Monday, March 4, 2019

Emergency!!!! On 3quarks

By Michael Liss

The man for whom the word “Emergency” must have been invented (“serious, unexpected, and dangerous situation requiring immediate action”) pulled the pin out of yet another hand grenade.

Our President, Donald J. Trump, bollixed, frustrated, stymied, and parboiled (twice) by the evil Nancy Pelosi, went off and did just what he wanted to do anyway. He picked up the compromises made by Democrats in bipartisan negotiations to re-open the government, put them in his pocket, and grabbed for more.

What a fine drama it was. He summoned Senate Majority Leader Mitch McConnell to the White House, heard him say the votes were there to pass the bill, and told McConnell that he, Trump, did not care what Congress thought. It was irrelevant. The President had consulted his legal advisors, his portrait of Andrew Jackson, and his statue of Winston Churchill, and concluded that the term “emergency” also encompassed any situation in which he did not get his way.

“Mitchie,” he thundered (the exact transcript has been suppressed and placed in a secure location with the Putin conversations), “I want my Wall, and I will smite this bill unless you pledge your undying support for my Emergency Declaration.” The Senior Senator from Kentucky, wily cephalopod that he is, complied. None of us need speculate over exactly what curses, orbs, and scepters were employed, or whether McConnell extracted something for himself, but he knelt, thanked his master, and then left the Oval Office back-side first, bowing at every other step.

Game on! So we move to the most frequently used phrase in the Trump Era, “Can he do this?”

Even to approach this question rationally, you have to wait until the adrenaline wears off, and show the extraordinary discipline of forgetting that it’s Trump. It is a challenge. The infection rate of Trump Derangement Syndrome (both the adoring and abhorring variants) in the population is extraordinarily high. Scientists are feverishly working on a cure, but right now, the only treatments are palliative, such as throwing your iPhone at your MacBook, and watching both bounce off a screen with either Rachel Maddow or Sean Hannity whack-whacking back at you.  This is probably best done in a hotel bar, where, along with ample lubrication, most establishments have installed high-impact glass in response to previous incidents.

Take a breath. Other than his being the ultimate catalyst, this isn’t about Trump, and it’s certainly not much about the Wall. It’s about the role of the Presidency, and the exercise of political power, and the balance among the three branches of government. To be more explicit, it is about virtually anything a President says he wants that a Congress won’t give. Can he just take it?

As bizarre as it may seem to those of us who were taught about things like checks and balances, the correct answer is…it depends.  It depends on whether it’s authorized by a statute. It depends on whether Congress has the backbone (or the willingness) to stand up to Presidential overreach. And, ultimately, it depends on the Supreme Court.

Let’s save some time (and laughter) on the “Congressional backbone” part (of the more than 60 Republicans who voted to reopen the government on February 14th, just 13 reaffirmed their support less than two weeks later) and head right to litigation. That’s what 16 Blue States did, and their Complaint is as good a place as any to begin to explore the legal issues. 

There is an interesting tension in the law when it comes to political issues. Being “legal” is not the same thing as being wise. Politicians, answerable to the electorate, should be the ones making policy. The Supreme Court’s role is not to decide the wisdom of a policy, but only whether it was properly enacted, and whether a particular application of it conforms to Constitutional requirements.  It’s not the Court’s job to fix basic foolishness.

The first thing you become aware of when asking, did the President have the right to declare an emergency, is that Congress might very well have been foolish. It has, over many years, ceded to the Chief Executive a heck of a lot more than was granted in Article II of the Constitution. The Brennan Center counts a web of up to 123 separate statutes that give to a President some additional emergency authority, the big one The National Emergencies Act of 1976 (“NEA”). For those of us who mocked Texas’s mass flip-out over Jade Helm, the laugh is on us. Try reading this excruciating article by Elizabeth Goitein in The Atlantic and see if you can suppress your urge to visit your safe-deposit boxes and pack your go-bags before you get past the sixth paragraph.  It’s not good.

There is an irony about the NEA: the impetus for it was Congress’s desire to rein in Presidents from going off on their own without Congressional oversight. But, by codifying powers that the President previously didn’t have, an unintended consequence was that Congress may have written a near-blank check. True, Presidential authority is not unlimited: Presidents cannot just conjure up new powers, and Congress can enact a Joint Resolution terminating the Emergency, but there are a notable lack of guardrails after that.

Why?  Best guess is that they thought they were empowering rational Presidents who would act in genuine emergencies (Biblical Ten Plagues sorts of things: floods, pestilence, hail, etc.). They never seriously considered that a future President might use an “Emergency” for a purely political reason. As Monty Python reminds us, no one expects the Spanish Inquisition.  So, off to court it is.
What might your ordinary, run of the mill, appointed-for-life, Harvard or Yale-trained Justice think?  Here are some of the arguments traced out by the 16 States in their Complaint.

1. It’s not an Emergency.  I wouldn’t be surprised at all if a lower court would rule that Trump’s own statements and prior conduct indicate that the Wall was not an Emergency. This has a lot of appeal, given his verbosity, and that 58 former National Security folks just signed a letter saying it wasn’t. That being said, I suspect the majority (quite possibly at least six) of the Roberts Court is going to have at least a very strong preference for not setting a precedent of potentially second-guessing a President’s judgment on what constitutes an emergency, particularly one that potentially involves security. 

2. Congress already considered Trump’s request for this particular project and rejected it. Given the specificity and the closeness in time of the Congressional vote and Trump’s subsequent Declaration, this approach might carry some weight. The President proposes, Congress says no, the President takes what he wants anyway, Congress passes a Joint Resolution reaffirming its previous position…and the President refuses to sign it, thus diluting Congressional power by requiring a two-thirds override vote.  Intuitively, that can’t be right, but the textualists and the hardliners are likely to argue that Congress could have, and perhaps should have, addressed that specifically in the NEA.

3. It violates the “Appropriations Clause.”  Article I of the Constitution is very clear that it’s Congress that gets to write checks: “No Money shall be drawn from the treasury, but in Consequence of Appropriations made by Law.” There is a solid argument Congress can’t properly assign that power, even in limited circumstances, without amending the Constitution itself.  I think this one has a chance, particularly because of the granularity of budget allocations and their impact on individual states. It would be interesting to see how Originalists/Strict Constructionists address that issue, and reconcile it with their support for expansive Executive Powers.

So, what wins here? Difficult to tell, but with Chief Justice Roberts likely as the swing vote, I can see a very narrowly written victory for Trump, authored by Roberts, with a complex multi-concurrence and dissent mashup.  What Roberts might say, is that (a) Congress does have the authority to give flexibility to the Executive in spending and has, in fact, been doing so for a very long time, (b) Congress has a remedy for this specific Trump action of which it failed to avail itself, and (c) (this is a Roberts favorite) poorly-written legislation needs to be re-written by Congress, and not edited by SCOTUS to reflect a legislative intent that was not clearly expressed. 

I suspect that Roberts will probably go on with substantial dicta on how the Court’s decision is on this specific claim only, that it should not be seen as a precedent, and that it’s not an open invitation for Presidents to exceed their authority, and he might even include some scolding of Congress to get right on this and either amend the NEA, and/or pass a Joint Resolution to roll back Trump’s Declaration. No one will pay any attention to any of that.

Why would Roberts do this when he has to know that the result is potential chaos? Because of the internal dynamics of the Court. Let’s put aside the widely held conviction that there are Justices who are essentially political animals. The more important point is that there are Justices (particularly the two newest) who support the idea of broad Presidential powers, and Roberts needs to give them something, but is not ready to go with them in the (further) direction of an Imperial Presidency. I also suspect that Roberts is canny enough to realize that there will be a time in the future when he and his fellow conservatives and ultra-conservatives want to hem in a Democratic President. A hearty clap on the back for Trump followed by a wagging finger at someone more Blue would be bad optics. And, finally, Roberts does not wish to risk a Constitutional confrontation with Trump, who would almost certainly relish the opportunity to put even the Supreme Court in its place. So, Roberts will leverage his own, necessary, support to achieve the narrowest result. 

What will ensue? We can expect a blizzard of angry commentary, and a gleeful White House spitting out one Emergency after another. And one absolutely miserable man, good old Mitch McConnell. He’s got the tiger by the tail and can’t let go. He really doesn’t want a President—any President—having the kind of power that Trump has just assumed.  McConnell knows, institutionally, it is a catastrophe, a serious erosion of Congressional prerogatives. It’s also going to play havoc with future negotiations with the Democrats. McConnell will have to get Trump’s signature in blood in advance before Pelosi agrees to anything. And there’s another election coming in 2020; McConnell needs to defend his Senate majority; and swing voters will not be enthusiastic about this.
What’s an utterly soulless political operative to do? Start herding cats, and for the long-term good of the country and his party, agree to amend the NEA in a thoughtful way, so Presidents, present and future, can’t do what Trump did (or could do).

That is not going to be easy. Trump will veto anything that in any way limits his power, and that means McConnell (and Kevin McCarthy, House Minority Leader) will have to come up with enough votes from their side of the aisle to join with Democrats and override.  The math is daunting in an era in which Trump’s approval rating among Republicans is sky-high and 80% of them approve of his Emergency Declaration. Who in the shockingly supine GOP Congressional Caucus wants to put a bulls-eye on their back?

Nothing quite like daunting math.  As Albert Einstein put it: “As far as the laws of mathematics refer to reality, they are not certain, and as far as they are certain, they do not refer to reality.”

Not unlike the laws of politics.  Stay tuned.

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Monday, February 4, 2019

Radical Centrism: Lincoln at Cooper Union

“He knew the American people better than they knew themselves, and his truth was based upon this knowledge.” —Frederick Douglass, Oration in Memory of Abraham Lincoln, April 14, 1876
In October of 1859, Abraham Lincoln received an invitation to come to New York to deliver a lecture at the Abolitionist minster Henry Ward Beecher’s Plymouth Congregational Church in Brooklyn.  
Although Lincoln was, at this time, largely a regional figure among Republicans, and held no public office, the invitation was not accidental. The party was still a bit like a Rube Goldberg contraption, made up of pieces (former Whigs, Know-Nothings, disaffected Northern Democrats) that didn’t all quite fit together. People of influence, notably the newspaper publishers William Cullen Bryant and Horace Greeley, knew the new movement needed a coherent, inclusive platform, and an articulate, attractive man to lead it.
They weren’t, by any means, anointing Lincoln—in fact, they had no idea what he could do. He had acquitted himself well in his 1858 Senate race against Stephen Douglas, the presumed 1860 Democratic Presidential nominee, but he had also lost. There were other questions as well: Would a person some described as a “backwoodsman” play in front of a New York audience?
What was obvious was that the most likely Republican candidates for the nomination were either flawed or disliked, or flawed and disliked. The presumed frontrunner, William Seward of New York, was unquestionably competent, but had made some radical-sounding speeches and was seen by many as a captive of Thurlow Weed’s political machine. Seward’s support was also thin in lower North states like Pennsylvania, Indiana and Illinois—all of which Republicans had lost in 1856 and were essential to victory this time. Other potential candidates had different weaknesses: Ohio’s Salmon P. Chase was an able Governor, but lacked what we would now call retail political skills. Pennsylvania’s favorite, Simon Cameron, was undeniably corrupt. The fourth “first tier” candidate, Edward Bates of Missouri, was 66, barely a Republican, and almost certainly the most conservative. It was hard to see how he could have ignited a movement.
Lincoln knew this, saw the opening, and immediately accepted the invitation. The warm glow that history places around him for his compassion and tragic martyrdom obscures just how practical and even calculating a man he was. The New York speech was his chance to elevate himself in front of a new and potent audience. He threw himself into preparation, researching the historical record and refining his remarks. He knew he didn’t need to persuade his listeners that slavery was wrong—they already believed that. Rather, he had to do what truly great leaders do—elevate the discussion, offer a pathway for a broader campaign based on something more than mere political calculation, and do so in a way that was distinctively his.
He arrived in New York a few days early, and learned that the Young Men’s Central Republican Union (influenced heavily by the not-young Greeley and Bryant) was now the sponsor. They had moved the location to the newly-constructed Cooper Union in Manhattan, and Republican-leaning newspapers were publicizing Lincoln’s appearance as a rebuttal to Stephen Douglas, the Democrats, and slavery in general.
On February 27, 1860, 1500 politically-minded New Yorkers tramped through the snow and filled to capacity the gas-lit auditorium. In the audience were some of the most influential people in the City, including Bryant and Greeley, the publisher H.W. Putnam, former Governor John King, and Peter Cooper himself and his business partner (and later Mayor of New York) Abram S. Hewitt.
He was introduced, and, from every description available, caused people to wonder just what strange species of bird they were looking at. Lincoln’s new suit was wrinkled and seemed cut for a different man altogether. His hair needed combing, his huge hands flapped awkwardly, and his voice, higher pitched than expected, was neither elegant nor sonorous.  
Then, the lawyer began to make his case, and, one by one, his listeners fell under his spell.
Read it, and you may find, as I did, a mystery about this speech. It’s not graceful, not poetic, not filled with the kind of lines you would chisel into marble, except for the famous final few words. It’s not the way we think of Lincoln at his best, yet, there is something about it that made hundreds of skeptical New Yorkers Lincoln enthusiasts, and transformed him into a truly credible candidate for President.
The speech is divided into three thought units, which Lincoln then clinches together  with his distinctive brand of moral clarity.
First, Lincoln explores the question “Does the proper division of local from federal authority, or anything in the Constitution, forbid our Federal Government to control as to slavery in our Federal Territories?”
Every lawyer knows you should never ask a question to which you don’t already know the answer.  But a great lawyer is able to give his own arguments more potency by co-opting the framework suggested by his adversary, and then turning it to his own advantage.
Lincoln quotes Douglas himself, who wrote: “‘Our fathers, when they framed the Government under which we live, understood this question just as well, and even better, than we do now.’”
Of course, he agrees with that statement, he adopts it as the starting point for his speech, and then he goes on to ask, and answer, in utterly reasonable and rational terms, “What was the understanding those fathers had of the question mentioned?”
From that point forward, Lincoln is in command. He will define the universe.
First, he picks his court—the “fathers” are the 39 signers of the Constitution, and, later, the 76 members of the first Congress who adopted the first twelve Amendments.
Then, he picks his facts. Meticulously, taking a path of more than 3000 words and nearly 40 years, from regulation of the Northwest Territories in 1785, to the adoption of the Northwest Ordinance, the Louisiana Purchase, the ceding to the Federal government of Tennessee by North Carolina, and Alabama and Mississippi by Georgia, and finally to the Missouri Compromise of 1820, he sketches the history of Federal regulation of slavery in the Territories, and finds support by at least 23 of those fathers for those regulations. Lincoln sets a high standard of proof for himself—even expressions of hostility towards slavery were not enough—the “father” must have actually placed himself on the record on the specific question of Federal control of slavery in the Territories.
It’s a lawyer’s brief, and upon first reading, you wonder whether he is going to lose his audience, such is the focus on detail. But take a little time with it, and you can see that this part of his argument, this careful building of evidence that demolishes Stephen Douglas’s and the South’s claims to unrestricted territorial expansion, leads inevitably to the first emotional climax:  
But enough! Let all who believe that ‘our fathers, who framed the Government under which we live, understood this question just as well, and even better, than we do now,’ speak as they spoke, and act as they acted upon it. This is all Republicans ask – all Republicans desire – in relation to slavery. As those fathers marked it, so let it be again marked, as an evil not to be extended, but to be tolerated and protected only because of and so far as its actual presence among us makes that toleration and protection a necessity. Let all the guarantees those fathers gave it, be, not grudgingly, but fully and fairly, maintained. For this Republicans contend, and with this, so far as I know or believe, they will be content.”
It is a brilliant touch. It makes them (the Republicans, and, by extension, every fair-minded person in the audience) the true conservatives. They are not pitchfork-wielding Abolitionists; they are not radicals; they are the keepers of the flame, the heirs to the father’s legacy.
Lincoln then turns his attention to the South, and, here, his language takes an interesting turn. Having been first been cerebral and professorial in the “evidentiary” portion of his case, he becomes almost prosecutorial.  
First, he takes note that the South will not even tolerate Republicans, much less agree with any portion of their ideas. “(W)hen you speak of us Republicans, you do so only to denounce us as reptiles, or, at the best, as no better than outlaws. You will grant a hearing to pirates or murderers, but nothing like it to ‘Black Republicans.’ … Now, can you, or not, be prevailed upon to pause and to consider whether this is quite just to us, or even to yourselves? Bring forward your charges and specifications, and then be patient long enough to hear us deny or justify.”
Since there seems to be no Southerners in the audience, Lincoln then takes charge of the “debate” himself.  
First, Republicans are not sectional: It is the Southerners who refuse to allow Republicans to compete in their region. Lincoln clearly does not expect that Republican ideas would win elections in the slave-holding states, but he does believe they would win votes. The refusal of the South even to grant Republicans an audience is a sign of their unwillingness to abide by democratic principles—and their fear of competition in a war of ideas.
Second, It isn’t Republicans who are accelerating the debate by abandoning the path of the fathers. It is the South, in demanding a laundry list of new policies, and Stephen Douglas, advocating for the “gur-reat pur-rinciple” that “if one man would enslave another, no third man should object,” who are rejecting the intention and the governing ideas of the people who risked all to create America. “Not one of all your various plans can show a precedent or an advocate in the century within which our Government originated.
Third, Republicans are not stirring up slave revolts, or encouraging more John Browns. “John Brown was no Republican: and you have failed to implicate a single Republican in his Harper’s Ferry enterprise.  Lincoln knows they know it as well—he sees the charge simply as political tactic—in contemporary terms, a way of firing up the base. And, he rejects the claim that, even if Republicans are not deliberately encouraging upheaval, it is inevitable because of their stated principles. He makes a very shrewd argument that has to appeal to his audience on an intellectual and emotional level: It is the issue of slavery, and not the political vehicle opposing the spread of it, that creates instability: “There is a judgment and a feeling against slavery in this nation, which cast at least a million and a half of votes. You cannot destroy that judgment and feeling – that sentiment – by breaking up the political organization which rallies around it. …but if you could, how much would you gain by forcing the sentiment which created it out of the peaceful channel of the ballot-box, into some other channel? What would that other channel probably be? Would the number of John Browns be lessened or enlarged by the operation?”
All this leads up to an inevitable conclusion. The South claims the backing of the fathers, but then ignores them to define the constitutional rights of slaveholders as opportunistically and expansively as it wishes. It will not accept either open debate, or a political result with which it does not agree. In one of Lincoln’s most memorable phrases: “But you will not abide the election of a Republican president! In that supposed event, you say, you will destroy the Union; and then, you say, the great crime of having destroyed it will be upon us! That is cool. A highwayman holds a pistol to my ear, and mutters through his teeth, ‘Stand and deliver, or I shall kill you, and then you will be a murderer!’”
Still, Lincoln holds back. He turns to his audience and his fellow Republicans and counsels patience and accommodation, with a little twist (Lincoln read Shakespeare avidly, and there’s a bit of Mark Antony’s eulogy in Julius Caesar to this section). “A few words now to Republicans. It is exceedingly desirable that all parts of this great Confederacy shall be at peace, and in harmony, one with another. Let us Republicans do our part to have it so. Even though much provoked, let us do nothing through passion and ill temper. Even though the southern people will not so much as listen to us, let us calmly consider their demands, and yield to them if, in our deliberate view of our duty, we possibly can.”
Having laid out that sweetly reasonable path, he then proceeds to identify all the landmines. He knows, his audience knows, the country knows, that what he’s suggested is impossible. The South will not accept the status quo. They will not accept an offer of all the Territories, to do with them whatever they wish. They will not accept even the most heartfelt and genuine apologies and promises to do better. In Lincoln’s acute turn of phrase, “We must not only let them alone, but we must somehow, convince them that we do let them alone.
How to convince the doubting South? Here’s where Lincoln turns up the courtroom rhetoric: “This, and this only: cease to call slavery wrong, and join them in calling it right. And this must be done thoroughly – done in acts as well as in words. Silence will not be tolerated – we must place ourselves avowedly with them. Senator Douglas’ new sedition law must be enacted and enforced, suppressing all declarations that slavery is wrong, whether made in politics, in presses, in pulpits, or in private. We must arrest and return their fugitive slaves with greedy pleasure. We must pull down our Free State constitutions. The whole atmosphere must be disinfected from all taint of opposition to slavery, before they will cease to believe that all their troubles proceed from us.”
If Lincoln had stopped here, you would have had a fine opening statement, a wonderfully persuasive presentation of evidence, a superb cross-examination, and even a little fist-shaking in front of the jury. But what marked him as an exceptional man—not just a politician looking for a clever formulation—but a moral leader—and what, in my opinion, truly drew people to him, was what followed.
“Wrong as we think slavery is, we can yet afford to let it alone where it is, because that much is due to the necessity arising from its actual presence in the nation; but can we, while our votes will prevent it, allow it to spread into the National Territories, and to overrun us here in these Free States? If our sense of duty forbids this, then let us stand by our duty, fearlessly and effectively. Let us be diverted by none of those sophistical contrivances wherewith we are so industriously plied and belabored – contrivances such as groping for some middle ground between the right and the wrong, vain as the search for a man who should be neither a living man nor a dead man – such as a policy of ‘don’t care’ on a question about which all true men do care….”
I can’t get this phrase out of my mind: “groping for some middle ground between the right and the wrong, vain as the search for a man who should be neither a living man nor a dead man – such as a policy of ‘don’t care’ on a question about which all true men do care.”  
In a few short words, he transforms himself from forceful, effective advocate to true leader, speaking to the difficulties both he and his audience had in blending a serious-but-secular obligation (fealty to the Constitution) together with a universal one of principle (objecting to the loathsome practice of enslaving another human being). Lincoln tells his audience what they most need to hear: that the law and morality can and must coexist, that there are some things where there is an absolute right and an absolute wrong. Slavery was wrong, their cause was noble, and they were on the side of the angels.
“Let us have faith that right makes might, and in that faith, let us, to the end, dare to do our duty as we understand it.”
And the crowd stood, and cheered, and waved handkerchiefs and hats at the strange-looking man in the ill-fitting suit. Some surely must have agreed with Noah Brooks, then a reporter for The New York Tribune.
Lincoln, he said, “was the greatest man since Saint Paul.”
Michael Liss
Radical Centrism: Lincoln at Cooper Union was first published on February 4th, 2019 on

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Monday, January 7, 2019

Climbing The Walls

What is it about immigration that causes us to lose our minds?

I’m not even referring to the absurd spectacle of toilets overflowing at national monuments and hundreds of thousands of federal workers going without pay. In theory, at least, there’s a reason for that: The President promised his supporters a magnificent structure across the Southern Border, and the Democrats don’t want to advance Mexico the money to pay for it.

I’m talking about the insanity of not addressing the root issue—actual immigration policy. Let’s be honest with ourselves, a few billion dollars for something that seems to be morphing in composition and cost every day doesn’t solve our immigration woes. It doesn’t build a Wall, either. We would be taking on the largest infrastructure project since the build-out of the national highway system, lasting many years and including enough eminent domain (because a considerable amount of border land in Texas is in private hands) to cause conservative heads to explode. A few billion is barely seed money for the lobbyists.

So, let’s talk about what we should be talking about: Immigration policy. And let’s start with a hypothetical: The nation has decided to make you Immigration Czar. You have the absolute power to determine policy for the next two years. What do you want to do with it?

Before you begin this glorious-but-thankless quest, I have to include two pre-conditions.
First, you start with the country we have now. You can be as generous, or ruthless and arbitrary as you would like, but the law matters. You cannot assume authority greater than already exists: No giving of universal citizenship, or retroactive revocation of citizenship or permanent residencies previously granted. No magic wand that returns you to the demographics of 1950. No fanciful interpretations of the Constitution or Supreme Court decisions. Be bold if you like, but observe the guardrails.

Second, you understand that we live in a republic, and while we’ve given you this power now, you are an American-Style Czar, but not an Emperor, and anything you do automatically sunsets in two years and defaults back into the current mess unless reauthorized by Congress and signed by the then President. So, make it good, or expect it to blow up.

Adherence to law and attempting to make something balanced enough so that people would keep it? Takes all the fun out of it. If it’s going to be this unrewarding, you might reasonably ask, why would we need a Czar at all? After all, we collectively have always had the power to set limits, to enshrine our preferences and our prejudices into law, to build walls, to intern, imprison and deport, to reject even those with a legitimate fear of persecution and death. And we have acted on those powers, more than 40 times by the venerable and quaint “how a bill becomes a law” technique, and many more through enforcement tweaks (and yanks) by the Executive Branch.

Not all of those choices show us in the best possible light. After we argued for many decades and then fought a Civil War over the status of those of African descent, we turned our animus towards the Chinese. We legislated against them, several times, including the evocatively-named Chinese Exclusion Act of 1882. But that didn’t settle our fears. Immigration absorbed us so much we went back to the well seven more times between 1882 and 1907, before deciding in 1918 that it wasn’t just the Chinese who should be verboten, but, to feel culturally safe, we also needed an entire “Asiatic Barred Zone.” In 1921, we were so overwhelmed by non-barred people that we instituted actual quotas: In any calendar year, the maximum any country could send us was 3% of the total number of people from that country who were already in the US, as of the 1910 Census. Eventually, we turned our eyes to a more dangerous type: Communists. And then, the perennially terrifying Mexicans, culminating in 1954’s “Operation Wetback,” from which it is estimated that 1.3 million Mexicans were either deported or left. More recently, we’ve waxed and waned between enforcement and comparative openness, with ambitious electeds (are there any other kind?) either making genuine efforts to improve things, or looking for the nearest camera to show their bona fides.

I’m always struck when some politician says, “We are better than this.” No, not really. Compassion and tolerance hasn’t always been our strong suit with immigrants—even those we let in. We have marginalized them, limited their political power, interred them, even assaulted and occasionally murdered them. Our Town Halls and County Clerk’s offices are filled with property deeds that restrict ownership and occupancy to only those “of the Caucasian Race.” We had an entire political party (the Know-Nothings) built on opposition to Catholicism and immigration, particularly by the Irish and Germans. Our scapegoating of immigrants for every possible social dysfunction did not begin with the current occupant of the White House and will not end with his leaving it. When it comes to the mortal dangers to our culture and our very way of life posed by a starving eight-year old who doesn’t speak much English, hysteria is always in season.

What we have not done is fix anything. We have, at times, tried hard. Ronald Reagan and Congress made creditable efforts in 1986, and accomplished a great deal, but the weaknesses of the Immigration Reform and Control Act are the things held up by hardliners as reasons to get even more stringent, while the substantial achievements of it are largely forgotten.

The reality is we have not made our borders impermeable, or settled on what a policy for short- and long-term legal immigration should be, or decided who can become citizens, or even determined how much desperation is enough desperation that it merits possible asylum. We have come up with some terrific slogans and some really scary television ads, but where we are right now, for better or (mostly) worse, is the sum of our choices.

Failure is not inevitable. The issues are complicated but not insuperable. To an extent, you can blame both sides for refusing to accept the validity of contrary arguments. Many immigration advocates don’t grasp the potential burdens illegals place on already strained social services. They are so wound up in what they see as a humanitarian crisis that they don’t realize it comes at the price of support for legal immigration. On the other side of the equation, many immigration hawks have shown that they aren’t really for comprehensive reform because they aren’t really for the implications of comprehensive enforcement. They want punishment of the immigrant at no cost to our society. We could couple a generous guest worker program with the application of E-Verify at virtually every level of employment, and make the fines so punitive that anyone would think multiple times before employing any illegals. We don’t, because the businesses that rely on them as seasonal workers, day-laborers, and others doing disgusting jobs for low pay would suffer, and those businesses write some mighty big checks. We could prevent foreigners from competing against “our kids” for spots at the best colleges and universities by limiting or getting rid of student visas. But then you would be turning back highly qualified students who can pay full tuition. Same for hi-tech and academic jobs—we could stop issuing H-B1 visas, and then lose some of the best minds in the world who have contributed to discovery, innovation, and economic growth. And all of that is without taking into account the costs of possible retaliation from the countries we select as targets. Pick your issue, and there is always a tradeoff. The sour stalemate we live in is a reflection of our unwillingness to face that.

This isn’t to say there aren’t plenty of people of good will who are willing to make serious efforts at reform—the problem is that they aren’t really sure whom to trust if they put themselves out there. Immigration is the true third rail of American politics, and if you want to see a naked illustration of how it makes the courageous cautious and the weak and ambitious duplicitous, go back six years to the Senate Gang of Eight. In 2012, Senators Schumer, McCain, Flake, Rubio, Durban, Bennet of Colorado, Menendez, and Graham put everything on the table and came up with a far-reaching compromise. The Senate passed a bill based on that agreement, and there it stalled. First John Boehner, invoking the “Hastert Rule,” refused even to take it up in the House. Then, Marco Rubio, fearful about damaging his own Presidential hopes, sold out his partners by backing a Senate amendment by John Cornyn that McCain called a “poison pill.”

What we learned from the Gang of Eight experience is even more true today: It isn’t that we can’t come up with reasonable solutions; it’s that too many politicians profit from the status quo of no deal. They want the issue, but not the resolution.

There is an old adage to the effect that there are three kinds of people: Those who do; those who complain, but do; and those who just complain. In the immigration debate, where seemingly everyone has a beef, no one just “does,” so we have to be able to identify, and back, the “complains and does” over the “just complains.”

Which one is Trump? I wish I knew, because Trump’s intransigence, his inflammatory rhetoric, and his casual cruelties make him the perfect guy for a “Nixon to China” moment. But I don’t know that he’s willing. Remember that Trump’s approach is purposeful—there’s the tactical choice of intimidation and the strategic choice of supporting his reelection campaign, which revolves around motivating his base.

What is clear is that if Trump doesn’t want to come to a reasonable, comprehensive agreement, there is no way a GOP-controlled Senate and a relatively narrow Democratic House majority can possibly make him. So, the question becomes, how do you incentivize Trump to come to the table? For a serious, bipartisan effort passed by both the House and Senate and signed by him, I expect him to demand a price. He’s made a career and a fortune trading other people’s money for personal gain, and I suspect he’s fine with trading other people’s misfortune in the same way.

Can we afford to pay his price, if he’s even selling? It should be blatantly obvious from this synthetic shut-down crisis that the Wall is largely an incredibly costly symbol, a branding opportunity. You could give Trump $50 billion and an unlimited supply of crocodiles to fill the moats, but if he’s really going to let Rush, Laura Ingraham, and Ann Coulter write immigration policy, there’s no deal to be made.

Maybe it just can’t be done with Trump. That leaves us where we are now…no coherent policies, millions of illegals here, relatively porous borders, no clarity on DACA or a pathway to citizenship, rhetoric that angers some of our allies, and a blind eye to humanitarian issues that further damages our reputation. Something horrible for everyone.

Of course, we Czars (the voters) could get disgusted enough to tell our politicians that we understand that the enemy of the good is the perfect, that we are tired of this mess and this mindless bickering, and that we expect them to stop complaining and start doing.

Now, that's a completely crazy idea.

"Climbing The Walls" was originally published on on January 7th, 2019 at

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Michael Liss (Moderate Moderator)