Liberty vs. Tyranny: A Tale of Two “Surveillance” Approaches

“The key to getting to [something we might call] normal will be to establish systems for discriminating — legally and fairly — between those who can be allowed to move around freely and those who must stay at home.

“Assorted proposals now coming out of bodies such as the American Enterprise Institute, the Center for American Progress, and Harvard University’s Edmond J. Safra Center for Ethics, describe how this might be done. The basic outlines are all similar….

“Regardless of the methods chosen, the goal is the same: after a couple of months of shutdown, to begin selectively easing restrictions on movement for people who can show they’re not a disease risk.” — Gideon Lichfield, “This is what it will take to get us back outside,” MIT Technology Review, April 12, 2020  [Bold emphasis ours.]

The Insiders pushing our current “pandemic” scare are using many stratagems — involving deceptive use of language — to try to hide that it’s meant to abrogate our fundamental rights. Only thus can they hope to sell us their snake-oil, “new normal,” in which those rights are at best a dim memory.

One obvious example of such stratagems is how the mainstream media will speak of the terrific economic damage “the coronavirus is causing” — glossing over the fact that our state governors are, by arbitrary edict, themselves inflicting all the damage. In this way, the media hope to evade otherwise easy-to-reach conclusions that none of the damage was inevitable — or even to any good purpose.

Not all examples are so obvious, however. Yet, the deceptive use of language (along with correspondingly twisted “logic”) is possibly our enemies’ most destructive weapon. Let us therefore examine one of the less obvious current subterfuges.

Intentional Obscuring of the Fundamental, Radical Social Difference between “Surveillance” Approaches

In just about any discussions of the allegedly technocratic, “big-data” approaches of surveillance that Taiwan, Singapore and other countries have deployed in the fight against the coronavirus, China’s approach is mixed right into the discussion — as if they are all birds of a feather. In this way, the media try to make us think there is no fundamental difference between the latter’s approach and that of freedom-upholding countries such as Taiwan and Singapore.

If they can get us to accept that China’s response to the coronavirus is not essentially different from Taiwan’s, this defuses the danger which Taiwan’s example presents, otherwise, to their whitewashing of China’s government’s response — indeed it enhances the whitewashing, through associating China with Taiwan’s success. And Westerners had better have a big wake-up about this difference — and do it right away: because America, the U.K., and most of Europe are all hurtling towards, not Taiwan’s approach to “surveillance,” but that of Big-Brother, authoritarian China.

This quote from Clair Yang, an Assistant Professor at the University of Washington, conveys a glib obscuring of that difference:

[T]he successful experience of some of the countries that had already flattened their curves suggests that digital contact tracing and big data analysis could also prove a useful tool in combating the spread of the virus. Research shows that many countries in the East Asian region, including South Korea, Singapore, Taiwan, and China, have implemented strict rules on digital contact tracing and used digital travel history of patients to predict risks for the general population. This approach would be highly controversial in the Western world. Contact tracing can be a serious infringement of individual privacy, but one’s travel data if used in the right way could also have positive external value for the general public. At the end of the day, it is a trade-off between public goods and individual rights. — Clair Yang, expert-opinion response, “States with the Fewest Coronavirus Restrictions,” WalletHub, May 5, 2020

The message comes through powerfully — even if subliminally: “You Westerners want to have the success that Taiwan and Singapore have had against the virus? Well, the fundamental difference between your approach and our Asian approach (of which — don’t you see — mainland-China is just another example) is simply that the Asians are not hung up on your Western fetish of ‘individual rights’! After all, which is more important: ‘rights,’ or the public good? Isn’t it time, then, that you came to see, and to do, things in mainland-China’s way?”

Admittedly, there is a single truthful representation in that message: Mainland China is quite disregardful of (“Western”) individual rights. Beyond that, however, it is only a shameful misrepresentation of Taiwan’s approach — which has been infinitely more regardful of individual rights than have statements (and decrees) coming from executive bureaucratic offices in the U.S. or China.

The Real Basic Difference

So, which characteristic makes China’s and Taiwan’s responses to the coronavirus as different as “chalk and cheese”? Basically — to use an ancient Western legal principle, if somewhat outside its usual context — it’s the maintaining, vs. the suspension, of habeas corpus. And the only reason we say this application of the principle is outside of its normal context here is that never in the history of American jurisprudence have the citizenries of whole states been put under virtual house arrest — much less, for an objective reason.

Because this is so unheard of, we don’t naturally and immediately apply to it a principle that’s been normally applied to non-house detention:

Nowadays in Western countries, the thought of government agents whisking off a citizen to a secret prison seems unlikely. So why do we still have habeas corpus? Is it simply an antiquated law we no longer need?

The short answer is unequivocally no. It’s the right of habeas corpus that makes the thought of being illegally imprisoned in a democratic society such a far-off idea. Habeas corpus is a prisoner’s one way to question the legality of his or her imprisonment. — Josh Clark, “Why is habeas corpus important?”

Under this principle, an official who has someone under detention for no publicly-disclosed, legitimate reason is required — when presented a habeas corpus writ — to bring the prisoner to court and “present proof of authority, allowing the court to determine whether the custodian has lawful authority to detain the prisoner. If the custodian is acting beyond their authority, then the prisoner must be released.” (Wikipedia)

In contrast with this legal practice — so obviously entailed by “the rule of law” — we have the general practice which, in our initial quotation above, Gideon Lichfield (editor-in-chief of MIT Technology Review) recommends “for discriminating — legally and fairly — between those who can be allowed to move around freely and those who must stay at home.” Just to make sure you don’t forget what he said, we’ll quote that part again:

Regardless of the methods chosen, the goal is the same: after a couple of months of shutdown, to begin selectively easing restrictions on movement for people who can show they’re not a disease risk. — Gideon Lichfield, “This is what it will take to get us back outside,” MIT Technology Review, April 12, 2020 [Bold emphasis ours.]

Please note that there is no difference at all between what Mr. Lichfield’s preferred experts (whom he’s citing) recommend for governmental handling of you and me, and what China is doing to all its slaves — er, citizens: They are all free to go wherever they like, engage in what discourse they wish, and so on — just as soon as they have proven to the government that they have complied with all its dictates and whims.

Here, habeas corpus is turned on its head: It’s not the government that must prove, before a court, that its detention of the citizen is a legitimate one; on the contrary, it’s the “citizen” who must prove — to the government that imprisoned him — that he has complied with all its dictates.

In Western countries, traditionally this is known by such terms as “tyranny” and “slavery.” Let’s make sure that we still see it that way — and that we warn our fellow citizens, loudly, of this tyranny — intended as our “new normal”!

Three COVID-19 Counterexamples: Taiwan, Singapore, and Sweden

“Can any governor or county executive simply flick his pen and shut every business even if it doesn’t create crowds? Can they unilaterally restrict every aspect of the Bill of Rights indefinitely without any oversight, due process, benchmarks, or transparency?

“In Jacobson v. Massachusetts (1905), the Supreme Court … made it clear that there is a point where states can enact [public-safety] policies in ‘such an arbitrary, unreasonable manner, or might go so far beyond what was reasonably required for the safety of the public’ that they would be outside constitutional bounds.[1] …​

“We’ve simply never done this before in our history. These are not mere quarantine laws that supporters cite to justify what is going on today. Quarantine laws traditionally separate an individual or an entire group of people from the general population. What we are doing now, however, is locking down the entire general population.”  — Daniel E. Horowitz, “Is this quarantine or tyranny?,” March 31, 2020

Judging from the transparency — or rather, the lack thereof — they’ve shown on both COVID-19 and “climate change,” the governmental “powers that be” expect us simply to take for granted that they know best about scientific questions — and (of course) that they have our best interests at heart. By contrast, we “little people” should consider ourselves too simple to comprehend scientific matters — much less, to take part in serious discussions of them. We should just trust that the government — and tax-exempt foundations set up by the wealthy — know best!

Specifically, and in the current case, we’re supposed to take it on faith that the near destruction of the whole world-economy, through “social distancing,” is scientifically necessary in order to avoid COVID-19 catastrophe. (Nor have they asked us whether  the COVID-19 catastrophe isn’t the preferable option!)

However, if the “powers that be” do know best and have our best interests at heart, then why haven’t we heard much about the sensible, non-draconian approaches of countries that have avoided both the economic and the (warned-of) COVID-19 catastrophe — for example, Taiwan, Singapore, and Sweden? And, why haven’t other Western governments been adopting such approaches — rather than the China-pioneered, general “lockdowns” and “shutdowns”?

Only one plausible answer to that question seems available: Whether “the powers that be” “know best” or not, we may rest assured that our best interests are about the furthest thing from their hearts. Let us, then, look more closely at Taiwan’s, Singapore’s, and Sweden’s successful — yet non-draconian — approaches.

Taiwan’s and Singapore’s Responses to the Coronavirus

The Establishment media have not been able to maintain a total “blackout” on Taiwan’s success in combatting COVID-19. That success is too remarkable and too clear.

However, though the media are now reporting on what Taiwan has overtly done to control the COVID-19 outbreak, for the most part the media have (strenuously, it seems) avoided mentioning what Taiwan has not been doing.[2] That is likely because Taiwan eschewed the almost universal, dire “social distancing,” “lockdown,” and economic shutdown the rest of us are supposed to endure.

“Quick action” and “aggressive measures” are what helped Taiwan — so they keep telling us. They highlight Taiwan’s advanced databases of its citizens’ travel histories, along with its ability to attach those data to the same citizens’ entries in the country’s National Health Insurance (NHI) database.  By limiting the discussion to Taiwan’s actions, mainstream media manage to color Taiwan’s successful virus-containment as a shining example of technocracy — rather than, one of government transparency as well — and much less, one of maintaining constitutional, limited government while quarantining individual dangerous cases.

It is true that Taiwan did take “quick action” — notably with regard to checking people arriving from Wuhan (ultimately banning flights from most of China), and in implementing short-term quarantine for people who had recently traveled from “level 3 alert areas.” In fact, Taiwan’s preparation for a new virus outbreak started in 2004, the year after the SARS epidemic killed 73 people there. Since that experience, “Taiwan has been on constant alert and ready to act on epidemics arising from China,” reports a Mar. 3 JAMA article.

Taiwan has been very careful about making sure (and strictly enforcing with penalties) that the risk cases, who are quarantined, stay there as long as assigned — generally, two weeks. It is also true that Taiwan appended to the end of the Lunar New Year holiday, a further two-week closure of elementary schools and high schools (classes resumed Feb. 25). Moreover, it implemented rules calling for additional two-week closures of any schools where cases of the coronavirus were detected.[3]

Currently schools’ policy is to take students, teachers, and workers’ temperatures. If fevers are detected, classes in that school are suspended, but massive class suspensions do not occur. At the same time, online teaching is being encouraged, but is not being forced by the government. In many Taiwanese universities, online teaching is being promoted in order to let those who are not able to attend class in person to take courses. Although it is true that online education as a way to avoid infections has already been adopted in other countries, the peculiarity of Taiwan lies in the fact that it has not been imposed by government order….​ The government’s transparency of information has also given the Taiwanese enterprises the time they need to voluntarily prepare and adopt teleworking progressively. — Javier Caramés Sanchez and William Hongsong Wang, “Why Taiwan Hasn’t Shut Down Its Economy,” Mises Wire, March 26, 2020

But the pro-active stance and quick action explain more about Taiwan’s extraordinarily low case-numbers, than it does about how they achieved them with only very limited impact on their economic activity (the only industry hit by government restrictions was the airline industry). After all, it’s not as if there was no introduction of the virus into the country: In an article unusually balanced for the Establishment-controlled media, the New York Times stated that “As of Friday [Mar. 13], about 58 percent of all confirmed cases in Taiwan were believed to have resulted from local transmission.”

Broadly speaking, Singapore’s approach has been parallel to Taiwan’s. In regard to schools, in fact, Singapore has shown even more accommodation of private citizens’ needs:

Large gatherings have been suspended. But to minimize social and economic costs, schools and workplaces have remained open. The Singaporean Ministry of Education — on an extensive FAQs web page — calls the closing of schools “a major, major decision” that would “disrupt many lives.” Instead, students and staff are subjected to daily health checks, including temperature screenings. — Benjamin J. Cowling and Wey Wen Lim, “They’ve Contained the Coronavirus. Here’s How,” New York Times, March 13, 2020

National Post article summarizes correctly that these two countries “seem to have found the sweet spot between a laissez-faire ‘it’s just like the flu’ reaction, and imposition of economically devastating lockdowns. Both nations have concentrated [not on imposing lockdowns and shutdowns, but] on strictly isolating people who have or might have COVID-19, tightly controlling international travel and zealously pursuing those who had contact with the infected.”

Sweden’s Thoughtful, Commonsensical Approach

In its particulars, Sweden’s approach has differed somewhat from Taiwan’s and Singapore’s. But like Singapore and Taiwan, Sweden took the traditional approach to what “quarantine” is — namely, isolating sick people, to keep their disease from being caught by well people. And although, like Britain, they do not claim “herd immunity” is their goal, they do recognize that the latter is the likeliest way for the outbreak to come to a graceful end.

Fredrik Erixon, a Swede who directs the European Centre for International Political Economy in Brussels, was eloquent on the real difference in Sweden’s approach:

Managing the virus is a long game, and while herd immunity is not the Swedish strategy, it may well be where we all end up. The theory of lockdown, after all, is pretty niche, deeply illiberal — and, until now, untested. It’s not Sweden that’s conducting a mass experiment. It’s everyone else.

The main advice from [Anders] Tegnell [who is Sweden’s “state epidemiologist”] et al is repeated like a mantra ten times a day: be sensible. Stay at home if you feel sick. Oh, and wash your hands. But individuals, companies, schools and others are trusted to figure out on their own what precautions to take.

This Swedish exceptionalism is about principle, not epidemiology. It’s true that we’re perhaps less at risk due to our high rate of single-person households and low number of smokers. Closing the schools would, as well, have a bigger impact in a country where almost all mums are working mums. But frankly, all these explanations miss the point: yes, they make us different to Italy and Spain, but not to Denmark, Finland and Norway. Sweden simply made the call to take measures that don’t destroy the free society. — Fredrik Exton, “No lockdown, please, we’re Swedish,” The Spectator (U.K.), April 4, 2020

Tellingly, even the website of the World Economic Forum — one of the foremost pandemic-fear stokers of recent decades — had a helpful post, basically admitting there is nothing faulty with the science behind Sweden’s approach.

The Take-away from These COVID-19 Experiences — Oh, and Hong Kong’s!

By no means have these three countries been left unscathed by COVID-19 (and/or similar viruses). But the important thing to glean from their experiences is what they tell us about what’s not necessary to fight this “novel coronavirus.” Specifically, it says that quarantining healthy individuals who have no known reason for being susceptible, is unnecessary — and thus, a gross infringement of basic liberty.

Though it seems surprising to be able to cite the New York Times in summing up, the final paragraph of its March 13 article said it well (though having discussed Hong Kong instead of Sweden):

[T]he central point is this: Each in its own way, Singapore, Taiwan and Hong Kong — three places with markedly different socioeconomic and political features — have been able to interrupt the chain of the disease’s transmission. And they have done so without embracing the highly disruptive, drastic measures adopted by China. Their success suggests that other governments can make headway, too. — Benjamin J. Cowling and Wey Wen Lim, “They’ve Contained the Coronavirus. Here’s How,” New York Times, March 13, 2020


1. Corroborating the general legal principle that Horowitz cites is, for example, a 1962 Colorado state court case opinion, which points out that “If a statute purporting to have been enacted to protect the public health, morals, safety, or common welfare has no real or substantial relation to these objects, and for that reason is a clear invasion of the constitutional freedom of the people to use, enjoy or dispose of their property without unreasonable governmental interference, the courts will declare it void.” Colo. Anti-Discrimination Comm’n v. Case, 151 Colo. 235, 380 P.2d 34 (1962).
2. Typical is an April 7, 2020 Atlantic Council post “Lessons from Taiwan’s experience with COVID-19”: They discuss 4 lessons, but overlook the vital lesson — that general lockdowns and shutdowns are quite unnecessary. The title of an April 3 Democracy Now! post summarized this theme well: “How Taiwan Contained COVID-19: Early Action, Technology & Millions of Face Masks.”
A couple of rare exceptions to this mainstream tendency were a March 13 New York Times article, “They’ve Contained the Coronavirus. Here’s How.”, and a March 31 National Post article, “How Taiwan and Singapore managed to contain COVID-19, while letting normal life go on”. Outside the mainstream, and more in character, was a balanced, March 26 Mises Institute post.
3. According to a data-supplement to the Mar. 3, JAMA article:
– If 1+ in a class (student or teacher) at the K-9 level diagnosed with COVID-19, class is suspended for 14 days
– If 2+ cases in a school, school is closed for 14 days
– If one-third of schools in a township, city, or district are shut down, all others are closed
– If a student or teacher is diagnosed in a high school, college, or university, all classes they attend or teach is suspended for 14 days
– If 2+ cases of COVID-19 in an institution at any level, it will close for 14 days

Tenth Circuit Rescues the Electoral College

The NPV (National Popular Vote) Compact has just hit a large bump in its road to “bypass the Electoral College.” On August 20, the Tenth Circuit Court of Appeals rescued that College from two centuries of distortion and misuse.  And by doing so, the court handed us a very big club with which to bludgeon the NPV campaign.

The NPV Compact is, in fact, a fine example of the abuse which this ruling calls on the carpet: By signing onto the NPV compact, a state agrees to coerce its presidential electors to vote a certain way — namely, for the party-ticket that won the national popular vote. Such coercion overthrows the whole purpose of the presidential-election system the Constitution outlines — commonly called the “Electoral College.” (See our earlier post, “Democracy, Tyranny, and the NPV Compact.”) The Constitution created the position of presidential elector in order that presidents (and vice-presidents) would be chosen by the considered, uncoerced discretion of people considered capable of choosing the candidates wisely.

Alexander Hamilton, whose Federalist Paper 68 touts the Electoral College

The problem with the way the Electoral College has been working for two centuries is that most states’ laws have already, by various means, been putting heavy pressure on the state’s presidential “electors” to vote the way the state legislature wants them to — which is usually, to support the party-ticket which won the state’s popular vote. And the Tenth Circuit Court has now called “unconstitutional” the coercion of electors — or, to be specific, states’ punishing or removing the elector, or interfering with the (Constitutional) processing of the votes, when an elector casts any such (so-called) anomalous vote.

Remarkably, this “long train of abuses” has never been treated by the Supreme Court. Apparently that is because no state has ever actually carried out the prosecution of a so-called faithless elector, nor actually removed and replaced him or her, for any of the several historical “anomalous” votes — not until the State of Colorado did it in 2016.  It is ironic that the Colorado legislature signed onto the NPV compact, and yet — by trying to remove a “faithless” elector and to interfere with his vote — Colorado’s Secretary of State had already handed the federal courts a case by which they could address the whole issue.

Plaintiffs v. Colorado Secretary of State
The Tenth Circuit Court did address the issue; and we can give thanks that they handled it masterfully! The court concluded: “Article II and the Twelfth Amendment provide presidential electors the right to cast a vote for President and Vice President with discretion. And the state does not possess countervailing authority to remove an elector and to cancel his vote in response to the exercise of that Constitutional right.” (pp. 112–13)

But if the court’s conclusion is correct (and indeed, it is), then the whole NPV program, which is dependent on states’ passing laws that coerce the electors to vote a certain way, is — now officially— unconstitutional!  As reported by the Colorado Sun, current Colorado Secretary of State Jena Griswold, who seems shocked by the ruling, “said that since the 10th Circuit’s ruling says that Colorado law cannot compel an elector to vote one way or the other, the national popular vote compact’s mandates could be ignored under the decision. She reiterated, however, that she’s optimistic a remedy can be found before that situation would ever arise and her office is still reviewing the long, complex ruling to understand its impact.”

Given the Tenth Circuit’s watertight ruling, the “remedy” Secretary Griswold hopes for seems unlikely to appear, even if the case goes to the Supreme Court. Those battling the NPV have a major weapon now. Even states that have signed onto the NPV should repudiate their acceptance of it, given the Tenth Court’s demolition of their authority to enforce any such law.

Border Enforcement Duplicity

We’ve heard it from every quarter: our immigration system is “broken.” And the current border crisis seems to confirm this. But wherein does its “brokenness” lie?

No one disputes that incentives drive the “flood” of immigrants northward toward the U.S.: Specifically, such incentives comprise “push” factors (motivating the migrants to leave their former country of domicile) and “pull” factors (attractive features of the life they anticipate in the U.S.). And now almost everyone says the basic pull factor — or “magnet” — is the attraction of our government’s continuing practice of “catch and release” — though this term turns out to be imprecise, with no exact legal meaning:

There’s no hard and fast definition, but “catch and release” usually refers to U.S. immigration authorities’ practice of releasing unauthorized immigrants while they await immigration hearings, rather than keeping them in custody.

With some exceptions, only children and asylum-seekers are eligible for this kind of release. They often stay in the United States for months or years while their cases wind through the courts. Many of them do not show up for court dates and end up settling in the country without authorization. — Salvador Rizzo, President Trump’s claim that Democrats created ‘catch and release’ policies, April 4, 2018

There is no reason to deny such analysis regarding incentives. And clearly it implies that “catch and release” is a major cause of our system’s “brokenness.” But it is all the more remarkable, then, that this consensus as to one of our border problem’s major causes has led neither to any solution, nor to cessation of our government’s practice of “catch and release.”  Could it be that some high-level group designed this border problem never to see a solution?

The Government’s Excuse

For its part, the government holds a ready explanation of the reason for its continuing practice of “catch and release.” Media-gurus, political pundits, and officials in the Executive branch have been telling us — for years — that “our immigration laws need fixing!” For that law is — they say — full of “loopholes”!

Former DHS Secretary Kirstjen Nielsen’s standard blame-deflection went like this:

Until these loopholes are closed by Congress, it is not possible, as a matter of law, to detain and remove whole family units who arrive illegally in the United States.

So, according to Nielsen, the immigration law itself is tying the hands of the government.

President Trump has similarly blamed our immigration laws. On April 3, 2018 he complained, “We have immigration laws that are laughed at by everybody…​. We have to change our immigration laws.”

Former Atty. General Jeff Sessions intoned likewise that “as President Trump has warned, the need to fix these loopholes and weaknesses in our immigration system is critical and overdue.”

A recent version of this accusation says, more specifically, that a main “brokenness” in our immigration law is the part which deals with asylum. Media pundits, Executive Branch officials, and White House communications have all been decrying the “asylum loopholes” allegedly crippling our immigration system.

A White House “Fact Sheet” of April 29, 2019 entitled “President Donald J. Trump Is Working to Stop the Abuse of Our Asylum System and Address the Root Causes of the Border Crisis,” explained (red and italics ours):

THE ASYLUM LOOPHOLE: Migrants are flooding to our border to use asylum to gain entry into our country and remain here indefinitely.

  • Our immigration system has reached a breaking point as we continue to see an overwhelming surge of migrants, with more than 100,000 arriving at our border in March alone.
  • As a result of loopholes in United States immigration law, migrants claiming fear are often released into communities across the United States, where they often remain indefinitely.
  • In order to remain in the country, they often fail to show up to court hearings, fail to file an asylum application, or fail to comply with removal orders once their claims have been denied.

Trump echoed the lament on May 30, 2019:

Trump said on Thursday [May 30] that he would not be closing the border as he has threatened numerous times. “The asylum procedures are ridiculous,” he added. “No place in the world has what we have in terms of ridiculous immigration laws.”

Informed Rebuttals of the “Blame Congress and the Immigration Law” Explanation

The standard, “law-loopholes are preventing good border-enforcement” account of our border crisis has its skeptics, however. And most of these skeptics are not amateurs: Rather, they are professionals (including researchers, writers, and Border Patrol agents) who have made it their job to understand our immigration system — and its malfunctions.

For example, Daniel E. Horowitz — who has been explicating the legal and administrative aspects of immigration for years — wrote in a recent post:

How much longer are we going to allow lawless acts of past administrations and lower courts to flip immigration law on its head and act as if the laws themselves are the problems? Our immigration laws aren’t broken, it’s just that carefully selected lower courts violate those laws as well as Supreme Court precedent, plus the executive branch has refused to enforce many laws that haven’t even been tampered with yet by the judges. The American people never voted for the system in place to today. In fact, the people’s representatives voted for the opposite.…​

There is this dangerous perception that somehow our laws declared open borders or at least granted endless rights to avoid deportation until and unless we muster the votes to change the laws. The reality is the opposite.

In a post earlier that month, Horowitz mentioned that this is the view also of Brandon Judd, head of the Border Patrol union (NBPC):

Brandon Judd, head of Border Patrol Union

‘Political pundits, talking heads, scholars and politicians have convinced the American public that only legislation can solve the problem. They say there are too many immigration and asylum loopholes preventing the government from deporting illegal border crossers in a timely manner. They are all wrong.’

Those were not the words of yours truly, but of Brandon Judd, the head of the Border Patrol union, in a Washington Times op-ed. He suggests we [should] actually just enforce the asylum laws [that are currently] in statute and have border agents at the front lines, not bureaucrats in other DHS agencies, take the lead on enforcement.

The talking point about the broken laws, in the media and even from the administration, have [sic] been so incessant and emphatic that most people probably think the laws require open borders unless Congress votes to change them. In fact, our laws are very clear that people who come to our border without proper documentation are all illegal aliens and must be deported. In 1996, Congress further updated those laws to preclude endless lawsuits.

Likewise, researchers and writers from the Center for Immigration Studies have rebutted much of this standard account of our border crisis.

Why It’s Untrue, that “Asylum Loopholes” in the Law Tie the Hands of the Executive Branch

The skeptics are correct — the ostensible loopholes are excuses without merit. In this section we will discuss the “asylum loophole,” which the above-cited White House Fact Sheet alleges. In a companion post, we discuss the other category of immigration-law loophole — those relating to minors and families — which the DHS (Department of Homeland Security) claims hinder the enforcement of our border.

There are at least four reasons why the narrative that “asylum loopholes have forced ‘catch and release’” does not hold water. Either of the first two demolishes the narrative all by itself. Let’s review all four, though — and make our point inescapable.

The President’s Unlimited Authority over Immigration

One thing that the media — who are helping push this false narrative — never tell the American people, is that the president has “plenary” (absolute, unrestricted) authority to exclude any and every alien he wishes — at any time. This is an authority that is subject to neither of the other branches of the federal government.

This plenary authority over immigration turns out to be both “inherent” and “delegated.”  The president’s inherent authority is built into the very structure of our federal government. The president’s delegated authority over immigration is that which the immigration statutes attribute to the president explicitly.

The president’s inherent authority over immigration is a foundational, long-standing principle of U.S. constitutional jurisprudence, recognized and openly acknowledged by the courts for over 200 years. The authority stems primarily from the president’s constitutional authority over foreign relations. (Aliens are, after all, foreigners, not U.S. citizens.[1])

One of the clearest judicial statements of this principle is in the Supreme Court’s opinion in Knauff v. Shaughnessy (1950):

The exclusion of aliens is a fundamental act of sovereignty. The right to do so stems not alone from legislative power, but is inherent in the executive power to control the foreign affairs of the nation.

However, to make sure everyone understands the president’s plenary authority to exclude aliens, our immigration law makes it explicit:

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate. — INA, §212(f); which is at Title 8 U.S.C. §1182(f)

Therefore, all the other immigration statutes, taken together, couldn’t “tie the president’s hands” if they tried! For this one provision implies that not only those whom the law excludes are to be excluded; but also, any and all whom the president excludes.

The Low Percentage of Arriving Aliens Claiming a “Credible Fear of Persecution”

The impression one tends to get from the media is that the immigration surges of 2018–​19 are, to a large extent, people seeking asylum. According to our same White House Fact Sheet, President Trump has said that “The biggest loophole drawing illegal aliens to our borders is the use of fraudulent or meritless asylum claims to gain entry into our great country.”

But based on reliable reports — including some from the DHS — no more than about 10% at any time have actually been claiming a “credible fear of persecution” — far less a percentage than that of “families” and “UACs” (Un-accompanied children) coming across the southern border. (Issues surrounding “families” and “unaccompanied children,” we discuss in our companion post.)

A DHS release of April 4, 2018 noted: “Before 2013, approximately 1% of arriving aliens claimed credible fear (asylum). Now 1 out of 10 claim credible fear.” And Carl Landrum, Deputy Chief Border Patrol Agent in the Yuma Sector (our third-hardest-hit sector, behind the Rio Grande Valley and El Paso sectors), stated in a Fox News interview on April 22, 2019 that in his area, “Only six percent of the people crossing the border are expressing a credible fear and requesting asylum.”

Daniel Horowitz finds that news disturbing: “This revelation means that our government has essentially vitiated the entire Immigration and Nationality Act (INA) and has declared a de facto open border.…​ We are shredding every word of the INA and processing and releasing almost all of these people, even those who don’t express a credible fear, rather than immediately placing [and keeping] them in expedited deportation.”[2]

The Extremely Low Percentage of Arriving Aliens Possibly Qualifying for Asylum

Another pivotal misconception which our media and Executive Branch have fostered is the notion that people fleeing violence or poverty in Central America are legitimate refugees. In fact, virtually none of them are. Rather, what they are is “economic refugees.” But the criterion which our law applies for refugee status (and thus asylum), is whether the alien has a “credible fear of persecution” — as that phrase is defined, very precisely, in our immigration law.

The crucial part of that definition to understand is the term “persecution”: Once you know the technical sense of that, you may understand why practically no one fleeing violence, poverty, disease, or what have you in Central America (or in Mexico) satisfies our law’s criterion for such a “credible fear.”

Here is our law’s criterion for a “refugee” — including what qualifies as “persecution,” in this context (emphasis in highlighted bold ours):

any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.

That definition is in Title 8, §1101(a)(42)(A) — which section, and which definition of “refugee,” are then referred to in §1158, “Asylum.”

So, if that’s what a refugee is, what exact level of proof makes it “credible” (in this sense) that a person has a “well-founded fear” of such persecution? Title 8, §1225(b)(1)(B)(v) gives this definition (emphasis in highlighted bold ours):

[T]he term “credible fear of persecution” means that there is a significant possibility, taking into account the credibility of the statements made by the alien in support of the alien’s claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum under section 1158 of this title.

What constitutes a “significant possibility” is undefined in the immigration law, and the standard has not yet been discussed in immigration case law. However, a USCIS (U.S. Citizenship and Immigration Services) Basic Training Course for asylum officers has a helpful discussion of what constitutes that “standard of proof.”[3] After reminding readers that the alien is “the party who bears the burden of proof,” and discussing a range of “different standards of proof [which] are relevant in the immigration context,” this training course says that the “significant possibility” standard requires the person bearing the burden of proof to “demonstrate a substantial and realistic possibility of succeeding” in establishing eligibility for asylum under section 1158.  [Emphasis in original.]

Now, Central America countries — and Mexico, for that matter — are each made up of such a homogeneous mass of people, with regard to race, culture, and so forth, that these countries’ likelihood of having “persecution” for any of the above reasons is miniscule or non-existent. It is therefore (to use the USCIS training course’s terms) “a claim that has ‘no possibility of success,’ or only a ‘minimal or mere possibility of success,’ [and thus] would not meet the ‘significant possibility’ standard.”

Daniel Horowitz concurs:

This law was clearly written for a situation where a group is facing religious persecution, such as the Yazidis in Iraq. Nobody can say with a straight face that any of these people coming from the Central American triangle meet any of these five conditions [viz., persecution on account of race, religion, nationality, membership in a particular social group, or political opinion]. These are some of the most homogeneous countries in the world. There is no religious or ethnic persecution. And it is quite laughable to assume they are being persecuted for political opinions. Those teeming across our border are not a bunch of Madisonians railing against the lack of free markets in Honduras. — Daniel Horowitz, How Trump can protect the border without Congress

Jeff Sessions, former U.S. Atty. General

Thus, it’s clear that the legal standard of proof is being misapplied in credible-fear determinations — with disastrous results. Even Atty. General Jeff Sessions, speaking in October 2017, admitted that the credible-fear adjudication process was being “gamed”:

[T]he adjudication process is broken as well. DHS found a credible fear in 88 percent of claims adjudicated. That means an alien entering the United States illegally has an 88 percent chance to avoid expedited removal simply by claiming a fear of return.

But even more telling, half of those that pass that screening—​the very people who say they came here seeking asylum—​never even file an asylum application once they are in the United States. This suggests they knew their asylum claims lacked merit and that their claim of fear was simply a ruse to enter the country illegally.…​

The system is being gamed. The credible fear process was intended to be a lifeline for persons facing serious persecution. But it has become an easy ticket to illegal entry into the United States.…​

Our asylum laws are meant to protect those who because of characteristics like their race, religion, nationality, or political opinions cannot find protection in their home countries. They were never intended to provide asylum to all those who fear generalized violence, crime, personal vendettas, or a lack of job prospects. Yet, vague, insubstantial, and subjective claims have swamped our system.…​

… As one immigration judge recently told me about the credible fear process, “any adjudicatory system with a grant rate of nearly 90 percent is inherently flawed.” …​ We can elevate the threshold standard of proof in credible fear interviews.[4]

OK; but if they can elevate it — why haven’t they done so? According to Jessica Vaughan of the Center for Immigration Studies, there have been “reports from whistleblowers at USCIS who say that [USCIS] asylum officers [currently the ones handling all fear-claim interviews] have been instructed by resistant career supervisors to ignore efforts by the Trump administration to return to deciding these cases according to the letter and intent of the law.”[5]

The Necessity that Arriving Aliens Pass a “Credible Fear” Interview or Review

Yet another misconception which media and Executive Branch officials promote is the idea that any arriving alien can just claim a “credible fear,” and they will be released to await their asylum hearing. That is, the media never make clear that arriving aliens who cannot show valid documentation of legal immigration status are each put, immediately, into “Expedited Removal Proceedings” — and kept there until removal, unless that arriving alien instigates and passes a “credible fear interview,” (or an administrative review of that interview).

In short, as long as the alien is in Expedited Removal, they are held in mandatory detention. Thus, there is no question at all of some alien, having just arrived, being “caught and released” legally.

There is a lawful process which is, sometimes, informally classified as “catch and release” — but more properly called, “parole” — but one must argue that, administratively, in many cases it’s given too eagerly after a determination of “credible fear.”.[6] But neither that legal procedure, nor any “asylum hearing,” is available legally to “arriving aliens” by their simply showing up and claiming a “credible fear” of persecution.

Rather, an “asylum officer” (who is from USCIS, as things are working currently,) conducts an “interview” regarding the alien’s credible-fear claim; and based on this interview, makes a determination regarding this claim. If that determination goes against the alien, and he or she wants to contest it, they can ask for an “administrative review” — which will be before an EOIR “immigration judge.” But all of that happens as part of what’s called “Expedited Removal Proceedings,” into which all “arriving aliens” (and some others) who have no documentation of legal immigrant status are placed automatically.[7] (An important qualification: “Expedited Removal” is not the process which the law stipulates for “unaccompanied alien children,” or “UACs”; we discuss those in a separate, companion post.) And detention is mandatory all through those proceedings, according to the law.[8]

In contrast, an “asylum hearing” does not happen for any such (adult) “arriving alien” unless the alien has been determined (during expedited removal) to have a “credible fear of persecution,” and been therefore removed from “expedited removal” proceedings and placed into “formal removal proceedings,” and allowed to make formal application for asylum. And only once they’ve made such application are they eligible for “parole.” And that is what so-called catch-and-release is, for “arriving aliens” — a “parole,” under Title 8 §1182(d)(5).

Legally, then, they cannot be paroled until they’ve been “determined” to have a “credible fear of persecution.” All of which implies that if they fail in that determination — and virtually all Central Americans would fail, were the determination conducted according to statute — then there’d be no question of our immigration authorities ever paroling them, legally, into our country. Ending the fraudulent determinations that these aliens have a “credible fear” would, therefore, end their “catch and release.”

Locating Our Immigration-System’s Real “Breakage”

Besides those related to asylum, there are other alleged “catch and release loopholes” which need addressing as well, such as those pertaining to “unaccompanied minors” — all of which we discuss in a companion post. Taking also those into account, we could summarize the “immigration loopholes” situation this way:

  • The DHS and DOJ are applying an inexcusably and illegally low standard of legal proof, in their credible-fear determinations. And this is the only reason that the vast majority of adult arriving aliens from Mexico or Central America are allowed out of Expedited Removal — with its mandatory detention — and (then) considered for parole (one kind of “catch and release”).
  • As we discuss in our companion post, the government is granting a thoroughly undeserved deference to the dubious features of Judge Gee’s 2015 ruling(s) on the FSA (Flores Settlement Agreement) — including a pivotal one that the Appeals Court overturned! And this is the only reason the government is saying that it must release minors within 20 days — and that it must release whole alien families that happen to include a minor.

Contrary to representations by the president, DHS administrators, and media, though, none of this is a matter of immigration law, or of the FSA (which has the force of law). Furthermore, even if the law did have an actual “loophole,” the president would not thereby be prevented from using his full, plenary authority to restrict — or even to shut down — immigration!

Thus, the loophole-skeptics are correct: there is no law-problem; there’s only an implementation-of-law problem, a lack-of-enforcement problem.[9] In short, contrary to repeated claims by the Executive Branch and the media, the president has by no means required Congress to close alleged “loopholes,” in order to secure our border.

Of course, there are logistical challenges to stemming the current flood. But historically, the hope of catch-and-release has created most of the “magnet” attracting immigrants. And removing the main “pull” factor — that magnet — would have no less impact on the flow than had the mere anticipation of catch-and-release ending, which anticipation slowed immigration dramatically in the wake of Trump’s 2016 election. The logistical challenges could then be handled, as we have handled them in similar (if smaller) border crises time and time again.

Accounting for This Inversion of the Truth

The story of the immigration law’s culpability for our border crisis is so patently, undeniably false, that there is really only one way to account for its dominance in the media and Executive Branch statements: which is, orchestrated duplicity. More specifically: it is an agreed duplicity on the part of much — we’d estimate, most — of the media, and of many top administration officials, lower court federal judges — and even of many Congress-people, insofar as they remain silent in the face of this dangerous disinformation. But what could be motivating this orchestration of duplicity?

Well, if we recall that the Establishment — which controls most of the institutions spouting this story — wants open borders (as the FFS has often documented), then several plausible motives come to mind:

  1. Laying the blame on Congress and immigration law diverts the public’s attention from, and tends to keep them ignorant of, those places in which the system is indeed broken (namely, poor enforcement of the law) — which diversion is crucial for continuing or growing the crisis.
  2. Also, such misdirection has the potential — very appealing to the Establishment — of convincing the public (finally) that our immigration law needs a major overhaul — which overhaul, given Congress’s increasingly wishy-washy stance for strong borders, might well eviscerate our (heretofore basically sound) immigration law.
    • Even if failing to find consensus for a major overhaul (a.k.a. “comprehensive immigration reform”), those seeking open borders may find enough consensus for one or more “amnesties” — which helps keep the crisis boiling.
  3. Also, this crisis offers the ever-increasing possibility (again, appealing to the Establishment) of getting the public to accept an international “resolution” of the problem — which would make permanent of course, rather than repair, our loss of control of our border — through further bilateral agreements with Mexico and/or Central American countries, for example, or even reviving the development of a North American Union, and/or through inviting U.N. “Peacekeeping” troops in — “to help.” Any of those approaches to a “solution” would seriously sabotage our national sovereignty and independence.

There is, therefore, no reason to doubt that the current border crisis is intentional — created, not by Congress, but by conspiratorial elements controlling our media and Executive Branch (with supporting roles played by a few lower-court judges). And this lie about “immigration loopholes” is the main tactic keeping the public from realizing the true cause of the problem — which is intentionally inadequate enforcement by our government’s law-enforcement branch (the Executive).

What to Do

Clearly, the only way that this non-enforcement will be remedied, is for an informed, activated electorate to apply concerted pressure on the government to remedy it. But an electorate not informed, will certainly neither be activated. So, the widespread exposure of this fraudulent “loopholes” tactic is key. That is the most obvious mission we must undertake, therefore.

Less obvious is that we must also use such educational effort to grow — as rapidly as possible — the reach and level of understanding of the Internationalist, conspiratorial intrigue that is seeking to strangle our national sovereignty, independence, and freedom. Indeed, if we neglect this latter mission, then the public’s demand for border enforcement will continue to be betrayed, as it has been for decades.

Both of these are crucially important tasks. In pursuit of the first, if this article has been found enlightening and helpful, then it is certainly worthwhile to share it with friends and acquaintances.

Notes


1. And as such, they have no standing in courts mentioned in or created under the Constitution (in Article III). That is the basic reason the president is not subject to these courts’ rulings on immigration matters. However, note that the president does have a constitutional obligation to restrict immigration at least as much as the immigration law does — since he is responsible to enforce the laws. On the plenary authority of both “political” branches (i.e., the Legislative and Executive branches) over immigration, see the CRS (Congressional Research Service) Report 44969, “Overview of the Federal Government’s Power to Exclude Aliens”; and, for a much fuller and absorbing treatment, see chapters 4–​8 of Daniel Horowitz’s insightful 2016 book Stolen Sovereignty: How to Stop Unelected Judges from Transforming America, Washington, D.C.: WND Books.
2. It seems disingenuous, therefore, to imply that asylum-claims are “tying the hands of” the Border Patrol. What are actually tying their hands are: the taking care of immigrants who arrive sick or hurt themselves clambering over a barricade (an agent must also stay with the immigrant while he/she receives medical care); and also — believe it or not — the running a courier service, to bring in immigrants who are waiting on the other side of the wall! This astonishing DHS policy forced Mr. Horowitz to ask: “[I]f we actively bring in even the illegal immigrants standing outside the fence and believe it is our duty to do so, then what would change if we had more walls?”
3. The training course is cited, on this matter, by the CRS (Congressional Research Service) “Legal Sidebar” 10150, “An Overview of U.S. Immigration Laws Regulating the Admission and Exclusion of Aliens at the Border.”
4. Andrew Arthur of CIS reported that “Credible fear is found in 75 to 90 percent of all cases reviewed by asylum officers.”
5. The quotation is via Daniel Horowitz. Ms. Vaughan suggests strongly, as a remedy for this perfidy, that Border Patrol agents, who are valid “immigration officers,” be trained therefore also as Asylum Officers — the kind of immigration officer which the law requires to conduct all credible-fear interviews — and then be allowed to handle such interviews, rather than being forced to hand over all credible-fear claimants to USCIS Asylum Officers. Brandon Judd, head of the Border Patrol union (NBPC) is strongly in favor of that as well — as is Daniel Horowitz.
6. The reasons for which the regulations and/or administration allow such a parole have traveled a long way from what the law stipulates: The law’s criterion for parole is that it must be for “urgent humanitarian reasons” or “significant public benefit.” But the federal regulations (at 8 C.F.R. §212.5(b)(5)) make the nonsensical determination that this criterion for parole is satisfied for an alien “whose continued detention is not in the public interest.” (Why would it ever not be “in the public interest,” to detain until their removal aliens who have — according to our immigration law — no legal status or permission to be here?) Then, ICE Directive 11002.1 establishes that criterion as automagically satisfied for aliens found to have a “credible fear.” However, one weighty proviso in the regulations — carried over into the Directive — is also being cynically overlooked: the parole is to be awarded only “provided the aliens present neither a security risk nor a risk of absconding.”
7. A helpful, brief summary of the various proceedings, rules, and laws pertinent to admission or exclusion of aliens is available in the CRS (Congressional Research Service) “Legal Sidebar” 10150 — although it exaggerates the power and significance of the FSA, and especially of Judge Gee’s 2015 ruling (on which, see our companion post). This author found even more useful a pictorial representation of the different legal statuses “arriving aliens” go through, related to “expedited removal proceedings”; and so, has diagrammed the various state-changes — and events causing them — in the form of a UML “state-machine” diagram, which one may download from our server. (For any shortcomings of this state-diagram, the author is of course responsible.)
8. Nor can any lengthy delay precede any “administrative review” of their credible-fear interview’s determination: On the contrary, according to the law, this review “shall be concluded as expeditiously as possible, to the maximum extent practicable within 24 hours, but in no case later than 7 days after the date of the determination.”
9. However, something was put into law, so to speak, which was a sort of “loophole”; but it was not in immigration law, but in a short-term funding bill — and not until this year. That was the horrible stipulation, as to expenditure of the funds, in sec. 224(a) of the budget bill Trump signed on February 15. Thankfully, this toxic provision expires when the funding expires — at the end of September.

Groundless “Catch and Release” of Alien Minors

One principal explanation for our ongoing “catch and release” border policy — according to the Executive Branch and most of the major media — is that:

Legal loopholes are exploited by minors, family units, and human smugglers, and are a magnet for illegal immigration.…​ These loopholes create a pull factor that invites more illegal immigration and encourages parents to pay and entrust their children to criminal organizations that will smuggle them in — often while abusing and molesting those children along the way.  — DHS Release, Unaccompanied Alien Children and Family Units Are Flooding the Border Because of Catch and Release Loopholes, Feb. 15, 2018

The two “legal loopholes” which this DHS (Department of Homeland Security) Release cites are the Flores Settlement Agreement (FSA), 1997, and the William Wilberforce Trafficking Victims Protection Reauthorization Act (TVPRA) of 2008. The Release claims that these mandate, effectively, the Executive Branch’s “catch and release” policies for “unaccompanied alien children” (UACs), and for “family units” as well.

However, a careful look at these alleged loopholes shows that blaming them for “catch and release” is a red herring. Let’s examine each of these “legal loopholes” — in chronological order of creation — and what the DHS claims about them.

The Flores Settlement Agreement (FSA)

The DHS Release wails and gnashes its teeth about the 1997 Flores Settlement Agreement — and, how it has spawned “multiple onerous court decisions that handicap the government’s ability to detain and promptly remove UACs.” More specifically, it alleges that the FSA handicaps such ability in two ways:

  1. “Under the Flores Agreement, DHS can only detain UACs for 20 days before releasing them to the Department of Health and Human Services which places the minors in foster or shelter situations until they locate a sponsor.”

But the limit of “20 days” appears nowhere in the Flores Agreement; it says only that the government must release a minor “without unnecessary delay.” In fact, it was Judge Dolly Gee, of the Central California Federal District Court, who in her ruling of July 24, 2015 read into that phrase, arbitrarily, the “20 days” meaning.

Moreover, the FSA applies the “without unnecessary delay” stricture to the minor’s release, only when “the INS determines that the detention of the minor is not required either to secure his or her timely appearance before the INS or the immigration court, or to ensure the minor’s safety or that of others.” [Emphasis ours.] So, if DHS could realistically say that, as a general rule, these minors were not going to show up for their removal hearings, then detention would seem absolutely “necessary [in order] to secure his or her timely appearance before the INS or the immigration court”; and thus, the FSA would not be mandating their release from detention.

But the DHS can realistically say that these minors are not generally going to appear — and indeed, they and other experts have often so implied. In fact, in this very Release the DHS complains that “UACs frequently abscond and fail to appear for their removal hearings before an immigration judge — with 66% of all removal orders for UACs from FY15 to FY17 resulting from a UAC’s failure to appear for a hearing”! How, then, can they turn right around and claim that under the FSA, “DHS can only detain UACs for 20 days before releasing them”?

  1. The second way DHS claims that FSA — or at least, “recent rulings in the Flores consent decree litigation” — have handicapped the government is that it requires the government to release (without unnecessary delay) not just minors, but also any “family units” that happen to contain a minor.  According to the Release:

The 100,000+ UACs who were released [from FY16 to date] are in addition to the more than 167,000 family units (i.e. alien children who are accompanied by an adult claiming to be a relative or guardian) that were apprehended by U.S. Customs and Border Protection from FY16 to date.

    • Nearly all of these Family Units are released into the interior of the United States because of judicially-imposed constraints on ICE’s authority to detain the entire family units as a result of recent rulings in the Flores consent decree litigation. [Italics ours; bold in original.]

This claim that parents of minors must, in general, be released with their minor children is so duplicitous, it’s astonishing. Here again, the FSA said no such thing: this is another invention of Judge Dolly Gee’s 2015 ruling. But don’t take our word for it: on this we can cite the cogently-argued ruling of the Ninth Circuit Court of Appeals (to which the government appealed Judge Gee’s ruling) in this very same case (Flores v. Lynch).

A year after Judge Gee’s District Court ruling, the Ninth Circuit Appeals Court overturned that ruling’s part which said the FSA gives minors’ parents a right to be released. Judge Andrew Hurwitz, writing the opinion for the Ninth Circuit Court, made it unequivocal that: “The district court erred in interpreting the Settlement to provide release rights to adults. The Settlement does not explicitly provide any rights to adults.…​

The fact that the Settlement grants class members [of this lawsuit] a right to preferential release to a parent over others does not mean that the government must also make a parent available; it simply means that, if available, a parent is the first choice. — U.S. Court of Appeals for the Ninth Circuit Opinion on the ‘Appeal from the United States District Court for the Central District of California,’ July 6, 2016, pg. 19

Thus, according to the Ninth Circuit Court ruling in this case, the Flores Agreement has no requirement whatsoever that family units containing minors be released.[1]

The 2008 “Trafficking Victims Protection Reauthorization Act” (TVPRA; a.k.a. “The Wilberforce Act”)

The other “legal loophole” which the DHS Release cites is the 2008 TVPRA, or “Wilberforce Act.” The DHS Release suggests three distinct ways in which the TVPRA presents “catch and release loopholes.”

The Release’s arguments for changing these provisions of the TVPRA are all reasonable. But none of them is at all convincing as to why “catch and release” is continuing. For none of the three TVPRA provisions is at all capable of causing“catch and release.”[2]

Thus, none of the “catch and release loopholes” which the DHS Release attributes to TVPRA seem genuine. On the other hand, the implementation of TVPRA has been disastrously mishandled — in ways that are tantamount to “catch and release” and do contribute greatly — and obviously — to this “magnet” that is causing recent border surges. It is worth taking a minute to see that these are not problems with our immigration law, but with how — and to what extent — the Executive Branch is enforcing it.

The serious problems in the way the government is implementing TVPRA are twofold:

  1. they are ignoring TVPRA’s broad inapplicability to an immigration-inflow with few genuine UACs in it (“unaccompanied alien minors”).[3] And,
  2. they’re likewise ignoring the illegal immigrant-status of the vast majority of sponsors (including parents or legal guardians) the minors are being placed with.[4]

Yet, again, this is all a matter of horrendous misapplication — rather than of bad law. Thus, as far as the TVPRA itself is concerned, it is hard to improve on CIS researcher Jessica Vaughan’s summary of its (non-)impact on the Executive Branch’s authority:

     To be sure, the Wilberforce Act [i.e., TVPRA] could stand some tweaking. It complicates the processing of apprehended illegal-alien children from countries other than Mexico in ways that are easy for the immigration-advocacy industry to exploit, and it has proven to be very costly to administer.

     But this law is not the main problem. Even if this Congress could agree on a fix, the effort would only distract from the larger issue of inadequate enforcement generally. It can be reasonably argued that most of the new illegal arrivals — including many of the children — are not even covered by the Wilberforce Act, since they were not victims of trafficking and are no longer unaccompanied after being reunited with their families…. Lawmakers should recognize that once again it is the president’s interpretation of the law that is the problem, not the law itself. — Jessica Vaughan Don’t Blame the Border Crisis on a “Bush-Era” Law

Conclusion

This and other DHS statements about the border crisis have claimed that both “legal loopholes” and “asylum loopholes” (as we discuss in a companion article) are “tying the hands” of the Executive Branch, such that:

we are stuck with a system that sanctions catch and release. Due to legal loopholes and court backlogs, even apprehended illegal aliens are released and become part of the temporary, illegal population of people that we cannot remove. — DHS Release, Ibid., Feb. 15, 2008 [Emphasis ours.]

But it turns out this is just histrionics and hot air. The American people need to be aware of the falsehood of these claims. For they need to know where, precisely, and why our immigration system is breaking down.

And — even more importantly — they need to understand (as we discuss further in a companion article) that powerful, nefarious conspirators are trying to deceive us about it, hoping to leverage our misunderstanding so as to remove our control of our borders — on the way to destroying our limited-government system and our national sovereignty.

Notes


1. For another thing, even this imaginative construction in the 2015 ruling was crucially qualified — in a way the DHS Release neglects to mention: According to Judge Hurwitz (on pg. 4), the District Court ruling by Judge Gee “ordered the government to:
(1) make ‘prompt and continuous efforts toward family reunification,’
(2) release class members [of this lawsuit] without unnecessary delay,
(3) detain class members in appropriate facilities,
(4) release an accompanying parent when releasing a child unless the parent is subject to mandatory detention or poses a safety risk or a significant flight risk,
(5) monitor compliance with detention conditions, and
(6) provide class counsel with monthly statistical information” (emphasis ours).

Yet, arriving adult aliens are always subject to “Expedited Removal Proceedings” (unless and until determined to have a “credible fear of persecution”) — which do entail mandatory detention!

2. The three TVPRA provisions the Release cites are:
(1) “Under TVPRA, UACs [‘unaccompanied minors’] who are not from Mexico and Canada are exempt from prompt return to their home country [because, instead of being returned almost immediately, they must be put into “formal removal proceedings,” and transferred to the custody of the Dept. of Health and Human Services (HHS)]. We must amend the TVPRA so that all UACs who are not victims of human trafficking, regardless of country of origin, can be safely and promptly returned to their home countries.”
The problem here is that “not returned immediately” does not logically imply, “caught and released.”
(2) “We must amend TVPRA to limit the period to file asylum claims for UACs to one year consistent with all other applicants for asylum and ensure that these asylum cases are heard only in immigration court (no second bite at the apple).”
(3) “We must end abuse of the Special Immigrant Juvenile (SIJ) visa to ensure the applicant proves reunification with both parents is not viable due to abuse, neglect, or abandonment and that the applicant is a victim of trafficking. This is necessary as many UACs are able to obtain a Green Card through SIJ status even though they were smuggled here to reunify with one parent present in the United States.”
This is a reasonable suggestion. But to allege this visa-law’s causal connection with “catch and release” overlooks that going through the process of applying for, and (eventually) receiving, a residence visa is not a sort of thing which people refer to as “catch and release.”
3. The legal sense of “UAC” (Unaccompanied Child) entails that “there is no parent or legal guardian in the United States; or no parent or legal guardian in the United States is available to provide care and physical custody” (emphasis ours).
Given this legal sense of the term, the TVPRA appears to be inapplicable to a vast majority of the children coming in the current border surge. As Daniel Horowitz writes (for Conservative Review), “a vast majority are placed with parents or other relatives who are already in this country illegally.” Andrew Arthur of the Center for Immigration Studies (CIS) corroborated that in 2018: “In FY 2014, according to the Congressional Research Service (CRS), most of the UACs who were released were placed with parents or legal guardians.” And CIS’s Jon Feere, in 2014, commented: “According to advocates and media reports, around 90 percent of non-Mexican and non-Canadian children coming across the border are placed with family or guardians in the United States.”
4. Joseph Kolb is one of few authors to have brought this second issue to light (emphasis in bold here ours):
“The TVPRA calls for the HHS secretary to have the [unaccompanied] children promptly placed in the least restrictive setting that is in their best physical and emotional interest. This is the loophole HHS uses to place children with designated sponsors [who are] illegally in the United States. The law only refers to checking the sponsors’ immigration status, not [to] acting upon it. The perception by ORR [Office of Refugee Resettlement, within HHS] is that regardless of immigration status, placing the children with a parent is the preferred solution. The AP report found that more than 50 percent of the children were placed with parents.”

Democracy, Tyranny, and the NPV Compact

“The Constitution is nicely balanced, with the federative and popular principles; the Senate are the guardians of the former, and the House of Representatives of the latter; and any attempts to destroy this balance, under whatever specious names or pretenses they may be presented, should be watched with a jealous eye.” — Senator Uriah Tracy, in the U.S. Senate debates over the proposed 12th Amendment (adopted 1804)

“The mode of appointment of the chief magistrate of the United States is almost the only part of the system, of any consequence, which has escaped without severe censure, or which has received the slightest mark of approbation from its opponents. The most plausible of these, who has appeared in print, has even deigned to admit that the election of the president is pretty well guarded. I venture somewhat further, and hesitate not to affirm, that if the manner of it be not perfect, it is at least excellent. It unites in an eminent degree all the advantages, the union of which was to be wished for.” — Alexander Hamilton, Federalist No. 68

“No matter what happens in America these days — whether by fate or by plan — there is almost always another agenda or some underlying hitch ancillary to the main theme. The Bush-Gore election crisis of 2000 was nothing but a comic opera compared to the events subsequently stemming from it. Among the far more serious evils attributable to the contested election result in Florida is a loud and clear trumpet call for America to DUMP THE ELECTORAL COLLEGE and replace it with direct national elections.” — Don Fotheringham, January, 2001

Overview: The National Popular Vote (NPV) interstate compact seeks to overturn an important part of the plan America’s founders gave us for selecting a president. The drive for the compact is well on its way to becoming reality.  Working below the public radar, the drive has already convinced many state legislatures to join the compact.  This scheme has flourished because it promises to further enthrone the false idol “democracy,” which our founders recognized as a tool of tyrants (we are a Republic, a rule of law, not a democracy).  In this article, we will examine the beguiling NPV pretenses, the original plan of those who wrote our Constitution, how their plan has already been perverted, and why the NPV Compact is a dangerous step in the wrong direction.  And most importantly we will provide readers with the information and perspective they will need to influence legislators in their state to resist the drive.

Anyone researching the drive for an NPV (National Popular Vote) compact between states confronts a bewildering paradox:

  • As the NPV website says openly: “The shortcomings of the current system of electing the President stem [not from the Electoral College, but rather] from ‘winner-take-all’ laws that have been enacted by state legislatures in 48 states.”
  • Yet, what the NPV compact does, in essence, is not to repeal or neutralize these state laws, but instead to translate this “winner-take-all” electoral system from the state-vote level to the national-vote level!

Clearly, there’s more going on here than meets the eye: A national drive which would nullify the Electoral College — without actually abolishing it — justifies its agenda by a critique that points rather to a very different, almost diametrically opposite solution. If we’re to understand the NPV-compact drive, this paradox needs an explanation.

What are the drive’s complaints, then? Why is the Electoral College immune to the critique? Why, and when, did the states’ “winner-take-all” laws arise? And, why does the NPV seek to rectify them with such a strange, unseemly antidote? In answering these questions, we shall draw heavily on the NPV’s own website — mainly to deflect suspicion that we are misrepresenting their position.

The NPV Website’s Complaints
To its credit, the NPV website’s helpful “explanation” page attributes only to state “winner-take-all” laws — rather than to the Electoral College — the situations which it decries. It is quite correct in blaming these situations on these state laws — which have strongly interfered with the functioning and fundamental intent of the (so-called) Electoral College which the Constitution outlines — and, in saying that these state laws have no basis in the Constitution.

The complaints which one finds on this webpage are curious, though, in that clearly they are based on policy-values having little to do with the foundational American system and philosophy of government. Consequently, for those of us not starting from alien, non-American values, the three “issues” the group raises are without force — even if their connections of cause and effect are valid.

The two complaints which the webpage lists first will unlikely tug on the heartstrings of many: One is that “Because of these state winner-take-all statutes, presidential candidates have no reason to pay attention to the issues of concern to voters in states where the statewide outcome is a foregone conclusion.”

This complaint assumes — quite contrary to America’s founding fathers — that campaigning and getting voter-input are both vital parts of a presidential election. Moreover, it makes the outlandish assumption that an electoral candidate who does campaign should be careful to do so just as much in districts where support is overwhelmingly for or against that candidate. (What political campaign-advisor ever urged such a thing?)

The second complaint is scarcely more captivating: “State winner-take-all statutes adversely affect governance. ‘Battleground’ states receive 7% more federal grants than ‘spectator’ states, twice as many presidential disaster declarations, more Superfund enforcement exemptions, and more No Child Left Behind law exemptions.” But given that all these examples of skewed “governance” are unconstitutional, gratuitous, and illegitimate to begin with, blaming them on the electoral laws seems off-target.

The complaint which people will most likely have heard, the website expresses thus:

“[B]ecause of state winner-take-all statutes, five of our 45 Presidents have come into office without having won the most popular votes nationwide. The 2000 and 2016 elections are the most recent examples of elections in which a second-place candidate won the White House. Near-misses are also common under the current state-by-state winner-take-all method of awarding electoral votes. A shift of 59,393 votes in Ohio in 2004 would have elected John Kerry despite President Bush’s nationwide lead of over 3,000,000 votes.”

Interestingly, this complaint is non-partisan: The data the webpage cites show clearly that Republican candidates may be affected by this phenomenon as well as may Democrats.

However, the complaint is also non-American, in the sense that it is based wholly on a non-American political-philosophical assumption — the bare, unargued assumption that presidents should not “come into office without having won the most popular votes nationwide.” The website neglects to elucidate why such an occurrence would be reprehensible.

More fundamentally, it fails to explain why there should be, in any U.S. presidential election, such a number as the “popular votes nationwide.” Nowhere does the Constitution suggest this — not even in the 12th Amendment (which modified the workings of the Electoral College). However, understanding this requires at least a basic overview of the Electoral College, as the Constitution establishes it — a detour which we shall now briefly take.

The “Electoral College”
Regrettably, that NPV webpage seems to buy into the primary misconception Americans hold about the Electoral College: for it states [emphasis ours]:

“The U.S. Constitution (Article II, Section 1) gives the states exclusive control over awarding their electoral votes: ‘Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors….’ The winner-take-all method of awarding electoral votes is state law. It is not in the U.S. Constitution.”

On the contrary — not only is the “winner-take-all method of awarding electoral votes … not in the U.S. Constitution,” neither is this whole, bizarre notion of state legislatures’ “awarding their electoral votes.”

The “electors” which the Constitution directs each state to appoint were not “messenger-boys” obligated to cast votes as directed; rather, they were the persons appointed in each state (in whatever way the state legislature chose), to cast their free, uncoerced votes to nominate other persons they deemed suitable for the offices of president and vice-president.[1] Except when a majority of the electors voted for the same person, the election of the president — from among the candidates with the most electoral votes — was then to be made by the House of Representatives — with each state’s delegation casting one vote.[2]

It is crucial to understand that neither in the original Constitution, nor under the 12th Amendment, were electors to be obligated, or even influenced, by either their state legislatures, or other Electors (from their own or other states):

“It is significant to note that there was to be no connection with the Electors of other states, no campaigning, no trading of votes for future influence, or “supporting your program if you support mine.” They were to give it their best shot first — because that was the only shot they had.

“In fact, the Electors met in their separate states on the same day to avoid the chance of collaborating with the Electors from other states during this process. The Electors in each state were able to freely discuss among themselves which individuals were most qualified to be president. They were not, however, forced to conform to the nominations of other Electors from their state. Each Elector’s independent decision of which two individuals to nominate was preserved and respected.” — Gary and Carolyn Alder, The Evolution and Destruction of the Original Electoral College, pp. 23, 24

In order to help ensure this independence, no elector could be a “Senator or Representative, or person holding an office of trust or profit under the United States.”

Each state was allotted as many electoral votes as it has legislators in Congress — i.e., one vote for each of its representatives in the House, plus two votes for the state’s senators. Perhaps the most natural selection method(s), then, would construe two of the state’s electors as being delegates of the state (or the legislature) as a whole, and each remaining elector as a delegate from one of the state’s electoral districts for U.S. House of Representatives.

The latter is still the basic idea in those states which are currently eschewing “winner-take-all” laws: Maine and Nebraska. But each state legislature could adopt any method it wished for selection of its electors; and different states adopted widely varying methods. The NPV “explanation” webpage reports:

“In 1789, electors were chosen from congressional districts in Massachusetts, from special presidential-elector districts in Virginia, and by counties in Delaware. The Governor and his Council appointed the state’s presidential electors in New Jersey. State legislatures appointed presidential electors in the other states.”

The States’ “Winner-Take-All” Laws
We’ve noted that the NPV website’s arguments against states’ “winner-take-all” laws are, rather curiously, without force for those of us not buying into their policy-value assumptions — so alien to the American system. However, this does not mean that we have no complaint(s) of our own, against such laws.

In light of what we’ve just seen about the Constitution’s presidential-electoral system (commonly called the “Electoral College”), the most important thing to understand about “winner-take-all” laws is that any law (state or federal) which compels a presidential elector to vote any particular way is blatantly unconstitutional! That includes, of course, the NPV Compact.

Secondly, it’s helpful to note that such laws, at the state level, are the basis of the unconstitutional party-based-presidential-nomination systems in the 48 states with current “winner-take-all” laws. In these states, the electoral procedure these days is basically this: Each of the major parties selects a whole roster of provisional “electors” who are ready and sworn to serve as electors — and to vote for that party’s candidate — should that candidate happen to win the state’s popular vote. In the latter eventuality, the state legislature then anoints (so to speak) that party’s roster, as the state’s official electors for the election.

The nomination-function was originally the role of the electors. It was usurped first at the national level — by what were called “congressional caucuses.” By 1828, though, the usurpation had moved to the state level: The first election year in which the political parties and their “caucus” meetings at the state level assumed control of the nominating process, was 1832.[3]

Surprisingly, it took less time than that for most states to try out a “winner-take-all” type of statute. The first heavily competitive election, that of 1796, raised strongly the question of whether states’ electors should be chosen “by a general ticket [winner-take-all], or by districts”:  This was how Democratic-Republican candidate Thomas Jefferson framed the issue in a subsequent letter (Jan. 12, 1800) to James Monroe, then governor of Virginia — and likewise a Democratic-Republican.

Jefferson was still smarting from having lost the presidency by only three electoral votes “because presidential electors were chosen by district in the heavily Jeffersonian states of Virginia and North Carolina, and Jefferson lost one district in each state.”[4] In addition, both major parties (Democratic-Republican and Federalist) were disgruntled by the fact that the Electoral College system had engendered a bipartisan team of President (Federalist John Adams) and Vice-President (Democratic-Republican Thomas Jefferson).[5]

In his letter, Jefferson mentioned to Governor Monroe:

“On the subject of an election by a general ticket [winner-take-all], or by districts, … all agree that an election by districts would be best, if it could be general [to all states]; but while 10 states choose either by their legislatures or by a general ticket [winner-take-all], it is folly and worse than folly for the other 6 not to do it.”

Gov. Monroe took the hint, and the Virginia legislature swung into action:

“As a result, Virginia quickly passed a winner-take-all law in time for the 1800 election —​ thereby assuring Jefferson of all the state’s electoral votes.

“Meanwhile, the Federalist majority in the legislature of John Adam’s home state of Massachusetts —​ alarmed by rising support for Jefferson in the state —​ repealed the state’s district system —​ thereby assuring John Adams of all the state’s electoral votes in 1800.

“This triggered a domino effect in which each state’s dominant political party adopted winner-take-all so that it could deliver the maximum number of electoral votes to its party’s nominee. Ten states enacted winner-take-all by 1824….

“By 1836, all but one state had enacted laws specifying that their state’s voters would vote for presidential electors on a winner-take-all basis. By 1880, all states were using this system.”[6NPV “explanation” webpage

And, as they say, “the rest is history.”

The Strange “NPV” Antidote
Summing up: We’ve found that we who are Constitutionalists are in strong agreement with the NPV group, that the state “winner-take-all” laws are egregious — but we are in fundamental disagreement with them, as to why those laws are (in our respective views) egregious. What is less simple to elucidate, though, is why the NPV group’s action-proposal — the interstate-compact which they are pushing — displays no intent to do away with those state laws, even though it lodged all its complaints directly against them — and why it is even, in an important sense, a higher-level establishment of the same corrupt, “winner-take-all” system which those laws undergird.

What do we mean, by its “displaying no intent” to do away with the laws it is critiquing? Let’s look at exactly what the NPV group is proposing.

They are seeking for states to enter into a compact to force their electors to vote for whomever is the winner of the “National Popular Vote.” The compact would not be binding on any state signing it, until the total number of electoral votes of the states signing it is a majority of all the electoral votes.

Since Congress has 535 members, but the District of Columbia has also been given three electors, the total number of electors is 538; so, the required majority of electors is 270. When the compact enrolls states controlling at least that number of electors and those states’ electors are therefore required to vote for the national popular-vote winner, that candidate is (ostensibly) guaranteed election.

As we’ve mentioned already, this proposal is establishing something that’s clearly unconstitutional — the violation of electors’ constitutional right and duty to nominate the qualified persons whom their conscience tells them are the best nominees. That this is so clearly and incontrovertibly the case, while the NPV site argues nevertheless to the contrary, raises serious questions about the veracity and reliability of the NPV-site’s authors (and editors).

Even the NPV website admits (see its alleged “rebuttals” 9.16.2 and 9.16.7):

“[T]he Compacts Clause does not expand state powers. All compacts must be consistent with the U.S. Constitution. In particular, a compact’s subject matter must be among the powers that the states are permitted to exercise….”

As we’ve seen as well, though, they make a grave, even bizarre error, in conflating states’ (constitutional) power to “appoint electors” in any manner they wish, with their (unconstitutional, illegal) power to “award electoral votes” in (allegedly) any way they wish (e.g., “winner-take-all”). And this bizarre confusion appears, not just once, but repeatedly on the website’s pages — particularly on the pages where it is ostensibly “answering myths.”

On the basis of that (false) conflation of two very different notions, it argues that this compact does not violate the Constitution, nor change the electoral procedure stipulated in the Constitution. Much of the verbiage on its “Myths about Interstate Compacts and Congressional Consent” page boils down to this simple, but obviously unsound argument:

  1. “[T]he National Popular Vote compact does not change anything in the U.S. Constitution, and therefore no federal constitutional amendment is necessary …. Instead, the National Popular Vote compact changes state winner-take-all statutes that came into widespread use more than four decades after the Constitution was ratified. None of these state winner-take-all statutes was originally adopted by means of a federal constitutional amendment.” (Under “Myth 9.16.7”)
    1.  The state laws say (in effect): “Following the election, the state will appoint electors who are to cast all their votes for the STATE popular vote winner.”
    2.  The compact changes these state laws, to say (in effect): “Following the election, electors will be appointed in each Member State who are to cast all their votes for the NATIONAL popular vote winner.
  2. (And this is the faulty premise:) Nothing about state “winner-take-all” laws violates the actual procedural requirements laid down in the Constitution; for each state has the Constitutional authority to “award electoral votes” in any way it wishes (e.g., “winner-take-all”).
  3. So, no Constitutional amendment is necessary to effect this change: for not only does this compact leave unchanged the wording of the Constitution; also,it leaves unchanged — i.e., unviolated — the actual procedure required by the Constitution.

Thus, not only are the NPV group’s arguments for the desirability of its changes  based on highly disputable premises; but also, its argument for the legality of its changes, is based on an indisputably false one. So, the question is: Why would a group of presumably intelligent people be presenting — so zealously — such unsound arguments?

There are not very many plausible answers to this. Indeed, we have seen that both the current system’s and the NPV-engineered system’s proponents are quite comfortable with running roughshod over the Constitutional prerogatives of the electors, for the sake of a direct, popular-vote-based presidential election. The difference between the two is thus a surface difference, of implementation and tactics, only.

Let’s take an analogy: It is much like the difference between banks independently allowed to issue their own fiat paper money as “legal tender,” and a centralized banking system, in which only the head office is allowed that piratic privilege. Whether centralized and thus more-coordinated or not, the system is based on a breach of rights. And in either of the more-centralized systems we have in view, though the bumpiness of the road might be rather smoothed out, the danger that the road is heading to disaster — and the potential size of that disaster — are,if anything, actually greater.

The only plausible motive for the compact, it seems, is the same one that belonged, reportedly, to the men who set up the perverted system we have now — the lure of power:

“Ten states enacted winner-take-all by 1824 when Missouri Senator Thomas Hart Benton said: ‘The general ticket system [winner-take-all], now existing in 10 States was … not [the offspring] of any disposition to give fair play to the will of the people. It was adopted by the leading men of those states, to enable them to consolidate the vote of the State.’”NPV “explanation” webpage

This lure exists because granting the populace the conceit that it is in their own values and desires, and the vicissitudes of party temper, that the compass of sound government lies, promises demagogues a road to the heights of tyrannical power. Even before our Constitution was submitted for ratification, one founding father spoke of this conceit as the “excess of democracy”, and described its typical abuse by power-seekers:

“The evils we experience flow from the excess of democracy. The people do not want [lack] virtue, but are the dupes of pretended patriots. In Mass[achusetts] it had been fully confirmed by experience that they are daily misled into the most baneful measures and opinions by the false reports circulated by designing men, and which no one on the spot can refute.” — Elbridge Gerry, delegate from Massachusetts, speaking at the Constitutional Convention, 1787

And James Madison warned us of this same conceit, in a classic statement of the dangers of this “excess”:

“[Pure] democracies have ever been spectacles of turbulence and contention, have ever been found incompatible with personal security, or the rights of property, and have in general been as short in their lives as they have been violent in their deaths.”James Madison, Federalist Paper No. 10

The Way Forward
What should be done, instead, about our current electoral system? Given a desideratum of nullifying state’s “winner-take-all” laws — and any laws that coerce or obligate presidential electors — and given that it was fear of other states’ such laws that drove the domino effect of passing them — the idea of a state compact seems apt: Why not an NEV (National Electoral Vote) compact? When enough states have joined (having 270 electoral votes?), they would each be obliged to rescind immediately their laws that coerce or obligate their presidential electors in any way.

That’s something to be thought about, and worked through. In the meantime, though, we should certainly reject the NPV-group’s agenda. That whole program is an attempt to “remedy” — for the wrong reasons, and with the wrong motive — one grotesque perversion of the Constitution, simply by translating its basic state-vote infringement, to a national-vote scope. This is not the way to get our republic back.

Rather, we need to educate our fellow citizens, and especially our state legislators, about both the fraudulence and the ill-intention of the NPV. (To see whether or not your state has adopted the compact, please check the NPV website’s home-page.) If you have found this article a useful tool for education about those things, please share it with all who need to learn of them.

Notes

1. Their votes were, of course, restricted by the Constitution’s rules about who is eligible to be President or Vice-President; and, in both Article II and Amendment 12, at least one of each elector’s two votes had to be for someone not “an inhabitant of the same State with themselves.”
2. The main change the 12th Amendment introduced is that the two nominations each elector made were now specific to a particular office: one nomination was for the office of president, and the other for the office of vice-president. Also, the Amendment made some minor adjustments to the process of final selection by the House, for each of these offices.
3. Alder & Alder, Ibid., pp. 54, 55. This is a useful book for studying the history of the Electoral College.
4. NPV “explanation” webpage, under “History of State Winner-Take-All Laws.”
5. Alder & Alder, Ibid., pp. 60, 61.
6. Maine adopted district elections for its electors in 1969, and Nebraska did so in 1992.

The Wacky World of “Delegate Bills”

Opponents of state legislatures’ applications to Congress to call an “Article V Convention” are often also battling “delegate bills” — also known as “unfaithful delegate laws.” Such state-legislative bills are ostensibly intended to prevent delegates to an Art. V convention from going beyond the purpose of the state’s request to Congress — which is usually a convention that will propose only one amendment, and only on some specific topic (e.g., term limits).

On first blush, it might seem that by opposing delegate bills, opponents of an Art. V Convention (“Con-con”) are fighting contrary to their own interest: After all, such activists warn against a possible “runaway convention” and preventing that outcome is (supposedly) what delegate bills are for!

In fact, though, a delegate bill is only somewhat less dangerous than an actual Con-con-application by a state. This post will unravel the real nature, and danger, of these bills.

Delegate Bills’ Implicit Assumption Is What Con-con Opponents Reject

Usually, when someone opposes a measure, it’s because they want to avoid the effects mentioned in the measure itself. But in the case of “delegate bills,” we oppose the measure because we want to avoid anyone accepting the false suggestion implicit within the measure.[1]

In delegate bills, the false, dangerous unstated presupposition is the idea that state legislatures can control the proceedings of an Article V convention, once Congress has called it! For a state-legislative committee or chamber even to vote on such a bill is for it to accept implicitly this wildly specious assumption — which assumption, if the bill passes, can only give the state’s legislators false confidence that they can apply for an Article V Con-con with perfect safety.

Therefore, we must oppose any move to bring a delegate bill to a vote. But if it does come to a vote, we must push strongly for the rejection of the bill — which rejection will obstruct the inducement of this false confidence, and thereby make less likely the passage of an Art. V application (and make more likely the rescission of any application already passed).

Are delegate bills really as disconnected from reality, though, as Con-con opponents believe? Oh, yes! The rest of this post will review why the delegate bills’ unstated assumption is truly outlandish.

The Basic American Principle Which That Assumption Ignores

In the first place, the delegate bills’ unstated assumption is strikingly out of touch with a fundamental principle of government our Founding Fathers believed, and which is implicit in the first three words of our Constitution: “We the People….” Our Declaration of Independence stated the principle explicitly (see our emphasis, below, in bold):

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. — The United States Declaration of Independence, July 4, 1776; Paragraph 2

OK, you say; but did the Founding Fathers, and the People, really believe this principle (which was later called “Popular Sovereignty”) from 1776 to 1787 (the year a convention produced our current Constitution, including Article V)? Yes, definitely — the principle had become very dear to their hearts: In fact, they used it in the creation of, and then re-stated the principle in, the constitutions for most of their newly-freed states.

Therefore, the burden of proof is certainly on those, such as Prof. Rob Natelson, who claim that the drafters of our current Constitution had a quite different notion of constitutions, conventions, and sovereignty in mind while drafting Article V! But there is little need to quibble about who has the burden of proof, for even the founders they most like to quote disagree: we can cite telling statements from both Roger Sherman and George Mason regarding Article V — both of whom were in the group that did the major work on its drafting.

Moreover, we have the full, clear statement of another major participant in its drafting, James Madison, who later, in Federalist Paper 40 (the last 4 paragraphs), cited the Declaration of Independence on this very principle to justify the “runaway convention” of 1787. For Madison, that convention exemplified:

the transcendent and precious right of the people to “abolish or alter their governments as to them shall seem most likely to effect their safety and happiness,”….

At that 1787 convention, in arguing for giving the People, rather than state legislatures, power to ratify the new Constitution, George Mason expressed the principle well:

[State legislatures] are the mere creatures of the State Constitutions, and cannot be greater than their creators.… Whither then must we resort? To the people with whom all power remains that has not been given up in the Constitution derived from them. It was of great moment [Mason] observed that this doctrine should be cherished as the basis of free Government. — Max Farrand, Records of the Federal Convention of 1787, Vol. II, p. 88

Therefore, since clearly the kind of drafting-convention Article V has in view is a convention of The People’s (not the legislatures’) delegates, we can affirm that within the American philosophy of government, state legislatures have no authority at all to command Article V convention delegates as to what they may or may not propose. So much, then, for the viewpoint of American jurisprudence.

But, someone might say — granted, Article V conventions are true constitutional conventions, exercising the People’s sovereign, “self-evident” right to “alter or abolish” forms of government. Even so, couldn’t state legislatures still figure out some way, possibly, to control the delegates to an Article V convention? Aren’t some of these delegate bills quite inventive, after all, in the mechanisms they contrive for making the convention-delegates toe the line? Isn’t it remotely possible, that some of those mechanisms might work?

The Insurmountable Legal Hurdles over Which the Assumption Stumbles

As we shall see, blogger and former litigation-attorney Publius Huldah is right on target in the way she has answered that question: “[A]ttempts to control Delegates with ‘unfaithful delegate’ laws are laughably ineffective.” Let’s consider a few simple reasons why that’s true — even leaving aside, for the moment, the above basic principle of American jurisprudence.

Many or most delegate bills speak as if it were completely up to state legislatures to sort out who the delegates will be (representing the legislature, after all — as these bills wrongly presuppose!), as well as, all the rules and procedures of the convention itself. In short, the people drafting delegate bills tend to do it as if Article V adds, “After Congress calls the (drafting) convention, the State Legislatures shall all go off and figure out everything about how the convention will run: who will be sent to it, what motions shall be in order when, etc., etc.”

Does it say that, though? No, Article V does not say that. It says simply, “The Congress … on the application of the legislatures of two-thirds of the several States, shall call a convention for proposing amendments.…” After applying to Congress to call such a convention, the state legislatures have no further role in the process.

Admittedly, neither does Article V delegate to Congress (explicitly) such tasks as providing a selection-method for delegates. However, Article I, Sec. 8 concludes with the “Necessary and Proper Clause,” which delegates to Congress the right to make any laws “necessary and proper for carrying into execution” all powers given to Congress explicitly in the Constitution — e.g., the Art. V power to “call a convention for proposing amendments” when two-thirds of the states apply for it.

The Congressional Research Service, an agency within the Library of Congress, suggests that Congress alone has the power to organize the convention.  In its 2014 report entitled “The Article V Convention to Propose Constitutional Amendments: Contemporary Issues for Congress,” the Research Service states on page 4:

[W]hile the Constitution is silent on the mechanics of an Article V convention, Congress has traditionally laid claim to broad responsibilities in connection with a convention, including (1) receiving, judging, and recording state applications; (2) establishing procedures to summon a convention; (3) setting the amount of time allotted to its deliberations; (4) determining the number and selection process for its delegates; (5) setting internal convention procedures, including formulae for allocation of votes among the states; and (6) arranging for the formal transmission of any proposed amendments to the states.

Another mechanism one finds in some delegate laws is reminiscent of children playing in a schoolyard, where one of the children, not liking the way the game is going, announces huffily he is through, picks up his toys, and heads for home. Apparently, some state legislators believe that a similar behavior on the part of their delegates, in case the Art. V convention doesn’t go the way they like, will not merely show their displeasure, but also somehow pull the plug on the convention, ending its work.

One way to look at this remarkable assumption is to ask whether Article V says (or implies somehow) that the convention’s work will not be considered to have completed legitimately unless no state legislature withdraws its application, before the work’s completion. But of course, it does not say (or imply) that; nor is there the slightest reason, in the Article itself or in American jurisprudence or legal history, to imagine that a state’s application has any further effect once Congress has accepted and tallied it.

One final delegate-control mechanism we shall consider is the legislature’s threat of punishment — or at least, withdrawal from the convention — of any delegate who votes contrary to the intent of the state’s application for a convention. Indeed, some delegate bills have classified all such “unfaithful” voting punishable as a felony!

Such a mechanism assumes, however, that the state legislature will be kept strictly apprised of what’s going on within the convention — including, who voted how on what. But this is a spurious assumption.  Since state legislatures do not control its procedures, the convention could have voice votes — in which case no one knows who voted how — or, even if the votes be by rollcall, they could be by secret ballot. Or, the secrecy could be made complete: As happened early in our own, 1787 constitutional convention, the assembly could simply vote to keep the entire proceedings secret!

Thus — as we said above — state legislators are quite divorced from reality when they suggest that they can control an Article V convention’s deliberations. Often, it is difficult not to laugh at the ingenious but impotent devices whereby they expect to control such a convention.

However, it is not mere courtesy that prevents us from laughing at these failed attempts. For the danger that these incapable delegate bills present is not a laughing matter: Our brilliant Constitution, a true wonder of the ages, is in danger! We must make clear to all state legislators enticed by these siren songs, that “delegate bills” cannot control an Article V convention!

 * * *

[1] That is to say, whether the measure should be passed or rejected is, in the case of delegate bills, not a simple, but a “complex” (a.k.a. “loaded”) question! And as logicians and rhetoricians warn,

A “loaded question”, like a loaded gun, is a dangerous thing. A loaded question is a question with a false or questionable presupposition, and it is “loaded” with that presumption. The question “Have you stopped beating your wife?” presupposes that you have beaten your wife prior to its asking, as well as that you have a wife. If you are unmarried, or have never beaten your wife, then the question is loaded.…

So, a loaded question is one which you cannot answer directly without implying a falsehood or a statement that you deny. For this reason, the proper response to such a question is not to answer it directly, but to either refuse to answer or to reject the question. — http://www.fallacyfiles.org/loadques.html

 

How to Perpetuate Roe vs. Wade

Writing for Conservative Review about the “worthless” confirmation hearings for SCOTUS nominee Brett Kavanaugh, Daniel E. Horowitz starts with a question we consider fundamental:

How much longer are conservatives going to continue playing this cat-and-mouse game with the courts? Democrats have demonstrated that through their ideological extremism and shamelessness, they will savage any nominee, whether he is in the mold of Anthony Kennedy or Clarence Thomas. They will accuse us of litmus tests and having guarantees, as they absolutely have from every one of their lower court and Supreme Court nominees. So why not actually nominate a guaranteed Clarence Thomas who is unashamed to articulate the authentic view of the important constitutional clauses without playing the game of agreeing with premises of people who will never vote for you anyway?
— Daniel E. Horowitz, Top 9 observations on the worthless Kavanaugh hearings, September 6, 2018

Exactly. Given Trump’s opportunity to nominate a real constitutionalist to replace Justice Anthony Kennedy — who upheld Roe vs. Wade every time he had the chance — why waste it by nominating a clone of Kennedy?

Kavanaugh No Threat to Roe
Make no mistake: Despite Leftist propaganda, the Kavanaugh nomination poses no threat to Roe — a ruling which even a majority of liberal judicial scholars considers embarrassingly unconstitutional. Rather, this nomination’s perpetuation of Roe is much more likely:

When prompted by [Sen. Dianne] Feinstein on Roe and Casey, Kavanaugh emphatically referred to these cases as “precedent upon precedent.” It seems that with every new GOP nominee, with the exception of Alito, the nominees get more categorical with their agreement thatRoe is settled, and it seems that Kavanaugh used the most unqualified language…. Anyone who tells you [Kavanaugh] is likely to overturn Roe is lying. We just don’t know, and he certainly indicated the opposite. This was the 45-year promise, and it’s gone.
— Daniel E. Horowitz, ibid.

With regard to Trump, however, one must admit that the man never campaigned very seriously as anti-abortion or pro-family — or even constitutionalist. It is not really surprising, therefore, that he followed such bad “advice” as to nominate Kavanaugh.

Pro-Family Groups AWOL
What is shocking, even if it shouldn’t come as a real surprise, is that so many “Christian” and other allegedly “pro-family” groups — on the whole sadly AWOL, on family issues, since Trump’s inauguration — have supported or been at best wishy-washy about Kavanaugh’s confirmation. They are thus betraying their own constituency — including the tens of millions of unborn babies aborted because of the 1973 Roe ruling.

One notable exception to the “fecklessness” (Horowitz’s description) of conservative groups, re Kavanaugh, is the Judicial Action Group. Their Phillip L. Jauregui came out strongly against not only Kavanaugh’s nomination, but also his confirmation. (Unfortunately, Jauregui’s prediction of that confirmation’s failure was overly optimistic.) Also a very few conservative authors or journalists, including Cliff Kincaid and Gregg Jackson, have excoriated the Kavanaugh nomination and called for its rejection.

But again, these are the exception to the rule. Namby-pamby “pro-family” groups who expressed some doubts re Kavanaugh but remained non-committal pending his confirmation hearings, have swallowed the poisonous advice of well-known “Pied Piper” Tony Perkins, of the “Family Research Council”:

“Anyone who doubts Kavanaugh’s bona fides should keep in mind: this president has an exceptional track record on the judiciary,” says FRC’s Tony Perkins. “For the time being, we have to trust President Trump’s judgment — a benefit of the doubt that, based on his previous nominees, he’s earned.”
— OneNewsNow, Questions about Kavanaugh temper enthusiasm for Trump pick, July 11, 2018

Say what? Perkins is effectively advising us to put personality above principle. But conservatives, particularly Republicans, have had 60 years to notice how suicidal that strategy is. Nor has any media source — including any “right-wing” media — ever explained how that strategy makes any sense.

So, what does explain the recent AWOL and feckless nature of the “pro-family” lobby? There seems no shortage of money sloshing around in those groups; but, apparently, the agenda that these dollars are pushing is not really the “Christian,” pro-family, or Americanist one. Rather, their absence of principled opposition to Kavanaugh suggests a strange willingness to reinforce Roe vs. Wade as (horribly unconstitutional) judicial precedent.

True pro-family conservatives need to get much more selective, regarding to whom they send their hard-earned dollars — as well as, whom they support for their Congressional seats, and for other federal offices. One telltale sign of a group or campaign that is set up simply to siphon off conservative money and make it ineffective is that the group or campaign never mentions Congress’s constitutional power, in Art. III, Sec. 2, to restrict the jurisdiction of federal courts.

Of Treaties, Betrayals, and Trump

Over the past century, the right accused liberals and Democrats of excusing the crimes of Josef Stalin, Mao Zedong, and Fidel Castro. Often, the criticism was well-founded.…​

All these charges have deafening echoes today. But this time, the credulous appeaser failing our allies is a Republican president. For communist dictators such as Xi Jinping and Kim Jong Un, Trump exudes admiration and amity. To the anti-Western Russian President Vladimir Putin, he offered congratulations for winning a rigged election.

When it comes to Canada’s Justin Trudeau and Germany’s Angela Merkel, by contrast, he seethes with resentment. With Trump, it’s better to be a long-standing American adversary than a faithful ally.

— Stephen Chapman, “How Trump’s Republican Party Went Soft on Communism,” Reason.com, June 18, 2018

“This is what North Korea has wanted from the beginning, and I cannot believe that our side allowed it,” said Joseph Y. Yun, a former State Department official who has negotiated with the North. “I am quite simply surprised that months of negotiations produced so little.”

“The Trump-Kim Summit Was Unprecedented, but the Statement Was Vague,” The New York Times, June 12, 2018

Trump and Kim appear to be bosom buddies now —​ after a few hours of tete-a-tete. However, even that astonishing result fails to account for the message Trump sent to the “citizen”-slaves of North Korea:

Trump went so far as to praise Kim in a message directed to the North Korean people, when Greta Van Susteren, who was conducting an interview for Voice of America that “will be heard in North Korea,” asked what he wanted the North Koreans to know.

“Well, I think you have somebody that has a great feeling for them. He wants to do right by them and we got along really well”, he replied. “We had a great chemistry — ​you understand how I feel about chemistry. It’s very important. I mean, I know people where there is no chemistry no matter what you do you just don’t have it. We had it right from the beginning, I talked about that and I think great things are going to happen for North Korea.”

— “Marco Rubio Sees Silver Lining in Trump’s Warmth towards Kim Jong Un,” The Washington Examiner, June 12, 2018

Apparently, Trump thinks he can enlighten the North Korean people — inform them, if you please — about what a swell guy their supreme leader is. Yes —​ here Trump is ostensibly selling, to the North Korean people, their own supreme leader.

“Great things are going to happen for North Korea.” He sounds like he’s in a political campaign, to elect Kim supreme leader! (But if Kim’s such a swell guy, why have no “great things” happened for them already?)

Why would Trump throw them this sales pitch? What U.S. interest could it possibly serve?

For that matter, why would Trump think it necessary for him to enlighten them? If Kim is truly “somebody that has a great feeling for them” and “wants to do right by them,” how could they fail to perceive that? Moreover, how could they not be in a much better position than Trump, to know whether it is true?

So, what Trump is ostensibly trying to do with his Voice of America message, makes no sense. But consider what his statement does indeed tell the North Koreans — ​albeit “between the lines”: It lets them know, for sure, that the United States Government is either on the friendliest of terms with Kim, or afraid of him, or else really on his side. No other interpretations of Trump’s behavior are plausible.

Is conveying that implicit message an aim that does make sense of Trump’s action here? Yes, but only if he or his administration are trying, ultimately, to shore up Kim’s dictatorship — which is, of course, not a U.S. national-security concern.

Two questions present themselves:

  1. How would his statement help do this? and,
  2. Is it even conceivable, that Trump or his administration would want to shore up Kim’s dictatorship?

Our answer to the first question: It gives such dictators a greater security from the occurrence they fear the most:

A very large part of the total effort of the Kremlin tyrants is spent in building up their bluff of unassailable power —​ as in constantly demonstrating and re-advertising to the world how completely the United States Government is on the friendliest of terms with them, or is afraid of them, or is really on their side. This is because they have only one great fear as to physical or military danger. But it is something they live with all their lives. And that is the fear of a simultaneous uprising of the subjugated peoples.

For if the East Germans should rise with the fervor they showed in 1953, and the Poles and Hungarians with the bravery they proved in 1956, and the Chinese with the suicidal determination so frequently demonstrated by millions of their compatriots ever since 1950, and the Indonesians with the courage of the “Colonels” in Sumatra only two or three years ago, and the Russians themselves with the daring that was exemplified at Vorkuta; if these and all of the other enslaved subjects of the Communist hierarchy should revolt and begin to fight all at the same time, and even if they had in the beginning only sticks and stones for weapons, the lords of the Kremlin could not last three months against such an uprising —​ and they know it! So they arrange to precipitate uprisings, one by one and here and there, in accordance with their own time table, to entice each separate underground opposition out into the open and destroy it.

But a clear-cut shooting war, between the Soviets and the United States, would be an automatic signal for simultaneous revolt. For war on any such scale simply could not be kept from the knowledge of even the most isolated and oppressed people. And hundreds of millions of desperate human slaves all over the world would immediately realize that it was now or never. It would produce that very coordination of resistance which the Kremlin seeks above all else to avoid….

It is … precisely because no earthly power could drag the Soviets into a real war or an honest war with the United States today that they beat their breasts so much and threaten war so loudly and so often.

— Robert Welch, The Blue Book, 1961, pp. 30, 31n.

OK; but how about the second question: Is it even conceivable that Trump or his administration would want to shore up Kim’s dictatorship? At the risk of appearing a bit cagey, we shall say simply that this has been an unfailing achievement of the foreign policy of each U.S. president since FDR. That Trump is continuing in this consistent pattern, should hardly be amazing.

Indeed, there is no lack of examples of such friend-betraying, Communist-dictator-helping behavior on the part of U.S. presidents —​ including Republican ones. For example, we shall quote Robert Welch once more, regarding one such Republican:

There have been few crimes in history more brutal and more extensive than [the “Operation Keelhaul”] forced repatriation of anti-Communists, to which Dwight Eisenhower committed the honor of the United States. Dragging the honor and reputation of our country through such pools of bloody betrayal, and thus convincing anti-Communists of either the stupidity or the pro-Communism of the United States, was of course one of the objectives.…​ You can find excuses and reasons for Eisenhower’s conduct, or for various separate parts of it, by the dozen, if your credulity can stand the burden. But there is one simple, plain, straightforward reason which completely solves the whole problem, without leaving a single loophole. And we do not need to spell it out any more.

— Robert Welch, The Politician, 1963, p. 46

The “Diversity” Police Draw Down … on Diversity

Apparently, spokesmen for the “diversity” agenda are useful to that agenda’s authors only if they can use diversity as a weasel-word. Like so many nice-sounding words in the Marxist vocabulary (e.g., freedom and equality), what diversity means to the trained revolutionary is basically the opposite of what it means to the rest of us.

Any “diversity” spokesperson who ignores that fact can potentially subvert the revolutionary narrative. That’s why it needed correcting immediately, when recently one such spokesperson veered off script.

What did she say that was so upsetting to the “diversity” police? Here is the dangerously Americanist take on diversity she leaked:

“I focus on everyone. Diversity is the human experience. I get a little bit frustrated when diversity or the term diversity is tagged to the people of color, or the women, or the LGBT or whatever because that means they’re carrying that around … because that means that we are carrying that around on our foreheads.

“And I’ve often told people a story — there can be 12 white, blue-eyed, blonde men in a room and they’re going to be diverse too because they’re going to bring a different life experience and life perspective to the conversation. The issue is representation and mix and bringing all the voices into the room that can contribute to the outcome of any situation.”
— Denise Young Smith,  Apple’s first-ever Vice President of Diversity and Inclusion

In retrospect, it might have been particularly impolitic to offer this nugget of good sense at the One Young World Summit in Bogotá, Colombia, in a panel discussion on fighting racial injustice. In any case, she was quickly called on the carpet.  We can infer this from the fact that she emailed a groveling apology just a few days later:

Colleagues,

I have always been proud to work for Apple in large part because of our steadfast commitment to creating an inclusive culture. We are also committed to having the most diverse workforce and our work in this area has never been more important. In fact, I have dedicated my twenty years at Apple to fostering and promoting opportunity and access for women, people of color and the underserved and unheard.

Last week, while attending a summit in Bogota, I made some comments as part of a conversation on the many factors that contribute to diversity and inclusion.

I regret the choice of words I used to make this point. I understand why some people took offense. My comments were not representative of how I think about diversity or how Apple sees it. For that, I’m sorry.

More importantly, I want to assure you Apple’s view and our dedication to diversity has [sic] not changed.

Understanding that diversity includes women, people of color, LGBTQ people, and all underrepresented minorities is at the heart of our work to create an environment that is inclusive of everyone.

Our commitment at Apple to increasing racial and gender diversity is as strong as it’s ever been. I’m proud of the progress we’ve made, but there is much work to be done. I’m continually reminded of the importance of talking about these issues and learning from each other.

Best,

Denise

That a black woman with 20 years of experience working in the mostly white, male environment at Apple should have to issue an apology for alleged insensitivity to diversity concerns, shown just by her stating these sane, obvious truths, speaks volumes about the real agenda of the ostensibly charitable “diversity” police. In short, it has nothing to do with the everyday, American concept of diversity. Instead, it is the veiled, revolutionary usage of the term that is at play. And like every other nice-sounding, emotionally-charged word in the Marxist lexicon, this concept boils down to really meaning, “a Marxist-controlled socialist dictatorship, in which everyone does and says just what they’re told.” Because to Marxists, that’s paradise.

Murray Rothbard, the great Austrian-school economist and libertarian, wrote this incisive paragraph about Marxism and diversity:

“A hallmark of every utopia is a militant desire to put an end to history, to freeze mankind in a static state, to put an end to diversity and man’s free will, and to order everyone’s life in accordance with the utopian’s totalitarian plan. Many early communists and socialists set forth their fixed utopias in great and absurd detail, determining the size of everyone’s living quarters, the food they would eat, etc. Marx was not silly enough to do that, but his entire system, as Thomas Molnar points out, is ‘the search of the utopian mind for the definitive stabilization of mankind or, in gnostic terms, its reabsorption in the timeless.’ For Marx, his quest for utopia was, as we have seen, an explicit attack on God’s creation and a ferocious desire to destroy it.”
— Murray Rothbard, An Austrian Perspective on the History of Economic Thought (1995), vol. 2, chap. 11

But if the hard left are not really concerned about human diversity, why would they even raise concerns about these particular “minority” groups—​the LBQT, females, and non-whites? It’s because they have hand-picked those groups whose grievances (real or fictional) can be used to engineer a revolution that would produce such a Marxist “utopia.”

This is the overlooked truth of the current “diversity” hue and cry. Many have expressed this truth, although perhaps none more clearly than the blogger David Hilton (writing as “Moses Apostaticus”). It’s a truth the American people need to learn, well and quickly:

“Many Americans are familiar with political correctness, yet may not be familiar with its origins in cultural Marxist theory.… [C]ultural Marxism argues that … the nuclear family, traditional morality and concepts of race, gender and sexual identity … [are] chains of tyranny which must be broken by revolution.

“Modern woman, are you unhappy in your marriage? Are the responsibilities of motherhood and the burdens of work getting you down? Patriarchy! Black man, do you feel hard done by? Does it seem like the deck is always stacked against you and you can’t get a break? Racism! Gay man, are you tired of the sneers and microaggressions of straight men? They’re afraid that they’re gay too. That’s why they hate you!

“These are the narratives which are paraded endlessly in our education system. They are not natural or accidental. They have been constructed by intellectuals and academics who have had a radical agenda to transform the nation, and benefit themselves in the process.…

“Marxism is always cloaked in high-sounding utopian rhetoric. This is a ruse. What cultural Marxists seek has nothing to do with true diversity, social harmony or universal tolerance. They don’t want the races getting along. They seek power. The solution for the perceived injustices that Cultural Marxists have manufactured is radical social engineering. The power to carry out this social engineering must be given, of course, to a politically-correct elite determined to remake society along ideological lines.”
— Moses Apostaticus, “Cultural Marxism Is Destroying America”