I thought about rights and the law this week, as items in the news lead to those subjects these days.
Everyone says the president does not have power to deny birthright citizenship to children of immigrants. Do not fool yourselves. The president can do what he likes. Since Johnson’s Gulf of Tonkin resolution, the president and executive branch have acquired authority to fight wars independent of Congress. Since 9/11, the president and executive branch have acquired authority to deny immigrants equal protection of the laws, even though the Fourteenth Amendment prohibits this policy.
As its name suggests, an executive order applies only to the executive branch. When the president says he wants to deny birthright citizenship, he means that executive agencies who enforce his immigration policies will no longer treat possessors of birthright citizenship as citizens. He wants to deport at will, with no constraints. This desire for unrestricted deportation authority in the executive branch has built since 9/11. Since many citizens agree that immigration enforcement agencies ought to have unrestricted power, and Congress cannot act to check executive power in this area, power has grown.
It’s gratifying to see so many people say the president has no constitutional authority to end birthright citizenship.
It’s gratifying to see so many people say the president has no constitutional authority to end birthright citizenship. Yet these arguments highlight the political, extralegal nature of questions like this one. Constitutional limits on the president’s authority no longer take shape due to balancing powers in the legislative and judicial branches. Rather, the president tests these limits in the political sphere, and usually succeeds. If you want to know how we created a police state, especially for non-citizen immigrants, look to expansion of executive power in enforcement of immigration policies – policies executive agencies make up as they go.
To take one more example of political testing, recall Franklin Roosevelt’s Judicial Procedures Reform Bill of 1937, his attempt to increase the number of Supreme Court justices on the bench. Both Congress and Court resisted. That is the last time either branch took a clear-cut stand against expansion of executive authority in a significant area. First the fight against Communism, then the so-called Global War on Terrorism, which spawned the war on immigrants, have given the president and executive agencies as much power as they want.
Given the way this president operates, you could say his signature on the executive order is immaterial. He has already signaled to his enforcement agencies that they can do what they like.
Thus when President Trump says he wants to deny birthright citizenship to children of immigrants, he merely extends what three presidents have already done for seventeen years. Given the way this president operates, you could say his signature on the executive order is immaterial. He has already signaled to his enforcement agencies that they can do what they like. That includes removal of children from their families, illegal detentions, unjustified deportations that break up families, and other policies that violate Fourteenth Amendment rights of non-citizens. Most of these policies started under George W. Bush, continued and expanded under Barack Obama, and intensified under Donald Trump.
Resistance to these policies has developed locally – witness the safe communities movement and sanctuary cities – but no resistance has developed that would constrain ICE, CBP, or any of the other agencies involved in immigration enforcement. They still treat every non-citizen immigrant as a threat to national security. Administrators even call uniformed authorities in to arrest people who arrive at their local immigration office to have their documents validated. These are signs executive branch authorities are out of control. They are. Virtually nothing constrains their activities. We should watch to see how often the agencies detain and deport people born in the United States.
Rights and mob action in practical democracy
How is Maxine Waters similar to Donald Trump? Both politicians have no appreciation for the way rights secure liberties in a democracy. Without rights, you have no liberties. Rights secure liberties because they bind individuals, groups, and governments to act non-aggressively. Non-aggression no person or group can ever use coercion against another person or group, and that all coercion under the law follows due process.
Both Waters and Trump encourage mob action in their public speech. Mob action brings group force to bear on other individuals or groups: to silence them, intimidate them, deprive them of their ability to participate in public life, ostracize them, or harass them so as to provoke an aggressive response in return.
Do rights of free expression protect mob action, so long as the mob does not assault the targets of its action? That question is a little difficult, because the word assault covers both physical violence, as well as non-physical attacks:
As a verb, assault means:
1. make a physical attack on.
2. attack or bombard, someone or the senses, with something undesirable or unpleasant.
As a noun, assault means:
1. a physical attack.
2. in law, an act that threatens physical harm to a person, whether or not actual harm is done.
3. a strong verbal attack.
By these definitions, the Trump-Waters mode of incitement counts as encouragement to assault other people. They and their followers want to achieve political ends with aggressive means that – under a democratic constitution that protects individuals’ rights to live in peace – violate our social contract.
The superhero films – Stan Lee’s Spiderman in particular – popularized the adage, “with great power comes great responsibility.” Rights give citizens great power, especially relative to each other. The defining quality of a mob is disregard of rights: that is to say, irresponsible, illegal use of power. The self-appointed vigilantes who hanged an innocent man in The Ox Bow Incident congratulated themselves on their swift execution of justice, but they were nothing more than a lynch mob. They would have been a lynch mob even if their victim had been guilty.
When Trump and Waters urge their followers to assault people, when they justify their incitements with foul accusations and hateful speech designed to make demons of our brothers, why should we listen to them?
So when Trump and Waters urge their followers to assault people, when they justify their incitements with foul accusations and hateful speech designed to make demons of our brothers, why should we listen to them? They deal in fear and lies. Each side insists, “we must destroy our enemies before they destroy us.” If you fall for arguments like that, I suppose you deserve what you get. Meantime, assaults mount day by day, until civil violence becomes a bad habit, as it has in the great city of Portland, Oregon.
Once again, to secure liberty, people in societies must have rights. To protect rights, people cannot appoint themselves guardians of the good, then initiate aggression against fellow citizens, who have a right to live in peace. Our right of free speech means we can, and ought to, criticize opponents in the strongest possible language – in words some might call hateful – but we cannot act out these attacks in a mob. To do so means we have given up living together.