On Birthright Citizenship

On President Trump's first day in office, he signed an Executive Order changing the rules for birthright citizenship. This Executive Order has been struck down by every federal judge who has considered the issue. The problem for Trump is that the Order violates the plain language of the 14th Amendment, which says that if you are born here, you are a citizen.

The substantive issue was not before the Supreme Court in yesterday's argument. What was before the Court was whether a single federal district court judge can issue an injuncton which applies nationwide.

All 21st-century presidents have complained about this. The problem is the judge-shopping which both sides have been guilty of. Conservatives file cases in red Texas, and liberals file cases in blue California, and the judges then issue injuntions which apply nationwide.

The problem for the Supreme Court justices is this: how do we fashion a rule which limits the ability of a single judge to issue these sweeping rulings? What the justices want to do is allow such a sweeping ruling when the issue is clear, as it is in the birthright citizenship case, but limit it in the more questionable cases. In their questioning yesterday, all of the justices recognized the problem, but none proposed a workable solution.

The problem with allowing a district court ruling to apply only to the litigants who brought the case to court is that every single aggrieved person would then have to bring their own lawsuit to obtain justice, a clearly untenable result. Amy Coney Barrett seemed to be joining the three liberal justices yesterday, but it is not clear what sort of ruling will command the support of a court majority. This is a hard case which will likely result in bad law.

"Pitfall" and "Nora Prentiss"

These are two film noirs from the '40s that I have watched online in the past two days. In both of these movies, we have a middle class white collar worker with a happy family life, who gets involved with a femme fatale, to disastrous consequences.

In "Pitfall", the happy family man is played by Dick Powell, who meets the femme fatale, played by Lizabeth Scott, in the course of his work, and he falls for her. She is not really a typical femme fatale, in that she is not portrayed as being particularly seductive; rather, she presents a wholesome image. In the end, he shoots a recently released prisoner but it is deemed to be self-defense, while the femme fatale is arrested for shooting the cad who has been stalking her. An interesting back story is that the script got the movie in trouble with the Hays Code, because the adulterer was not sufficiently punished for his errant ways. The director solved the problem by meeting with two of the Hays Code members, telling them he knew that they were both married and had mistresses!

"Nora Prentiss" starts with the main character being imprisoned, and the whole movie is then shown in one long flashback. He is a doctor who meets the femme fatale, played by Ann Sheridan, by chance when she is involved in a car accident. She is more like the stereotypical femme fatale, a lounge singer who can be quite seductive. There are more plot twists and turns in this movie than in "Pitfall", and we wonder throughout who the doctor has killed.

Both movies are rated 7.1 on IMDB, and that sounds about right to me, as both are entertaining, with believable characters. Both movies reveal the underlying tedium and pointlessness of the supposedly ideal American life, with the white picket fence, wife and kids, and days which are all way too much alike.

Three Cheers for Rory McIlroy (and for CBS)

Wonderful drama Sunday in the last round of the Masters golf tournament. Rory McIlroy led by two strokes going into the last round, but he promptly lost his lead to his playing partner, Bryson DeChambeau, when he double-bogeyed the first hole. He then fell behind when DeChambeau birdied the second hole. But McIlroy gamely fought back, and by the end of the front nine he had built up a four-shot lead.

McIlroy then stumbled, with two bogeys and a double bogey, and after the 13th hole he found himself tied with Justin Rose, who had started the day seven shots back. It looked like Rose had all the momentum and that Rory was done for. But McIlroy persevered, and hit some good shots on the last few holes. He missed a five-foot birdie putt on the 18th which would have won him the tournament, and a sudden death playoff ensued.

On the first hole of the playoff, a par four, Rory was closer to the pin after his approach shot, and he then sank his birdie putt for the win, after Rose had missed his. Rory then fell to the ground, crying uncontrollably.

McIlroy thus became the sixth player all-time to win the "career grand slam". He had the first three legs of it ten years ago, but this final leg had proved elusive. Something disastrous always seemed to happen whenever he got close during those frustrating ten years. But the waiting is all over now, and he joins Gene Sarazen, Ben Hogan, Gary Player, Jack Nicklaus, and Tiger Woods as the only winners of the career grand slam.

McElroy grew up in a working class Catholic family in Northern Island. His parents recognized his intense interest in golf at an early age, and they took on extra jobs to facilitate Rory's development as a golfer. McIlroy turned pro in 2007 at the age of 18, and won his first PGA Tour event in 2010, just before his 21st birthday. By the end of 2014 he had won three of the four majors, but then came a 10-year majors drought, broken Sunday in majestic style.

CBS had its usual superb coverage, with every shot looking like a painting, displaying the wonderful ambience of Augusta National. I never grow tired of the trees, the grass, the flowers, and the water, and CBS augments the stunning photography with intelligent, understated commentary. This was the 70th year CBS has covered the Masters, which it always calls "a tradition unlike any other", a phrase coined by Jim Nantz in 1986 and used every year since. I have been watching about as long as CBS has been covering it, and this final round was as exciting as any of them.

The Limits of Executive Power

This topic has been much in the news lately, so a review of the relevant history might be useful to get a handle on this issue.

The Articles of Confederation, adopted in 1777, provided for a very weak central government. It was essentially a confederation of thirteen autonomous states. By 1787 it was obvious a stronger central government was needed, one that could collect taxes and conduct foreign policy, and a constitutional convention was convened to propose needed improvements.

The convention early on adjourned into a committee of the whole, so that discussion could proceed unfettered. While this meant there were no official minutes, many of the delegates kept journals, and most regularly wrote home to their wives, so there is an ample written record of the proceedings. My main source here is "A More Perfet Union", by William Peters, which provides a detailed, almost day-to-day, account of the deliberations.

It was agreed early on that the central government should consist of three branches--executive, legislative, and judiciary. One of the main issues was the nature of the executive branch. Edmund Randolph, a delegate from Virginia, proposed a three-man executive, calling a single executive "the foetus of monarchy". Others argued for a single executive. I think here of the saying in the NFL that "if you have two quarterbacks, you have no quarterback". The idea here is that someone has to be in charge, the buck has to stop somewhere. Eventually the single executive was agreed to, by a vote of seven states to three.

Having settled on a single executive, the Convention then debated what the powers of that executive would be. One issue here was whether the executive would have an absolute veto on national legislation, an approach favored by Alexander Hamilton and James Wilson. Pierce Butler of South Carolina spoke eloquently against the absolute veto, observing that "in all countries the executive power is in a constant course of increase". Ultimately the absolute veto was voted down, and the ability of two-thirds of each legislative branch to override a veto was chosen.

A similar dispute arose when the issue of ratifying treaties was taken up. James Wilson and Rufus King of Massachusetts spoke against the proposed two-thirds requirement for Senate ratification, feeling that would give a minority undue power, but the two-thirds rule prevailed.

As an example of the truth of Butler's observation about executive power constantly increasing, we have only to track the increase over the years in presidential use of "executive agreements" rather than treaties. In "The Imperial Presidency", Schlesinger says that in 1930 the U.S. made 25 treaties and only 9 executive agreements, while in 1971 the count was 214 executive agreement and only 17 treaties. In other words, in 1971 Nixon entered into 231 agreements with foreign governments, and only submitted 7% of them to the Senate for confirmation! When a Senate committee subpoenaed a state department expert to testify on the difference between the two types of agreements, his testimony was characterized as "a treaty is something we have to submit to the Senate; an executive agreement is something we don't have to submit to the Senate."

While the Trump violations of presidential norms have been nauseatingly numerous, I want to focus on the issue of what happens when a president ignores court orders. Historically this issue has been framed in a way that stresses the duty of the Supreme Court to not get too far ahead of the electorate; hence the saying that "the Supreme Court follows the elections returns". I well remember my Constitutional Law prof lecturing on this point. He gave as an example Andrew Jackson's famous statement that "John Marhsall has made his decision, now let him enforce it". At the time the Nixon tapes case was in the courts, and the prof gave, as another example, what happens if Nixon would ignore a Supreme Court order to turn over the tapes to the Watergate prosecutor.

The Jackson issue needs some fact-checking. Historians now say that Jackson probably did not actually say this. The case, Worcester v. Georgia (1832), involved a dispute between the state of Georgia and the Cherokee Nation. The court ruled that the Cherokee Nation was an autonomous nation, not subject to the Georgia law at issue. While this ruling did not directly require any federal action to enforce it, the holding (or, perhaps, better described as "dicta"), did have broader application to other cases and was repeatedly violated by Jackson and other federal officials who consistently refused to honor the rights of Native American tribes.

While Jackson's abuses of federal power are certainly troubling, they pale in comparison to that greatest abuser in the history of the U.S. presidency, Abraham Lincoln. I won't repeat my prior critique, but here is how Schlesinger described Lincoln on page 58 of "The Imperial Presidency":

"Throughout the war, even with Congress in session. Lincoln continued to exercise wide powers independently of Congress. He asserted the right to proclaim martial law behind the lines, to arrest people without warrant, to seize property, to suppress newspapers, to prevent the use of the post office for "treasonable correspondence", to emancipate slaves, to lay out a plan of reconstruction. His proclamations, executive orders and military regulations invaded fields previously the domain of legislative action. All this took place without a declaration of war by Congress."

Schlesinger explains how Lincoln deliberately delayed convening Congress until July 4, 1861, in order to prevent Congress from stopping his illegal actions. Schlesinger says that "Lincoln ignored one law and constitutional provision after another. He assembled the militia, enlarged the Army and Navy beyond their authorized strength, called out volunteers for three years' service, spent public money without congressional appropriation, suspended habeas corpus, arrested people 'represented' as involved in 'disloyal' practices and instituted a naval blockade of the confederacy."

Ultimately the question comes down to how do we respond to serious abuses of presidential power. Resorting to the court system is no answer, if you have an administration which refuses to abide by court decisions. The real answer is that the people have to push back. In many countries this "pushing back" takes the form of mass protests in the streets, as has been taking place in Turkey recently. In our country the tradition is to push back at the ballot box, in town halls, and through targeted protests. This has been going on recently with respect to our current president. Especially noteworthy are the elections the past two weeks. Last week Democrats won a State Senate seat in Pennsylvania (in a district including Lancaster) that hadn't been won by a Democrat in over 100 years! And last week Democrats won the Supreme Court race in Wisconsin by ten points, despite Elon Musk's $25M spent in opposition.

Encouraging signs indeed!

"Hangmen Also Die" (Dir: Fritz Lang, 1943)

This is a very entertaining film set in Czechoslovakia during the 1942 Nazi occupation. The Nazi in charge of the occupation, Reinhard Heydrich (known as "The Hangman" for his brutality), is assassinated, and the Nazis are trying to locate the killer. They round up 800 hostages and vow to kill 40 of them every few hours until someone comes forward to identify the killer. The Czech underground resists, showing extraordinary bravery.

The movie starts with Heydrich being shot, and a woman directs the Gestapo the wrong way to puruse the killer. We are inroduced to other minor characters among the Czech citizenry, and they show up near the end of the movie as part of a masterful plot to frame a two-faced traitor. I had to watch it a second time to be able to match up the characters from the beginning to those at the end.

The dignified, soft-spoken professor is the heart of the story, wonderfully played by Walter Brennan. (I didn't realize the first time through that it was Brennan, but I recognized his voice the second time through.) When the professor is scheduled for execution, as part of one of the groups of 40, his adult daughter is allowed to visit him, and he dictates a letter for her to give to his 11-year-old son when the son was older. Part of that poignant letter was this: "Don't forget that freedom is not something one possesses, like a hat or a piece of candy. The real thing is fighting for freedom. And you might remember me, not because I'm your father, but because I also died in this great fight". If only we Americans were as united and diligent in the cause of fighting tyranny as these brave Czech patriots were!

Some of the Nazis are portrayed in a semi-comic way, but this adds to the entertainment value of the film, without detracting from the serious nature of the effort to identify the killer. Over two hours long, but worth every minute. Filmed in stunning black and white, as befits the grim subject matter it is depicting.

Historical fact check. Reinhard Heydrich was in fact in charge of occupied Czechoslavakia, and he was in fact assassinated in the Spring of 1942. At the time the movie was made the details of the assassination were not yet known. It eventually came to light that the Czech government-in-exile, trained by the British Special Forces, formed a grouop which parachuted into Czechoslavakia on December 28, 1941, and lived in hiding until shooting Heydrich on May 27, 1942.

Mencken Gets It Right on Lincoln

Commenting on the Gettysburg Address in 1920, H. L. Mencken wrote this.

"It is poetry, not logic; beauty, not sense. Think of the argument in it. Put it into the cold words of everyday. The doctrine is simply this: that the Union soldiers who died at Gettysburgh sacrificed their lives to the cause of self-determination--that government of the people, by the people, for the people, should not perish from the earth.

"It is difficult to imgine anything more untrue. The Union soldiers in the battle actually fought against self-determination; it was the Confederates who fought for the right of their people to govern themselves. The Confederates went into battle free; they came out with their freedom subject to the supervision of the rest of the country--and for neearly twenty years that veto was so efficient that they enjoyed scarcely more liberty, in the political sense, than so many convicts in the penitentiary."

MLB Predictions for 2025

I was 26 positions off last year, two better than the year before. The AL West was again my best with only two off (I flip-flopped the A's and Angels). The AL Central was the worst with eight off, with the Guardians surprisingly finishing first, the Tigers and Royals tying for second, and the Twins dropping down to fourth. The White Sox were dismal, setting a record with 121 losses. The other divisons were four off.

And now we turn the page to a new year.

AL East: Yankees, Blue Jays, Red Sox, Orioles, Rays

The Yankees have been beset with Spring Training injuries, but I can't find another team to pick for first. The Rays have really gone downhill, and will be playing in a minor league park in 2025. I can't see a future for them in Tampa Bay, a city which refuses to support them.

AL Central: Guardians, Tigers, Royals, Twins, White Sox

I really don't think the Guardians are going to win their division again, but I don't know which team, the Royals or the Tigers, is going to edge them out for first. The Twins made no offseason moves to improve, and may even sink to last place, as the White Sox will surely be better than last year (they could hardly do worse!).

AL West: Astros, Rangers, Mariners, Angels, Athletics

The Astros burst into the upper echelon in 2017, and Jose Altuve became my favorite player. But then the cheating scandal hit, and now they are universally hated. But they probably have one more year left at the top of their division. Like the Rays, the A's will be playing in a minor league park in 2025, and this has to be demoralizing to their players.

NL East: Phillies, Mets, Braves, Nationals, Marlins

I have a strange fascination with the Phillies. Their owner has tried hard to build a championship team, and I applaud his efforts. Their fans, while notoriously rowdy (they once booed Mike Schmidt!), at least care about their team. Either the Mets or the Braves could win the divison, but I'm going with the Phils as a sentimental pick.

Like Tampa Bay and Oakland, Miami refuses to support its team. I don't know why MLB doesn't move these sick franchises. Florida has proven that it won't support MLB, and MLB needs to pay attention to this reality and proceed accordingly.

In 2003, a year the Marlins won the World Series, their average home attendance was only 16K, the third lowest in MLB, ahead of only the Rays and the Expos. The next year, as reigning World Series champions, it went up to 21.5K; better, but still the fifth-lowest in MLB. In 2012 the Marlins got a new stadium, and attendance per game went up to 27.4K, still only 18th out of the 30 teams. By last year, attendance fell back down to 13.4K, ahead of only the woeful A's.

NL Central: Cubs, Reds, Brewers, Pirates, Cardinals

The Cubs and the Reds have improved, while the Brewers have not, and hence I pick the Brew Crew to fall to third. The Cubs and Reds have two of the best managers in MLB, with Craig Counsell and Terry Francona, and I think these two fine managers will get the most out of their players.

The Cardinals have made no efforts to improve from last year. They have historically been the best-run franchise in baseball, so I give them the benefit of the doubt that they know what they are doing in deciding to build for the future rather than going after free agents. But that does not augur well for the coming year.

NL West: Dodgers, Padres, Diamondbacks, Giants, Rockies

The Padres are one of my favorite teams, playing in the best baseball city in the country. Hence I am picking them over the D-Backs for second as a sentimental pick. The Rockies have not improved, and surely will again finish last.