Jeremiah's Letter to the IRS

I finished my taxes last night and was quite frustrated with the process. So I decided to write this letter to the IRS and also send it to my elected officials to just remind them that someone is willing to say something.

This idea came from reading an article several months ago about how Donald Rumsfeld sends an incredible letter to the IRS every year. So to follow in his footsteps, I just dropped my own letter into the mail, but I thought I'd share it with you too.

What would you say to the IRS?

Post by Jeremiah Lorrig

FDR's Supreme Court

In 1933 Franklin Delano Roosevelt replaced Herbert Hoover as President of the United States. At that time, the progressive democratic movement had hit a barrier in the Supreme Court. A number of progressive legislative initiatives had been declared unconstitutional, as were significant portions of Roosevelt's first wave of New Deal legislation. To counter that, Roosevelt sought judicial appointments who were more sympathetic to his legislative ends.

This is the story Noah Feldman, professor at Harvard Law School, addresses in his book Scorpions: The Battles and Triumphs of FDR's Great Supreme Court Justices. Specifically, Feldmon focuses on four particular appointments: Hugo Black, William Douglas, Felix Frankfurter, and Robert Jackson. These four men would influence the legal system for decades--Justice Douglas served until 1975.

As Feldman shows, however, each of these four men solved the issue of disliked Supreme Court precedent in his own way--and by so doing laid the foundation for nearly the entire spectrum of what we now consider judicial philosophies. Black took an originalist route, focusing on ideas such as historical research and original intent to correct the errors that had crept into the Court's jurisprudence. Douglas ended up taking a rights-based tack, using the court to further individual rights (more liberal than libertarian, although Feldman conflates the two). Jackson (who took a break from the Court to be a prosecutor at the Nuremberg trials) took a pragmatist approach, using the balance of powers as his guide in determining disputes between the governmental branches. And finally, Frankfurther took a position of deference to the legislature--a position that guaranteed liberal outcomes when a liberal legislature was in power yet ended up affirming much more conservative outcomes as the makeup of the legislature changed (allegations that he was inconsistent reveal more about the changing political landcape than his own changes in philosophy). So although they were all appointed by Roosevelt, and although during Roosevelt's administration they were all fairly reliable votes for him, after his death their various strands of jurisprudence diverged. One of the Justices' clerks referred to them as scorpions fighting in a bottle (hence FEldman's somewhat odd title.)

What was most surprising to me (well, besides the fact that neither FDR nor Jackson graduated from law school) was that although all four were deemed "liberal" in their day, in hindsight they largely encompass the entire spectrum of judicial philosophies used today, be they liberal or conservative, activist or deferential. In this sense, then, we are all "liberals" now in our thinking about judicial philosophy at all.

Yet this reveals one of the key elements missing from the book. Although Feldman does an excellent job of tracing the constitutional legacy of these Justices, and of introducing the reader to their individual histories, he does not nearly pay enough attention to any judicial philosophies that existed prior to their appointment. One is left with the impression that Black invented originalism, or that Frankfurther was the first to view judicial review through a lens of deference to the legislature. However, as the Court was over 150 years old at the time of their appointment, there were plenty of prior Justices who had also left their interpretative mark. Yet Feldman leaves the impression that (apart from Holmes and Brandeis) FDR's Justices largely stepped into a vacuum. In short, while he is quite insightful of the downstream effects of the FDR Court, he could have spent more time developing the upstream influences.

Be that as it may, it was not the emphasis of the book, and is only a side critique. Apart from that, Feldman's book makes a good guide for anyone seeking an introduction to the constitutional thought of the FDR Court and its lasting legacy. It also reveals the individual personalities of the various Justices and lets the reader see past their judicial opinions into how they thought.

Click here for more book reviews.

Rendezvous with Destiny

I am always surprised at how easy it is to think of the outcome of historical events as somehow foregone conclusions. Of course, the Allies won WWII. Of course, the Civil Rights movement succeeded. Of course, Abraham Lincoln held the Union together. Of course, a handful of colonists successfully threw off British rule. They happened, therefore they were inevitable.

Part of that is that we look back with clearer vision. But another part is that we determine what is significant from the outcome. Those living before the outcome, however, had no such guide.

So of course, it is tempting to say that Ronald Reagan had to beat Jimmy Carter in 1980. Carter was weak, Reagan was, well, Reagan. But to say that would be to let the outcome determine how we view the campaign.

This is where Craig Shirley is helpful. His book Rendezvous with Destiny: Ronald Reagan and the Campaign That Changed America, gives a blow-by-blow of Reagan's 1980 campaign for the White House. Shirley, a former Reagan aide and campaign worker, has done extensive research into the details of the Reagan, Carter, Bush, Kennedy, Anderson, Connally, and others' campaigns for President that year. This is his second book on a Reagan campaign, the first being Reagan's Revolution: The Untold Story of the Campaign That Started It All, about Reagan's failed 1976 primary challenge to President Ford.

If detail on the politics and maneuvering of this monumental election is what you are looking for, this is probably the definitive source. Shirley captures both the high-level rhetoric and the daily grind of politicking. In fact, the level of detail is one of the greatest drawback of the book. At 600 pages, it includes so many asides and secondary stories that, at times, the overarching narrative disappears. It would have been a better book had a hundred or so pages been edited out.

Nonetheless, it is the story of what happened. The story of how an campaign that had been a toss-up all summer, and which one week before looked tilted in favor of the incumbent, ended up being a landslide the other direction. It's a story of strategies, victories, errors, and bungles on both sides. Of the confusing muddle of elections. And most of all, how little in history is a foregone conclusion. This is an important volume to add to the library of anyone seriously interested in significant historical campaigns.

In closing, I'll leave you with clips of the NBC and CBS election night coverage. Although all the networks had anticipated it being a long night, the election was called for Reagan at 8:15 p.m. EST, before the polls were even closed in the western states. Reagan went on to win the electoral college by a margin of 489 to 49. Carter only won the states of Minnesota, Georgia, West Virginia, Maryland, District of Columbia, Rhode Island, and Hawaii.

Click here for more book reviews.

Immigration History: The Constitutional Question

Previous: A National Policy

In this post we finally directly face the constitutional question that has been haunting this entire series. Prior to the Civil War, most constitutional discussion about immigration authority involved the commerce clause. However, and quite likely as a result of distaste with the "people as commerce" implications of such an argument in light of the slavery question, that line of thinking was largely abandoned in the second round of immigration cases.

In 1875 the Supreme Court again considered to what extent states could restrict immigration. After the Passenger Cases resulted in the invalidation of the state taxes on immigration, New York modified its laws. Instead of a tax on immigrants, New York adopted a $300.00 per-passenger bond on ship captains for the purpose of indemnifying the city for any expense the immigrants might cause during their first four years in the country. However, instead of paying the bond, the captain also had the alternative of paying a $1.50 per-passenger fee. If neither was paid, a $500 per-pauper penalty was imposed on the captain.

The Court reviewed this statute in Henderson v. Mayor of City of New York, 92 U.S. 259 (1875) and held that it was an unconstitutional because regulation of commerce and international relations were exclusive matters for the federal government. The Court explained:

A regulation which imposes onerous, perhaps impossible, conditions on those engaged in active commerce with foreign nations, must of necessity be national in its character. It is more than this, for it may properly be called international. It belongs to that class of laws which concern the exterior relation of this whole nation with other nations and governments. If our government should make the restrictions of these burdens on commerce the subject of a treaty, there could be no doubt that such a treaty would fall within the power conferred on the President and the Senate by the Constitution. It is in fact, in an eminent degree, a subject which concerns our international relations, in regard to which foreign nations ought to be considered and their rights respected, whether the rule be established by treaty or by legislation. 

It is equally clear that the matter of these statutes may be, and ought to be, the subject of a uniform system or plan. The laws which govern the right to land passengers in the United States from other countries ought to be the same in New York, Boston, New Orleans, and San Francisco. A striking evidence of the truth of this proposition is to be found in the similarity, we might almost say in the identity, of the statutes of New York, of Louisiana, and California, now before us for consideration in these three cases. 

It is apparent, therefore, that if there be a class of laws which may be valid when passed by the states until the same ground is occupied by a treaty or an act of Congress, this statute is not of that class.

 * * *

We are of opinion that this whole subject has been confided to Congress by the Constitution; that Congress can more appropriately and with more acceptance exercise it than any other body known to our law, state or national; that by providing a system of laws in these matters, applicable to all ports and to all vessels, a serious question, which has long been matter of contest and complaint, may be effectually and satisfactorily settled.

This decision was released six months after Congress adopted its first national restrictions on immigration. However, Henderson is not the case pointed to for the federal immigration authority. For that, we need to fast forward another fourteen years. This time, instead of a challenge to state policies (which only indirectly involved federal powers), the Court was squarely face with the question: are federal immigration restrictions permitted under the Constitution.

The answer was yes, but the reasoning is one that ought to bother both originalists and textualists.

As you will remember from the last post, Congress passed the first of the Chinese Exclusion Acts in 1882. In 1889, a challenge to these restrictions was decided by the Supreme Court in The Chinese Exclusion Case (Chae Chan Ping v. United States), 130 U.S. 581 (1889).

In 1884 Congress had established a system of giving licenses to certain Chinese laborers who were in the country which would grant them permission to return should they visit China. However, in 1888 Congress revoked that return privilege, resulting in the exclusion of all those who had departed the country with the expectation of an ability to return. Chae Chan Ping was one such laborer. After working in the United States for a number of years, he obtained the certificate permitting his return entry and departed for China. However, since the law was changed in his absence, he was denied reentry upon his return to the United States. He brought suit on two grounds: that the Congressional act violated a treaty with China and that it was an unconstitutional exercise of federal power. He lost on both grounds.

First the Court examined the law in light of the 1868 treaty with China which guaranteed free migration between the two countries (an 1880 modification permitted some restrictions, but not absolute prohibition) and held that treaties have no force without implementing legislation and do not bind the legislature:

The treaties were of no greater legal obligation than the act of Congress. By the Constitution, laws made in pursuance thereof, and treaties made under the authority of the United States, are both declared to be the supreme law of the land, and no paramount authority is given to one over the other. A treaty, it is true, is in its nature a contract between nations, and is often merely promissory in its character, requiring legislation to carry its stipulations into effect. Such legislation will be open to future repeal or amendment. If the treaty operates by its own force and relates to a subject within the power of Congress, it can be deemed in that particular only the equivalent of a legislative act, to be repealed or modified at the pleasure of Congress. In either case, the last expression of the sovereign will must control.

In short, the courts are not the proper mechanism for holding Congress to a treaty and Congress can follow or not follow a treaty as it sees fit.

The Court next turned to the constitutional question, holding that since immigration was a national issue, of course power to regulate it belonged to the national government:

That the government of the United States, through the action of the legislative department, can exclude aliens from its territory is a proposition which we do not think open to controversy. Jurisdiction over its own territory to that extent is an incident of every independent nation. It is a part of its independence. 

* * * 

The power of the government to exclude foreigners from the country whenever in its judgment the public interests require such exclusion has been asserted in repeated instances, and never denied by the executive or legislative departments.

* * * 

The power of exclusion of foreigners being an incident of sovereignty belonging to the government of the United States as a part of those sovereign powers delegated by the Constitution, the right to its exercise at any time when, in the judgment of the government, the interests of the country require it, cannot be granted away or restrained on behalf of anyone.

I said earlier that this analysis should be troubling to originalists and textulists. Here's why. The Constitution was intentionally written, and the federal government was intentionally structured, to not exercise all powers inherent to sovereignty. This is a primary feature, not a accidental byproduct. The national legislature does not have all powers "incident of sovereignty," but only those explicitly delegated (plus those "necessary and proper" to exercise the powers explicitly delegated). The Constitution itself states this, and were that not clear enough the Tenth Amendment states it again.

The Chae Chan Ping case involved none of this analysis. The Court did not categorize immigration restrictions under the delegated power to regulate naturalization, nor did it place them under the delegated power to regulate commerce. In fact, it tied the restrictions to no specific delegated power whatsoever. Instead, it skipped that entire analysis and simply said that as a sovereign nation, of course the legislature could adopt such an act. Yet if the federal government can act in any "incident of sovereignty," the entire separation of powers doctrine is obsolete.

And that is how the Supreme Court solved immigration's constitutional problem.


Next: The Chinese Exclusion Acts (link will be provided upon publication)


Sources:

Mary Sarah Bilder, The Struggle over Immigration: Indentured Servants, Slaves, and Articles of Commerce, 61 Missouri Law Review 4 (Fall 1996) 743-824.

Immigration History: A National Policy

Previous: Immigration and the Nomination of Abraham Lincoln

Up to this point, we have been able to move quite rapidly through American history, in large part because there was no national policy. All that changed in 1875, when Congress made it illegal for criminals or prostitutes to enter the country. This marks the first true restriction on immigration adopted by the Federal Government, but it was shortly followed by more. In 1882 a fifty cent tax was imposed in all immigrants and Congress prohibited entry by any "convict, lunatic, idiot, or any person unable to take care of himself or herself without becoming a public charge." Also in 1882, Congress pass the first of a series of Chinese Exclusion Acts, which eventually resulted in a virtual total bar on Chinese immigration. A Bureau of Immigration was established within the Department of Treasury in 1894 (previously the Commission of Immigration had operated under the Department of State per the 1864 Act to encourage Immigration). Anarchists were prohibited in 1903 (32 Stat. 1213) and the Bureau of Immigration was moved to the Department of Labor that same year. Illiterates were barred in 1917 (over President Wilson's veto).

In 1921 quotas were adopted, which was the first time an across the board numerical limit was adopted. This act attempted to preserve the then-current racial balance in the nation by limiting immigration from any country to 3% of that country's population in the United States as recorded in the 1910 Census.

Since these were an emergency measure, they were quickly replaced by the 1924 Immigration Act, which marks the first comprehensive application-based immigration system. Since it is so foundational we'll return to it in detail at a later date. In the meantime, there is still that nagging unresolved constitutional question.


Next: The Constitutional Question (link will be provided upon publication)


Sources:

Austin T. Fragomen & Steven C. Bell, Immigration Primer (1985).

Michael C. LeMay & Elliott Robert Barkan (ed.), U.S. Immigration and Naturalization Laws and Issues: A Documentary History (1999).

University of Washington-Bothell, U.S. Immigration Legislation Online.

Immigration History: Immigration and the Nomination of Abraham Lincoln

Previous: State Based Policies

Just because there were no federal immigration laws before the Civil War does not mean that immigration issues did not influence politics.

One such instance is the nomination of Abraham Lincoln for President at the Republican convention in 1860. This convention saw stiff competition for the nomination among William Seward, Salmon Chase, Edward Bates, and Abraham Lincoln. When the convention started, Lincoln was thought to be in last place. However, Lincoln managed to obtain the nomination by angling for second preference of the delegates and letting the other three knock each other out.

Edward Bates, had previously been affiliated with the Know Nothing Party, a political movement formed in the 1850s in response to the high levels of immigration. Anti-immigrant and anti-Catholic, this party had seen some success but ultimately split over the question of slavery.

Bates' affiliation with the Know Nothings hurt him at the convention. A German-American delegation refused to support him, which threatened to actively oppose him among all German-Americans were he given the nomination.

This problem with Bates (among others), combined with failure of each of the other candidates to achieve majority support left everyone looking for an alternative. That was exactly who Lincoln had positioned himself to be--the ideal second choice for delegates who could not nominate their man yet would not support any of the other two.

So while the immigration issue was far from critical, and likely not even determination, it was a factor that played into the stalled candidacy of Edward Bates and the nomination of Abraham Lincoln.

Which just goes to show that here in the United States we don't even need an immigration policy to have political consequences for immigration politics.


Next: A National Policy


Source:

Doris Kearns Goodwin, Team of Rivals: The Political Genius of Abraham Lincoln (2005).