The Briefing 09-06-17

Part I

---

Why policy questions and constitutional questions aren’t always one and the same

The announcement made yesterday by the White House, through the Attorney General of the United States, concerning DACA — that is the Deferred Action for Childhood Arrivals policy — was one of the most anticipated yet of the Trump Administration, but the background to that policy and to the controversy goes back many years before the election of Donald Trump, indeed it goes back before the election the first time of Barack Obama as President of the United States. There’s good reason for this. Our current immigration laws are a complex of confusion; they do not reflects either what this country intends to enforce, by means of its police and its law enforcement agencies, nor does it reflect a coherent sense of national priorities. But all of this came to a head in 2012 and now it has again in 2017.

 

In 2012 President Barack Obama announced through the Department of Homeland Security what was known as the Deferred Action for Childhood Arrivals policy; it was new then and sense then it has been referred to mainly by its acronym DACA. This was an announcement made by the Obama Administration that the United States would no longer seek to deport it would defer deportation of children and young people who had been brought to the United States by parents who were undocumented. So, just go back to the language of 2012 used by the Obama Administration in explaining the policy, here we have “children and young people” who have no legal status in the United States and are thus vulnerable for deportation. They are the children of those who entered the country illegally, but to make the point in terms of the morality that President Obama argued, these children and young people — now many of them young adults — were in this country by an illegal act, but not by an act of their own.

 

Supporters of the Obama policy referred to these young people — now many of them young adults — as “the dreamers,” those who were hoping for and invested in an American future and their own part in that future. But the background of this is very complicated, and at this point we have to make a very important distinction. The distinction is one that Americans are not often called upon to make but American courts are; it’s the distinction between what is constitutional and what is right. That sometimes is a hard distinction to draw, but in the rule of law it is an unavoidable, indeed necessary, distinction.

 

No one drew this distinction better than the late justice Antonin Scalia of the US Supreme Court. Justice Scalia, deploying is characteristic wit, said that he wished he had on his desk a rubber stamp that would simply read, “stupid but not unconstitutional.” The Justice’s point was this: The Supreme Court, and for that matter all the federal courts, are to rule on the basis of the law and that means the highest law of this land, the U.S. Constitution. They are to decide whether or not a proposal or policy is in conflict with the U.S. Constitution and thus unconstitutional. But as Justice Scalia said there are many laws and policies that may be stupid, but they are not unconstitutional; thus, Supreme Court should not strike them down, they should be left to the political process. But if Justice Scalia was absolutely right, as he so often was, that an action or a proposal could be stupid but not unconstitutional, it is also the case that a policy can be good but not constitutional. That is to say, it might seek to and actually achieve a right, a morally right and righteous end, but the means of doing so could itself be unconstitutional.

 

So when you’re looking at an issue here, the Supreme Court is to decide what is stupid and unconstitutional, what is stupid but not unconstitutional, what is right and constitutional, and what is right yet unconstitutional. Those distinctions are absolutely necessary, and in this case, the rubber stamp should say, “right, but not constitutional.” By that I mean to be very clear. Back in 2012 when President Obama made this announcement, I believe that his goal was right but his action was and remains unconstitutional. The reason for that is fairly simple to understand. We have in this country a tripartite system of government, every branch — the judicial the legislative and the executive — has its proper role. What is delegated to the legislative branch is implied by its name; it is to establish the laws. The executive branch is to fulfill what is implied in its name; it is to execute the laws. What President Obama, through the Department of Homeland Security announced by Fiat in 2012, was a policy that is and was directly in conflict with the law of the United States of America. The President claimed that it was merely a decision to defer prosecution, but it was clearly more than that. Very interestingly earlier in his administration — remember he had been in office almost 4 years when his administration handed down the DACA policy — previous to that, President Obama himself had argued that it would not be constitutional for his administration to do what, in 2012 under pressure, it did.

 

Attorney General Jeff Sessions, speaking to the Trump Administration’s decision yesterday, cited Georgetown University Law Center professor Jonathan Turley, and he got right to exactly the correct point in Turley’s comments were he said back in 2012,

 

“In ordering this blanket exemption, President Obama was nullifying part of the law that he simply disagreed with.”

 

He went on to say,

 

“If a president can claim sweeping discretion to suspend key federal laws, the entire legislative process becomes little more than a pretense … The circumvention of the legislative process not only undermines the authority of this branch but destabilizes the tripartite system as a whole.”

 

Jonathan Turley is not generally identified as conservative and that make his statement all the more clarifying. It was then and it is now. But it clarifies only part of the situation; really only half of the question. It clarifies the fact that there is a constitutional issue, there is a rule of law question, and the Trump Administration was facing a deadline of September 5 — that was yesterday — when Texas and 10 other states were going to bring a federal lawsuit against the government because of DACA, challenging its constitutionality. Another thing we need to note is that the Supreme Court in a four-four decision allowed a lower court’s decision to stand, which found an expansion of DACA unconstitutional. There is every reason to assume that the current Supreme Court would find DACA as a whole unconstitutional.

 

In that sense the Trump Administration’s announcement makes perfect sense in terms of the constitutional question. But that’s not the only question. The other question is: “What do we do with about 800,000 young people in the United States who are currently enrolled in the DACA program, and who, it’s fair to say, are quite traumatized by the decision that was announced yesterday?”
I go back to the fact that I mentioned that one of the alternatives is that a proposal or a policy could be wise and right, but not constitutionally achieved. There has to be a way of getting to what the DACA policy was attempting to do, but not circumventing Congress, and that’s exactly what the White House implied very clearly yesterday. By granting a six-month delay upon the implementation of the president’s order, this gives Congress six months to act legislatively in order to enact the very same policy, or something that would guarantee the same kind of security to about 800,000 young people who clearly want to buy into the American Dream.

 

Part II

---

What should our priorities be in the aftermath of the White House’s decision on DACA?

The legislative sclerosis that has set in in the United States Congress over the last generation is nowhere more apparent than in matters of our national immigration policy. Interestingly, if you look carefully at the arguments on both sides, you might even say all sides of the immigration issue, there are cogent arguments to be made in almost every direction. But one thing is abundantly clear, this nation has forfeited its responsibility. The United States Congress has failed in its responsibility to enact a sensible comprehensive immigration policy that fits the needs of the United States, that reflects our own national priorities, that serves our national interest, and also upholds our national ideals.

 

On the question of immigration it is the responsibility of Americans to separate the issues into the component parts; it’s not just one question. It’s true that we are a nation of immigrants, but that does not mean that a nation can survive having no enforced immigration policy. We are indeed a nation of very clear ideals about inclusion and ideals about citizenship, but our own immigration policy has been quite inconsistent in upholding and applying those very ideals. Enforcement of the law is a very important part of the rule of law, but this country has not demonstrated any consistent effort to enforce its own immigration laws. Looking the other way when it’s been perceived to be, periodically, in our own national interests. And furthermore, even when you look at the opposing sides in America’s political divide, even if you just isolate conservative Republicans, it is not clear that there is unity on the question of immigration. It’s not even clear at this point that there is unity in understanding what all the issues might be. Frustration with the confusions of American immigration policy spilled over in the 2016 presidential election, but there should be a very clear bipartisan consensus that these — the 800,000 young people covered by DACA — are almost exactly the kind of immigrants we want in this country. They are invested in American citizenship in their desire to work for that citizenship, they’ve been raised within the United States of America, they overwhelmingly speak English, and by the fact that they qualify for this policy, they’ve not been involved in serious crime, they are working and working towards an education as well. There should be a bipartisan consensus to move on this issue of immigration, even if there is yet no other question of consensus on the overarching immigration question. And this is not just a moral debt we owe to 800,000 now quite traumatized young people, it’s actually an obligation we owe to ourselves as a nation.

Part III

---

The soul of a civilization as Europe tends toward childlessness

Next, we often talk about the unbreakable link between worldview and childbearing. You might put it this way: between theology and fertility. It turns out over and over again that that is an almost unbroken bond. Where you find very high levels of theism, you also find very high levels of fertility and of childbearing. Where you find more secular nations, you find childlessness increasingly becoming the norm. This has caught the attention of the Economist of London. The headline story:

 

“The Rise of Childlessness”

 

As the report says, a growing number of city dwelling Europeans are now just not having children.

 

“Just 9% of English and Welsh women born in 1946 had no children. For the cohort born in 1970,” they report, “— who, barring a few late surprises, can be assumed to be done with babies — the proportion is 17%. [But right now] in Germany 22% of women reach their early 40s without children; in [the city of] Hamburg 32% do.”

 

That means that in an unprecedented pattern — just taking the city of Hamburg, Germany, where I recently visited, is just one example — one out of three women now reaches the age of 40 without having children, and, apparently, without expecting to. The link to worldview becomes very apparent in the next paragraph when I read,

 

“All of which might seem to suggest that Europe is bent on self-erasure. Childlessness,” according to Iben Thranholm, a conservative Danish journalist, “is ‘a symptom of a feeble and terminally ill culture’ that is lost touch with its heritage.”

 

Now the Economist argues to the contrary, that it’s misleading to say that Europe is bent on self-erasure; instead, they say, Europe is rebalancing its understanding of values and tilting towards not having children. The perspective of the Economist is frankly irrational; it’s hard to explain, but they repeat it in an editorial statement, which is entitled:

 

“In Defense of the Childless.”

 

The subtitle:

 

“More and more Westerners have no offspring. They should not be criticized for it.”

 

But at the same time, the Economist notes that no society can survive without an adequate number of children being born, and that there is a very real prospect, as we already see in a nation like Japan, the childlessness leads to an eventual demographic and economic disaster, not to mention a moral disaster. As researchers have made the point over and over again, having children creates a much stronger society because a society will make sacrifices for its children that it will not make for others. But the reflection of a worldview completely gone to seed is very clear in the Economist editorial when they write,

 

“The childless are thus a small but useful counterweight to the world’s parents, who perpetuate social immobility by passing on their social and economic advantages to their children.”

 

Let me just point out that the only way to resolve that passing on of what’s identified here as social immobility is for the society to come to an absolute end through childlessness. That’s the embrace of nihilism. In another strange turn in the Economist editorial they say,

 

“But to sustain public pensions in the long term, countries do not actually need more parents. What they need instead is more babies. It is possible,” they write, “to combine a high rate of childlessness with a high birth rate, provided people who become parents have more than one or two children.”

 

Here we’ll simply have to note the major influencers in society like the Economist have not been pressing for even the kind of social and taxation policies that would encourage people to have more than one or two children. One of the observations we should make here is that the Economist operates from an explicitly secular worldview, and it’s never more apparent than in this particular news analysis and the accompanying editorial. By definition the secular worldview, taken to its logical conclusion, doesn’t have to worry about the future, and there’s no future for a society that celebrates childlessness.

Part IV

---

Messianic message forbidden in China as Communist Party bans Handel’s Messiah

Finally the Economist at another article, this one from Beijing, that’s deserving of our attention. It turns out that the Communist Party in China is not only cracking down on religion in quite a general way, but is now cracking down on classical music from the West, which, guess what, turns out to be overwhelmingly Christian in its orientation. For example, Handel’s Messiah has been a staple of end-of-the-year classical music performances in China, but no more. The Chinese Communist Party has decided that Handel’s Messiah, no irony here, is simply too Christian now to the pass the muster given the crackdown on theism by that country.

 

The International Festival Chorus in Beijing will not even now be allowed in the future to offer private performances of Handel’s Messiah. It is simply too explicitly messianic about the Messiah, Jesus Christ the Lord. The Economist’s final paragraph in this article reads,

 

“Defenders of Mr. Xi [that is the Chinese Premier] argue that China can choose whatever it wants from the outside. And if it rejects religious music, that does not mean ignoring other Western forms. But,” the Economist summaries, “religious works are the foundation of the Western choral tradition. By walling itself off, China will inflict a high cost on its music lovers.”

 

The keywords to note there is where the Economist acknowledges,

 

“but religious works are the foundation of the Western choral tradition.”

 

Put bluntly, if we put all the choral music written in the Western tradition together, you will find only a very small percentage that is not explicitly Christian. Many contemporary more secularly-minded Western audiences fail to recognize this, often because the music is sung in Latin, but nonetheless, the truth claims of Christianity are front and center. That’s a reality we ought to remember, even if that messianic message is forbidden in China and lost on so many in the secular West.