Trump 14th Amendment proposal. "Doesn't pass the laugh test."

Can Trump actually change the 14th Amendment by executive order?

I asked a retired local judge and legal scholar.

Phil Arnold, retired judge responds. In a word: "No."

Dear Peter,

Phil Arnold, From Facebook

I had seen the frivolous idea of changing the citizenship clause of the Fourteenth Amendment ("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.”) by Executive Order and had given it no thought until you called wanting to have a serious conversation about the law on this subject. I decided I should at least read a few cases to be sure I had not missed something before I responded. My initial query turned up a definitive article which reviewed the law. 

Click here. https://www.nytimes.com/2018/10/30/us/politics/birthright-citizenship-executive-order-trump.html?module=inline

You know I very much enjoyed my judicial career which sometimes allowed me to analyze the interrelationships of the federal and state constitutions and various statutes. As the article points out there is no legal issue presented in this proposal. To borrow Gertrude Stein’s famous phrase, “There is no there there.”

Other articles suggested that the proposal is a part of this silly season of elections. It is true that people have been discussing the idea for a couple of days and, for that time, at least, no one has been focused on substantial issues such as homelessness, wages, war and peace, the funding of health care and education and other serious matters. But politics is your bailiwick and I’ll leave that discussion to you. As for a legal issue, it doesn’t pass the laugh test. 

Phil [Arnold]

Trump distracts us from pipe bombs and synagogue shootings

Donald Trump says he will change the operation of the 14th Amendment by executive order.  

It also changes the subject back to immigration, and the frame he likes: Trump versus foreign parasites.

His proposal is going nowhere.  He knows that. 

"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.”

                                                      U.S. Constitution, 14th Amendment, 1868

The 14th Amendment has a history.

Donald Trump changes the subject

America's first Congress passed the Nationalization Act of 1790, which restricted citizenship to "any alien, being a free white person" who had been in the country for two years. In some states about half the residents were black slaves.They were counted as 3/5 for purposes of representation, but were not citizens although the status of free blacks was in dispute. The Supreme Court thought to settle the matter with the 1857 Dred Scott decision, which said that no one whose ancestors were imported to the US as slaves were citizens or could be citizens. 

That set the path to civil war. 

In victory, Republican majorities in Congress were motivated to end slavery, and reverse Deed Scott. They passed an amendment with a clear, bright line southern states couldn't finagle. If you are born in the US you are a citizen, whether the southern states liked it or not. Ratification of the 14th Amendment was a condition for southern states to re-enter the union.

"Subject to the jurisdiction thereof" was intended to exempt children born of foreign diplomats, who had diplomatic immunity and therefore subject to the laws of the foreign country, and Native Americans on reservations who the government treated as sovereign and likewise beyond the reach of federal laws.

Donald Trump made a bold move, to end the common sense meaning of the first sentence of the Amendment. Can he do that?

No.

Fox: Immigrants are welfare cheats.

But there is a kerfuffle, and from Trump's political point of view, the more kerfuffle the better. Paul Ryan immediately expressed doubts it could be done by executive order but said it was an idea worth talking about. Lindsay Graham praised it extravagantly. Fox News loves it. Conservative AM talk radio is a-buzz.

Stop those lazy, cheating immigrants from getting onto our gravy train! This is a much better subject for Trump than the stickers on the pipe bomber's van. 

Trump declares children born in America become lifetime burdens, not productive fellow-citizens. It feeds the resentment mood and the immigrant-as-parasite meme. Trump said, "The baby is essentially a citizen of the United States for 85 years, with all of those benefits. It's ridiculous. It's ridiculous. And it has to end."

The more extreme Trump's assertion, including him saying he can do it by executive order,  the better for Trump. It has legal scholars looking at it. Experts and cautious people say "no." Wise and judicious people shake their heads.

Trump does not need the result. He needs the discussion. The discussion positions Trump exactly where he wants to be, as the Decisive and Strong Man of Action attempting to defend the good people of America from dangerous and burdensome foreign parasites, against the bookish critics and do-gooders on the left. 

Trump likes that frame. So does his base of voters. 

Resentment and counterpunch

The White House blames the targets of the package bombs.

Trump to rally crowd:  "I'm going to tone it down a little. Is that all right?"

Rally Crowd:  "No!"

Trump:  "I thought you would say that."

Trump's audiences don't want Trump to be "presidential."  They want him to attack. They think it's hitting back.

At the press conference Monday Sarah Huckabee Sanders said of course Trump was not responsible for creating a tone and message that encouraged the pipe bomb attacks. "Let's not forget those same Democrats have repeatedly criticized the president. . . . The president is going to continue to fight back."

Huffington Post thinks this is absurd; it's blaming the victim. 

Trump supporters do not.

Trump voters like it when he takes on blacks, Muslims, immigrants, the university know-it-alls, the global-thinker types, the Democrats, and the media.

It is easy to underestimate Trump's appeal to his supporters. Readers dismayed by Trump (like the 101 historian Guest Post author yesterday) can be blind to the fact that Trump has succeeded in tapping something politically powerful within the body politic. 

Resentment. Resentment of upstarts and interlopers.

Trump briefly tapped leftist resentment against corporate power during the campaign--drain the swamp--but that was a feint. His real target is a punch down, against the people an electoral college majority of white Americans are revealed to resent: people competing for a place at the American table. 

Click: NPR Survey

The Kavanaugh confirmation battle dovetailed with that narrative. Republican women believed Kavanaugh was being railroaded.

A significant majority of white Americans believe that Afro-Americans face no discrimination, and consider whites to be the disadvantaged group. Trump gets applause when he has renamed Maxine Waters "Low I Q Maxine Waters", the black Congresswoman. The crowds cheer his contempt.

He calls it a counter-punch. After all, the aspirations of those groups started it, 

And immigrants, too. The Trump view of the Mexican caravan is that it is filled with people who just pretend to be refugees, cheaters, paid by George Soros, with terrorists hiding among them. Trump's audiences cheer the idea of turning them back without a hearing. 

Click: December 4, 2015

Today Trump announced he was reinterpreting the 14th Amendment which states that people born in America are citizens. This would mean a class of stateless and disempowered non-citizens, a return to the pre-civil war era. He is announcing this a week before the mid-term elections because he believes this is popular. Keep them out and keep them down.

I had watched Trump--and his crowds--up close three times by December of 2015, and I was warning readers that Trump had a theme that was working for him, and the political world needed to take note. 

It was simple, I wrote. He message was that Muslims and immigrants were dangerous and stealing our jobs and we should resent it. He said white Americans aren't appreciated enough, and they get accused of racism or sexism for itty bitty things that are taken wrong, and this isn't fair. He said American leaders cooperate with foreigners and we are being taken for suckers.

It was that simple, I said. Trump had located points of resentment and was fanning the flames to an audience who shared those feelings, and it was working for him politically.

He is still doing it.


[NOTE:  I have learned I need to say this whenever I describe what I think is real, as opposed to what i prefer. Readers--especially ones on the left--assume I like what I am describing, and that I must therefore agree with Trump's chanting crowds. No. 

1. I think Trump is a dangerous demagogue. He is very skilled, however, which is why he is dangerous. He has a performer's gift of engaging an audience and observing what motivates it. I observe this. I don't celebrate this.  2. I am a white male, but I disagree with the polled majority of people who think whites face more discrimination than do Afro-Americans. I consider that absurd. Black and brown people face a headwind of prejudice, and I have benefited from a tailwind of cultural assumptions, benefits, and prejudice.]

101 Year Old Historian looks at Trump, with disgust and dismay.

 History didn't prepare him for Trump. Has it really come to this?

"I’m sick to death of mediocrity, of posturing, of pretense, of lies told with a straight face.  What did I do to deserve this?"

                       Vaughn Davis Bornet, historian

Vaughn Bornet

Vaughn Davis Bornet is an historian who looked closely at the presidencies of Herbert Hoover and the history of the 20th Century. At age 101 he is active, sharp, and still observing and writing about the America he sees. 

Vaugh Bornet lives in Ashland, Oregon, studied at Emory and Stanford Universities, and then became an independent historian working for the Encyclopedia Brittanica, the Rand Corporation, and then at Southern Oregon University.

His life and study didn't prepare him for Trump. He had seen and expected controversy. He had experienced and studied difficult times and understood those.  He had been a conservative in the face of student agitation in the 1960s and 1970s, so he had become accustomed to political unrest. 

But now he is seeing disfunction at the top. 

He had seen better and expected better. 

Guest Post by Vaughn Davis Bornet

         By now, many of you are familiar with the outcries of Ashland, Oregon’s elderly scholar. Living on (now past 101), he can’t help noticing what’s happening to the Executive Branch of the government of the United States. He’s not happy! Nothing at Emory, Georgia, or Stanford, apparently, prepared him for today’s spectacle of government by guesswork.  So here he is again, this time close to fulminating….in summary: that occupant of the Oval Office has to go—and soon. 

             So it has come to this:  Our free press is subject to ridicule; actually, it is undergoing threat. Presidential antagonism is approaching entirely too close to action. 

         Not too long ago, political opposition to “the Press” was quietly endured  as “well meaning, but wrong.” Now, the expression “lock her up” has spread from a candidate’s lips to an office-holder’s lips. It has become a slogan. Worse, Donald J. Trump’s favorite outcry “Fake News” is no longer exotic; it is commonplace, or close enough. It is regarded in some places as a normal way to refer to America’s daily news headlines. 

Vaughn Bornet, from Facebook.

         Political rallies have long occupied partisans as election day approached. Now, it does seem, instead of governing, the White House occupant campaigns around the calendar—instead of concentrating on Congress or the passing scene. 

        At one time, high  office holders in D. C.  took an assigned position and went to work for “the duration.”  Now, many top officials simply quit in mid-stream, and proceed to walk out.  Maybe they are told to go, and “hurry up about it.” (Goodness knows what kind of instructions our Attorney General Sessions has gotten from his “boss.”)  

       In this Administration, reputations fade, so much so that individuals have to leave!  It is “one jump ahead of the sheriff,” so to speak.  Or, “Go while the going’s good.” 

         Let’s say there is an Event. Our president misrepresents it.  That happening was only a few weeks or months ago, but we cannot trust our president to tell the truth about it. What actually happened, back then?  Well, the Truth is something you are not going to hear from today’s occupant of Air Force One. 

         In life it has long been a truism that there are “the good guys” and there are the “bad guys.”  In statecraft, however,  it is no longer easy to tell our allies from our enemies!  Once, we made permanent friends of nations far away and tied them to us with Alliances.  Today, you can’t tell any ally without checking first with the White House to make sure which nation is a friend and which an enemy. Indeed, they may well have switched overnight!         

          This is serious stuff.  The ship of state has no helmsman, it seems; or maybe he just doesn’t think it important for us to know the differences between a true friend and a dangerous enemy. 

         All of these things that are happening to us from within our American Government  in 2018 are important.  But the travails of The Press are damaging to the point they simply cannot be laughed off, ridiculed, treated as “no more than a joke, really.” 

         There is indeed a field of endeavor called “journalism.”  It has standards, and concepts, and principles.  All are taught in college classrooms. Our present political leader ridicules any such idea and barges ahead—to the point where his expression “lock ‘em up” or whatever it is, sounds suspiciously like a proclamation of jail time back in Nazi  or Fascist days. 

         What I want at this point is an end to high school games that masquerade in the guise of proper conduct for Leaders!  In government the stakes are much too high to “play around” with them.   I must have a return to sense and sensibility to be happy at rest every day. 

       I really want, if the truth be known, the removal of Donald J. Trump from the presidential office.  If I can’t have that, I want powerful individuals in named offices  (Secretary of State, Secretary of the Treasury, etc.) who will keep that one from running things until his term has limped to its end. 

         I feel, overall, as though my Country has been borrowed away from me. Totally without my permission, mind you.  And somebody owes me for time spent playing at the fair grounds.    

        Now and then I feel like washing my hands.  I want to Do Something Dramatic.  Maybe yell a little.  Read another book with a title like Fury, or maybe Fire, or Unhinged—and coast for a few hours or a day or so until the revelations and the prose in the new book’s pages wear off. What I am saying, I guess, is that I don’t want to be alone in my antagonism against this amateur (that’s right: amateur) in the Oval Office. 

      How to end this, well, has it really become a diatribe?  Promise me this madman with the simple habits and all that spare money will go away. Soonest.  Bring in somebody who has read in depth of the lifetime of Herbert Hoover’s dedication; the comprehensive love of Life of Theodore Roosevelt; Lincoln’s use of language to elevate national spirits; Jefferson’s ability to raise my comprehension of self-government by framing a document that’s good for me. 

         For Hell’s sake:  I’m sick to death of mediocrity, of posturing, of pretense, of lies told with a straight face.  What did I do to deserve THIS?  Bring in somebody as president  who can shame Congress into doing what is right! Figure out some way this TV star can’t pick somebody else to fill a Supreme Court vacancy with all that is bound to entail. Most of all, please:    

      Bring dignity back to my White House. Don’t let this fellow salute one more time; it gives me the willies to think of a general or admiral kowtowing to this guy, even if he does, probably, get a kick out of the winks and nudges at home later on. 

         I want my Country back.  Is it too much to ask?

         

Medford Voters, Ward One. NOT Curt Ankerberg.

Curt Ankerberg, candidate to avoid.

It is easy to be confused.  

His name may sound familiar: Curt Ankerberg is "Mr. Anger Burger." 

Curt Ankerberg has name familiarity--for all the wrong reasons.

He has run for various offices repeatedly and lost. 

He got into the news for being sanctioned by the Tax Court for filing fraudulent tax returns. 

He is the one who writes angry, profane, threatening public comments in social media.

He has two opponents running viable campaigns. Steve Dickson and Alex Poythress. I have links below to two posts I have written about each of them. Steve Dickson is a mild mannered 39 year old HR specialist who works for the Veterans Administration.  Alex Poythress is a 29 year old self employed internet marketing entrepreneur. 


Both serve on public advisory committees for the City of Medford. Both Dickson and Poythress are registered as Republicans, as is Curt Ankerberg.

Curt Ankerberg would be a disruptive presence on the Medford City Council. I have observed him to get white hot angry immediately, at which point he becomes profane. His angry outbursts frighten people, me included. 

Curt Ankerberg: angry, vulgar.

He denounces as corrupt nearly every person and institution in the city: the Mail Tribune, the City Council, the County, the Chamber of Commerce, and nearly every candidate for public office. Democrats he condemns as communists. He condemns Republicans as corrupt crony capitalists on the take. 

His name and appearance make him easy to confuse with another prominent Medford resident Bill Anderberg.  

Bill Anderberg is not Curt Ankerberg.  

Bill Anderberg is the manager of Answer Page, a long established local telecommunications company. He is active in Chamber of Commerce and Republican Party circles, and he supports a variety of non-profit civic activities, including veterans, for which he is photographed here preparing a cross country bicycle fundraising trip. 

He is male, in late-middle-age, and like Curt Ankerberg, he shaves his head. To the superficial glance, they look alike.

They would be easy to mix up: Curt Ankerberg, Bill Anderberg. 

Totally different people.

I have encountered several voters who, upon hearing Curt Ankerberg's name, think he is the one who manages Answer Page. No. That is Bill Anderberg.  

Bill Anderberg, left.  He's not Curt Ankerberg

Curt Ankerberg is the one who is famous for anger, profanity, and tax cheating. He is the one on he ballot. Not Bill.

What should voters do?

The Mail Tribune endorsed Alex Poythress as the better alternative to Ankerberg. I interviewed both Poythress and Dickson and personally preferred the earnestness and humility of Dickson compared to the more opinionated and strong willed Poythress, but I expect either would serve Medford well.

Avoid Curt Ankerberg.

For more information, read the Voters Pamphlet or click on these links below:



1. Here are links to two posts on Steve Dickson:

https://peterwsage.blogspot.com/2018/09/steve-dickson-candidate-for-medford.html

https://peterwsage.blogspot.com/2018/10/steve-dickson-candidate-for-medford.html


2. Here are links to two posts on Alex Poythress:

https://peterwsage.blogspot.com/2018/09/alex-poythress-candidate-for-medford.html

https://peterwsage.blogspot.com/2018/09/take-two-alex-poythress-candidate-for.html



3. Here are links to two posts on Curt Ankerberg:

https://peterwsage.blogspot.com/2018/09/curt-ankerberg-watch-out-medford.html

https://peterwsage.blogspot.com/2018/09/curt-ankerberg-watch-out-medford-part.html

Megyn Kelly. Sudden Death

"Wow."

         Megyn Kelly, on learning of the decision to fire her.

An instant apology was not good enough.

Click: "I was wrong and I am sorry"

NBC fired her. She showed racial insensitivity. She said on camera that in her childhood at Halloween a white child could darken his or her skin to dress up as a black character and it wasn't thought racist. That blew up on her.

Some things simply cannot be discussed. Not to understand this shows a fatal breach of acceptable thought. Of course, obviously, a white child darkening his or her skin is wrong. Period. 

Megyn Kelly immediately apologized.

She said she was sorry. Her apology had the elements of a good apology.  

Apology expert Edward Battistella, author of "Sorry About That" (Click: Amazon) says a meaningful apology can resolve an injury and restore the apologist's social position. 

A good apology:

   ***States the Offense. The apologist describes the error.

   ***States the Apology. The apologist says they are sorry.

Battestella on Apologies. 60 secs.

   ***States Future Behavior. The apologist says what has been learned along with a commitment to be better.

There is a fourth step, which did not happen--apology accepted.

Instead, they cancelled her show.

There may well have been other issues. Her ratings were disappointing. (My wife did not like her. She switched from watching the Today show when she came on.)

The public sees two big, frightening lessons

Lesson One. Watch out. One mistake, one off-the-cuff experimental thought can be fatal. You might think it is a joke. You might be mis-heard or mis-understood. If people take offense, you can be summarily fired. 

Your career can end in a moment. If it happened to Megyn Kelly it can happen to you.

Lesson Two. If you don't have a "tribe," you are unprotected. Megyn Kelly had been a Fox host and she still had Fox scent on her. She was now at the NBC Today show, but was proud of being "not a PC kind of person."

Being independent is dangerous. 

People took offense. She needed public allies. Had she been thoroughly in the liberal tribe then she might have counted on a chorus of black news people or public intellectuals to come to her defense. 

They didn't. Nor did her old allies at Fox. Indeed, Fox is delighted. They use her as an example of PC excess, fired for daring to exercise free speech.  

Be careful. Walk on eggshells.

Short term "win." for the left.  In the short run the Moral Left won another battle. They got to make their point that white people blackening their skin is not just wrong per se, but wrong to discuss. They got to demonstrate their power.

Long term loss. It sends a message of eggshell civic discussion. Don't offend. Self monitor. Don't be careless and don't be misunderstood. 

There is a school of thought that white people should feel uncomfortable and frightened. It is wrong to offend. Males and whites have been careless for centuries and it is high time they learn to be better. There need to be some prominent examples of people who were taught a lesson.

Maybe so. But people do not like walking on eggshells.

Black men understand the risks of sudden death when encountering police. They can be shot dead, based on the police officer's own subjective opinion of danger. "Hands up, don't shoot," may not be good enough. You might get shot anyway. Walk on eggshells.

White people are getting a lesson of their own version of this. Megyn Kelly did the apology equivalent of immediate raising of her hands. "I was wrong, I am sorry, I learned. Don't shoot." Eggshells.

She got shot anyway.

I worry Trump will make hay out of this.

Fox News: Downplay the Trump connection

Rush Limbaugh and Fox: Maybe the Democrats sent the bombs to themselves.

Donald Trump, Jr. "Liked" a tweet that said maybe this is something done by the Democrats to get sympathy.

Oops.

The suspected bomber's vehicle.

The idea being put out there was that this bombing had nothing to do with Trump, that either it was some wacko or it was a false flag by Democrats. And besides, the bombs were really for show, not actually dangerous.

The FBI appears to have found the bomber. He left a fingerprint and some DNA. Fox News coverage of this had a conspicuous gap: his motivation. In paragraph 7 of their story Fox gets to it, mentioning that he praises Trump on social media.  

In paragraph 8 they mention his truck, "plastered with stickers of Trump, the presidential seal and other political signage, including pictures of the likes of Hillary Clinton with crosshairs over them." 

At least at this writing, in the Fox stories the Trump stickers on the suspected bombers vehicle are blurred out.  The photos here are from other news sources.

The problem for the Trump-oriented media is that the presumed bomber made no secret of his motivation. He was a Trump fan, quoting Trump talking points and attacking Trump opponents. It requires a shift in tone and subject.

1. Praise for law enforcement, including the FBI.

2. Marginalize the alleged bomber, calling him crazy and demented. He isn't an extreme fan, he is a one-off. The Fox headline calls him a "fiend."

3. Trump talks equivalence and says "both sides" are at fault. “Americans must unify and we must show the world that we are united together in peace and love and harmony as fellow American citizens." 

That shift is underway.  Meanwhile, below, the photographs readers will see everywhere but on Fox:

                                               

 

Oregon School Rankings. Click Bait.

Much ado about the release of Oregon's Education Rankings of schools.  The rankings mostly measure neighborhoods, not schools, but people might not realize it.

"We see it every day. Some kids have every advantage and they do well at school. Other kids have it harder and we try to give those kids the boost they need."
                                  
                                                  Sunny Spicer, Exec. Dir. Kid Time
                                       

The Oregonian organized the data

I don't blame the schools or the politicians for worrying about the Smarter Balanced Assessment report. Schools will be ranked. Parents will notice. Zillow might link to it. Principals might get recognition one way or the other because of it.  School Board members will read it. Newspaper and TV news editors might think it measures something real. 

People like to compare. People like to see where they stand. The ranking is classic internet click bait.

"Click bait" is the name for internet sites that draw curious internet surfers to click and look. "The ten best cities for retirees" or "Eat these eight foods to lose weight starting today."

The Oregon School Rankings report is another example of click bait. It is more interesting than valuable and more likely to mislead than inform.

Here it is, from the Oregonian newspaper, which put the data into an easily searchable form:

Click: https://schools.oregonlive.com/performance/

Click on a city you know, then look at the schools. Something is being measured, but not what people think it measures. School achievement scores mostly measure the readiness of the students for school, not schools.

Home environment matters a lot when it come to readiness for school. It involves whether the child's parents speak English at home. It measures the child's nutrition. It measures whether there are books in the house. It measures whether the parents consider school important. It measures the student's peer group.

Here is what I see:

****The school rankings track closely with neighborhood affluence. The more affluent the neighborhood the better the rankings. This is the overwhelming message from the rankings.

****Less affluent neighborhoods, and ones with lots of apartments, have school children who move a lot and have more absenteeism. They don't do as well as other kids.

****Specialty alternative and charter schools concentrate on certain kinds of students, which then gets reflected in test results. 

People who look at the results hoping to evaluate teacher skill or principal quality--which school is better--will be misreading the data. What happens in each classroom is unique to that teacher. Natalie Hurd, speaking on behalf of the Medford schools, said "Our mission is to provide an equal, solid education for students no matter their zip code. While it's true some students come to us with special challenges because of lack of resources, either way when students come through our doors we provide a great education. We have systems in place to assure a good education no matter which school you attend." 

Are some schools better than others? "We have excellent teachers in all our schools," Hurd said.

Different students, different needs.

The Smarter Balanced Assessment appears to be measuring school quality on an apples to apples basis. After all, some schools have green boxes and some have red boxes, and the colors presumably mean something. Green is better than red. Green means the schools are meeting the Assessments' standards.

But if inherent school quality were being measured one would expect to see surprising outliers in results--schools with similar socio-economic status in their catchment areas showing different results. After all, some schools would be doing a better job than others, with the student population being held equal.

I don't see it. I see a correlation with socio-economic status. Struggling schools have kids with struggles.

Kid Time, a local agency providing pre-school education and exploration exhibits, set up a satellite site at one of the least affluent elementary school catchment areas in the state, one of the schools showing a comparative disadvantage. Sunny Spicer, the Executive Director, said they end up providing baseline parental services. "You cannot teach life skills until you have dealt with the fact that the kids haven't eaten. You can't expect a kid to sit still to hear a story if they have a tooth cavity that hurts. We are trying to help these kids get ready for school, but they are at a disadvantage. That's the reality."  

Click on the click bait if you must, but look to see what is really being measured. The tests are measuring students and the environment they come from, not schools.