Conseratives: Don’t Pledge #NeverTrump

On Friday, New Jersey Governor Chris Christie endorsed Donald Trump, stepping on whatever debate momentum Senator Marco Rubio had and becoming the first major elected official to support the frontrunner for the Republican nomination for President. Conservatives lit up the Governor for his endorsement with some like Erick Erickson pledging never to support Trump. In fact, #NeverTrump was trending across the United States on Friday night as conservatives lined up against Trump, making the same pledge as Erickson. This is a mistake.

Let me be clear, I am not suggesting conservatives vote for Trump in the Republican primary as I am not a Trump supporter. I have supported Ohio Governor John Kasich since he announced last summer and continue to today (full disclosure: I have also donated to his campaign). I believe Kasich is the only candidate running today with any meaningful accomplishments in government, has an excellent record in Ohio, plays to our hopes rather than our fears, and is eminently electable. Across the board, Kasich is a better choice than Trump or Rubio or Senator Ted Cruz. I hope you vote for him in the primary.

That said, Trump is the clear frontrunner for the nomination (I would peg his odds at roughly 70%), and for the sake of argument, let’s assume he is the nominee. What should conservatives do in the General when he faces Clinton? Those saying #NeverTrump are pledging not to vote for him in that election, which is an error. Conservatives have five choices: stay home, vote 3rd party, don’t vote in the Presidential election but vote in down-ballot races, vote Hillary Clinton, or vote Trump. Hopefully, we agree staying home is the worst choice and a dereliction of civic duty. There are still important down-ballot races with qualified conservatives, and those candidates need our support. In the event of a credible 3rd party candidate (I would define credible as consistently polling in the 20’s), there may be a strong case to vote for that person over Trump or Hillary (I think this may happen with Mitt Romney possibly running as an independent conservative). Let’s set that scenario aside, as the question is whether it is wise to pledge never to support Trump, no if, ands, or buts. That leaves: Trump, Hillary, or blank ballot.

Ultimately, choosing a blank ballot or voting for Hillary makes it more likely she will be President by lowering the number of Democrat and Independent votes she must draw. I struggle to see how conservatives are better off with Clinton than Trump. Yes, Trump has changed positions on many issues over the years, but Clinton is a committed leftist who has moved further left to ward off the challenge from a socialist. On matters of policy, I am sympathetic to the notion Trump is a wildcard given his inconsistency, but is he going to be worse than Hillary? Yes, there is a risk Trump nominates a liberal to the Supreme Court, but is there any doubt Hillary would? Sometimes, you are better with the devil you don’t know than the devil you do, which would be the case in a Trump v. Clinton election even for conservatives more dubious of Trump than me.

In a vacuum, would Donald Trump be my choice for President? No, but general elections are choices. Not choosing one is a choice for the other; opposing Trump helps Hillary. Trump is a gamble, yes, but Clinton is a sure-fire losing hand. Relative to Hillary, the risk of a Trump Presidency is skewed to the upside. Trump is also not wrong on everything; he is right we need to be tougher on China. They hack our systems, steal our intellectual property, and are taking territory in the China Sea. He is right that the working class is being screwed; median wages are lower than when George W. Bush became President. Both parties are to blame. On foreign affairs, I would also note Clinton has not been a particular success. How’s the Russian reset? Or Libyan intervention? Or situation in Syria? I do think Trump is peddling some fiction to get elected (note: I am not excusing this behavior) and would govern more as a centrist technocrat, so I believe he would be a more competent President than Clinton. Even if you disagree with that assessment, which is admitted speculation, Clinton will be at least as damaging to the conservative cause as he would be given her platform. She will certainly push for leftist policies whereas he may not. His upside exceeds his downside relative to Clinton.

I would also note that much of what conservatives hate/fear (the Muslim ban, his insults, his comments on libel laws, his finger on the nuclear button etc.) are likely campaign bluster. Again, I am not excusing that behavior, but it suggests he could be a fine President. Even if I am wrong, our government has well-built structures that limit the power of the President, ensuring these positions could not become law. The strength of our institutions deserve more credit than some alarmists let on, further diminishing his downside. While Trump enjoys a Twitter tirade, he has a history of avoiding direct confrontation (with the exception of his personal punching bag, Jeb Bush) as illustrated by his handling of Megyn Kelly among others. I see no reason to feel less safe with Trump our Commander-in-Chief than Clinton.

#NeverTrump conservatives should also ask themselves whether his VP choice could sway them. Ultimatums made rashly can make one look foolish when one reverses or keep one anchored to bad positions out of an aversion to reversing. Does Cruz (or someone else) allay some concerns? If yes, perhaps, it is best to wait for him to make that choice. Assuming he is the nominee, who Trump picks as his VP will be fascinating and enlightening. If I were to make 5 guesses, I would go (in descending order of likelihood): David Petraeus, a business person (to emphasize the anti-politician theme—this un-named pick on my part is a clear cop-out), John Kasich, Bill O’Reilly, and Chris Christie. Who really knows though?

The General Election is a choice, and Trump is a better one than Clinton, especially as his worst ideas won’t become law with any reasonable congress if he even pursues them.

Conservatives could stand to benefit from some of Trump’s populism, and we do need toughness against China. He would also likely surround himself with smart people, providing wise council. A couple dozen people I know, whose judgment I respect and whose character is unimpeachable, are Trump supporters, and their support may have softened my opposition. The twittersphere showcases the worst of his support but is not representative of much of his base. Questions of moral fitness aside, I do think Trump, whom would likely govern as a centrist and pragmatist, would be a decent President, and the fact Clinton with her server and serial lying is equally unfit renders that concern moot in the General Election.

Conservatives have every right to oppose Trump in the primary. However should he be the nominee (very likely), we should be anti-Hillary in 2016, and this may mean voting for Donald Trump. Pledging #NeverTrump is a mistake.

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Despite Cost and Blunders, GOP should stand firm on Scalia Replacement

In the aftermath of Justice Antonin Scalia’s passing, it can feel a bit crass discussing the political fallout; after all, he was a husband, father, and grand-father whose family is in mourning. However given the current balance of the court and titanic influence he leaves on legal thinking, the fact is we are entering one of most significant political battles in years, and while Senate Republicans have already made a tactical blunder, they must hold firm.

Whether you agree with his jurisprudence or not, it is indisputable that Scalia leaves behind a tremendous legal legacy. In 30 years on the court, he re-energized the textualist movement with harsh, impeccably worded dissents, groundbreaking majority opinions (ie Heller), and the occasional surprise (ie Emp Div HR OR v. Smith). Scalia is the father of much conservative legal thought, which makes the fight over his successor all the fiercer. On top of this, the Court now has 4 liberals and 4 conservatives (3 if you count Kennedy as a centrist). This means that the cases in which the Conservative wing would have prevailed 5-4 are now deadlocked 4-4. A liberal Obama Justice could feasibly swing the court to the left for years, guaranteeing the stability of Roe while endangering recent precedent on campaign finance, gun rights, and more.

Given the stakes, Senate Republicans must be very careful in how they proceed. Scalia’s death comes at an odd time. Had a vacancy arisen 5 months ago, the “lame duck” argument would be very weak, and the Senate would have been compelled to confirm a qualified nominee (elections do have consequences). If a vacancy had arisen 6 months from now, the decision not to act on a nomine would be on exceedingly firm ground as Obama would be a truly lame duck with an election right around the corner. Now, the timing of 9 months prior to the election gives credence to both arguments on whether to act or not (Kennedy in 1988 provides precedent to act while Fortas in 1968 is precedent not to act). Ultimately, this is really a new situation, unless you deem how congresses acted 50, 80, or 150 years ago to be very relevant to the present day.

With the court so evenly split, the GOP should likely delay, but the politics are bad. Republicans have only worsened the situation as well. On Saturday, Majority Leader Mitch McConnell said, “this vacancy should not be filled until we have a new president.” The Senate will not move on an Obama nominee, and the GOP almost certainly has the votes to sustain any filibuster. With 54 seats, they would have to suffer 14 defections, which is almost unthinkable, especially with vulnerable Senators up for re-election like Pat Toomey and Kelly Ayotte currently backing McConnell’s position. While the GOP should delay this until the next President, the way they are going about it is a mistake.

Republicans should have waited for Obama to formally nominate someone and then found specific reasons to oppose that candidate. Now, any specific criticisms can more easily be written off as an after the fact rationale from a bunch of obstructionists. Announcing opposition now is akin to shooting first, asking questions later. It is almost certain that the Obama nominee (whether it be Loretta Lynch, Sri Srinivasan, or someone else) will have enough flaws to justify delaying confirmation until the next President, and under the miniscule chance Obama makes a consensus choice, that nominee would deserve a fair hearing. In an effort to appease the Ted Cruz kamikaze wing of the party, McConnell has made it easier for democrats to label republicans as obstructionists and sway independents in the 2016 election.

In all likelihood, this political fight will have a limited impact on the 2016 election, but if anything, it hurts republicans. That said it can be worth losing political points when waging an important fight. The fact is few voters ever cite the nomination of Supreme Court justices as their most important issue (even though this power is one of the President’s greatest), and that is unlikely to change. It is hard to imagine more than 10% of Americans seeing this as their top issue, and such voters are likely high propensity, partisan ones. This is to say that they likely vote anyway and are not persuadable. On the margin, some democrat and some republican voters may be more energized, but they would have voted anyway. Scalia’s death may energize some voters, but it won’t swing the outcome in any meaningful way. However, this fight will make it easier for democrats to make the obstructionist argument (particularly if Ted Cruz become the nominee), which on the margins could swing some independents to the democrats. The Supreme Court does not work as a stand-alone issue to sway independents, but it can be used as part of a broader narrative against republicans. In particular, if Ayotte, Toomey, and Johnson get weak-kneed, that is a sign the political cost of this fight is growing.

Obama has every right to nominate someone, and the GOP should hold hearings for that nominee. However, there should not be hesitation to oppose him or her and keep that person off the bench given the high stakes of this vote in a divided court. The GOP should’ve waited for the nomination announcement to come out in opposition to avoid the “blind obstructionist” label, but that is water under the bridge at this point. With the Supreme Court in the balance, this is a fight worth having, even if there is a slight political price to be paid.

Justice Scalia’s guiding philosophy was driven by the goal of making the text of the law pre-eminent so that who the presiding Jude is does not matter. It is a sad twist of irony then how much of a fight there will be over who succeeds him. Equally, one is left to question the fragility of our republic that the death of one Judge can have such earth-shattering (partisans might say cataclysmic or bountiful) consequences.

 

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Feckless Actions That Caused a Firestorm

Earlier today, President Obama unveiled a batch of executive branch actions with the purported intention of cutting gun violence. While too often castigating his opponents on the issue as either heartless or in the pocket of the gun lobby, on the whole, the President offered an impassioned, compelling argument for more action on the gun issue, capped off by Obama startlingly and powerfully shedding tears as he discussed the horrific Newtown murders. Unsurprisingly, many in the GOP were up in arms (a sample: Trump, Cruz, Ryan, Price), and depressingly, some commentators even suggested Obama’s tears were fake.

Many on the right have put themselves in the position of simultaneously arguing President Obama’s actions won’t do anything yet pose existential threats to our constitution and the 2nd Amendment (this seems to be the NRA’s argument), which is a difficult if not impossible case to make. Sadly, by so quickly rushing to politicize the issue, many Republicans have shed the high ground as Obama’s orders are toothless, intended to rev up a political base needing motivation ahead of an Election. Will they solve the problem? No. Are they legal though? Almost certainly.

Aside from some uncontroversial actions on mental health, the thrust of the executive actions are focused on what it means to be a gun dealer. The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) is clarifying what it means to be a gun dealer, namely whether or not a gun-seller has to get a background check on the gun-buyer. Given Obama’s directive, the ATF has attempted to guide sellers whether they need to seek a license and thereby get background checks, and it’s a mess.

Obama is not to blame for why the rules are a mess. Congress is because it consistently writes vague laws, leaving it to the Executive Branch to fill in the details. By doing so, the Congress abdicates its legislative authority to the regulatory bodies under the President. Congress has no grounds to write intentionally vague laws and then complain over the interpretation. Here is the text of the law Obama is clarifying:

The term “dealer” means (A) any person engaged in the business of selling firearms at wholesale or retail, (B) any person engaged in the business of repairing firearms or of making or fitting special barrels, stocks, or trigger mechanisms to firearms, or (C) any person who is a pawnbroker. The term “licensed dealer” means any dealer who is licensed under the provisions of this chapter.

….The term “engaged in the business” means—

as applied to a dealer in firearms, as defined in section 921(a)(11)(A), a person who devotes time, attention, and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms, but such term shall not include a person who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms

In plain English, if you occasionally sell a firearm, you do not need to get a license. This exception, created by Congress, is what is referred to as the “gun show loophole” as at gun shows some individuals may decide to sell a gun or trade with another collector to enhance a collection. However, those who make a business selling guns have to follow the same legal procedures whether selling in their store or at a show. There is no exception for all sales at gun shows—the gun show loophole is really a misnomer.

The law begs the question though: when does occasional cease to be occasional? When does having a hobby turn into a business? We would all probably agree that selling 1 gun per year counts as occasional but selling 3,000 would not. However, Congress has left a massive gray zone; they intentionally ducked the issue, avoiding controversy, and passed it off to the President. There is no numerical definition for occasional, and Obama does not attempt to set one. There is as plausible an argument to be made that 50 sales ceases to be occasional as 100 sales. Don’t be surprised if different Presidents enforce at different levels; Congress’s vagueness and cowardice has empowered the Executive to do just that.

Obama is essentially telling his ATF to be more stringent in its enforcement of occasional, which Congress has granted him the right to do. Obama is not threatening our Constitutional balance of power; rather, Congress has abdicated its constitutionally prescribed ones, signing them over to the President. This is not the act of an Imperial President but the result of an Impotent Legislature. If Congress does not feel the intent of their words are being enforced, they have the ability to pass a new law more clearly stating what “on occasion” means, thereby restricting the President’s discretion. Barring that, what Obama did was perfectly legal. It also isn’t dangerous to our Constitution; unless one wants to argue existing laws and their gray area unjustly infringe upon the Second Amendment, a tough sell both in the court of public opinion and in the court of law.

These actions barely move the needle and will have next to no impact on gun crime as so few gun sales will be impacted. Few mass murderers purchased guns in a sale that would have been regulated differently thanks to these changes. This is political theater with the President trying to show he is doing something to rev his base while implicitly acknowledging to do something more sweeping Democrats need to take congress, meaning those who want tighter gun control have to get out and vote. I think it is clear that Obama wants to fundamentally change our gun laws, but (unlike on immigration and soon perhaps GITMO), he recognized his limits and acted within them. It makes for good base politics but will have an imperceptible impact on gun violence.

Instead of attacking Obama for showmanship and impotence while acknowledging that in his heart he wants to see lower gun violence (and arguing he is just pushing the wrong proposals), some on the right reflexively and sadly attacked his motives, suggested he was destroying and 2nd amendment, and lamented the uselessness of his actions. Again, the second and third points seem incoherent when paired together. This is an example of Republicans politicizing the issue as much as the President to enthuse their own base ahead of an election.

Sadly, it increasingly seems like both sides lack the will for a substantive discourse on this (and other) issues, preferring to gin up their respective bases rather than making persuasive arguments and finding common ground. We keep yelling past each on guns, achieving nothing. Meanwhile, China lands planes on disputed islands in the South China Sea, Iran and Saudi Arabia inch closer to conflict, and North Korea may have conducted a nuclear test. No wonder people hate politics.

 

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When Discrimination is OK

Over the past week, a Massachusetts court case, Barrett v. Fontbonne, has generated quite a bit of interest and justifiably so. Put priefly, Fontbonne is a Catholic school that had hired Mr. Matthew Barret to be its “Food Service Director” but withdrew the offer after learning Barrett was in a same-sex marriage (he named his husband as his emergency contact). Barrett sued, citing employment discrimination, and won the case (you can read the opinion with more detailed facts here). This case is genuinely fascinating and challenging, and Fontbonne hopefully appeals (as I believe they should win the case). I would argue all Americans should hope this case reaches the Supreme Court as there are competing rights (nondiscrimination and religion) with strong arguments that deserve to be heard and ruled upon by our leading constitutional thinkers. Those who don’t feel some pull towards each parties’ position, either legally or emotionally, are probably either hopelessly partisan or simplistic in their analysis.

I also would make a clear distinction between what Fontbonne ought to do and what it is legally compelled to do. As a matter of policy, I think Fontbonne should not have rescinded its offer to Barrett due to his sexual orientation. I struggle to see how his personal life would have impacted his ability to do his job, and hiring someone does not have to be an endorsement of everything they do in their personal life. The school’s distinction that its decision was not based on Barrett’s orienation but on the fact he was in a same-sex marriage is dubious at best. The two facts are inextricably linked, and this argument suggests that by extending him a right (marriage) the government leaves him more at risk in other areas (employment). Barrett was not hired because he was gay; Fontbonne was wrong morally, theologically (again just my opinion as a non-expert, but I believe Jesus surrounded himself with many sinners and outcasts), and certainly from a public relations perspective (likely not the best way to appeal to younger Americans to grow the faith). However, policy errors by an institution are not necessarily illegal, which is the case here. If stupidity were a crime, yours truly would be writing from behind steel bars.

Religious freedom, enshrined in the first amendment, is a fundamental right in this country, a foundational principle. At the same time, not being discriminated against is also critical. In cases like this, these rights need to be balanced, and there is ample legal precedent on which to rely. The Supreme Court buckets groups into three classes when reviewing government laws and discrimination, applying different standards:

  1. Suspect class: these include race, religion, and national origin. Any law impacting this class must pass strict scrutiny (the highest standard), meaning it serves a compelling government interest, is narrowly tailored, and is the least restrictive means to achieve that interest. Few laws can survive strict scrutiny. (Ironically, one of the court’s worst decisions, Korematsu, was one in which the government met this burden).
  2. Quasi-suspect class: Gender is the primary example. Any law impacting this class must pass intermediate scrutiny (the middle standard), which means it serves an important government interest.
  3. Other classes: When not dealing with a minority of some sort, all the government needs to show is a rational basis for its law (the easiest standard). Here a law must be rationally related to a legitimate government interest.

Why is this legal tangent relevant you ask? Because, the classes in the case impact the scrutiny applied, thereby pushing the scales in a certain direction. For instance, a law that infringes upon the rights of the “other class” to help a suspect class likely survives as the level of scrutiny is lower and vice versa. The Supreme Court has been silent as to what class homosexuals belong, though Windsor (overturning the Defense of Marriage Act) suggests the court sees them as a quasi-suspect class. Frankly whatever side of this case you are on, it would be useful for the Court to hear it (or a similar one) just to get it on the record as to what level of scrutiny it is applying so that all courts around the country are ruling consistently. For twenty years, the Court has gone out of its way to avoid this issue explicitly, but it should make clear what it has implied, that homosexuals are a quasi-suspect class.

What does this mean? Any law seen as discriminating against them must serve an important government interest. So an exception to Massachusetts’ employment discrimination law permitting discrimination must be important. Protecting the freedom of religion would seem to meet this burden. Now, religion also has an interesting legal history. Sherbert v. Verner, a landmark case, determined that in matters of religion, the government must have a compelling interest (ie strict scrutiny). Under an Antonin Scalia opinion in Employment Division v. Smith, the standard seemed to shift demonstrably lower (according to some) to “general applicability” whereby laws that were religiously neutral and generally applicable (ie belonging to a religion opposing taxes does not allow one to avoid generally applicable income taxes) can survive. In response, congress passed, almost unanimously, the Religious Freedom Restoration Act (RFRA) to force the court to use strict scrutiny in religious matters. While the court later held the RFRA constitutional in federal matters, I still have constitutional reservations and generally oppose RFRA at both the Federal and State levels (legislatures shouldn’t tell courts how to rule in my opinion).

Using strict scrutiny, the question is whether the government has a compelling interest to force religious institutions to hire gay people? Remember on the flip side, Fontbonne only needs to show the religious freedom is an “important” interest. The scales seem decidedly tipped in Fontbonne’s favor. Now, the court is not forced to use this standard in state cases, yet using “general applicability” doesn’t change the outcome (the difference between this standard and the Sherbert test is less than Congress’s reaction would suggest). A religious objector needs to show a hybrid right, ie something beyond freedom of religion. Fontbonne has a second right here: association. A religious organization has latitude in who to include in its private organization, certainly more so than a non-religious, public entity. A religious institution can choose to associate only with members of its faith, otherwise clergy selection processes would be illegal.

Now, the Massachusetts court dismissed this argument, noting that by employing and accepting some non-Catholics, it loses this right. That argument is lacking, though I understand the rationale. No one would argue for instance (I hope) on a religious organization’s ability to discriminate in selecting members of its clergy (ie Catholics can require non-married Catholics be Priests and reject others out of hand). However, a food service director is not a clergyman, and per the ruling, once the school decides to employ/enroll non-Catholics, it loses protections. Essentially, the court argues religious organizations cannot be hypocrites. It can’t one day hire an atheist, the next day, fire a Jew. The rationale here is somewhat compelling.

However, now we have secular courts that have no professed proficiency in theology ruling on when religious institutions are employing some people who lead lives counter to their faith. This view also disproportionally impacts smaller religions, who need more protecting. A small faith (think a Jewish school in Montana) would likely have a hard time employing a full faculty within its faith. By virtue of its small size requiring it to hire some outsiders, does it lose protections? That doesn’t seem equitable. If anything, small religions are more at risk of marginalization and need more protection. This ruling undermines that and does the reverse.

The Court has dealt with this in a case where religious institutions lost, Lemon v. Kurtzman, which determined laws that result in “excessive government entanglement” with religious institutions are unconstitutional. In this case, having a law that requires courts to match compare employee rosters to religious tenets to see whether an institution has forfeited religious and association protections is excessive entanglement. Our courts should not be in the business of determining whether a religious institution is hypocritical. Under either standard, Fontbonne should win.

What is most interesting is if the Court were to make homosexuals a suspect class (very unlikely), putting both sides on the same playing field. I would again side with the religious institution as a religious carve-out would seem to merit “narrowly tailored” requirement while forcing a religious institution to hire anyone doesn’t seem to meet that as evidenced by the entanglement issue.

The Fontbonne case deserves the attention it had received, if not more, though the legal questions are complex. While Fontbonne’s actuals are puzzling, the government legally cannot and should not force religious institutions to hire people. Yes, a food service director is in a greyer area than a clergy member, but do we want courts determining where the black and white stops and where the grey begins? That is a recipe of ungodly bureaucracy, entangling government in religion’s business.

We are better served maintaining separation, giving a religious institution the ability to employ whomever it wants. Sometimes, the result seems awful, but government mandates could have a chilling impact on religious freedoms and risks further infringement down the road. What happened to Mr. Barrett was awful; that doesn’t make it illegal. We need to reaffirm Lemon; this country is best served when government does not entangle itself with religious institutions, either to their benefit or detriment.

Trump Isn’t the Problem; He’s the Symptom

On Monday afternoon, Donald Trump announced a plan to ban Muslims from entering the United States, sending shockwaves through the political universe. The plan drew condemnation from most of the chattering class and his fellow candidates, though undoubtedly, many of his supporters were on board with the thrust of the plan, even though Trump suggested even American citizens, who happen to be Muslim, will be banned from re-entering the country. To be frank, this plan is abhorrent and repulsive to our constitutional ideals and merits unequivocal rejection. It is now easy to cast Trump as a problem (and for the GOP’s electoral chances in 2016, I would argue everyday he dominates the news cycle is problematic), but in reality, Trump is merely the symptom and not the problem itself.

Focusing on the plan first, it manages a perfect trifecta: unconstitutional, irrational, and unworkable. Working backwards, it is unworkable because it is absolutely impractical to know for certain whether or not a foreigner, seeking to enter the country as a tourist, is a Muslim. Are we going to ask for religious documentation? How do we know that a Radical Islamic terrorist isn’t merely pretending to be a Christian? Proving a negative (ie that one is not secretly a Muslim) is a dead end. Immigration would ground to a total halt. Plus in many of the most dangerous places, verification is an impossibility, hence the House plan to temporarily pause the Syrian refugee program.

It is also irrational because it misplaces the threat. Do we feel better about a businessman from Vancouver, who happens to be Muslim, visiting family in Seattle or a self-declared non-Muslim from Raqqa, Syria coming to the country? Under the religion-only test, the Syrian gets through and Canadian gets blocked. Does that seem rational? Clearly, radical Islam is a serious problem, but not all of Islam is. Any ban should focus on specific countries not religions.

Trump understands that Americans are scared, and he is right that we need to button-up our immigration policies; he just does so in an ineffective way. The fact is the threat to this country comes from ISIS-controlled territory in Iraq, Syria, and Libya or al-Qaeda controlled territory in Yemen and Afghanistan as well as portions of North Africa (or from Westerners who travelled and were trained in these places). The rational policy is tighten policies for all people, who either live in or have visited those countries, irrespective of their faith. That means suspending the refugee program until verification concerns noted by Obama’s FBI Director James Comey and others have been rectified. It also means altering our visa waiver program (the bipartisan Feinstein-Flake bill is a very good start) whereby a French citizen can go to Syria, develop skills to launch an attack, go back to France, and then come to the US without a visa to launch an attack here. Anyone visiting a hotbed of Islamic terror should be required to get a visa, irrespective of what country they are from and what their faith is. These policies would do far more to keep the bad guys out while avoiding the clear moral issues of blindly banning all Muslims.

Where the Trump plan totally goes off the rails is its treatment of US citizens who happen to be Muslim. Entering the country is a clear, fundamental right that Trump is depriving based on one’s religion without any probable cause. That is a blatant violation of the First Amendment right to freedom of religion. Attacking people for their faith is the domain of the left, as evidenced by their attacks on the Sisters of the Poor and Christian florists. Trump also suggested “closing” parts of the internet up. To those who would protest about freedom of speech in the first amendment, he would call them “foolish people.”

It is easy to defend constitutional rights during tranquil times, but the true mettle of one’s commitment to our ideals and freedoms shows during dire times. Trump is flunking that test, promising to shred the rights of Muslim citizens, functionally blockading them from leaving and banning them from returning, in the name of protection. Again, I ask are you more concerned about a Muslim American spending a weekend in Toronto or a detached young male who is a non-Muslim American (unaffiliated with an aid group for argument’s sake) in Syria. Freedom of religion is the quintessential American right, and we as conservatives have fought hard to protect it. To quote President Ronald Reagan from 1984: “government should not make it more difficult for Christians, Jews, Muslims, or other believing people to practice their faith.” Trump would do exactly that, and that is deplorable.

It is the nature of mankind to trade some freedoms for the hopes of safety, a natural proclivity Trump is playing to. Charlatans in the past like Senator Joe McCarthy fed off this fear. Democrats are currently using this fear in an effort to strip due process rights away from some looking to buy guns. A low point in this nation’s history was the internment of Japanese citizens where our fear led us to strip fellow citizens of their rights just because of who they were. Tragically, the Supreme Court upheld this policy in Korematsu v. US. I would point you to Justice Frank Murphy’s powerful dissent, in which he declared (emphasis my own), “But to infer that examples of individual disloyalty prove group disloyalty and justify discriminatory action against the entire group is to deny that, under our system of law, individual guilt is the sole basis for deprivation of rights. Moreover, this inference, which is at the very heart of the evacuation orders, has been used in support of the abhorrent and despicable treatment of minority groups by the dictatorial tyrannies which this nation is now pledged to destroy.”

America does not stoop to the level of our adversaries to beat them; our constitutional ideals are meaningless if we are so fickle and weak-kneed. We punish those who themselves commit wrong, not just belong to a certain group. We mustn’t repeat the tragedies of the past, by stripping rights in the supposed effort to protect ourselves. The inclination can be strong, but we must rise above it and keep our dignity for in the words of Alexis de Tocqueville, “America is great because she is good. If America ceases to be good, America will cease to be great.” We must stand united against this irrational, ineffectual, and unconstitutional policy.

Republicans and conservatives need to stand up to Trump’s divisive rhetoric. We have worked hard for years to make clear we are at war with Radical Islam but not all of Islam; in fact, we need moderate Muslim leaders themselves to stand against radicals. Trump’s plan lumps in all Muslims, threatening to undo this work. It also makes it easier for Democrats, hobbled by slavish political correctness, to avoid the term Radical Islam. Some on the left will also undoubtedly use the Trump plan to marginalize other GOP plans on refugees (like the House bill) as racist and not as the much needed reform they are.

After clearly going past the line (if he hadn’t already), it is now easy to dismiss Trump as the problem whereas he is really the symptom of a bigger problem. An increasing portion of the American public, particularly the working class, feels disenfranchised. The whole public is scared; prior to the San Bernardino terror attack, only 33% of Americans approved of Obama’s handling of ISIS, and only 38% approved of his handling of terrorism (from CNN-ORC). Obama’s consistent dismissal of ISIS has perhaps irreversibly damaged his credibility on national security. Trump’s tough talk is reassuring, even if the underlying policies aren’t feasible.

By the same token, the Republican Party has been an abject failure when it comes to explaining how its policies will help the working class, perhaps because much of its donors are corporatist Wall Streeters. In 2012, Mitt Romney lost voters whose top issue was having a President “who cares about people like me” by a stunning 81-18% margin. He never articulated how his policies would help ordinary, working Americans. At this point, no serious Republican Presidential contender, apart from Trump, have made a serious stride in this area (though Rubio has been trying harder than others, and hopefully, Paul Ryan will be a thought leader in this area). Perhaps recognizing this country has shed 5 million manufacturing jobs in 20 years, hurting millions of Americans, Trump has pledged to go after China and Mexico. Will these policies work? Not necessarily, but he at least provides the illusion of caring.

For many Americans, the past 20 years have been hard. While Clinton oversaw an economic expansion, manufacturing sputtered in his second term and his foreign policy left us less safe. While Bush’s ability to keep us safe after 9/11 is a tremendous accomplishment, his economic policy is mixed and he is not blameless for the financial crisis. Under Obama, our record has been tepid with inequality worsening while his dithering in the Middle East has left us more unsafe. The establishment and mainstream political parties have failed many Americans, and it is no wonder they have looked elsewhere, to someone out of the political class addressing their security and economic concerns, Donald Trump.

That is why the efforts to marginalize Trump based on his egregious rhetoric have failed spectacularly. The establishment is pointing out to voters what the establishment doesn’t like, but these voters have lost faith in the establishment because it has failed to deliver for them. The only way to attack Trump is to effectively argue he, one of the world’s greatest marketers, is selling a false bill of goods and won’t deliver. Someone must also step up and detail an economic vision that re-enfranchises a middle and working class that has been left behind.

Until then, we are destined to hear this self-aggrandizing candidate offer more unserious if not offensive plans while his poll numbers likely stay high. Trump’s anti-Muslim ban runs counter to the values we espouse and would be a dangerous degradation of constitutional rights. This has to be the impetus for other candidates to actually offer plans that will bring the middle and working classes into the fold. Unless someone else offers a compelling vision to these voters, the Trump phenomenon isn’t going away, no matter what he says.

Demagoguery and Destroying Due Process Won’t Solve Gun Violence

After the horrifying murders in San Bernardino Tuesday and Colorado Springs last Friday, democrats are following the advice of former Obama Chief of Staff and current Chicago Mayor Rahm Emanuel: never let a “serious crisis go to waste.” Emanuel, of course, is so morally bankrupt he apparently slowed an investigation into the death of an African-American teenager at the hands of a Police Officer to preserve his re-election chances. Sensing political advantage, democrats are out in full force, attacking republicans, demonizing those who pray for shooting victims, and urging new laws irrespective of their efficacy. They have entered full “do something for the sake of doing something even if it achieves nothing” mode while poisoning our political discourse, thereby making it harder to actually solve the problem of gun violence.

Make no mistake, gun violence is a serious problem. However, we should note that gun crimes have been halved since the early 1990’s while violent crime is back to 1970’s levels. I say this not to diminish current violence, which remains intolerably high, but to provide context as facts tend to improve the quality of solutions put forth. Even though we are safer than ever before, we are averaging roughly 1 mass shooting (the FBI defines a mass shooting as 4+ victims; depending on definition parameters, there have been anywhere from 70 to 355 “mass shootings” this year) per day. Yet for many, it feels as though violence has escalated to unprecedented levels in recent years. For this, I would point to the proliferation of social media and 24-hour news channels, which make us far more aware of these acts of violence. On net, this is a good thing as the constant reminder of human suffering will hopefully further our resolve in solving the underlying problems that beget such violence. Sadly, some, typically but not exclusively, on the left exploit these tragedies to whip up a frenzy, divide us, and all but suggest the NRA’s millions of members are callous, blood-thirsty monsters.

Sensing an opportunity to feed off Americans’ heartbreak, Democrats are pushing reforms that would do little to stop gun violence and severely undermine Americans’ fundamental rights. Let’s focus on Senator Dianne Feinstein’s proposed amendment (supported wholeheartedly by Obama and Senator Harry Reid) to block Americans on the Terror Watch List from purchasing guns. Republicans kept this proposal from becoming law by a vote of 45-54. Now, one does not need to have much political acumen to recognize the Feinstein proposal would poll extremely well (my bet would be 90-10 or better initially); after all, who wants terrorists to get guns? However, the facts are a bit more complicated, and strong polling doesn’t make it wise policy.

For perspective, the terror watch list likely contains the names of about 1 million Americans. I would note that the Terror watch list is far more encompassing than the No-Fly list, which includes about 800 Americans. In the past even The Huffington Post has ridiculed the relative ease with which one could get on the terror watch list, and I would emphasize authorities merely need “reasonable suspicion” to put someone on the list. This is a different, lower standard than the one our system of due process demands in criminal cases (beyond any reasonable doubt). That is critical because the Feinstein proposal would strip Americans of a fundamental right without affording them due process. (As an aside, democrats blocked Sen. John Cornyn’s amendment that would have given authorities 72 hours to ask a court to block a gun sale to someone on the watch list thereby preserving due process while achieving what democrats wanted. I will leave you to decide whether the left was interested in merely scoring political points or in solving the problem.)

Our constitutional architecture affords the preservation of Americans’ fundamental rights, which we may only be deprived of with “due process of law.” The Supreme Court reaffirmed that individuals have a fundamental right to bear arms in 2008’s DC v. Heller. Due process includes things like facing one’s accuser, having a jury of peers, the presumption of innocence, and so on. The Feinstein bill undermines this basic tenet of our Republic. I ask:

  1. Should the government be allowed to do warrantless searches of Americans on the Watch List whenever and wherever it wants?
  2. Should the government be allowed to regulate the speech of those on the Watch List or bar members from associating with certain other people?
  3. Should the government be allowed to proactively detain people on the Watch List for indeterminate periods of time?

I expect (and certainly hope) you would answer “no” to all these questions. Even though we want to stop suspected terrorists, we as a society recognize that fundamental rights are sacrosanct, and abridging them is very serious (and dangerous). As such, we afford suspects a fair legal process that puts the burden on the government to prove its case in a court of law before punishing the accused. There are times that our nation has grown emotional and forgotten this system, and it has been a stain on our history. In particular, I point to the internment of Japanese-Americans, violating their fundamental rights without due process. Shamefully, the Supreme Court upheld internment in Korematsu v. US. That decision, along with Dred Scott and Plessy, still impugns the reputation of our highest court.

I do not think the Feinstein proposal, had it been enacted, would ever be so damning as Korematsu, but violating fundamental rights has virtually never looked wise in hindsight. Some undoubtedly have the greater good in mind in their support of this proposal, but sadly, in no cause has more harm been done that of the greater good. Such thinking too often descends into an “ends justify the means philosophy” that airbrushes increasingly grievous wrongs in the name of safety, supposed equality, or other catchy slogans (“workers of the world unite”…). The fact is that gun ownership is a fundamental right, and stripping such rights is anathema to our values.

Yes, those on the Watch List can appeal to get off it, but this is an individual, presumed guilty, attempting to prove innocence, throwing the basic tenet of our justice system on its head. Further, the threshold for being on the watch list is lower for being convicted of a crime, making it even harder for individuals to get off the list. We afford accused murders with far greater protections than people on this list (who can include the relatives of suspected terrorists whom have not engaged in radical activities themselves). That is unjust.

We also must reject the notion that if we don’t let someone fly on a plane we shouldn’t let them own a gun (though again I emphasize the no fly list is a small subset of the watch list. We allow most on the watch list to fly, albeit with stricter scrutiny). While again I see the appeal of the argument, there is a key distinction. Flying on planes is not a fundamental right; it is a privilege, giving the government far more latitude to regulate who flies. It is similar to how states only allow licensed individuals to drive, requiring people to pass a driving and eyesight test. These are not fundamental rights, like gun ownership, religious freedom, undue searches etc. Rather than facing strict scrutiny, the government only needs a rational basis to deny a license or keep someone from flying. Comparing guns to planes, while appealing, is ultimately flawed legally.

In reality, many on the left don’t believe gun ownership should be a fundamental right, and they push policies like this one to degrade its status over time. Let’s be honest, and have the real debate, not one that appeals to emotions during times of duress but has severe legal consequences. Let’s discuss whether we should leave the constitution as is or roll back the 2nd amendment and make gun ownership a privilege like riding an airplane. Many on the right would welcome this debate, and we should have all-encompassing discussions on guns, the acceptance of violence in society, and mental health. It is the left, which knows deep down most Americans don’t want to repeal the 2nd amendment, that is avoiding this debate.

Instead, it finds back doors that actually would not do much to solve the underlying problem to score political points and feel better since they will have done something (even if that something does not solve the problem). The Feinstein amendment would place an undue burden on Americans wrongly on the watch list, probably numbering in the tens of thousands, while likely failing to deter terrorists. Do we seriously believe someone willing to die for a depraved, hateful cause will give up and turn away from violence if they can’t buy a gun, or will they look to the black market, use our porous borders to smuggle weapons, or build improvised explosives?

If democrats were so serious about solving the issue of gun violence, why didn’t they address it via sweeping reform when Obama was President and they controlled both chambers of congress? The level of violence in this country is still unacceptable, and we all bear some blame for not doing more to help the mentally ill, the economically hopeless, and to build a culture that shuns violence. We need to get serious about these issues, but in our haste, we must remember the civil liberties on which this nation was founded and avoid the temptation to undermine fundamental rights in the name of the greater good.

There are things we can do to help the mentally ill, give doctors more power to treat, improve background checks (and unlike most conservatives I would personally support the thrust of Manchin-Toomey to close the private sale transfer, though almost no mass shootings have been committed by people using this “loophole”), and stiffen penalties for those who traffic weapons.

Maliciously attacking those who pray for the grieving will not solve the problem. Nor will pushing constitutionally doomed legislation to score political points. Rather than restricting the rights of law-abiding citizens, let’s focus on solving real problems. Over-riding due process is not the solution. It rarely, if ever, is.