Promiscuity, Aging, and Donald Trump

While much is made of President Trump’s promiscuity, very little is said about health effects—or causes— related to this behavior. 

Consider that Trump likely has had multiple sex partners into his late 50s/early 60s— Melania Trump, Stormy Daniels, and Katherine McDougal (perhaps others, too).

The National Council on Aging conducts a survey on sexual activity of older people. One study found that half (48%) of older adults can be classified as “sexually active” (engaging at least once a month in vaginal intercourse; performing, receiving oral sex; engaging in anal intercourse; or masturbating). A majority of respondents in their 60s (71% of men and 51% of women) reported that they are sexually active, using these criteria.

Most respondents also report satisfying experiences (61% overall).

A separate report by Dr. Chris Iliades asks, “Can promiscuity threaten your longevity?”

Quoting Dr. Iliades: “The short answer is yes. Having a large number of sexual partners has been linked to poor sexual health and decreased longevity. Why? The more sexual partners you have, the greater your risk for sexually transmitted diseases (STDs) like HIV/AIDS and other life-threatening conditions like prostate cancer, cervical cancer, and oral cancer.”

Dr. Deirdre Lee Fitzgerald elaborates: “Promiscuity is one example of a class of high-risk behaviors. It is comparable to, and may coincide with, behaviors such as heavy drinking, gambling, and other thrill-seeking behaviors like driving too fast.”

So far, there are no visible effects of Trump’s sexual activities. (Some people disagree with this assertion.)

Referring in general to people who have many sexual partners, Dr. Fitzgerald says “it’s a kind of activity that brings them status” and helps “them avoid dealing with other challenging emotional issues.”

Whether Trump’s sexual forays bring him down in court or in an impeachment hearing, only time will tell. The fact that he has gone 10 years or more without an obvious physical side-effect might mean he’ll never have a medical consequence.

But his sexual restlessness does seem to indicate, as Dr. Fitzgerald noted generally about people, a need to “avoid dealing with other challenging emotional issues.”

Why Were American Jews and Blacks Silent When Japanese Americans Were Sent to Camps?

In the coming semester, my students and I will explore this question in a new undergraduate course that I am launching.

We will read Cheryl Greenberg, “Black and Jewish Responses to Japanese Internment,” Journal of American Ethnic History, Vol. 14, No. 2 (Winter, 1995), pp. 3-37. Maybe you can google it.

For now, here is how Prof. Greenberg answered this question:

“Two months after Pearl Harbor, emotions in the United States ran high. Beyond the sense of betrayal, Americans believed the Japanese were winning the war. It was at that most bleak of times that the Commander in Chief, one of the most popular presidents in history, issued Executive Order 9066. 

Blacks and Jews, struggling to protect their own people, to support the war effort as the best hope against fascism and racism, and to gain a more secure foothold for themselves in unstable times, allowed their usual sensitivity to discrimination to lapse at a crucial time for civil rights in this country. This lapse was ironic, given Jews' criticism of Germans claiming obliviousness to the plight of Jews there, and African Americans' criticism of those who placed other priorities before the struggle for racial equality. Nevertheless, it was a lapse shared by virtually every organization in America, and serves as a chilling reminder that eternal vigilance is not only the price of freedom but its only secure guarantor.”

Working Off the Clock Five Minutes After Closing: Does Starbucks Owe?

Yes, according to the California Supreme Court. BNA reports:

Douglas Troester, a supervisor at a Starbucks in Burbank, filed a lawsuit because the checklist for closing the store required him to clock out so he could upload data about employees’ hours, sales, and other information before leaving work, which he said required a few minutes of off-the-clock work. Starbucks changed its system so that punching out initiated the information upload.

Short amounts of work time can add up. One uncompensated minute for an employee who earns minimum wage could cost a business up to $2,520 in penalties, the California Retailers Association said in a brief to the state high court. The group argued in favor of applying the federal minimal time rule, which doesn’t require pay for certain kinds of small, or “de minimis,” amounts of off-the-clock work.

What if you’re not in California?

Interesting, the federal wage-and-hour law permits employers not to pay for up to seven minutes of after-work work—but there is a catch. If that work—it’s called postliminary— closely relates to an employee’s actual work, then the time is compensable.

In my judgment, Starbucks owes Troester under federal law, too. The work he did was not “incidental.” It was clearly in the scope of his duties.

Backdrop: Today, the Commerce Department announced that the economy grew at 4.1% this past quarter. That’s great! But wages are barely rising. Come on, Starbucks and others— stop cheating workers like you did to Mr. Troester.

Blacks Led Drive for $10.10 Minimum Wage in Birmingham: White Lawmakers Struck It Down

Meet Mayor William Bell. He’s a pro-business mayor (who stepped down after 2017), and also a civic leader who addresses issues for the working poor. With unemployment at near-record lows, the Birmingham city council in 2015 raised its minimum wage to $10.10 per hour.

The Alabama legislature—without a single black vote in favor— passed a law striking down the city’s wage law.

That is curious for Republicans. Local control is their core principle.

The National Association for the Advancement of Colored People (NAACP) was struck by this counter-intuitive state law. They thought it was motivated by a desire to keep blacks poor and marginalized. So, the group sued, claiming the state law was racially discriminatory.

The federal district court judge threw the lawsuit out of court. He said the group would need to show “the clearest proof” that the 2016 state law was passed with a discriminatory purpose.

If that sounds like an impossible standard to meet, your thought is shared by a panel of federal appeals judges. On a 3-0 vote, they reversed the trial court, citing the state's “deep and troubled history of racial discrimination.”

The evidence showed that Birmingham’s law would have given 37 percent of its black wage workers a raise, compared to 27 percent of white workers. Currently, black workers in the city make $1.41 less per hour on average than their white counterparts.

Given those numbers, the appellate court reasoned that the state law striking down the higher minimum wage bears more heavily on blacks than whites.

Going further, the court wrote: “Today, racism ... hides, abashed, cloaked beneath ostensibly neutral laws and legitimate bases, steering government power toward no less invidious ends.”

The case is Lewis v. Governor of Alabama, 11th U.S. Circuit Court of Appeals, No. 17-11009.

Lincoln Drafted Aliens: Trump Boots Them from Voluntary Service

President Abraham Lincoln’s Emancipation Proclamations—officially, Proclamation No. 93 and Proclamation No. 95— ordered freedom for slaves. Shortly after, he issued Proclamation No. 105, relating to aliens.  Notably, his presidency was the first to marshal executive power to address race and immigration simultaneously. In both instances, he believed that America’s different people needed to be united, not divided. History proved him correct.

Lincoln had the backing of Congress. They passed the first conscription act in American history. All males between 20 and 45, including aliens with the intention of becoming citizens, were required to register.

A person could buy an exemptions from the draft for $300 or by finding a substitute draftee. This policy caused draft riots in New York City, where protesters were outraged that exemptions were effectively granted only to the wealthiest U.S. citizens.

This is an interesting backdrop for President Donald Trump, who avoided the Viet Nam draft by claiming a foot problem. Then and now, wealthy New Yorkers got a pass. 
The policy difference is how the two presidents view aliens. Lincoln believed they were needed to ensure America’s survival. Trump’s policy of forcibly discharging aliens who volunteer for military service is premised on a house divided concept.

Would President Trump—or President Obama—Order a National Day of Humiliation, Fasting, and Prayer?

Of course not, albeit for different reasons. But in my ongoing research into executive orders and proclamations, I have come across a second order of this nature (the other was issued by President Lincoln and reads somewhat differently than this). If you can spare a moment, I’d welcome your thoughts or reflections on FB or at mhl@illinois.edu. For background, President Adams was deeply concerned about the possibility of war with France when he issued Proclamation No. 8. I have highlighted passages of personal interest. Proclamation 8—Recommending a National Day of Humiliation, Fasting, and Prayer (March 23, 1798)

By the President of the United States of America A Proclamation As the safety and prosperity of nations ultimately and essentially depend on the protection and the blessing of Almighty God, and the national acknowledgment of this truth is not only an indispensable duty which the people owe to Him, but a duty whose natural influence is favorable to the promotion of that morality and piety without which social happiness can not exist nor the blessings of a free government be enjoyed; and as this duty, at all times incumbent, is so especially in seasons of difficulty or of danger, when existing or threatening calamities, the just judgments of God against prevalent iniquity, are a loud call to repentance and reformation; and as the United States of America are at present placed in a hazardous and afflictive situation by the unfriendly disposition, conduct, and demands of a foreign power, evinced by repeated refusals to receive our messengers of reconciliation and peace, by depredation on our commerce, and the infliction of injuries on very many of our fellow-citizens while engaged in their lawful business on the seas--under these considerations it has appeared to me that the duty of imploring the mercy and benediction of Heaven on our country demands at this time a special attention from its inhabitants. I have therefore thought fit to recommend, and I do hereby recommend, that Wednesday, the 9th day of May next, be observed throughout the United States as a day of solemn humiliation, fasting, and prayer; that the citizens of these States, abstaining on that day from their customary worldly occupations, offer their devout addresses to the Father of Mercies agreeably to those forms or methods which they have severally adopted as the most suitable and becoming; that all religious congregations do, with the deepest humility, acknowledge before God the manifold sins and transgressions with which we are justly chargeable as individuals and as a nation, beseeching Him at the same time, of His infinite grace, through the Redeemer of the World, freely to remit all our offenses, and to incline us by His Holy Spirit to that sincere repentance and reformation which may afford us reason to hope for his inestimable favor and heavenly benediction; that it be made the subject of particular and earnest supplication that our country may be protected from all the dangers which threaten it; that our civil and religious privileges may be preserved inviolate and perpetuated to the latest generations; that our public councils and magistrates may be especially enlightened and directed at this critical period; that the American people may be united in those bonds of amity and mutual confidence and inspired with that vigor and fortitude by which they have in times past been so highly distinguished and by which they have obtained such invaluable advantages; that the health of the inhabitants of our land may be preserved, and their agriculture, commerce, fisheries, arts, and manufactures be blessed and prospered; that the principles of genuine piety and sound morality may influence the minds and govern the lives of every description of our citizens, and that the blessings of peace, freedom, and pure religion may be speedily extended to all the nations of the earth. And finally, I recommend that on the said day the duties of humiliation and prayer be accompanied by fervent thanksgiving to the Bestower of Every Good Gift, not only for His having hitherto protected and preserved the people of these United States in the independent enjoyment of their religious and civil freedom, but also for having prospered them in a wonderful progress of population, and for conferring on them many and great favors conducive to the happiness and prosperity of a nation. Given under my hand and the seal of the United States of America, at Philadelphia, this 23d day of March, A. D. 1798, and of the Independence of the said States the twenty-second. JOHN ADAMS. By the President:

Trump Administration is Stripping Citizenship: Is It Legal?

The Department of Justice has quietly set up an office to start the process of stripping up to 300,000 naturalized citizens of citizenship and deport them. 

Their pretext? Some people cheated to get citizenship. 

No doubt, this is true—my father was such a person when he lied about his entry upon entering Ellis Island. Jews over 18 were ineligible for admission and certainly for citizenship.

There are nine requirements for a foreign-born person to become a naturalized citizen, but key parts are (a) five years of permanent residence in the U.S., (b) English writing and speaking proficiency, and (c) good moral character. 

Against this backdrop, a federal judge ruled on July 11^th that a naturalized citizen—now, a convicted terrorist— cannot be stripped of citizenship. Judge Staci Yanle wrote: “American citizenship is precious, and the government carries a heavy burden of proof when attempting to divest a naturalized citizen of his or her citizenship.” Her point was that the Trump team's proof of the man's fraudulent immigration process was speculative.

Where did the idea of naturalization come from? Some of our constitutional framers were born in foreign lands—for example, Alexander Hamilton. 

America was founded on the idea that the nation could be open to foreign-born people—people who could meet certain standards for naturalized citizenship.

A 1976 law review article by Michael Hertz points out that America has not lived up to the text and intent behind the so-called “naturalization clause” that gave Congress the power to make uniform laws for this purpose. This answers the question I posed in the title.

Hertz says: “Examples of where the naturalization laws have not operated in accordance with the Constitution are numerous.” He cites several examples.

So, the answer appears to be that the Trump administration has some basis for taking these extraordinary actions. Beyond the legal question, there is the policy question: Why should the U.S. examine the records of 300,000 naturalized citizens to consider citizenship-stripping? One obvious answer is to increase hysteria over immigrants in America.

Bears Ears National Monument: Rethinking Citizenship for Native Americans?

(A tourist photographs petroglyphs on Bears ears Monument land)

President Obama designated 1.3 million acres of Bears Ears territory as a national monument. The five native tribes with jurisdiction over parts of the area were elated. Oil and gas and outdoor adventure companies plus ranchers were outraged. President Trump reduced Bears Ears to about 200,000 acres.

This background helps us understand the conflicted status of Indian citizenship. I say Indian because the Constitution mentions “Indian” in two places, and is thought to include these people in the 14^th Amendment (which created citizenship for freed slaves).

The consistent meaning of the specifically mentioned phrases is that Indians were citizens in their own sovereign nations. People born into these nations had citizenship there, not the U.S.

A 1924 law changed that understanding, explicitly making Indians U.S. citizens. This was largely motivated by their service in World War I.

However, no natives asked for this legislation; and among various tribes, there was disagreement.

This issue re-emerged in the 1990s as the federal government asserted control over fishing and hunting rights, gaming, oil and gas exploration and more. For 30 years, some legal scholars—native and other— have made the case that any federal regulation of land use is unconstitutional and the only constitutional mechanism is to negotiate treaties with tribes. This would increase the bargaining power of native peoples.

In the case of Bears Ears, a multi-tribal group states: “Protection of all these sacred sites is critically important to Native American people. Ongoing looting, grave robbing, vandalism, and destruction of cultural sites are acts that literally rob Native American people of spiritual connections, as well as a sense of place and history.”

“Have we dealt fairly with the Jew, with the Italian, with the Greek, with the Hungarian, with the Pole?” A Mormon Senator’s Wisdom, Circa 1924

A Mormon, Sen. William King (D. Utah), opposing a racist immigration bill in 1924, said this: “Have we dealt properly and fairly with the young Japanese boy and girl born in America? Have we dealt fairly with the Jew, with the Italian, with the Greek, with the Hungarian, with the Pole, with these young boys, and girls who were born here and with those who have come here? Have we held out a welcoming hand with a view to assimilating them, or haven't we too often pushed them out, ostracized them, put them into the ghetto and forced them to assume a feeling of affection and loyalty to their fatherland that they did not want to assume?”
His view did not prevail.

“Pop” Quiz: What U.S. President Voiced Concern Over “Race Suicide”?

Your hunch is correct: It’s not Donald Trump. While in office, President Theodore Roosevelt wrote a letter on this subject. For context, Roosevelt wrote in response to a published article about a public health doctor who advised Americans to have smaller families.

The president wrote:

“There are countries which, and people in all countries who, need to be warned against a rabbit-like indifference to consequences in raising families. The ordinary American, whether of the old native stock or the self-respecting son or daughter of immigrants, needs no such warning. He or she needs to have impressed upon his or her mind ... that it is a simple mathematical proposition that, where the average family that has children at all has only three, the race at once diminishes in numbers, and if the tendency is not checked will vanish completely, - in other words, there will be race suicide.

Not only the healthiest, but the highest relations in life are those of the man and the woman united on a basis of full and mutually respecting partnership and wise companionship in loving and permanent wedlock. If, through no fault of theirs, they have no children they are entitled to our deepest sympathy. If they refuse to have children sufficient in number to mean that the race goes forward and not back, if they refuse to bring them up healthy in body and mind, then they are criminals (underlining added).”

Roosevelt believed deeply in the superiority of the white race. In a speech titled “On American Motherhood,” he expressed fear that rising white American infertility and use birth of control would mean that the white race not keep pace with the birth rate of ethnic minorities. Again, he used the term “race suicide.”

Some newspapers found this argument shocking or offensive, and lampooned Roosevelt. The picture is from the Ohio State Journal, where Roosevelt is seen congratulating former President Grover Cleveland on the birth of a son—a son who was the offspring of an extra-marital affair. Cleveland had his former lover/mother of his son committed to an insane asylum. (My title, “Pop” Quiz, is a weak attempt at a pun directed at Cleveland.)

Here is hoping that this brief moment of looking back helps us think about the  present and look to the future. 

Will Courts Order Unions to Refund Fees?

Conservative groups are pushing ahead after last month’s Supreme Court ruling on union fees. Now, they are pursuing lawsuits against unions to require them to “disgorge” (refund) fees that were collected prior to the Janus ruling. Their theory is that unions unconstitutionally took payments from objecting employees.

So far, they have lost in three cases; but the Supreme Court, with its noticeable appetite for cutting down unions, might rule otherwise.

The financial impact on unions would be catastrophic.

But the implications reach beyond unions.

The Trump administration’s lawyer who has been heading up these disgorgement lawsuits also sued Houston on behalf of a taxpayer. The lawsuit aimed to recover money that Houston had spent on employee benefits for same-sex couples before the Supreme Court ruled that same sex marriage is constitutional.

But let’s think ahead a bit.

Since 1968, religious schools have been allowed by the Supreme Court to receive subsidies for things like textbooks, which are quite expensive. In Board of Education v. Allen, a taxpayer sued under the First Amendment—the same law in these disgorgement lawsuits.  Allen argued that a New York law that loaned textbooks to Catholic schools violated the doctrine of separation of church and state. He lost on a 6-3 vote.

The Janus case that just ruled that union fees are unconstitutional stemmed from a 1978 Supreme Court rulings, Abood v. Bd. of Education. The Court ruled that these fees are not an abridgement of First Amendment rights.

So, if conservatives succeed in getting courts to order First Amendment refunds to employees who are represented by unions, I look forward to the day when the Supreme Court has a different lineup and a taxpayer sues to overrule the 1968 Allen case. No, I don’t really want parochial schools to refund taxpayers for 50 years of subsidies—but I would go there if the Supreme Court ruled that unions must repay fees retroactively. That’s because the First Amendment doesn’t recognize favored and disfavored groups.

In law, as in life, be careful what you wish for: What comes around usually goes around. 

German and Italian Americans Were Spared Internment: The U.S. Military Refused It

A declassified archive of a U.S. Army book explains in-depth the mechanics of rounding up Japanese Americans for internment camps.

What stands out is the Army’s strong objections to rounding up any nationality group.

Politicians and the public wanted resident aliens and naturalized citizens from Japan, Germany, and Italy put in concentration camps. 

The Army relented in the matter of Japanese because they had to obey the Commander-in-Chief—and for practical reasons, they argued that Japanese were more concentrated than Italians and Germans. 

But the Army's leading general (Gen. DeWitt) in the matter also believed that Japanese in the U.S. presented no military threat as a Fifth Column.

For more, see https://history.army.mil/books/wwii/Guard-US/ch5.htm.

Here is an excerpt:

CHAPTER V Japanese Evacuation From the West Coast

One of the Army's largest undertakings in the name of defense during World War II was the evacuation of almost all persons of Japanese ancestry from California, from the western halves of Oregon and Washington, and from southern Arizona. 

Initial plans for evacuation of suspected persons from strategic areas along the Pacific front concerned enemy aliens of all three Axis nations— Germany, Italy, and Japan-rather than persons of Japanese ancestry alone. 

Of the latter, the census of 1940 showed that, out of a total of 126,947 in the continental United States, 112,353 were living in the three Pacific states. California alone had 93,717 Japanese, or nearly three-fourths of the national total. Of the west coast Japanese, 40,869 were aliens ineligible for citizenship, and 71,484 were American-born citizens.

In early 1942 there were about 58,000 Italian and 22,000 German aliens in the Pacific states. Most of the Germans, and a large proportion of the Japanese and Italians, lived in or near the principal cities and adjacent strategic areas. 

A good many of the German aliens were recent refugees from Nazi Germany. In contrast to the Germans and Italians, the Japanese in the Pacific states, and especially in California, had been the target of hostility and restrictive action for several decades, a factor that unquestionably colored the measures taken against these people after Pearl Harbor.

…

A prewar agreement made the Department of Justice responsible for controlling enemy aliens in the continental United States in the event of war. During 1941 this department (primarily, through its Federal Bureau of Investigation) scrutinized the records of prospective enemy aliens and compiled lists of those against whom there were grounds for suspicion of disloyalty.  

By 13 December the Department of justice had interned a total of 831 alien residents of the Pacific states, including 595 Japanese and 187 Germans, and by 16 February 1942 the number of alien Japanese apprehended had increased to 1,266.

During the first few days after the Pearl Harbor attack the west coast was greatly alarmed by a number of reports-all false-of enemy ships offshore, and it was in this atmosphere that the first proposal for a mass evacuation of the Japanese developed. On 10 December an agent of the Treasury Department reported to Army authorities that "an estimated 20,000 Japanese in the San Francisco metropolitan area were ready for organized action." 

However General DeWitt may have felt during December about the treatment of enemy aliens, he was then firmly opposed to any evacuation of citizens. 

In a telephone conversation he had on 26 December with Maj. Gen. Allen W. Gullion, the Provost Marshal General, the latter remarked that he had just been visited by a representative of the Los Angeles Chamber of Commerce, who had asked for a roundup of all Japanese in the Los Angeles area.

In response, General DeWitt said (and General Gullion expressed agreement with what he said):

I thought that thing out to my satisfaction .... if we go ahead and arrest the 93,000 Japanese, native born and foreign born, we are going to have an awful job on our hands and are very liable to alienate the loyal Japanese from disloyal .... I'm very doubtful that it would be common sense procedure to try and intern or to intern 117,000 Japanese in this theater .... I told the governors of all the states that those people should be watched better if they were watched by the police and people of the community in which they live and have been living for years .... and then inform the F.B.I. or the military authorities of any suspicious action so we could take necessary steps to handle it . . . rather than try to intern all those people, men, women and children, and hold them under military control and under guard. I don't think it's a sensible thing to do .... I'd rather go along the way we are now . . . rather than attempt any such wholesale internment . . . . An American citizen, after all, is an American citizen. And while they all may not be loyal, I think we can weed the disloyal out of the loyal and lock them up if necessary.

Judge Kavanaugh: What Do You Think About the Intellectual Case for Racism and Xenophobia?

Extreme views on race and immigration germinate in hate groups. But some public intellectuals have built a legal argument that is cited to support the policy objectives of hate groups.

A 1985 book by Peter Schuck (Yale Law School) and Rogers M. Smith (Yale Political Science Department) has achieved real significance today among people such as Stephen Miller and former-Yale law student, Kris Kobach. The book is Citizenship Without Consent: Illegal Aliens in the American Policy.

Brett Kavanaugh was likely exposed to the book and its teachings at Yale law School.

This post is a critique of the book—and more important, the argument made by Schuck and Smith.

This is important because a growing number conservatives want to reverse a 120-year understanding that the 14^th Amendment created citizenship for anyone born on U.S. soil. The book says that Americans must consent to citizenship—that is, birthright citizenship is not automatic. 

If adopted, this policy idea would create a much whiter, racially homogenous voter (and citizen) base.

Here is an excerpt of Gerald Neuman’s critique (quoting follows):

***

The authors conclude that the Constitution mandates citizenship for children born within United States territory to parents who are citizens or permanent resident aliens. The logic behind this mandate is that admitting the parents as lifelong members entails the nation's tacit consent to citizenship for their future offspring (pp. 117-18). No so such guarantee is made to children of aliens admitted temporarily, or of undocumented aliens, to whose presence the nation has never consented (pp. 118-19). 

The authors propose that the Supreme Court revise its interpretation of the fourteenth amendment, so that Congress may exercise the power to deny American citizenship to these groups in the future. 

Schuck & Smith claim that mandating citizenship for undocumented children impairs the nation's right of political self-definition (p. 99). Further, they argue that our present welfare state makes the rewards of unconsented membership too alluring to aliens and too costly to the nation (pp. 103-115). They urge that withholding citizenship would contribute to restored control over our borders, since ascriptive citizenship "can only operate, at the margin, as one more incentive to illegal migration . . ." (p. 94).

I regard the authors' recommendation as resting upon a tragic moral misjudgment…

***

Neuman raises legal arguments against Schuck and Smith, including more than a century of settled precedents that have consistently understood the concept of birthright citizenship. 

I would ask Judge Brett Kavanaugh, a Yale Law graduate, what he thinks about this book.

How Justice Speaks Today

Justice Antonin Scalia took 258 trips paid-for trips before he died at the private estate of a wealthy businessman. His liberal colleague, Justice Stephen Breyer, was not far behind. Between 2004 and 2014, he took 185 paid-for trips. If Judge Brett Kavanaugh is confirmed, he will almost certainly be packing his bags for some fun trips, paid by his hosts. That’s because all nine of the current justices take these paid trips.

Consider that Justice Samuel Alito traveled in 2013 to the luxurious Casa de Campo Resort in the Dominican Republic.

His liberal counterpart, Justice Ruth Bader Ginsburg, is a guest lecturer for the Rome Study Law Abroad Program this summer. Also this summer, she is traveling to Israel to receive two awards.

The striking photo for this post has Justice Scalia and Justice Kagan posing at Mississippi hunting resort in December 2014.

Conservative groups do a better job of cultivating long-term relationships with justices who think along the same lines. Justice Scalia took 21 trips sponsored by the Federalist Society, some to upscale places such as Park City, Utah and Napa, California.

The bad news is that this is perfectly legal, even if some of these trips don’t pass the smell-good test. Scalia’s death poses that very situation: He died during a paid-for trip on the property of a man whose business had a discrimination case pending before the Supreme Court.

In all these trips, the justices were speaking to a group. That’s a good thing insofar as they are educating an audience. But increasingly, their audience amounts to their own echo chamber. And their speaking engagements amount to frolics with elites in posh locations.

That's how justice speaks today.

Literacy Testing Changed Immigration: How Morris S. Povich Makes America Great

I took this picture in Bath, Maine two weeks ago. Mr. Povich probably immigrated to the U.S. from eastern Europe (Maury Povich’s family is from Lithuania). The key point is that he arrived before 1917, when America passed a highly restrictive immigration law (Chinese were already entirely barred from entering).

Context: The Trump administration favors an English-fluency requirement for legal immigration. You may also know that America had a similar policy 100 years ago. The Immigration Act of 1917 required arriving immigrants to read four lines of text. The text was in their native language, not English, so it was a true literacy test.

But when Congress passed this law in 1916, President Wilson vetoed it, stating: “The object of such provisions is restriction, not selection.” He then noted that such a policy would “reverse the policy of all the generations of Americans that have gone before them.” 

In 1917, Congress overrode Wilson’s veto.

What was the effect of the law? Prof. Louis Bloch’s 1922 study shows the following:

“During the period 1899-1917, 13,821,126 immigrants from the races shown in the table were admitted into the United States. 

Of this number 3,029,752, or 21.9 per cent were illiterates who could neither read nor write.…  

It is evident that the effect of this clause has been to reduce considerably the numbers of illiterates seeking admission into this country.

The point of this research? People in other nations simply stopped coming to America. The much lower illiteracy rate after 1917 is conclusive evidence of self-selection. 
Mr. Povich arrived before 1917. The odds that he would have come to the U.S. and started his business after 1917 are very small.

Consider this, too. The 1917 law was based on the Dillingham Commission, a four-year investigation of immigration that ended in 1911. It concluded that immigrants from southern and eastern Europe posed a serious threat to American society.

Back to Morris S. Povich's store. He established it in 1910. It's still open for business. Mr. Povich made America great. And he is still making America great. 

Would Justice Brett Kavanaugh Overrule U.S. v. Nixon?

Today, the United States indicted Russian nationals who answered candidate Trump’s public call for hacking Hillary Clinton’s campaign apparatus. 

The indictment should make Judge Kavanaugh sweat in a way he hasn’t had cause to as of yet. 

That’s because the evidence of some type of coordination between the Trump campaign and Russian hackers just grew—and by a lot.

So, how does Judge Kavanaugh’s 2009 law review article look after the indictment? His absolutist position on excusing a sitting president from a criminal investigation means that America’s election process could be handed over to Russian hackers while the investigatory process is potentially delayed until January 20, 2025.

That could make Judge Kavanaugh squirm during his testimony.

It is almost inevitable that a senator will ask the judge: “Given your position in your 2009 law review article, would you be willing today to say that U.S. v. Nixon should not be overruled or in any way turned aside from applying to the Mueller investigation?”

In the Watergate case, special prosecutor Leon Jaworski obtained a subpoena ordering President Nixon to release certain tapes and papers related to specific meetings between the President and those indicted by the grand jury. 
The tapes and the conversations they revealed were believed to contain damaging evidence involving the indicted men and perhaps the President himself.
Does that sound familiar?

The president refused to obey the subpoena. In short order, the matter came up for decision by the Supreme Court.

In a unanimous ruling, the Court upheld the investigatory powers of the special prosecutor. Nixon was ordered to submit to judicial process. He resigned shortly thereafter under the pressure of intense, bipartisan scorn and calls for his resignation.  

The key sentence in that decision acknowledged that the principle of executive privilege did exist, but also rejected President Nixon’s claim to an "absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances."

So, Judge Kavanaugh: Did the unanimous Supreme Court in 1974 get that ruling wrong, or would you apply it to President Trump? 

And if you won’t apply the precedent, how can you credibly claim to be a conservative who upholds—as you stated in your introductory comments to the American public— precedent and the rule of law?

Doubling Down on Tariffs: How Did the Black Tariff of 1842 Work Out for Americans?

President James Polk, a Democrat, might be the forerunner of the president who succeeds Donald Trump. Here's why:

Polk is considered by historians to be the most effective president between George Washington and Abraham Lincoln. 
Tariffs played a major role in his success.

The Whigs in the 1840s-- like President Trump-- were deeply upset by what they perceived as unfair trading laws, especially the U.K.’s Corn Tariff. 
The Whigs had a good point—but their retaliatory tariff overreacted and set off a crippling trade war.

The Whigs enacted the Tariff of 1842, known as the Black Tariff because of its dire effects.
In a now-familiar story, the tariff rates doubled overnight. 
The new tariffs undid the 1833 trade deal called the Compromise Tariff of 1833. The 1833 law gradually lowered tariffs and promoted economic growth in America.

As the 1833 tariff level exposed American businesses to more competition, industrial interests grew angry and agitated for protection.

The Whigs got what they asked for in 1842. 
Average tariff rates nearly doubled from the initial 20% target for 1842 to about 40%. The impact of the Black Tariff of 1842 was immediate: as the cost of imports jumped, there was a sharp decline in international trade in 1843.

In the following presidential election, voters dumped the Whigs.
They voted for Polk and the Democrats who promised to unwind the damage done by the Whigs. 
They passed the “Walker Tariff,” the nation’s first standardized tariff. The policy allowed for many more imports, except tobacco and alcoholic beverages.

Trade grew substantially, and relations with Great Britain improved.

The lesson? Protectionist tariffs are popular in the moment and voters like this. But they pay dearly as consumers, and as America becomes a trade island. We will see if Trump’s protectionism and support from his base suffer the same fate of the Black Tariffs.

How Did Brett Kavanaugh Justify His Views on Presidential Power? His Words (In a Nutshell)

We will hear and read much on this topic. But it’s unlikely we will actually read direct quotes from his research.

This brief blogpost is a two paragraph summary of what Judge Kavanaugh said. It’s offered for your independent consideration.

As for me, I am taking time to think about this. 

Share your thoughts on FB or at mhl@illinois.edu.

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Brett Kavanaugh, “Separation of Powers During the Forty Fourth Presidency and Beyond,” Minnesota Law Review (2009)

One might raise at least two important critiques of these ideas. The first is that no one is above the law in our system of government. I strongly agree with that principle. But it is not ultimately a persuasive criticism of these suggestions. The point is not to put the President above the law or to eliminate checks on the President, but simply to defer litigation and investigations until the President is out of office.

A second possible concern is that the country needs a check against a bad-behaving or law-breaking President. But the Constitution already provides that check. If the President does something dastardly, the impeachment process is available. No single prosecutor, judge, or jury should be able to accomplish what the Constitution assigns to the Congress. Moreover, an impeached and removed President is still subject to criminal prosecution afterwards. In short, the Constitution establishes a clear mechanism to deter executive malfeasance; we should not burden a sitting President with civil suits, criminal investigations, or criminal prosecutions. The President’s job is difficult enough as is. And the country loses when the President’s focus is distracted by the burdens of civil litigation or criminal investigation and possible prosecution.

Motel 6 Volunteered Its Guest List of All Hispanic Guests to ICE: Turn Its Lights Off, Please

Motel 6 has agreed to settle a proposed nationwide class action lawsuit claiming it violated the privacy of Hispanic guests by providing guest lists to U.S. immigration authorities to aid in law enforcement.

The Mexican American Legal Defense and Educational Fund (MALDEF) represented the plaintiffs.

MALDEF sued Motel 6 in January. Its legal complaint said that release of guest lists was racially discriminatory and unconstitutional, and allowed law enforcement to make arrests without warrants or reasonable suspicion that crimes had been committed.

The lawsuit was filed after ICE arrested 20 people in six months at Motel 6s in Arizona, using guest lists to identify people by national origin. Hispanic guests Washington hotels were also arrested.

For now, Motel 6's management company, G6 Hospitality, has said it ordered its more than 1,400 U.S. and Canadian locations in September to stop voluntarily giving guest lists to ICE agents.

Abolish ICE? A Foolish Meltdown

I have strong concerns about how ICE is used today. Abolishing ICE, however, is an idea not even worth exploring.

To understand why, consider this brief history about how America has enforced its borders.

Before we had a national immigration service (i.e., agents), states had severe immigration laws and used local police as immigration officers. 
Arizona, for example, had a law that made it a criminal offense for an employer to have more than 20% of their employees be immigrants. A restaurant owner who had a small café was charged with a crime for exceeding the total of 20%. A German cook put him over the limit. The Supreme Court— a conservative court at that— threw out the conviction and the state law.

More generally, states passed laws that forbade the immigration of convicts (including people who broke laws that prohibited their religious worship), paupers, and free blacks.

If Democrats want to abolish ICE, that’s the type of system that we’d go back to.

But to their point, immigration officials can be instruments to enforce racist laws and policies. The first national immigration service came about after the Chinese Exclusion Act was passed in 1882.

Comparing the deportation statistics of Obama and Trump, they are not much different, at least so far. What is different, in part, is how ICE is now deployed—showing up, for example, to arrest a man who has was delivering a pizza to a military base, or using immigration laws to deport people with minor convictions from 20 years ago (while breaking up a family). 

Ironically, Obama put dangerous criminals at the top of his enforcement priorities. 

Every time Trump’s ICE arrests a peaceful person, they are taking resources away from going after violent criminals. Fox News never reports this plain fact.  

Should the Supreme Court Grow to 19 Justices?

That’s the suggestion of Judge Richard Posner, one of the most respected jurists in the United States and also a prolific scholar. He notes that other democratic nations have supreme courts that are larger than ours. In a recent interview, he said, “we have a crappy judicial system” and “most of the [legal] technicalities are antiquated crap.”

He said that the current Court is mediocre and highly politicized due to the political nature of the selection of justices. He also believes justices should be retired by rule at age 80. He just retired at age 79.

Adding 10 justices would take much of the drama and randomness out of these nominations. It would also reduce the possibility that a single justice could fashion himself or herself as a swing or pivot vote, as Justice Kennedy perfected over the past 15 years.

The size of the Supreme Court is set by statute, not by the Constitution. In the mid-1800s, the Court had 10 justices. It has also had six justices.

Judge Posner doesn’t explain how to make this happen. No single president should be able to nominate ten more justices! There would need to be a phase-in, and with these numbers, a very lengthy period to give Democrats and Republicans a fair shot.

Why Should You Care About the 150th Anniversary of the 14th Amendment?

On July 9, 1868, the 14^th Amendment was ratified. It amounts to the legal rebirth of America. Boiled down, it provides us protections against state and local actions that take away our liberty and property and life (called due process), and ensures that state and local laws treat us with equal protection. It also defines citizenship. This means that freed slaves were given full legal rights equal to whites; and also, anyone— regardless of their parents’ ancestry or origin— was to be counted as an American citizen if they are born on U.S. soil.

Given how polarized our nation is, here is a brief summary of conservative and liberal rulings that have interpreted the 14^th Amendment.

Conservatives: State and local governments must pay fair market value if either takes your property for a public purpose. Furthermore, if state or local laws so restrict your property that you cannot enjoy or use it as you wish, you can sue under the property provision of the 14^th Amendment.

Liberals: Separate but equal is not constitutional; it violates the Equal Protection Clause. A woman has a due process right (liberty) to have an abortion. Children who are not legally in the U.S. have a right to free public education because the Amendment refers to “any person,” not “any American citizen.” Gay people have a right to be legally married. 

Though 150 years old today, the 14^th Amendment is still under construction as our nation figures out the core meanings of liberty and equal treatment.

Supreme Court Nominee? My Assessment of Judge Thomas Hardiman

Law360 asked me the week after the inauguration to look into Judge Hardiman as a potential Supreme Court nominee. They re-contacted me on Friday to run parts of the following response.

My assessment of Judge Hardiman is limited to employment and immigration cases (i.e., not reproductive rights). Judge Hardiman’s decisions are well explained and written in a neutral tone. They lack Justice Scalia’s tart, expansive, know-it-all prose. His decisions don’t appear to stray beyond the facts, as Justice Alito is prone to do when he engages in dicta to signal the bar to advance his thinly veiled agenda.

On to some cases.

On immigration, Judge Hardiman’s record is what one would expect from a competent appellate judge. The grounds for reviewing orders from immigration judges are extremely narrow. The fact that Judge Hardiman frequently denies appeals by petitioners for asylum is entirely consistent with how federal appellate judges rule.

Two cases are worth mentioning, however.

In Gjonomadhi v. Attorney General of U.S., 310 Fed.Appx. 495 (3d Cir. 2009), Judge Hardiman disagreed with the immigration judge’s conclusion that an asylum petitioner from Albania had not suffered political persecution. He ruled, “we find that the IJ's conclusion that there is ‘in the record no compelling evidence that the respondent suffered past persecution’ cannot stand.” The point of this case is that Judge Hardiman doesn’t rubber stamp immigration appeals from aliens who have lost deportation cases before immigration judges.

Kwee v. Attorney General U.S., 269 Fed.Appx. 147 (3d Cir. 2008) is another interesting case. Here, Judge Hardiman— who was educated in Catholic universities— upheld a ruling from an immigration judge who ordered removal of a petitioner who alleged a pattern of persecution of ethnic Chinese Catholics in Indonesia. If Judge Hardiman had any personal sympathies for this alien on shared religious beliefs, he nevertheless stuck to the law.

In employment cases, he is a standard issue conservative judge who tends to rule for employers; but in doing so, his rulings stick closely to the law and facts. In EEOC v. Allstate Insurance Co., 778 F.3d 444 (3d Cir. 2015), Judge Hardiman wrote the opinion and ruling that affirmed a district court dismissal of discrimination claims brought by a class 6,200 insurance agents. The plaintiffs claimed that All-State unlawfully converted their status from employment to independent contracting with a discriminatory and coercive waivers. He rejected these theories, stating: “It is hornbook [basic] law that employers can require terminated employees to release claims in exchange for benefits to which they would not otherwise be entitled.” Allstate had offered four different options to the plaintiffs. The decision is a mainstream ruling that pushed back against the EEOC’s more expansive theory of discrimination—but notably, the decision did not overturn precedent.