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The Midterms ~ Did the Democrats Fail and the Importance of the Fourteenth Amendment

Posted in Business and Law, From The Editor's Perspective, and World Affairs

Ever since #45 took up residence in the White House, people have been waiting for 6 November, 2018 and the midterms, where ‘the people’ could vote and empower themselves to make a change. Well, when the day arrived what happened? Jeff Sessions finally got fired (requested to resign), and am sure he’s had sleepless nights for the past eighteen months, checking Twitter each morning to see if he had been fired. It was no surprise, and most are astonished he had lasted this long. Is his departure in a bid to get rid of Mueller, and will Sessions save his own neck and make a deal? The words, “At your request” so not sound cordial and loyalty is earned, and Sessions may not be a decent person in the eyes of many, but he’s been around Capitol Hill a lot longer than #45 and knows how things are supposed to work.

So did the Democrats fail in their bid to regain power in Congress, or was retaking the House of Representatives the best they could do as my friend put it?

The Democrats have had two years to educate the population on how the government works, and why their votes matter. One assumes it’s taught at school, but granted it can be confusing which is why it’s important people know that their votes do matter on a national scale. Apparently less than 50% of those who are entitled to vote did so (49.2%) so why the apathy (although the turnout was higher than it has been for over a century, was it enough?) ? Are people really content with how the USA is being governed (so why all the protests?), or perhaps people don’t know how to vote, or where? That may sound strange, but in rural parts of the country this is very likely where the standard of education is below par and there is limited interaction with those who are more politically aware this is possible. Of course there are the armchair moaners who could do something, but they don’t think that it will make a difference, well, it does when people are united, and the USA is not a country that is united.

Soon, the Democrats will control the House of Representatives (they needed 218 majority out of 435 seats, and have 227 at present gaining 35 plus seats while figures are being confirmed), so it makes sense that they should have won the Senate as well surely? They actually lost two seats (not all were contested) and the Republicans have a majority of 51 seats out of 100 at present. What is perplexing is that if the Democrats won that many seats on the HOR, then why did they lose seats in the Senate, because they should have held them at the very least. Figures are still pending and being so tight, every seat matters. Are people voting locally, or are they thinking of the bigger picture in D.C. or not? Do they understand what is at stake?

While the HOR can make life difficult in getting #45’s whims passed, the objective was to gain control of Congress in order to consider impeachment proceedings against #45 for what is now a number of reasons (that’s why the Mueller investigations exist). That was the objective, so have the Democrats failed, and if so why and how? Were they not united enough as a party with each candidate having their own agendas, or perhaps many still don’t understand how it all happened and how it can be rectified?

The Fourteenth Amendment and Article V

The latest mutterings from 1600 Pennsylvania Avenue to cull the birthright citizenship, as outlined in the Fourteenth Amendment by an executive order indicates the lack of knowledge #45 and his cabinet have of the workings of the Constitution and the government. First of all, let’s look at the relevant Articles and Amendments and why they came into existence, and what an executive order is, why it exists, how it is used and its limitations, and you will see that #45’s claim is not only unconstitutional, but is also disrespectful of the aims of the Constitution and what it stands for.

The birthright citizenship amendment was part of the Reconstruction Amendments after the Civil War to allow all persons, whether they were born in the US or not the rights of citizenship as some had been imported slaves. This was so that former slaves (even those born in the US) would have the same rights as those not born into slavery. One must remember during this period, the majority of the population were immigrants (the USA was less than a century old), so birthright citizenship also eased the paperwork for new immigrants. In addition, it allowed for freer movement among the states, because each state was like its own little country (more than now) and had state citizenship, and it encouraged people to relocate to developing states rather then everyone staying in the overcrowded cities. Knowing they would be protected and still had rights, encouraged the pioneers to move west, so people who had state citizenship also had national citizenship.

Amendment XIV (Passed by Congress June 13, 1866. Ratified July 9, 1868)
Section 1.
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The amendment was also a step forward towards equality for all races and was in a bid to ease the factions of prejudices among ethnic minorities. To repeal it would send a message that prejudice is acceptable or no longer exists, and we know that it is still prevalent quietly (and not so quietly at times) among many of the southern states. Only children that were of foreign diplomats were not entitled to citizenship, and that’s because they were considered a foreign power.

Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857) was a landmark case where a slave was taken to a free territory by his owners, and then tried to sue for his freedom. The court deemed that Scott was not a citizen (state or national) and therefore had no rights. It is considered to be one of the worst SCOTUS decisions ever made, and created more tensions as the state involved was Missouri, and the Missouri Compromise was brought up as a factor, which was later repealed by the Kansas-Nebraska Act in 1854. The decision was based on Scott not being an Article III citizen:

“The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;–to all Cases affecting Ambassadors, other public Ministers and Consuls;–to all Cases of admiralty and maritime Jurisdiction;–to Controversies to which the United States shall be a Party;– to Controversies between two or more States;–between a State and Citizens of another State;–between Citizens of different States;–between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

The Fourteenth Amendment overturned this decision and as such former slaves who were imported from foreign lands and their descendants were now entitled to citizenship. So you can see it is an important amendment in the spirit of the creation of America, and stands for liberty and equal rights, and repealing it would send the wrong message to the world. As it stands, the USA still has the Green Card lottery and encourages immigrants, and it appears #45 wants to cull that as well. One must remember the majority of Americans come from immigrant stock; #45 himself does as his mother was Scottish and his grandfather was German, and he married two women who were both immigrants too, and four of his children are descended from immigrant stock.

Now, amendments were created so they could be amended so that things could move with the times, or if a poor and hastily made decision (like prohibition) was passed it could be rectified, yet the Founding Fathers didn’t make it easy, and that was to prevent laws being made on the hoof, and there are two ways an amendment can be repealed as outlined in Article V. To date, only the Eighteenth Amendment has been repealed by the Twenty-first amendment

Article V

(Signed in convention September 17, 1787. Ratified June 21, 1788)

The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate

Congress may propose amendments which must come from a two-thirds majority in both houses, or two thirds of state legislatures (34 out of 50 states) may call for a convention of the states to make a proposal. Then, three-quarters of the state legislatures (38 out of 50 states) or three quarters of the states convention must then ratify the proposal for the amendment to adopted, and that is no easy task today.

Remember, back then when the Articles were written there were only 13 states and only 9 had ratified the Constitution (so it barely got passed with three-quarters) compared to today where there are red and blue states that rarely budge. Even with a small number of states there was a lot of leaving the room in a huff and disagreements with compromises being made, and with 50 states, it would take much longer to get anything done, and that’s why #45 wants to use an executive order because he knows Congress would not make such a proposal. https://www.archives.gov/federal-register/constitution

Article V thus protects ‘the people’ and empowers them indirectly as long as they bother to register to vote and then to go and vote for their representatives. The Founding Fathers made it possible to amend the Constitution but in circumstances where there had to be debates, and that’s why this is not an issue for an executive order, which leads us to establish what exactly is an executive order, when can it be used, enacted, what are its limitations, and why they are frowned upon and in the eyes of some seen as a dictatorial power? Is or would #45 be overstepping the boundaries by trying to use an executive order to bypass Congress illegally, and what powers does SCOTUS have in regards to executive orders that are an abuse of power? Is the system of checks and balances working?

An executive order is a discretionary power that the president can use to instruct the executive branch (all federal agencies are part of the executive branch) in carrying out its roles or how to use their resources. Congress and Federal courts have the power to strike down executive orders that it deems has breached the scope of its authority as we have seen where courts have struck down some executive orders, most recently the one limiting the powers of federal unions. It limited the powers of negotiation that protected the workers in relation to grievance procedures, and allowed employers and agencies to potentially abuse their powers, in short it gave more powers to the employers and fewer rights to the workers.

Congress can overturn an executive order, which the president can then veto, which in turn can be overturned with a two-thirds majority by Congress. This is why it is important as to which party controls the upper and lower houses in Congress, because a Republican dominated one would be unlikely to veto any executive order or to instigate impeachment proceedings either. However, as the Democrats will control the HOR in the upcoming 116th United States Congress, the Republicans still control the Senate.

In addition Congress can also enact legislation to overturn an executive order, and a subsequent president can revoke the executive order of a previous president as #45 did to some of Obama’s executive orders including one that allowed more people to be covered by the federal overtime rules.  See here for a list from the Washington Post.

Simply put, #45 has an agenda and he knows Congress would never pass the legislation to repeal the Fourteenth Amendment, but isn’t it ironic that a product of immigration is trying to halt the citizenship rights that his grandfather took advantage of and if they hadn’t existed maybe #45 would not have even been born. The irony too is that his mother came from a poor Scottish village to work in the USA as a immigrant worker, and he is trying to close that too.

What astonishes me is that people think Trump has sound ideas, and I wonder are people that blinded by rhetoric that most know are what we call lies? I’m sure that the forebears of those who support #45 are rolling in their graves, for they would not have had the opportunities they had, had it not not been for the protections the Constitution provided, and are probably disappointed in the apathetic nature of their descendants. Immigration is tightly monitored in the USA, but there are as ever loopholes. The only true Americans are the native Americans for all have descended from an immigrant somewhere in the world. How is the USA as a nation developing? It was created from a yearning to be free of dictators and founded on equal rights for all after slavery was abolished, yet is #45 brainwashing a sector of the nation as a dictator rather than a leader to inspire?

A government is supposed to protect the people and to serve them, yet all I can see is a distorted view of a minority that leads others to believe their vision is a positive one. How can removing birthright citizenship be positive when it belies the rights that the Constitution granted specifically to protect those who had no status? How can a government be trusted when key staff are routinely fired via social media? Executive orders must also comply with the Constitution therefore, an executive order cannot be used to alter or repeal the Constitution. To do so would go against the principles of the Constitution, and that no dictator should ever have control of the country. The procedures for amending the Constitution are outlined, and #45 forgets he doesn’t enact law he facilitates what Congress decides, and it is they as a body that create the laws of the land.

How did we get here? From people failing to vote, those who vote for the state rather than for the country, and people who don’t understand that they have the power, but just don’t know how to use it. The instability in the USA continues, and a sector of ‘the people’ have spoken, but others still harp on about Bernie Sanders and Hillary Clinton and that the Democrats got it all wrong. Voting isn’t about who you like and who says things that you want, it’s about the person who can do the best job in the situation, and that wasn’t and isn’t #45. Those who made protest votes or didn’t vote in protest have a hand in how things have turned out, and sadly the world is paying the consequences of their arrogance. It has achieved little and generations may suffer now, so those who didn’t vote in protest enabled a dictator. They may not have realized it or considered it, but each action or inaction has consequences and affects others. I fear many still have not learned their lessons from their ego, and it’s going to take a while before they feel the real effects of the price we are all paying.

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