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By Jan C. Ting

Can public officials defy laws with which they disagree? Kane, Haines and Obama

President Obama has publicly announced a policy of refusing to enforce U.S. immigration law against illegal aliens unless they are also convicted of a particularly serious crime or are a national security threat. In Pennsylvania, Attorney General Kathleen Kane has announced she will not defend the state statute defining marriage as between one man and one woman, and which also says Pennsylvania will not recognize same-sex marriages legally performed in other states. In Pennsylvania's Montgomery County, the Register of Wills D. Bruce Haines has begun issuing marriage licenses to same-sex couples in defiance of the state statute.

Are these public officials justified in ignoring legally enacted statutes? Or are they violating their oaths of office and their obligations to uphold and defend the Constitution, and in the case of state officials, the state constitution, and the laws enacted pursuant to such constitutions?

Back in 1964, when I was in 10th and then 11th grade, the Civil Rights movement was raging through the segregated South, and filled the evening news with pictures of demonstrations, arrests, beatings, shootings, bombings, and murders. But as I recall, it was never discussed in class in the prosperous Detroit suburbs. Then one day, I noticed my social studies teacher, Mr. Cornelius DeStigter, was wearing a white on black equality pin in his lapel. I thought about what that meant and concluded, "Teachers have opinions on current events! Who knew!"

Then one day in class Mr. DeStigter ventured the opinion that he thought it was okay to deliberately violate the law if you believe the law is itself illegal and unconstitutional, and your purpose is to test the law in court.

I was stunned by the radicalness and, to me, originality of that idea. It suggested the law is not just a set of rules to be blindly obeyed, but rather rules subject to challenge by anyone before the courts. I've always thought that comment by Mr. DeStigter had something to do with my decision to become a lawyer.

Applying that idea to Attorney General Kane and Register of Wills Haines justifies their defiance of Pennsylvania's statute prohibiting same-sex marriage. Given the decision of the U.S. Supreme Court striking down as unconstitutional the federal so-called "Defense of Marriage Act", it is certainly plausible if not in fact probable that Pennsylvania's statute will similarly be ruled unconstitutional.

But what about President Obama's defiance of Section 235 of the Immigration and Nationality Act (8 USC Sec. 1225)? That statute provides that, "An alien present in the United States who has not been admitted... shall be deemed for purposes of this Act an applicant for admission" and "in the case of an alien who is an applicant for admission, if the examining immigration officer determines that an alien seeking admission is not clearly and beyond doubt entitled to be admitted, the alien shall be detained for a proceeding under section 240 (removal from the United States)." Note the statute's use of the mandatory word "shall", and the very narrow circumstances in which an unadmitted alien is not required to be detained.

President Obama makes no claim that Section 235 of the INA is unconstitutional. He has simply decided to exercise "discretion" in not enforcing the statute against most aliens illegally present in the country. His policy announcement effectively encourages more aliens to enter the U.S. without authorization in the reasonable expectation that they will not be bothered by U.S. immigration officials.

The Obama administration policy of "prosecutorial discretion" was recently challenged in court by U.S. immigration officers who alleged improper punishment by their superiors for trying to enforce Section 235. A federal court on July 31 agreed that, "Plaintiffs were likely to succeed on the merits of their claim that the Department of Homeland Security has implemented a program contrary to Congressional mandate."

Because the Civil Service Reform Act specifies a non-judicial procedure for hearing the grievances of federal civil service employees, the court was obligated to dismiss the claim as barred by the Civil Service Reform Act. But the dismissal was "without prejudice", meaning that these or other plaintiffs are free to make the same claim in court again in a different cause of action not precluded by the Civil Service Reform Act.

So I conclude that Attorney General Kane and Register of Wills Haines are on reasonable legal ground in their defiance of a statute they reasonably believe to be unconstitutional. President Obama, on the other hand, is not justified in his willful defiance of lawfully enacted immigration law with which he happens to personally disagree.

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Snowden’s asylum in Russia puts Obama and U.S. in a bad situation

The fugitive National Security Agency leaker Edward Snowden has been granted asylum in Russia after five weeks stranded in the international arrivals area at the Moscow airport. Everyone knows that decision had to be made at the top by Russian president Vladimir Putin. In doing so, Putin has chosen to defy the United States, which is trying to apprehend Snowden to face criminal Espionage Act charges for unauthorized communication of national defense information and classified intelligence.

The U.S. government was reportedly not even consulted by Russia about its decision to grant asylum to Snowden. President Obama now must decide whether or not to cancel the summit meeting with Putin scheduled for September in Moscow. He's going to be in Russia that month anyway for the G20 meeting in St. Petersburg.

I think Obama has to cancel the bilateral summit meeting, the sooner the better. To fly into Moscow airport where Edward Snowden resided and received asylum would be humiliating for the U.S. president. To be photographed shaking hands with Putin, as though nothing had happened, would be a visual demonstration of U.S. weakness and Russian strength. Proceeding with the summit would be a terrible political mistake for Obama, and an embarrassment for the U.S.

Cancellation of the summit will damage U.S.-Russian relations. But that relationship is already damaged. The two nations are on opposite sides in the Syrian civil war, and have had strained relations on many other issues. While Snowden's American supporters are worried that NSA surveillance is suggestive of a police state, Russians know what it means to live in a real police state, where political dissidents are harassed and assaulted and murdered.

Until Russia chooses to cooperate with the U.S. on the leaker Snowden and other matters like Syria, the U.S. will have to accept a deteriorating relationship with Russia and act accordingly. We can strengthen relations with nations trying to live independently in Russia's shadow, including the Baltic republics and Georgia. We can expand the list of Russian officials prohibited from entering the U.S. under the 2012 Magnitsky Act, named for a Russian lawyer who died in prison in 2009 after investigating fraud by Russian officials.  We could even support the boycott of the 2014 Winter Olympics in Sochi, Russia, which is being proposed by gay rights groups in protest against Russian law criminalizing homosexual behavior.

Russia's president Putin has chosen a course of confrontation rather than cooperation with the United States. We must accept and adapt to his decision.

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Reflections on Detroit’s bankruptcy from a former Detroiter

My family lived in Detroit from 1955 to 1956, during which time I attended second grade in a public elementary school. That was the first year my parents moved back to Michigan from Minnesota and North Dakota, where my father did his medical specialty training. They rented a house at 15350 Birwood, just off Fenkell, also known as Five Mile Road, while looking for a home to buy near the Veterans Hospital in Dearborn where my father was employed.

My memory is of a prosperous working class neighborhood of single-family homes, occupied primarily by young families with children, lots of children. It was a safe neighborhood, where children walked themselves to school, and to visit the many stores and the movie theater on Fenkell. Except for my family it was an exclusively white neighborhood. I do not recall ever seeing a black child in my neighborhood or public school.

That characteristic of Detroit, rigid de facto racial segregation in housing and public schools, carried over into the suburbs. The reason my parents didn't just buy and move directly into a house was that, as Chinese immigrants, they were having difficulty buying a house in Dearborn, where realtors refused to sell to them. That my father had received his U.S. citizenship as a U.S. Army medical officer during World War II didn't make any difference. They were finally able to buy a brand new house in a new development just outside the city limits in an unincorporated area then known as Dearborn Township, which later incorporated as Dearborn Heights.

In the new neighborhood, and in the public schools I attended from third through 12th grade from 1956 to 1966, I do not recall ever seeing a black child, though I became aware of the anti-black prejudices of some of my classmates. I thought this a little strange since we had no contact in our daily lives with black people.

Like my former neighborhood in Detroit, my suburban neighborhood was mainly working-class, with a sprinkling of small business owners and professionals. Many families consisted of a father who worked in the auto factories, a mother who stayed home, and many children. In those days, a single worker with a unionized auto job could support a family and own their own house and car, and often also own a cabin somewhere in northern Michigan for vacations.

The rigid racial segregation of Detroit was unsustainable and ultimately de-stabilizing, culminating in the Detroit race riot of 1967 in which 43 persons died, 2,000 buildings were destroyed, and the city was occupied by the U.S. Army and National Guard. That event was the biggest American race riot since the New York City Draft Riot of 1863 during the Civil War, and is widely believed to have initiated the half century of decline which culminated in this week's bankruptcy of Detroit.

A second critical factor in Detroit's decline was the failure of Michigan's auto industry to respond to the quality challenge of foreign competition. The business model of the Big Three automakers when I lived in Michigan seemed to be superficial annual design changes and planned obsolescence, requiring frequent trade-ins of older autos for new. New cars were shipped to dealers in paper wrappers to conceal the latest design changes until the designated new car release date.

Most Detroit families were loyal to one of the Big Three automakers. Because of its proximity to the Ford Motor Company headquarters and River Rouge factory, most families in my neighborhood, including mine, bought Ford automobiles. The first new car I could afford to buy in 1979 was a Ford.

It was a lemon, with design and other flaws that could not be fixed. I traded it in within three years for a Toyota. What a difference in quality! One bad experience with an American car, combined with one good experience with an import, was sufficient to turn millions of American families into a huge market for foreign autos, which was a disaster for Detroit.

A third critical factor in Detroit's decline, common to many other American cities and local governments, has been leadership focused primarily on the short-term and unwilling to focus on and plan for long-term consequences. Current costs were held down in exchange for promises of generous future health care and retirement benefits for employees. Those bills eventually came due and were unsustainable.

Many of the reasons for Detroit's demise may be specific to Detroit, but other cities and local governments have their own similar or different problems. Detroit is not the first American city to seek bankruptcy protection from its creditors, and it won't be the last. Wherever you live, brace yourself for a bumpy ride!

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End the filibuster once and for all

Back when Republicans controlled the U.S. Senate, minority Democrats employed and defended their use of the filibuster, blocking votes on President George W. Bush's nominees by refusing to yield the floor in the absence of a super-majority of 60 out of 100 senators. Now that Democrats control the U.S. Senate, it's the minority Republicans who employ and defend their use of the filibuster to prevent votes on President Obama's nominees and proposed laws without a super-majority of 60 out of 100 senators.

I opposed the filibuster when used by Democrats. (See my op-ed commentary in the Wilmington (Delaware) News Journal of May 17, 2005.) And I oppose the filibuster used by Republicans today, for the same reasons.

It is wrong to suggest, as the defenders of the filibuster always do, that the filibuster has any legal or moral foundation beyond the hoary traditions of the U.S. Senate. The Constitution requires a super-majority in the U.S. Senate only in specified instances, such as the ratification of a treaty or an amendment to the Constitution itself.

Article I of the Constitution provides that in the event of a tie vote in the U.S. Senate, the vice president of the United States should cast the deciding vote. Why would the vice president have to decide ties if a super-majority was required, as it effectively is now? It could be argued that Senate rules requiring a super-majority are in fact unconstitutional except as required by the Constitution.

The custom of the filibuster, allowing unlimited debate as long as any member wishes to talk, reflected the courtesies of gentlemen in the 18th century, and was the practice in both houses of Congress at the founding of the American republic. But as the House of Representatives increased the number of its members, its rules were changed to limit debate and insure a vote despite minority opposition.

The Senate retained the custom of unlimited debate in its rules until 1917 when the Senate amended its rules to allow the cut-off of debate, or "cloture", by a two-thirds vote. Cloture was invoked for the first time in 1919 to stop a filibuster against the Treaty of Versailles formally ending World War I, though the treaty was not in the end ratified.

Despite the change in Senate rules, Southern opponents of civil rights legislation effectively used filibusters to prevent votes. Senator Strom Thurmond of South Carolina set the record for individual filibustering when he held the floor for more than 24 hours to prevent a vote on the 1957 Civil Rights Act. Cloture was invoked on the 1964 Civil Rights Act after a 57-day filibuster.

As recently as 1975, the U.S. Senate again changed its rules to reduce the number of votes required to cut-off debate from two-thirds to three-fifths, or 60 out of the current 100 senators. That demonstrated both the consistent direction of Senate rule changes in favor of allowing votes and limiting filibusters, and that such rule changes are normal and hardly the "nuclear option" portrayed by the opponents of change.

I urge the U.S. Senate to again amend its rules to adopt the democratic principle of majority rule to decide when to cut-off debate and allow a vote, not only on presidential appointments to the executive branch of the federal government, but also on judicial appointments and on legislation. That's not the nuclear option at all. I'd call it the constitutional option.

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Why Republicans should kill the Senate’s so-called immigration reform

Is anyone moved by the fake concern of the most partisan Democrats, like Senators Reid, Schumer, Menendez and Durbin, and liberal editorial writers and commentators, that unless Republicans fall in line and support the Senate's immigration expansion and amnesty bill, the Republican party may end up as a permanent minority party?

There's nothing those liberals would like more than for Republicans to remain the party out of power forever. They hope that enactment of their immigration expansion and amnesty bill will lead to this result, if only they can deceive enough foolish or stupid Republicans to inflict that result on themselves. Democrats hope that enactment of their immigration bill will win them the loyalty of Hispanics and other ethnic groups, insuring their permanent control of the U.S. government.

I think they're forgetting that the only people who vote in elections are U.S. citizens. And Hispanic citizens, like all U.S. citizens, are divided on immigration and all other hot button political issues. No one feels the impact of increased new immigration as much as earlier legal immigrants competing for jobs and promotions. And for the true believers in immigration amnesty and open borders, no credit for enactment of immigration amnesty will be given to Republicans who vote for it out of fear and self-interested opportunism.

Republicans do have a serious political problem. The Republican base requires political positions increasingly at odds with younger voters, who support equal rights for gay Americans, reproductive rights for women, and higher taxes on the rich. Young voters provided the margin of victory for President Obama in both 2008 and 2012, and they blame Republicans for policies that caused the economic recession in which they live.

Young voters have suffered through the worst and most prolonged jobs crisis since the Great Depression, and no growth in real wages for more than a decade. It's become a cliché now that young Americans will not live as well as their parents. Republicans have an opportunity to present their opposition to the Senate immigration bill as an effort to preserve both American jobs for Americans, and also what is already the most generous legal immigration system in the world.

Besides rewarding 11 million illegal immigrants with entry into the legal U.S. labor market, the Senate immigration bill would triple immigration over the next decade from about 10 million to over 30 million, on the incredible claim that the U.S. is experiencing a labor shortage in all job categories from the most skilled to the least.

Republicans should go on the offensive against the big immigration bill to make clear that jobs for Americans is their first priority, and to demonstrate that they are not in fact the pawns of big business and the corporate lobbyists supporting the bill to drive down wages. A populist message supporting jobs and higher wages for Americans, with only incremental changes to the immigration limits, should resonate among American wage-earners of all ages and ethnicities concerned about their future.

A clear, principled stand against immigration expansion and amnesty, and in defense of American jobs and wages, should throw the Democrats off balance and on the defensive. Good immigration policy should also be good politics.

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