The Balance of the Supreme Court

” […] and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, […]” Article 2, Section 2, Clause 2 of US Constitution

Word broke late on Friday of the death of Supreme Court justice Antonin Scalia. The death of the conservative justice during an election year is bound to have great ramifications.

Even before the Supreme Court had officially announced the passing of Justice Scalia, Senator Ted Cruz (R-TX) tweeted out that the next President gets to pick his replacement instead of President Obama.

Justice Scalia was an American hero. We owe it to him, & the Nation, for the Senate to ensure that the next President names his replacement.

— Ted Cruz (@tedcruz) February 13, 2016

When Republicans took control of the Senate last year, Senate Majority Leader Mitch McConnell (R-KY) stated that there would be few if any votes on any of Obama’s nominations still awaiting for the Senate’s confirmation with the exception of a Supreme Court vacancy. (The Senate did confirm a few State Department officials within the past week though.)

Now, however, Senate Majority Leader McConnell is talking differently as he states that the American people should have a voice in the next justice with the upcoming election.

The American people should have a voice in the selection of their next Supreme Court Justice. #Scalia https://t.co/QXHfOpEY6G

— Leader McConnell (@SenateMajLdr) February 14, 2016

One has to wonder if Republicans would be singing the same tune if the President was a Republican instead of a Democrat. The Court is narrowly split and a new justice appointed by President Obama could shift it in the opposite direction.

In 2005, Senator McConnell defended the absolute right of a sitting President to nominate judges, stating, “The Constitution of the United States is at stake.  Article II, Section 2 clearly provides that the President, and the President alone, nominates judges.  The Senate is empowered to give advice and consent.”

Keep in mind that the next President will not be sworn in until January 2017, just under a year away. The longest confirmation hearing in modern times was Justice Clarence Thomas at 100-days. This would be triple the amount of time just to wait for a nomination let alone the confirmation hearing and a vote.

President Obama is within his constitutional right to put forth a nominee, and the Senate has the duty then to hold confirmation hearings and to hold a vote. It doesn’t matter if it’s an election year or not.

In January 1801, in the wake of the 1800 election, President John Adams nominated John Marshall to be Chief Justice. Marshall was confirmed by the Senate within a few days much to the chagrin of the incoming Jeffersonian Republican majority.

In 1987, President Reagan nominated Anthony Kennedy to fill a vacancy in the Supreme Court. Kennedy was confirmed in February 1988 (an election year) by a 97-0 vote in which Democrats held the majority in the Senate.

Senator Elizabeth Warren (D-MA) called out the hypocrisy of her GOP colleagues in refusing to even consider a nominee by President Obama. She went on to state that they all took the same oath and shouldn’t abandon their duties.

I can’t find a clause in the Constitution that says “…except when there’s a year left in the term of a Democratic President.”

— Elizabeth Warren (@SenWarren) February 14, 2016

President Obama has already stated that he will be making a nomination to fill Scalia’s seat as is his right to do so and names are already circulating. It will be up to the Senate to prove that it can perform its constitutional duties or whether they are willing to hold the third branch of government hostage to politics.

There is no doubt that Justice Scalia’s death brings the issue of Supreme Court nominations into the 2016 election. And though we are reminded of this issue in the most tragic of ways, it deserves more than just a partisan soundbite. The President and the Senate have a constitutional responsibility at this point, and they need to step it up.

The Politics of Syrian Refugees

“Give me your tired, your poor, Your huddled masses yearning to breathe free, The wretched refuse of your teeming shore. Send these, the homeless, tempest-tossed, to me: I lift my lamp beside the golden door.”

The above appears on the Statue of Liberty and is part of a larger poem by Emma Lazarus. With its location near Ellis Island, the Statue of Liberty became the symbol for new immigrants and refugees entering the United States in search of a better life. Even though the massive immigration center no longer processes new people into the country, the statue still retains its symbol for those that are yearning to be free. Yet it would appear that the quote above doesn’t apply to the 21st century… at least to some.

Syria has been bogged down in a civil war since the Arab Spring. In the past couple of years, a new terrorist group (ISIS) has emerged as a major threat both to the stability of Syria and neighboring Iraq and to the western world. It has become a confusing mix of who is fighting who. (The following video tries to simplify the ongoing war in Syria. https://www.facebook.com/ezraklein/videos/10153737513773410/)

On November 13, Islamic extremists went on a rampage throughout Paris killing 129 people. It turns out that one of those responsible is a Syrian refugee that got into France with thousands of other refugees that have been entering Europe as the war in Syria has escalated. This was one out of thousands yet there is no way to determine if there are more. It was always a concern that ISIS would try to slip agents into Europe and the US through the mass migration of Syrian refugees. It would appear that at least one did and possibly others, but it may not warrant the mass hysteria that seems to be coming from this horrible event.

The rest of the attackers that night, though still Muslim extremists, were European nationalists. As Republican governors, members of Congress, and even candidates for President have started foaming at the mouth about not accepting any Syrian refugees now, they say absolutely nothing about allowing Europeans into the country. These are the same Republicans that say one can’t blame all law-abiding gun owners any time there is a mass shooting. Yet somehow they are going to accuse all Syrian refugees because of one terrorist that came in with all the others.

Governors throughout the US have been declaring that they will not accept Syrian refugees within their state. This is more political posturing than reality. The Refugee Act of 1980, which was an amendment to the Immigration and Nationality Act of 1965 and the Migration and Refugee Assistance Act, created explicit procedures on how to deal with refugees entering the US by creating a uniform resettlement and absorption policy. Basically this makes it a federal matter, not a state. So all of these governors have no real say. Once someone has been approved and is allowed to enter the US, they are free to move about the country and settle wherever they would like just the same as anyone else.

Republicans in the House of Representatives, under new House Speaker Paul Ryan, are preparing legislation to halt Syrian refugees. It’s unclear as to whether such a bill would pass the Senate where Democrats can still filibuster. And it’s more likely to get a veto from President Obama if it were to reach his desk. Republicans need to tread more carefully and watch their words and their tone though. According to an article on POLITICO, faith-based groups as well as Evangelical Christians are largely in favor of the Syrian refugees.

The words of President Franklin Roosevelt come to mind. “The only thing we have to fear is fear itself.” Fear and hate aren’t the answers. True, we can’t tell which of the refugees are good and which might be members of ISIS or another extremist group. But we can’t even say that about our own citizens. We have to remember that 99% of those that are coming to this country are in search of safety and a better life… something that was ripped away from them in their home country.

In early 2015, several Bosnian refugees that had settled in St. Louis in the 1990s were arrested for sending money and military supplies to terrorist groups overseas. Did this mean that all the Bosnian refugees that entered our country were terrorists and should be deported? Of course not. Just a few bad apples in a community that has been a valuable asset to the city as a whole.

According to the American Immigration Council, the United States took in approximately 70,000 refugees in 2014 (the same as 2013). Almost half have came from the Near East/South Asia which includes Iraq, Iran, Bhutan, and Afghanistan. The cap for the number of refugees is set at 70,000 for 2015 as well.

Our nation has always been a melting pot of different people. It makes our culture quite unique as we have found a way to blend it all together. There have been times when immigrants and refugees haven’t been given a fair chance… the Irish, Catholics, Italians, Eastern Europeans, etc. In the end, the fear that was largely rampant was proven mostly unfounded. The vast majority melted into our society. The new Syrian refugees will be no different than those that have come before.

Sure we all want to feel safe and protected. The majority of those refugees want the same thing. Is it possible that a member of ISIS could slip in? Sure. But they could always slip in another way, too, or influence an American citizen. We know the latter has happened already. We can’t blame all Syrians any more than we can blame all Americans. It is a risk we take, but it is part of our values as well. And we can’t lose sight of those. We must rise above hate and fear to see the bigger picture… the humanitarian aspect.

The Demise of the Bulk Collection of Data

Rarely do I heap any praise on a politician. I always keep a skeptical eye toward them and am not afraid to call them out when necessary. But today, that praise is necessary. Senator Rand Paul of Kentucky (and also a 2016 presidential candidate) was a wrecking ball in the past couple of weeks when it came to allowing certain provisions in the Patriot Act to expire.

The Patriot Act was passed by Congress out of fear in the days after the 9/11 attacks. The way it had been interpreted by the National Security Agency (NSA) was that it legally allowed them to spy on everyday Americans. Most of the time it was without a warrant, but if one was needed, it had created a secret FISA court that basically granted one each time (only 11 times was one rejected) as it only heard the government’s side.

Section 215 of the Patriot Act authorizes the government to collect “any tangible things” that the government proves are “relevant to” an investigation into suspected terrorists.

A lot of what the NSA was doing was brought to light when Edward Snowden blew the whistle about the operation. I don’t consider Snowden to be a patriot or a traitor. I consider him to be an American who saw the federal government overstepping its authority and letting the public know what was happening.

So if the law states the government can collect the data then what’s the problem? The problem is that it violates your right to privacy which is guaranteed under the Constitution. Law enforcement must request a specific warrant, not a blanket warrant that encompasses everyone, from an actual court… not some secret court that the public knows nothing about nor has any defense in. If Congress really wants to do this then they need to go about the proper way of amending the Constitution to allow it.

Republicans are tearing him apart for allowing the Patriot Act to expire. Senator John McCain (R-AZ) has gone so far as to claim that it was a publicity stunt since Senator Paul is running for president. I can’t say whether that is true or not, but it has been one of his biggest issues since he entered the Senate back in 2011.

Senator Paul may also have something else to back him up. In early May, the Second Circuit Court of Appeals decided that the NSA’s bulk, warrantless collection of Americans’ phone records was illegal though stopping short of deciding its constitutionality. This came almost a year after a lower court ruled the program “almost-Orwellian.”

“Because we find that the program exceeds the scope of what Congress has authorized, we vacate the decision below dismissing the complaint without reaching appellants’ constitutional arguments.”
Judge Gerald Lynch

The public has been undecided on what should be done. On the one hand they don’t want the government overstepping their constitutional authority and violating our right to privacy. However, on the other hand they want to feel protected from terrorists as it was born out of the fear from that. In the past several weeks, national security analysts have been hitting the media airwaves stating that the bulk collection of data has been worthless and has had no result on anything.

So what should be the path forward? In the past month the House of Representatives passed the USA Freedom Act. Is it perfect? No. But that doesn’t mean that it shouldn’t be added to the debate on how we proceed forward. POLITICO posted an article recently that reported how this new piece of legislation would “reform” the Patriot Act.

However Congress chooses to proceed forward in the days and weeks ahead, they should be mindful of our constitutional rights when deciding on national security. Though we take national security very seriously, we will not allow our rights to be disregarded.

“Those who surrender freedom for security will not have, nor do they deserve, either one.”
Benjamin Franklin

Of High Crimes and Misdemeanors: An Act of Treason?

There’s nothing like a slight treasonous scandal to pull a political writer out of a little sabbatical. When hearing of this, I didn’t think it was something that I could sit on the sidelines for. So here I am immersing myself in a political debate that should have bigger ramifications than it probably will.

Treason is defined in the dictionary as:

1. the offense of acting to overthrow one’s government or to harm or kill its sovereign.
2. a violation of allegiance to one’s sovereign or to one’s state.
3. the betrayal of a trust or confidence; breach of faith; treachery.

It is the only crime that is specifically mentioned in the US Constitution. (Article 3, Section 3)

“Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.”

Keep your mind on what you just read as there is a possibility that you will be contemplating them as we go through this whole ordeal.

The United States has been negotiating for a nuclear agreement with Iran since 2006 along with 5 other countries which is known as the P5+1 group. The five countries are the US, Great Britain, France, Russia, and China, and the +1 being Germany. The goal is to keep Iran from having nuclear missiles. In 2013, and interim agreement was reached with a comprehensive agreement due later this month.

With the deadline approaching some Senators have expressed concern over what a final comprehensive deal might look like and have a desire for the final deal to be debated on voted on in the Senate as a treaty would be under Article 2, Section 2, Clause 2 of the US Constitution. However, freshman Senator Tom Cotton (R-Ark) has gone even a step further by submitting a letter with 46 other signatures of Republican Senators to the leader of Iran expressing that any nuclear treaty with the country would not be upheld once President Obama leaves office.

Now let me bring in the Logan Act which was passed by Congress in 1799. It prohibits unauthorized citizens from negotiating with foreign governments. Violation of this act is a felony.

“Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.”

Under Article 2, Section 2, Clause 2 of the US Constitution, “[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur…” The President has the power to appoint ambassadors and to conduct negotiations with foreign governments. The Senate does not come in to the equation until the vote for approval is needed. By this, Senator Cotton does not have the authority to approach Iran on any subject that is concurrent with the ongoing negotiations. To have done so is a violation of the Logan Act.

According to a recent article on Politico, this is not the first time that one party has accused the other of violating the Logan Act. Republicans screamed it in 1987 after Congress cut off aid to Nicaragua’s Contra rebels. Democrats ran (and ultimately won both chambers of Congress) in 2006 on forcing then-President George W. Bush to come up with a timetable for the wars in Iraq and Afghanistan.  Speaker Pelosi would also go against the wishes of the White House in 2007 and travel to Damascus to meet with Syrian leader Bashar al-Assad.

So where does all of this then fall in? If it has been done before then should we just brush it aside again? In this case, I would suggest no. It does violate international law. It does undermine the full faith and credit of the US, which is already shaky in the world as it is especially in regards to Iran where neither side completely trusts the other. Senator Cotton had no authority to write and send that letter which was in an effort to derail negotiations with a foreign government before a final deal is reached. It was out of his jurisdiction as a US Senator.

Remember those definitions of treason at the beginning? If this isn’t it then it comes dangerously close to that line. The overall goal of the letter was to do harm and to instill a sense of a betrayal of trust and confidence against our country.