Two Wunderkinds Take on New Jobs, Great Challenges

(Composite photo.)



Last week, two rising stars in their respective fields both assumed new roles with tremendous opportunities following sudden, unexpected events.

On Monday, it was revealed that Baylor quarterback Seth Russell will undergo "season-ending" neck surgery. Russell, whose performance as starting QB this season for the 2nd-ranked Bears has been nothing short of amazing, suffered a fractured bone in his neck trying to run for a first down in the fourth quarter of Baylor's Homecoming game against Iowa State. BU won the game but lost Russell.

That means that what Yahoo! Sports columnist Pat Forde called "the most fun position in football" will now be filled by 19-year-old true freshman Jarrett Stidham, a highly-prized recruit from Stephenville High School. (Yes, the same Stephenville High School whose football team won four state championships under Coach Art Briles. They won a fifth state championship in 2012 when Stidham was a sophomore.) The FBS's top offense will be depending on young Stidham to deliver as they pursue a berth in the college-football playoff and, God willing, a national championship.

Meanwhile, in Washington, D.C., Rep. Paul Ryan (R-WI) was elected and sworn in as the new Speaker of the House on Thursday, succeeding the leathery, emotional John Boehner, who had held the post since January of 2011 and shocked the nation last month when he announced his sudden resignation.

Like Stidham, Ryan is taking on huge responsibility with the support of a team that is excited to have him but can't be certain how he'll fare in his new role. Fans of both (or either) have reason for confidence, however, as neither man is a neophyte. Ryan is currently serving his ninth term in Congress and has already chaired two important House committees: Budget and Ways & Means. Stidham has played in every game this season, thanks to Baylor's habit of building up runaway leads well before the end of regulation.

 

Actually, not only are Ryan and Stidham experienced, but both already have some exceptional accomplishments on their resumes. Stidham put up crazy numbers in his senior year at Stephenville, passing for 2,934 yards and 35 touchdowns and running for an additional 969 yards and 15 TDs, and Ryan took on the third rail of politics--entitlement reform--as a little-known congressman from a Democratic-leaning district when Republicans were the minority party. Sports writers, analysts and college coaches around the country took note of Stidham's prowess and achievements and dubbed him one of the top recruits in the country, just as Republicans recognized Ryan as the asset he was and moved him into position to take over as chairman of the House Budget Committee when they regained the majority in that chamber five years ago. Ryan saw his first bill become law as a freshman. Stidham's first-ever pass in a college game was a touchdown.

 

Similarly, both men will face tests early on in their new roles, as greater challenges loom large in the near future. Stidham will debut as Baylor's starting QB this Thursday against the Kansas State Wildcats, who are 0-4 in conference play this season. This is a game the Bears should win, and a decisive victory will probably be necessary to show that Stidham can handle the upcoming Big 12 tilts against Oklahoma, Oklahoma State and TCU, all of whom have defeated K-State this year. Ryan's first real test as speaker will likely be passing a long-term bill to fund highway programs. Beyond that, he will have to deal with his own fractious conference, troublemaking Democrats and a hostile White House on weightier necessities, such as an omnibus spending bill, as one of the most critical elections of our lifetimes draws nearer.

 

Both men also have the advantage/burden of taking the helm at a time when their party/team is enjoying historic success, with their sights set on even higher goals. Republicans started this year with their biggest congressional majority in 84 years, and they'd like to keep that majority and win the presidency next year to boot. Baylor's football team is gunning for their third consecutive Big 12 title and first-ever appearance in a national championship game. Their offense has led the FBS in both yards per game and points per game the past two seasons and is currently first in both categories this season.

 

The similarities are not endless, however. For example, Ryan never desired the position he now holds and only sought it after much cajoling and pressure from his party, whereas Stidham was already contemplating getting "the starting job" when he committed to Baylor last December. Then there are the stark differences between their predecessors. While John Boehner turned out to be a disappointment (and, some would argue, a traitor) to his own people as speaker, Seth Russell proved himself worthy of the position he inherited from Bryce Petty. As reported by Graham Watson (“Dr. Saturday”), “Russell leads the FBS in passing efficiency (189.7), passing touchdowns (29), passing yards per completion (17.68), points responsible for per game (30.0) and passing yards per attempt (10.52).” He threw for 2,104 yards and ran for 402 more for a total of 35 touchdowns this season, stats that are made all the more impressive when you consider that he did not even play all four quarters in any of his seven starts.

 

So, Stidham has some big shoes (or cleats) to fill, but I for one am confident he's capable of delivering for Baylor just as Russell was prepared to do. As for Paul Ryan, there is a reason—or two (or several)—that his image was one selected to grace the banner of this blog and our web site. His intellect, work product and passionate advocacy for conservative policies has earned him a place alongside the late, great Edmund Burke, Milton Friedman and William F. Buckley, Jr. Here's hoping these two white knights exceed expectations and that the best is yet to come for the Baylor Bears and the GOP.

Senator Scott Explains Why Some Groups' "Scorecards" for Members of Congress are Stupid

Sen. Tim Scott (R-SC), who became the first black U.S. Senator from South Carolina last year after Gov. Nikki Haley (R) appointed him to replace Sen. Jim DeMint (R), who resigned to take over the Heritage Foundation, and became the first black U.S. Senator elected from the South since Reconstruction and the first African-American in U.S. history to be elected to both the House and the Senate by winning a special election on Tuesday to fill the remainder of DeMint's term, appeared on MSNBC's Morning Joe last week. In response to a question about his "agenda" from fellow guest Joe Klien, Scott said that he was "very interested in creating a foundation of education for . . . kids living in poverty, kids like myself who perhaps live in the wrong ZIP code, going to underperforming schools." Thomas Roberts, one of the more muted left-wing ideologues on the network, took issue with that. He challenged the Senator:

Sir, you said . . . you are concerned about kids that are growing up in the wrong zip code and like yourself that had a tough start on the way out, but if we look at agencies that are following some of your voting records, [then] they have concern, and the NAACP has given you an "F" on their annual scorecard. They also say you voted against the ACA; you voted to hold Attorney General Eric Holder in contempt of Congress; you oppose the Congressional Black Caucus' budget, delayed funding on a settlement between the U.S. and black farmers who say that they were prejudiced against because of their race. So how do you respond to that, if your true concern is about lower income families and kids?

Scott's response is priceless:

Note the apparent (and erroneous) assumption underlying Roberts's question: that these "agencies that are following some of [the Senator's] voting records" also "have concern" about what Senator Scott said he is "concerned about". I am sure that there are groups that track the voting records of members of Congress and are genuinely concerned about children living in poverty who are deprived of the opportunities other children have because of where they're growing up, but the example Roberts cited was the NAACP. As I mentioned in a post over two years ago, the NAACP has become a partisan entity, but a number of voters (including, it would seem, Thomas Roberts) still see it as a trustworthy, independent source of information. If the NAACP is truly concerned about kids that are growing up in the wrong ZIP code and have "a tough start on the way out," as Roberts suggested, then why is the organization officially opposed to school voucher plans and state takeovers of poorly performing school districts, especially in light of its National Education Program's professed objective "to ensure that all students have access to an equal and high-quality public education by eliminating education-related racial and ethnic disparities in our public schools"? Not only does the NAACP adamantly oppose school choice, but it has actively joined legal efforts in Florida and North Carolina challenging the constitutionality of those states' voucher programs.

Notice also the list of votes Roberts ticked off that evidently earned Scott his failing grade on the NAACP's scorecard. What exactly does voting against Obamacare, voting to hold Attorney General Holder in contempt, opposing the Congressional Black Caucus' budget, or delaying funding on a settlement between the U.S. and black farmers have to do with being concerned about kids who are growing up in the wrong ZIP code and going to underperforming schools? Roberts did not say, and I can't fathom a connection. The Senator appropriately brought up something he had voted on that was related to the issue. The D.C. Opportunity Scholarship, he pointed out, "has produced [a] higher percentage of kids going to college:" "91% of the kids graduating from high school versus 56% for those who are simply in everyday schools in D.C." (Scott misspoke; he was referring to the graduation rate among students in the program versus public school students in D.C., not what percentage of high school graduates the program has produced, but his numbers check out. 91% of students who used a voucher to attend private school graduated high school, while the DCPS (District of Columbia Public Schools) graduation rate last year was 56%.) Curiously absent from the votes Roberts listed was the House of Representatives 2011 vote on H.R. 471, the Scholarships for Opportunity and Results Act, which restored the D.C. Opportunity Scholarship Program and increased the scholarship amounts for the 2011-2012 school year. In addition to voting for the SOAR Act, Scott was a cosponsor of the legislation. Shortly before the vote, the NAACP stated in an "urgent action alert" that they were "vigorously opposed to this legislation . . . due to the fact that the 5 year pilot program in D.C. was, by all accounts, a failure; neither the majority of D.C. residents nor their democratically elected representatives want the program; and due to our underlying opposition to school vouchers."

Without delving into the obvious biases and inaccuracies in the NAACP's stated reasons for opposing the restoration of a program that an independent, federally-mandated evaluation determined was "a success," I can see why Roberts wouldn't call attention to Scott's support for, or the NAACP's opposition to, the D.C. Opportunity Scholarship program. This brief exchange between the two men provides an example of how loosely tethered some of these "scorecards" for elected officials are to the purported missions of the groups doing the scoring.

What 2010 Can Tell Us about How Accurate the Polls Are a Week from Election Day

With polls showing Republicans in good shape as Election Day approaches, one may wonder: Are these polls accurate? In the battle for control of the U.S. Senate, we can look to the previous midterm election for some empirical data to help answer that question before we actually see the results on election night. It's especially helpful because most of the states with competitive Senate races this year--including New Hampshire, North Carolina, Georgia, Louisiana, Arkansas, Iowa, Kansas, Colorado and Alaska--all had Senate races in 2010 as well. So, how were the Senate candidates in those states doing in the polls one week out from Election Day four years ago?

 

The short answer is: In all of the aforementioned states except Alaska (where incumbent Sen. Lisa Murkowski (R) was campaigning as a write-in candidate against Republican Joe Miller and Democrat Scott McAdams), the Republican candidate for U.S. Senate led his/her Democratic opponent in all or most of the polls heading into the final week of the campaign. Were the polls correct? Well, sort of...

 

In New Hampshire, Republican Kelly Ayotte had a nine-point lead over her Democratic adversary, then-Congressman Paul Hodes, in the RealClearPolitics Average of polls on October 26, 2010 (one week before Election Day 2010). Ayotte continued to expand her lead and ended up routing Hodes, 60% to 37%, in the general election. This year, the Senate race in New Hampshire is much closer: As of today, the incumbent, Sen. Jeanne Shaheen (D), holds a lead of 2.2 percentage points in the RCP Average over her challenger, former Sen. Scott Brown (R-MA). If Brown finishes strong the way Ayotte did in 2010, then he may yet return to the U.S. Senate.

Similarly, in Iowa, the Senate race in 2010 wasn't competitive, unlike the one this year. Four years ago, Sen. Charles Grassley (R) was such a heavy favorite to win re-election that there wasn't much polling of the race, at least not by independent (unaffiliated) outfits. A Des Moines Register poll conducted in late October nailed Grassley's margin of victory over former U.S. Attorney Roxanne Conlin (D): 31 percentage points. This year, the Register's latest poll found state Sen. Joni Ernst (R) ahead of Rep. Bruce Braley (D) by just one percentage point, 47% to 46%. That comports with the current RCP Average of polls, which has Ernst leading Braley by 1.7 percentage points.

Same story in Georgia: The Senate race in 2010 wasn't competitive at all; this year it's a nail-biter. However, there was something unique about the Georgia Senate race four years ago. Sen. Johnny Isakson (R) handily defeated his Democratic challenger, State Labor Commissioner Mike Thurmond, 58% to 39%, but polls overestimated his margin of victory. All the publicly released poll results in late October that year showed Isakson winning by anywhere from 21 to 30 percentage points. This year, the polls are showing a virtual tie between businessman David Perdue (R) and Points of Light CEO Michelle Nunn (D); Perdue's lead over Nunn in the RCP Average today is one-half a percentage point. Because this race will go to a runoff if no candidate wins an outright majority of the vote in the general election, and because all the polls are indicating that is exactly what will happen, further analysis of this race seems premature right now.

Admittedly, the dynamics of an open race are so different from a race with an incumbent in it that trying to use one to predict what will happen in the other may not be empirically sound. So, what races can we look to for an apples-to-apples comparison? Try Arkansas, where Sen. Blanche Lincoln (D) was probably the most vulnerable incumbent in the U.S. Senate in 2010, and she lost in a landslide to then-Congressman John Boozman (R), who won Lincoln's seat with 58% of the vote. (Lincoln received 37%, almost exactly her poll position in the RCP Average--37.8%--on October 26, 2010.) Late deciders must have broken for Boozman, who stood at 54.5% in the RCP average one week out. If history repeats itself this year, then the lone remaining Democrat in Arkansas's congressional delegation, Sen. Mark Pryor (D), will soon be replaced by Rep. Tom Cotton (R), who today leads Prior by five percentage points in the RCP Average, 46.8% to 41.8%.

Colorado was one state where the pollsters really missed the mark in 2010. A week before Election Day that year, Weld County District Attorney Ken Buck (R) led Sen. Michael Bennet (D), who had been appointed to the seat in 2009, by one percentage point in the RCP Average. By Election Day, however, that lead had grown to three percentage points. Buck appeared to have the momentum going into the election, but Bennett managed to pull out one of the tightest victories that year, winning election to a full term by less than 2% of the vote. (Buck received 46.4% of the vote, significantly less than his 49.3% standing in the RCP average on Election Day, while Bennett took 48.08%, slightly more than the 46.3% the RCP average of polls had him winning. What probably happened is that a lot of voters who were going to vote for Buck ended up voting for one of the third-party or "Independent" candidates on the ballot, or maybe they just didn't vote.) This year, Rep. Cory Gardner (R) has a slightly larger lead over incumbent Sen. Mark Udall (D), 3.3 percentage points in the RCP Average, and he hasn't made a lot - or really any - of the stupid mistakes Buck made four years ago. Republicans are also determined this year not to get caught off guard again by the Democrats' ground game. Suppose for a minute, though, that this race plays out from here just like the 2010 contest did. That would mean Gardner would continue to gain in the polls and head into Election Day with a lead of between five and six percentage points in the RCP average. If the actual election results then showed a four-point swing towards Udall, then Gardner would still win. It's also worth noting that Udall is polling much lower than Bennett was four years ago. However, there are also more "undecided" voters than there were at this point in the 2010 race, so while Udall has more ground to make up than Bennett did in the last week of the campaign, there are also more potential late deciders who could swing this race.
 

In North Carolina, the polls were much more accurate in 2010. Incumbent Sen. Richard Burr (R) led his Democratic challenger, then-North Carolina Secretary of State Elaine Marshall, by 10.7 percentage points in the RCP Average on October 26th, and he won re-election by a twelve-point margin, 55% to 43%. (One interesting thing to note is that, in that race, undecided voters appear to have split evenly between the two candidates, something we don't usually see in a race where one candidate has a comfortable lead in the polls and is expected to win.) That may be good news for Sen. Kay Hagan (D), who is currently clinging to a one-percentage-point lead over her Republican challenger, State House Speaker Thom Tillis (R). Unlike Marshall in 2010, however, Tillis appears to be chipping away at the incumbent's lead, which was 3.8 percentage points in the RCP Average at the beginning of this month. But Hagan may be helped by the Libertarian candidate in the race, Sean Haugh, who was not a factor in 2010.

In Louisiana four years ago, Democrats tried to pick off incumbent Sen. and probable prostitute patron David Vitter (R) with Rep. Charlie Melancon (D). In another state where a candidate must receive a majority of the vote to win, Vitter avoided a runoff, winning 57% of the vote to Melancon's 38%. One week before Election Day, Vitter led Melancon by exactly sixteen percentage points in the RCP Average. This year, it's Republicans who are trying to pick off a Democratic incumbent, and let's just say it's going to a runoff; the latest polls indicate that Sen. Mary Landrieu (D) will likely receive a plurality of the vote in the "jungle primary" next week but not even close to the 50% needed to avoid a runoff, which would likely be won by Rep. Bill Cassidy (R). In a one-on-one matchup, Cassidy leads Landrieu by 4.5 percentage points in the RCP Average. 

 

Although there were also Senate races in Kansas and Alaska in 2010, those races were so different from the ones in those states this year that I don't think it's useful to look at them. Also, while there was a Senate race in Kentucky four years ago, I don't really consider the race between incumbent Sen. Mitch McConnell (R) and Kentucky Secretary of State Alison Lundergan Grimes (D) to be "competitive" at this point; McConnell has a small but consistent lead, and Grimes is showing no traction whatsoever.

What about the "generic ballot"? Republicans have a six-point advantage among likely voters in the Washington Post/ABC News poll out this week. That's even better than they were doing four years ago, writes FOX News digital politics editor Chris Stirewalt:

Double, double, toil and trouble - Struggling with female voters and young voters, Democrats fare worse in the latest WaPo/ABC poll than they did at the same point ahead of the disastrous 2010 election and at the same level as the punishing 1994 midterm elections that cost them both houses of Congress. Without any significant increase in Democratic intensity since the previous polling cycle, the auguries are getting dire for the president’s party.

Among registered voters, Democrats lead Republicans in the poll, 47% to 44%, but that's "identical to the difference recorded at this point in 2010." That poll may actually be good news for Democrats when compared with the results of a recent Wall Street Journal/NBC News/Annenberg survey, in which 52% of likely voters in the survey said they wanted the election to produce a Republican-led Congress, while 41% favored Democratic control.

"By historical measures, an 11-point lead on the question of which party should control Congress is large," Janet Hook wrote for the WSJ. "Republicans held a seven-point lead on the question at this point in the 2010 election in a Journal/NBC survey, which used a different method to determine which voters were most likely to cast ballots."

Finally, if you're one of those statistics-mongers who just can't get enough data and analysis, or if you're looking for a number to put on the GOP's odds of taking over the U.S. Senate this cycle, then consider this:

Today, One week out from Election Day 2014, Nate Silver’s infamous FiveThirtyEight gives the GOP a 64.6% chance of winning the Senate, and "the Upshot" (a similar thing affiliated with the New York Times) says there’s a 70% likelihood of the same. The Washington Post’s Election Lab, meanwhile, forecasts that Republicans will see a net gain of seven Senate seats and projects a 93% chance Republicans take the upper chamber. Make of this what you will; I'm going back to running my law practice.

Are Liberty-Loving Virginians Really This Foolish?

Democrats seem to have come upon a very successful tactic for winning seemingly unwinnbale elections: Sit back and let the opposition defeat itself. The latest example of this could be the Virginia gubernatorial election, if the race turns out the way polls are indicating it will. The Democratic candidate, former DNC Chairman Terry McAuliffe, leads his Republican opponent, Attorney General Ken Cuccinelli, by nearly eight percentage points in the RealClearPolitics average of recent public polls. Cuccinelli hasn't run a terrible campaign, nor has he made any Akin-esque gaffes to speak of. Rather, his biggest problem is actually another candidate named Robert Sarvis, a lawyer and businessman who's running as the Libertarian candidate for Governor.

 

The latest polls of the race show Sarvis, who ran unsuccessfully for the Virginia State Senate in 2011 but has never held public office, garnering anywhere from 3% to 13% support among "likely" Virginia voters. All those polls also show McAuliffe leading Cuccinelli, but in most of them, the Democrat registers less support than Cucinelli and Sarvis combined, and the poll results that break down voter preferences by party identification show Sarvis drawing more support from Republicans than Democrats. It is hard to believe that Sarvis's candidacy isn't benifitting McAuliffe and hurting Cuccinelli.

 

Virginia's official motto is, "Sic semper tyrannis" ("Thus always to tyrants."), and Virginians have a long history of preferring liberty to tyranny. The conclusive battle of the Revolutionary War was fought and won by the Americans at Yorktown. In the nineteenth century, Virginia resisted federal encroachment on its sovereignty and, along with ten other states, seceded from the Union to form the Confederacy (though fighting to keep slavery legal didn't exactly put them on the side of liberty, either).

History also is replete with examples of how Virginans (like so many others) have seen their liberty eroded when the wrong people have been put in charge. Even after the Civil War, Democrats enacted and implemented segregation and other Jim Crow laws that deprived Negroes of their rights and made it clear to all other Virginians that they weren't living in a free society but rather a society in which the government decided which rights people ought to have. (Sound familiar?)

In recent years, the voting patterns of Virginians have made it difficult to figure out where the voters' sympathies lie. Since the turn of the last century, changing demographics and the growth of the federal government have fueled a Democratic shift at the state, and then the federal, level, particularly in northern Virginia, where a lot of residents are either on the federal payroll or work in industries that depend on government largesse to stay alive. Virginians elected Democratic governors in 2001 and 2005 and traded Republican Sen. George Allen for Democrat Jim Webb in 2006; Democrats won control of the State Senate in 2007; and, in 2008, Barack Obama became the first Democrat to carry Virginia in a presidential election since 1964. (He won the state again, albeit by a narrower margin, in 2012.) Between Obama's election and re-election, however, Virginians appeared to be turning back toward the GOP. Republicans won all three statewide races--for governor, lieutenant governor and attorney general--in 2009, ousted three Democratic incumbents in the U.S. House in 2010, and flipped two State Senate seats in 2011 to regain control of that chamber.

Since then, however, it's been mostly bad news for Virginians who favor liberty over big government. In 2012, 51% of voters in Old Dominion supported Obama's re-election, and 53% voted for Democrat Tim Kaine in the U.S. Senate race. Popular Republican Gov. Bob McDonnell is dragging his feet on entering the race for U.S. Senate next year, when Sen. Mark Warner (D), elected in the Democratic wave of 2008, will be up for re-election. As previously mentioned, Virginia Attorney General Ken Cuccinelli is trailing Democrat Terry McAuliffe in the race for governor.

Whatever the overall mood of the Virginia electorate is at the moment, the fact that the pro-freedom candidates are registering more support in the polls than the anti-freedom candidate suggests that a majority, or at least a plurality, of Virginia voters value liberty more than whatever redeeming qualities big-government hucksters like Terry McAuliffe have to offer, which only worsens the prospective travesty of McAuliffe being elected governor because of his opposition splitting the vote.

Surely Virginians who are smart enough to know better than to vote for Terry McAuliffe are cognizant of the reality that Sarvis is not going to win, but why then would they vote for him instead of Cuccinelli, thereby handing the election to McAuliffe? It doesn't make sense. Maybe it would if Cuccinelli and Sarvis were worlds apart on major issues, but Cuccinelli's record is more in line with the libertarian-leaning wing of the GOP than the hard-line "conservative" wing; he has worked hard fighting Obamacare in court and enjoyed at least one success when the Supreme Court ruled the Medicaid exapnsion mandated by the law unconstitutionally coercive; he has rolled out a fiscally responsible tax plan that slashes the Commonwealth's income tax rates and a sensible energy plan that calls for removing bureaucratic red tape and burdensome regulations to expand energy exploration and production; and he "wants to outmaneuver [school] voucher opponents by giving tax credits to those who donate money to provide private- and parochial-school tuition to poor, middle-class, and disabled students," thus allowing parents greater choice in education. He has also pledged to protect Virginians' 2nd Amendment rights and has criticized his own party for big-government boondoggles such as Medicare Part D, the No Child Left Behind Act and the Wall Street bailouts. His libertarian bona fides were sufficient to secure the endorsement of former Congressman and presidential candidate Ron Paul (R) and a host of liberty-focused advocacy groups. Indeed, one wonders what makes Sarvis so much more appealing to voters who supposedly cherish their liberty than Cuccinelli. Whatever it is, it's enough to make them willing to aid and abet the election of a big-government Democrat while wasting their vote on a candidate sure to finish a distant third. Oh, well. Sic semper fatuis.

How You Know They're Not Serious About "Securing the Border"

Have you seen this ad? We're told that S.744 (the "comprehensive immigration reform" bill that passed the Senate last month) contains "the tough border security America needs." Sen. Marco Rubio (R-Fla.), one of the "Gang of Eight" Senators who supposedly drafted this legislation,  assures us that the bill “puts in place the toughest enforcement measures in the history of the United States, potentially in the world.” Is that a fair statement?

Last week, I posted a critique of S.744 and detailed some of the problems with the bill's approach to immigration reform. I originally endeavored to go into even greater detail about the language of the legislation, but then I decided that the more tedious analysis belonged in a separate post. So, here, I will analyze with greater specificity where and how the Senate's bill comes up short. First, though, a brief passage on the policy lingo of immigration reform is needed.

The principal responsibility for protecting our country's border security, cybersecurity and economic security lies with the Department of Homeland Security (DHS). DHS is also charged with overseeing citizenship and immigration in the United States. The United States Citizenship & Immigration Services (USCIS) oversees legal immigration to the United States and is the agency that grants immigration and citizenship benefits. Immigration & Customs Enforcement (ICE) is "the principal investigative arm of DHS, and its primary mission is to promote homeland security and public safety through the criminal and civil enforcement of federal laws governing border control, customs, trade, and immigration," according to this thing somebody referred me to.
 

When discussing/debating "legalizing" illegal immigrants, it's important to understand that a pathway to legal status is not necessarily a pathway to citizenship. (To some, any legalization is "amnesty", but that's a topic for a separate post.) S.744 speaks of "registered provisional immigrant status," which if granted would then allow an immigrant to stay in the U.S. legally, without receiving all the rights and benefits of a U.S. citizen. In this post, I'll refer to applications for registered provisional immigrant status by the acronym "ARPISs".

It's also important to understand that, as was the case with past efforts toward "comprehensive immigration reform", the end game of S.744 is to legalize immigrants who are currently in the U.S. unlawfully without requiring them to resort to existing legal channels (which, in most cases, would require them to first leave the U.S. and re-enter the country legally). There are some who are categorically opposed to this, but most Americans who have an opinion on this subject are not. Most members of Congress, too, are willing to support legislation that would provide illegal aliens with a path to legal status or even citizenship, but a lot of them want any legislation that provides such a pathway to address the problem of illegal immigration with, inter alia, more border security, enhanced & increased "interior enforcement" and measures that discourage the wrong kind of immigration (to wit, illegal immigration and the immigrants who come here legally with an eye toward living off the government).

Rubio and other Republican proponents of the bill have insisted that it contains multiple security "triggers" that must be met before any immigrant currently in this country illegally can be legalized. Skeptics have contended that these "triggers" are weak, meaningless and/or can be easily manipulated/circumvented to fast-track the legalization process. Many Senators offered amendments to S.744 (discussed herein) that would strengthen the triggers or add additional preconditions to legalization.

You've probably heard of the "border surge" provisions in S.744. In the bill, what some are calling "the Border Surge" is part of the Comprehensive Southern Border Security Strategy. I'll just call it the Border Surge. There's also the "Southern Border Fencing Strategy," which is exactly what it sounds like. (S.744 requires the `Southern Border Fencing Strategy' to identify "where fencing (including double-layer fencing), infrastructure, and technology, including at ports of entry, should be deployed along the Southern border.") "E-verify" refers to a mandatory employment verification system required by current law  that the federal government never got around to implementing (at least not as originally conceived). There is currently a federal employment verification program in place, but it is not very potent or effective.

Now to the "triggers." I haven't read and analyzed the entire bill yet, so I can't tell you exactly what's in it. However, I can say what's not in it, and that's critical. By looking at what the proponents of this legislation voted against, you can see that they're not at all serious about border security.
 

Six weeks ago, the Senate agreed to table (kill) an amendment by Sen. Chuck Grassley (R-IA) that would have allowed DHS to begin processing ARPISs only after the Secretary of Homeland Security has certified to Congress that "the Secretary has maintained effective control of the Southern border for a period of not less 6 months." Such a nebulous standard could hardly be regarded as a serious precondition, so it should come as no surprise that Handsome John Thune's amendment, which contained more specific prerequisites, was also defeated by a vote of 39 to 54. Thune's amendment would have required 350 miles of Southern border fencing to be completed before the Secretary could commence processing ARPISs and conditioned any adjustment in the status of aliens who have been granted registered provisional status on the Secretary's written certification that:

• the Comprehensive Southern Border Security Strategy “has been substantially deployed and is substantially operational;” 

• the Southern Border Fencing Strategy has been submitted to Congress, implemented, and is "substantially completed;"
• 700 miles of Southern border fencing “that is double-layered and constructed in a way to effectively restrain pedestrian traffic” has been completed;

•  the Secretary has implemented E-verify; and
 
• the Secretary is using an electronic exit system at air and sea ports of entry that operates by collecting machine-readable visa or passport information from air and vessel carriers.

Note that both Grassley's and Thune's amendments suffer from the same flaw: The predicate for legalizing illegals is not actually securing the borders but rather the Secretary of Homeland Security's certification that the southern border is secured. (Grassley's amendment also contained a special carve-out for aliens granted blue card status, which is a special legal status for agricultural workers; Grassley’s home state of Iowa is about 95% farmland.) We already know that members of Obama's cabinet have no compunction about lying to Congress, so what good is the DHS Secretary's word on anything?

Later that same day,  Sen. Rand Paul, R-Ky., offered a good fix: require Congress to vote annually for five years on whether the border is secure. "If Congress believes that the border is not secure," the Senator explained in a speech on the Senate floor, "then the processing of undocumented immigrants stops until it is secure." As David Nakamura of the Washington Post reported it:

Paul’s amendment would require the Department of Homeland Security to implement specific border security measures, including hundreds of miles of additional fencing along the U.S.-Mexico border, and provide a report to Congress each year on its progress.

Then Congress would vote annually as to whether the agency had met its goals. Each year, another group of illegal immigrants would earn legal work visas if the metrics are met, Paul said.

This short summation--while accurate and concise--does not do Paul's amendment (styled the "Trust But Verify Act of 2013") justice. Indeed, those who crafted this particular legislation appear to have thought of everything. The bill specified what the Secretary must conduct an annual comprehensive review of and provided specific border security metrics, the progress toward which must be reported on. It stated what the joint resolution affirming that the border is secure must say and prevents the resolution from being amended. It even contained a provision limiting debate on the joint resolution "and on all debatable motions and appeals in connection with such resolution" and curtailing the ability of would-be obstructionists to use parliamentary shenanigans to delay a vote on the resolution or dispose of it without a vote. 

Paul's amendment also addressed the problem of DHS officials using their administrative authority to not enforce the law (as discussed in my earlier post) by prohibiting the Secretary from making "any alteration to the Border Patrol sectors in operation or the boundaries of such sectors" without first notifying both the House and Senate Homeland Security Committees of the proposed change "not later than 120 days before any such change would take effect," by which time Congress could act to thwart any undesired changes. It also required the Secretary to establish a Student Visa National Security Registration System and submit an annual report to Congress that describes the effectiveness with which DHS is screening student visa applicants through the System and "indicates whether the System has been implemented in a manner that is overbroad or results in the deportation of individuals with no reasonable link to a national security threat or perceived threat." And, the amendment capped the number of  applicants who may be granted registered provisional immigrant status under the law in any calendar year at 2,000,000 (a ridiculously high limit, but apparently too low for some people). 61 Senators voted to table Paul's "Trust But Verify" amendment.

Maybe Senator Paul was just asking for too much. (I don't think so, but reasonable minds can differ.)  Sen. David Vitter (R-LA) had a simpler request: Hey, remember that integrated entry & exit data system (a system to track the border comings and goings of foreigners) that was supposed to be developed and implemented under a 1996 law? You know, the one we're still waiting on? Well, forget all the stuff that Paul wanted. Let's just condition the temporary grant of legal status to, or adjustment to citizenship status of, any individual who is unlawfully present in the United States on the Secretary's written certification that that biometric border check-in/check-out system (officially the US-VISIT System) has been fully implemented at every land, sea and airport of entry. Oh, and Congress has to pass a joint resolution stating that this integrated entry and exit data system has been sufficiently implemented, because, you know, we don't trust this administration's word. Senator Vitter proposed an amendment to that effect over a month ago. It even included "fast track" procedures for getting the requisite joint resolution through Congress without unnecessary delay.

Now, it seems that a piece of legislation that basically just says, "Hey, let's incentivize the executive branch to do what they're already required to do by conditioning something that they want but that nobody really needs on them doing that thing they're supposed to do." shouldn't be something that a lot of Senators would find a reason to vote against, but if you view their votes on Senator Vitter's amendment, which was rejected by a vote of 36 to 58, in the context of most of them not giving a damn about securing our borders, then it makes sense. Another amendment, proposed by Sen. Mike Lee (R-Utah), that would have required “fast-track congressional approval” of what the Gang of 8 legislation merely requires the Secretary of Homeland Security to certify was also voted down, 39 to 59.

Enter Sen. John Cornyn (R-Texas), tall, learned and circumspect, a conservative Republican from a state with a large population of illegal immigrants. As the Senate Minority Whip, it's his job to make sure GOP Senators vote the party line on critical pieces of legislation. Cornyn, who was Texas Attorney General before being elected to the U.S. Senate, had criticized the "border-security triggers" in S.744 as "talking points disguised as policy." Could he offer a serious bill for predicating any legalization of illegal immigrants on actual, verified border security measures? Well, a little over a month ago, after the amendments proposed by Senators Grassley, Thune, Paul, Vitter and Lee had all been voted down, Senator Cornyn offered an amendment to the immigration bill that would have kept newly legalized immigrants from becoming permanent residents or pursuing citizenship until certain border goals were met. Those goals were:

• to achieve and maintain operational control of the Southern border;
• to achieve and maintain full situational awareness of the Southern border;
• to fully implement a biometric entry and exit system at all land, air and sea ports of entry; and
• to implement E-verify.

All these goals would have to be met "within 5 years of the date of the enactment of this Act," i.e., the comprehensive immigration reform bill. As used in Cornyn's amendment, the term "operational control" meant that, "within each and every sector of the Southern border, a condition exists in which there is an effectiveness rate, informed by situational awareness, of not lower than 90 percent." The term "situational awareness" was defined as "knowledge and an understanding of current illicit cross-border activity, including cross-border threats and trends concerning illicit trafficking and unlawful crossings along the international borders of the United States and in the maritime environment, and the ability to predict future shifts in such threats and trends." The Secretary and the U.S. Customs & Border Protection Commissioner would have to "jointly submit" to the President and Congress a written certification, under penalty of perjury, that the Secretary had met these goals.  This submission could not be made sooner than 9½ years after the comprehensive immigration reform bill becomes law and must include "a comprehensive report detailing the data, methodologies, and reasoning" justifying the certification. And, the Comptroller General of the United States would be required to "review such certification and provide Congress with a written report reviewing the reliability of such certification" and expressing the Comptroller General's own conclusion as to whether or not the specified border goals have been achieved.

The Secretary would still be required to submit a strategy "for achieving and maintaining operational control and full situational awareness of the Southern border" to the Comptroller General, and within 60 days of the submission of such strategy, the Secretary would also have to submit "an implementation plan for each of the border security components of the Department to carry out the Strategy." This plan must include, at a minimum:

• a comprehensive border security technology plan for continuous and systematic surveillance of the Southern border, including a documented justification and rationale for the technologies selected, deployment locations, fixed versus mobile assets, and a timetable for procurement and deployment;
• the resources, including personnel, infrastructure and technologies that must be developed, procured and successfully deployed, to achieve and maintain operational control and full situational awareness of the Southern border; and
• a set of interim goals and supporting milestones necessary for the Department to achieve and maintain operational control and full situational awareness of the Southern border.

It seemed doomed to fail, but Cornyn's amendment had something the others didn't: an appropriate acronym. The Senator dubbed his amendment, "Requiring Enforcement, Security and safety while Upgrading Lawful Trade and travel Simultaneously (RESULTS)," and it fared better with his colleagues than the other amendments I've described here did. Only 54 Senators voted to kill it. Two Democrats, Mark Pryor of Arkansas and Joe Manchin of West Virginia, voted against the Motion to Table, as did Senator Rubio, who had opposed the aforementioned amendments offered by  Senators Grassley, Thune, Paul, Vitter and Lee. (Curiously, Rand Paul voted with the anti-enforcement coalition, but that may have been because of the amendment's hefty cost.) Heritage Action ("The Heritage Foundation’s lobbying arm") urged Senators to vote “NO” on Cornyn's RESULTS amendment "because it fails to solve the enforcement problems in the underlying bill" and would "serve as political cover for [multiple Senators] to justify their support for the Gang of Eight’s amnesty."

So, on June 27th, S.744 passed the Senate, free of any amendments that would require DHS to actually secure the borders before illegal aliens could be legalized. It did include language from a border security and enforcement amendment proposed by Sen. Patrick Leahy (D-VT) and modified by the much-touted Corker-Hoeven Amendment, which inludes a lot of stuff that should turn off congressmen and women  on both sides of the aisle. (Leahy, who "begrudgingly" supported the changes to his amendment offered by Senators Corker and Hoeven, complained that their legislation “reads like a Christmas wish list for Halliburton.”) While Corker-Hoeven does delay the legalization of illegals (No Registered Provisional Immigrants can receive Green Cards until at least ten years after the bill becomes law) and strengthens the border-security "triggers" to legalization, it fails to cure many of the bill's other deficiencies and focuses on border security but not interior enforcement. Then there's the price tag; the CBO reported it would add $38 billion to the cost of the act. At the very least, the amendment added language to S.744 aimed at preventing the abuse of federal benefits by illegals who would be legalized under the legislation, including:

·         preventing immigrants who used a fraudulent or false Social Security number while they were unlawfully present in the U.S. from getting Social Security credits for that period;

·         restricting certain non-immigrant visa holders, such as tourists and foreign students, from accessing Medicaid, SCHIP and Obamacare benefits; and

·         providing that the Department of Health & Human Services may not grant waivers to states to allow them to use Temporary Assistance for Needy Families (TANF) dollars to give cash assistance benefits to registered provisional immigrants.

That ad I mentioned at the beginning of this post calls the Border Surge "the toughest border security plan ever passed by Congress." That it may be, but again, border security is only part of what we need. S.744 falls short of ensuring the aggressive interior enforcement that is desperately needed and eliminating the government-created magnets for illegal immigrants. Also, it fails to predicate legalization on a congressional affirmation of border security or other objectively verifiable metrics. If any of that bothers you, then please contact your Representative and admonish him or her not to vote for any bill that contains the same flaws as the Senate bill. But first, follow us on Twitter.

Word to the Wise on Immigration Reform

(This post was updated at 12:18 a.m. CST on July 28, 2013.)

In the latest example of Congress proving the old adage that those who don't learn from the past are doomed to repeat it, the U.S. Senate has now passed a "comprehensive immigration reform" bill. The vote was 68-32, with 14 Republicans joining every Democrat and the two "independent" Senators who caucus with the Democrats in supporting a measure that really could only conceivably benefit Democrats. (More on that later.)

 

Those who want the House of Representatives to follow suit and pass this or a substantively similar bill have been trying to convince those of us on the right that this "comprehensive immigration reform" push is different from the last one that blew up in its proponents faces...or the one before that...or the one before that...or the '86 law that they'd like us to forget about or ignore. This bill, we're told, is a conservative plan for immigration reform, supported by conservatives (Look, Marco Rubio supports it!), with tough border security measures. These arguments beg the question, "Why did every Democratic Senator support such a conservative policy plan?" The obvious answer is that, whether you're a Blue Dog Democrat from a red state or a self-described Socialist from a state where most voters can't tell their anus from a hole in the ground, this bill will be good for you and your party if it becomes law. Most immigrants vote Democrat. Most of the immigrants who are in this country illegally will, if legalized and allowed to vote, then vote Democrat (or not vote). Their children who are born here and are therefore U.S. citizens will vote Democrat, if they vote at all. It wouldn't matter if this act was passed by a Republican Congress and signed into law by a Republican president; the political beneficiaries of it would be Democrats.

 

I'm not opposed to a pathway to legal status for those who are in this country illegally, and I want to see our immigration system reformed to make it easier to legally immigrate to the U.S. (provided you have something to offer and aren't going to be a public charge). I think building a fence along the entire U.S.-Mexico border is a dumb idea and a stupid endeavor; if you want to build a fence, then just build one across the chapparal from the Imperial Valley to El Paso. It won't keep illegal immigrants out; it'll just slow them down. In Texas, we have a large river to do that. But, if I were a member of Congress, then I'd be branded an opponent of this legislation, as well as a "nihilist" and an "obstructionist" etc., by the Democrats and their allies in the media because I won't support any bill that will allow even one illegal to start on that pathway to citizenship or legalization before the borders are secure (by objective standards). The proponents of this legislation have made it clear that they do not want such an "enforcement first" approach.

Under the bill that passed the Senate on Thursday, the government would grant legal status to immigrants living in the United States unlawfully at the same time additional border security was being put into place at a cost of tens of billions of dollars. The legalization could begin as soon as a security plan was drafted (not actually implemented). One problem with this is, of course, that illegal immigrants and undocumented workers could be legalized wtihout our borders being effectively secured, meaning that illegal border crossings would continue.

Pragmatic senators have tried to amend the bill to fix this problem, but to no avail. A bipartisan coalition of senators seems determined to repeat the mistakes of the past. For them, it's not enough to allow the millions of immigrants here illegally to apply for legal status without having to return home (what some have labeled "amnesty"); we have to start legalizing them and just trust that the federal government will secure the border. This despite the Obama Administration's repeated refusals to enforce existing immigration laws. Here's my question for the supporters of the Senate bill who assure us that it will secure the border: If the legalization of illegals isn't predicated on objectively verified border security, then what is this administration's incentive to secure the border?

Even if the House and Senate were to miraculously pass a bill that required the feds to secure the borders before any illegal alien could be legalized, it's doubtful that President Obama would sign such a bill into law, and even if he did, his administration still probably wouldn't be motivated to do what they're supposed to do. After all, he's been re-elected; he won't be running for president again; so what's in it for him to shore up the Democratic base? (Maybe his wife or daughters have political ambitions, but other than that, I cannot conceive of any realistic impetus for him to secure the borders.)

This enforcement problem raises another issue that has curiously played a much less prominent role in the current debate than it did in the last great national debate over immigration reform six years ago. Do we really have an illegal immigration "problem" that needs to be addressed by new legislation? One of the more dubious lines from those irksome commercials pitching this immigration reform bill is, "Doing nothing is how we got here: Millions here illegally." I don't disagree, but the cause of the problem--"doing nothing"--wasn't the failure of Congress and the president to amnesty millions of illegals and create further magnets for immigrants, both legal and illegal; it's the failure of this and past administrations to effectively secure our borders and stem the spate of illegal immigration that's been plaguing our country for decades. Here's an idea: Let's try enforcing current law and see if that doesn't address our illegal immigration problems, including: immigrants unlawfully entering this country; foreigners coming here legally (e.g., on student visas) and then remaining here unlawfully after their visas expire; millions of immigrants living here illegally; and Americans hiring illegals. We already have laws addressing these problems, though the last one I listed could use a federal E-verify system. However, enhanced border security--even if effectively implemented--would only tackle the first of these problems; the other three need to be addressed by what's called "interior enforcement."

In a statement to the House Judiciary Committee last month, Chris Crane, President of the National Immigration and Customs Enforcement Council and one of the few union leaders who actually seems to represent the best interests of his members, rightly accused "the individuals and organizations involved in crafting the Gang of Eight legislation" of "purposely ignor[ing] interior enforcement with the intent of continuing the practices [that] have led to the nation’s current immigration problems." Crane pointed out that, while visa overstays account for an estimated 40% of the 11 million illegal aliens currently in the United States (4.5 million), the Gang of Eight’s immigration legislation "speaks only of significant increases to border enforcement, not interior enforcement." The visa overstays problem, Crane argues, "cannot be stopped by the United States Border Patrol" and will "never" be addressed by investments in border security. Opponents of the Senate's latest comprehensive immigration reform bill should present a united front and challenge the Obama administration to prove that they're serious about securing the border by enforcing existing laws.

Yes, I've seen and heard ad nauseum that, under Obama, illegal aliens have been deported at a record pace, but in fact, there has been a sharp decline in the number of illegal-immigrant removals since June 2011, when ICE Director John Morton issued the so-called "Morton Memorandum" (officially entitled "Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens"), the first in a series of significant changes to the agency’s enforcement policies. Crane and other ICE agents and officers have filed a lawsuit in federal court challenging the validity of the Morton Memorandum and DHS Secretary Janet Napolitano's June 2012 Directive not to enforce immigration laws "against certain young people who were brought to this country as children and know only this country as home." (This was part of the Obama Administration’s Deferred Action for Childhood Arrivals plan, or DACA.) At an evidentiary hearing in April, Jessica Vaughan of the Center for Immigration Studies testified that there "has been a significant decline in enforcement activity, as measured by the number of removals." As reported by Andrew Stiles of National Review:

Removals generated by ICE’s Enforcement and Removals division, which is responsible for interior immigration enforcement, have decreased nearly 50 percent since June 2011. Vaughan says the administration has been inflating its deportation statistics by including a greater number of U.S. Border Patrol cases — illegal immigrants picked up at the border and subsequently referred to ICE — as part of its annual statistics. Border Patrol cases accounted for 56 percent of removals reported in fiscal year 2013, up from 33 percent in 2008. Typically, an individual apprehended at the southern border is simply returned to Mexico without being processed as a deportation by ICE.

Later that month, Crane told reporters that “DHS and ICE are knowingly manipulating arrest and deportation data with the specific intent of misleading the American public with regard to the enforcement of illegal immigration in our country.” He actually claimed that “ICE arrest and deportation numbers have plummeted since 2008" (emphasis added), which he called "clear evidence that interior enforcement has in large part been shut down over the last four years.” Not surprisingly, Mrs. Vaughan considers it “foolhardy for Congress to trust that this administration is actually going to implement any new enforcement plans”

Then there's the talking point about how the status quo is “de facto amnesty.” (The solution: de jure amnesty!) Ann Coulter pretty well destroyed the potency of that sound bite with this:

I gather Marco Rubio considers this his big showstopper, since he says it in every interview as if he’s announcing the Kochen-Specker theorem. But if we already have de facto amnesty, [then] why is this bill even necessary? Oh, that’s right! The Democrats need 30 million new voters.

It’s curious that Democrats don’t hysterically demand amnesty for other lawbreakers, such as tax-cheats or polluters. Right now — hold on to your hat, Marco! — we have “de facto amnesty” for tax-cheats and polluters! (Also rapists and murderers and every other crime that doesn’t have 100 percent enforcement.)

And if we won’t grant amnesty to tax-cheats and polluters, [then] what about their children? Why punish the children? They did nothing wrong. Their parents told them they had lots of money for houses, clothes and college tuition. How can you put a tax lien on the homes of innocent children? Think of how BP executives’ children have suffered — the divorces, the deferred dreams, the broken families …

And by the way, polluters are also hard workers. They love their families and want the best for them, too. I bet illegal aliens who rape women and kill people in drunk-driving accidents love their families. Members of MS-13 work very hard at gang activities, such as, for example, when you cross them, they are very dogged about having you killed in a drive-by shooting. That shows a real stick-to-itiveness.

But weirdly, Democrats are obsessed with amnesty only for the lawbreakers that will get them 30 million new voters. (Violent felons come next.)

I'm aware that the deportation process is very expensive. Deporting an illegal alien, though, costs a hell of a lot less than supporting them with the cradle-to-grave system of entitlements on which the left is so keen.

The immigration reform we need won't legalize the millions of Americans living in this country illegally; it's a reform in the federal government's approach to enforcement, both border enforcement and interior enforcement. Instead of passing a bill that spends a horrendous amount of money without solving the problem (BTW, what exactly is "conservative" about that?), the Congress should pass a law providing for a national, mandatory E-verify system and nullifying the DHS directives that instruct law enforcement officials not to enforce federal law. Granted, the constitutionality of legislation limiting the executive's prosecutorial discretion would be questionable at best, so the Congress would have to be careful about the wording of such a bill, but they've got really smart people to work on that.

Finally, I'll briefly address this BS about how the Republican Party is doomed if they don't jump on the band wagon and embrace "comprehensive immigration reform". There are plenty of cogent rebuttals to this argument, available to anyone who wants to read/hear them, but let me end this passage where I began: Immigrants vote Democrat, not 100%, but a majority of them do. Considering that illegal immigrants aren't eligible to vote, exactly what is the harm for Republicans in making sure that they stay ineligible to vote?

I thought I had an answer to that question about a year ago. It dawned on me after a conversation with one of my friends (who happens to be the son of illegal immigrants): Illegal immigrants can't vote, but if their children are born here, then those children are U.S. citizens who can register to vote once they turn 18. Put yourself in the position of someone who was born here to parents who were in this country illegally. Regardless of your personal political ideology, are you likely to vote for any candidate affiliated with a party that has roundly castigated your parents and people like them and insisted that they be deported? 

Then it occurred to me: Why would Republicans suddenly changing their tact on illegal immigration have any affect on that voter's choice at the ballot box? Do Republicans like Lindsey Graham and Jeff Flake think that the issue of illegal immigrants are going to forgive and forget just because a handful of Republicans supported legalizing their parents? 

And, if you're worried about the Hispanic vote, Republicans, then you should be. Hispanics don't support your policies. 75% of Hispanics say they would rather have a bigger government providing more services than a smaller government with fewer services.  62% support Obamacare, and 59% favor same-sex marriage. According to a December 2011 survey conducted by Princeton Data Source for the Pew Research Center, a majority of Hispanics have a negative view of capitalism, and 44% of Hispanics have a positive view of socialism. (By comparison, the survey found that only 40% of all American adults had a negative view of capitalism, compared to 50% who had a positive view, and only 31% had a positive view of socialism.) And, while the percentage of Americans who identify as "pro-choice" dropped to a record low last year, 2012 exit polls found that 2/3 of Latino voters are firmly pro-abortion.

 

So, Republican presidential hopefuls who are concerned about how to win over Hispanic voters are better served by taking advice from anti-amnesty candidates such as Susana Martinez and Ted Cruz--or should I say Gov. Susana Martinez (R-state that's 46% Latino) and Sen. Ted Cruz (R-state that's 38% Latino)--than from faux-conservatives like David Brooks who live in an insulated bubble that shields them from life's cruel realities. Right-wing Genius out!

A Good Day for Equal Justice Under Law

Chief Justice John G. Roberts delivers the opinion of the Court in Shelby County v. Holder. (Art Lien)

 

Yesterday, the Supreme Court rendered an important, long-overdue and unfortunately necessary decision that galled a lot of Americans who want to continue living in the past. In Shelby County v. Holder, a five-justice majority held that Section 4 of the Voting Rights Act of 1965 is unconstitutional. Here’s a brief background on the case:

            § 5 of the Voting Rights Act requires some States and localities to obtain federal permission before enacting any law related to voting. § 4 of the Act sets forth the formula for determining which jurisdictions are subject to that preclearance process. (Currently, that meant Virginia, South Carolina, Georgia, Alabama, Mississippi, Louisiana, Texas, Arizona and Alaska and portions of New York, North Carolina, Florida, Michigan, South Dakota and California.) In 2010, Shelby County, Alabama sued the Attorney General, seeking a declaratory judg­ment that §§ 4(b) and 5 of the Voting Rights Act are facially unconstitutional, as well as a permanent injunc­tion against their enforcement. The District Court rejected the county’s argument and upheld the Act. The Court of Appeals for the D. C. Circuit affirmed the District Court’s judgment.

The Court’s ruling today means that Section 4’s formula can no longer be used as a basis for subjecting jurisdictions to pre­clearance under the Voting Rights Act. SCOTUSblog Editor Amy Howe broke down the Court's ruling and its immediate implications thusly:

The Chief Justice delivered the opinion of the Court, which was joined by Justices Scalia, Kennedy, Thomas, and Alito. The Court began by acknowledging that when the Voting Rights Act was enacted, it “employed extraordinary measures” – in the form of restrictions on the independence of the covered states – to combat the “extraordinary problem” of widespread voter discrimination. In 1966, the Court explained, these restrictions, which were intended to be temporary, were justified, and the formula used to determine who should be covered “made sense” then.

But today, fifty years later? Not so much. In the Court’s eyes, “things have changed dramatically.” When judged by a variety of measures – such as voter registration, voter turnout, and the number of African Americans elected to office — conditions have improved significantly in the states that are covered by the preclearance requirements. The Court agrees that these changes “are in large part because of the Voting Rights Act”; despite those improvements, the Court complains, the formula that determines who must comply with the preclearance requirement is “based on decades-old data” and practices – such as literacy tests – that were long ago abandoned. Because it isn’t fair for Congress to “rely simply on the past” to single out a few state and local governments for unequal treatment “based on 40-year-old facts having no logical relationship to the present day,” the coverage formula cannot stand.

The last section of the Court’s opinion is the judicial version of throwing the Voting Rights Act ball back across First Street N.E. to Congress. Emphasizing that invalidating a federal law is one of its most serious responsibilities, and that it “do[es] not do so lightly,” the Court makes clear that in its view, only Congress is to blame here. Four years ago, it warned Congress that the constitutionality of the law was in doubt; “Congress could have updated the coverage formula” then, but it failed to do so. “Its failure to act,” the Court explains, “leaves us today with no choice but to declare [the coverage formula] unconstitutional.”

What Howe is referring to in the last two sentences of that excerpt is the court's 2009 decision in Northwest Austin Municipal Utility District No. 1 (NAMUDNO) v. Holder, in which a Texas utility district challenged the constitutionality of the preclearance provisions of the Voting Rights Act. In that case, the Court bypassed the constitutional question and ruled that the statute allowed the utility district to seek bailout from the Act’s coverage. But the Court did something else, too: in an opinion delivered by Chief Justice Roberts and joined by all the associate justices except Justice Thomas, the Court acknowledged that it had already upheld the Act’s constitutionality in prior decisions but noted, “Some of the conditions that we relied upon in upholding this statutory scheme ... have unquestionably improved.” And, while conceding that these “improvements are no doubt due in significant part to the Voting Rights Act itself,” the Court admonished that “[p]ast success alone, however, is not adequate justification to retain the preclearance requirements,” adding, “It may be that these improvements are insufficient and that conditions continue to warrant preclearance under the Act. But the Act imposes current burdens and must be justified by current needs.”

Rather than heed the Court’s warnings and prod Congress to revise the formula in § 4 (as he’s so fond of doing when it comes to other policy issues), President Obama was content to leave the Act as is and let his Justice Department defend a constitutional challenge to a law the Supreme Court had as much as told us was unconstitutional. Unsurprisingly, the Respondent in Shelby County had a difficult time explaining how the Act’s ridiculously outdated formula and inequitable treatment of different states and localities was “justified by current needs,” and today, the Supreme Court officially recognized what Congress and the President should have recognized years ago: § 4 of the Voting Rights Act exceeds Congress’s constitutional authority.

 

Section 1 of the Fifteenth Amendment to the U.S. Constitution provides, "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude," and Section 2 grants Congress "the power to enforce this article by appropriate legislation." The central question underlying this and previous constitutional challenges to the Voting Rights Act was whether Sections 4 and 5 were still "appropriate" legislation, in light of their selective treatment of certain parts of the country based on data that no longer accurately reflects the current state of the union. To the extent that the members of Congress who voted to reauthorize the Act--and President Bush, who signed the reauthorization into law--back in 2006 considered the issue, their answer was "Yes, it is."

Thank God for judicial review. (Well, thank the Marshall Court, but their decision in Marbury v. Madison was probably guided by divine providence anyway.) As the Court ruled yesterday, “The Fifteenth Amendment . . . is not designed to punish for the past; its purpose is to ensure a better future.” The majority stopped short of drawing a bright line or laying out a clear standard for determining what constitutes "appropriate legislation" under Amendment XV, but they rejected the notion that Congress is entitled to absolute deference on that subject (and for good reason).

During oral arguments before the Court in February, U.S. Solicitor General Donald Verrilli insisted that the court shouldn't second-guess Congress's determination that certain areas require special oversight to prevent violations of the 15th Amendment's guarantee of voting rights. But why, if the basis of that determination is patently irrational? The formula for selecting jurisdictions covered by Section 5 was last updated based on the 1972 election results. Congress had more than forty years to revise this formula based on more current data. Its failure to do so meant that certain states were left stigmatized as backwards regions of the country that couldn't be trusted to regulate their own elections without federal oversight, that stigma written into federal law and used as a pretext for subjecting these jurisdictions to onerous burdens and an indignity that most of the country doesn't have to suffer. Furthermore, why shouldn't the state and local governments who enacted changes to their voting laws be afforded the same deference as Congress? No one defending Section 4 could provide a satisfactory answer to that question, either.

If you think like me, then you had two specific inquiries about the Court's decision in Shelby County: (1) How did Justices Ginsburg and Breyer, who dissented from the Court's decision yesterday, square their dissent with the Opinion of the Court in Northwest Austin that laid forth serious constitutional infirmities of the Voting Rights Act, in which they both joined? And, (2) What, if anything, did Justice Clarence Thomas, the only member of the Court to experience life as an African-American in the segregated South, have to say about all this?

 

I'll answer the second question first. As previously mentioned, Justice Thomas did not join the Opinion of the Court in Northwest Austin; he filed an opinion concurring in the judgment in part and dissenting in part. Basically, he wanted to decide the constitutional issue that the Court had avoided and strike down § 5 as unconstitutional. In explaining why § 5 exceeds Congress' power to enforce the Fifteenth Amendment, the Georgia native wrote, "The extensive pattern of discrimination that led the Court to previously uphold § 5 as enforcing the Fifteenth Amendment no longer exists."

Justice Thomas reiterated that statement in a  opinion yesterday, in which he explained how the Court's own opinion "compellingly demonstrates that Congress has failed to justify ‘current burdens’ with a record demonstrating ‘current needs.’"

 

As to my other query, Justice Ruth Bader Ginsburg filed an acrid dissent joined by Justices Breyer, Sotomayor and Kagan, in which she said that

 "the Court’s opinion can hardly be described as an exemplar of restrained and moderate decisionmaking. Quite the opposite. Hubris is a fit word for today’s demolition of the VRA."

 

Respectfully, Madame Justice, striking down a blatantly unconstitutional law is not "hubris." "Hubris" is exhibited by those who believe that certain parts of the country should be treated differently than their co-equal sovereigns because of transgressions perpetrated years ago by people who are long dead. "Hubris" is thinking that the attorney general of the United States, whoever that happens to be at the time, is so enlightened that he/she should be given an effective veto power over laws that were duly enacted by state and local governments, even if that AG happens to be a corrupt hack and perjurer with an obvious chip on his shoulder. Hubris is a fit word for the insolence of those who reauthorized the Voting Rights Act, outdated criteria and all, for another 25 years back in 2006 without amending it to reflect recent changes and trends. "Hubris" is dismissing the serious issues with the Act's constitutionality explicitly raised in an opinion you joined as mere "dictum", which you did in your dissenting opinion yesterday.

If I sound especially passionate about this, then it's because I am. It's not just because I live in Texas, one of the states required to get approval from the federal government to before making any changes to its voting laws or procedures, "even for something as seemingly innocuous as moving a polling place across the street." as Amy Howe put it. Anyone who believes in states' rights (or, for that matter, who respects the Tenth Amendment) should find a law that requires state and local governments to obtain federal approval before enacting policies to address local issues revolting. Chief Justice Roberts quite rightly called this requirement “a drastic depar­ture from basic principles of federalism” and the untenable application of it to only select jurisdictions “an equally dramatic departure from the principle that all States enjoy equal sovereignty.” 

I know that the term "states' rights" has a negative connotation in some pockets of the country (and some people's minds), but the principle that all U.S. states are equal sovereigns and that their governments should have as expansive a police power to regulate matters within their jurisdictions as the people of those states empower them to, unencumbered by an oppressive federal government that is not and cannot be as attuned to local concerns as the elected policymakers in those states are, was written into our Constitution--and recognized by the Supreme Court since the first time it addressed the issue--for a reason. If the framers of the Constitution had wanted the Department of Justice to have oversight over state and local voting regulations, then they could have included a provision stating as much, and if the drafters of the Fifteenth Amendment had intended for Congress to have unquestionable discretion to determine what legislation was an "appropriate" means of enforcing the Fifteenth Amendment, then they could have made that amendment more specific. But they didn't.

It seems discordant that self-styled "progressives" were upset with the Court's decision in Shelby County. President Barack Obama and his attorney general both said they were "deeply disappointed" by the ruling. (The president even took care to remind us that "voting discrimination has been historically prevalent" in the places affected by Section 4, which evidently means it's okay for the federal government to perpetually treat those states as bastions of racism and ignore both the progress they've made and any real, actual attempts at voter discrimination in other parts of the country in the last 41 years.) Rev. Jesse Jackson called it “the most devastating blow to civil rights since” Plessy v. Ferguson and complained that it “seeks to destroy the infrastructure of ... inclusion and expansion.” The New York Times Editorial Board wailed that the Court had "eviscerated enforcement of the Voting Rights Act, in which Congress kept the promise of a vote for every citizen."

 

These people should take a look at what is inscribed aboved the pillars on the front of the Supreme Court Building the next time they have occasion to visit it (or just look at a picture of it). As Jonathan Tobin wrote for Commentary: 

The reality of 2013 is that even the left is hard pressed to find anyplace in the country where anyone who is legally entitled to vote and wants to exercise their franchise is being prevented from doing so. Stating that is not to deny that racism still exists in some quarters of American society anymore than any other species of hatred. Nor does it imply that our electoral system is perfect or incapable of betterment. But to leave in place a legal formula that treated some states differently than others solely because of history is not only absurd, it is unconstitutional discrimination. In a country where, as it was argued before the court, Mississippi may have a more healthy voting rights environment in some respects than Massachusetts, preserving the battle lines of the fight against Jim Crow is not only meaningless, it actually hampers efforts to combat illegal practices.

But the main interest of those dedicated to preserving the status quo wasn’t in preventing states from denying a right to vote that is not in question. It was in holding onto their capacity to use federal law to prevent some states from passing voter ID laws that have been wrongly branded as a form of discrimination or voter suppression. The vast majority of Americans—including the members of those groups that civil rights advocates claim will be injured by voter ID laws—think these measures are merely a matter of common sense to ensure the integrity of the election system. But by disingenuously waving the bloody shirt of Jim Crow, the left has sought to brand race-neutral laws like voter ID a form of racism.

Instead of continuing to live in the past and basing their opinions on specters of a bygone era (kind of like the racists whose actions arguably necessitated the Voting Rights Act in the first place), those who claim to support the Voting Rights Act should celebrate its effects and acknowledge that the preclearance requirement of Section 5 is no longer necessary in many of the regions to which it has been applied. If the members of Congress who voted to reauthorize the Act in 2006 and are still serving believe the legislation is necessary and good policy, then they ought to craft a new formula based on current data and practices to determine which areas of the country, if any, need the federal oversight authorized by Section 5.

Should the Congress endeavor to take up such legislation, however, there must be a vigorous debate over whether any law that is selectively applied only to some states and localities, based on constantly changing statistics that will require frequent re-examination, is wise policy. The anachronistic character of these provisions in the Voting Rights Act and the problem of leaving the Act as is was summed up splendidly in the following paragraph of the Court's opinion yesterday:   

In 1965, the States could be divided into two groups: those with a recent history of voting tests and low voter registration and turnout, and those without those charac­teristics. Congress based its coverage formula on that distinction. Today the Nation is no longer divided along those lines, yet the Voting Rights Act continues to treat it as if it were.

It is a disturbing display of dissonance that those who wanted the Court to let Section 4 stand express concern for making sure that all Americans are treated equally under the law, when Section 4 itself stood in affront to that concept.