Professor Bainbridge...on law, politics, religion, culture & food

Happy Thanksgiving

Thanksgiving is a truly great holiday. So why do we spoil it every year by letting the loathsome Dallas Cowboys host a football game?

Seriously, have a happy and safe holiday.

The US Ambassador to the Holy See and the First Amendment

In a comment to my post on the prospect of Doug Kmiec as ambassador to the Holy See, Stephen Green comments:

I wonder if maybe the only plausible solution is not to appoint an envoy to the Holy See.  It seems likely that anybody sharing Obama’s views and politics wouldn’t pass muster with Catholics such as yourself and anybody not sympathetic to the President’s views has no right to such an appointment.  Perhaps the Catholic Church will have to get by in the view of the American Government as just a church, and not a sovereign entity.

Commenter Barry likewise opined that:

I second Stephen’s comment - having an ambassador to the Catholic Church is rather strange (and the idea that it’s actually to ‘The Vatican’, which is some sort of actual country, is laughable).

Let’s start with the facts:

The Holy See is the universal government of the Catholic Church and operates from the Vatican City State, a sovereign, independent territory of 0.44 square kilometers (0.17 square miles). The Pope is the ruler of both the Vatican City State and the Holy See. The Holy See, as the supreme body of government of the Catholic Church, is a sovereign juridical entity under international law. ...

The United States maintained consular relations with the Papal States from 1797 to 1870 and diplomatic relations with the Pope, in his capacity as head of the Papal States, from 1848 to 1868, though not at the ambassadorial level. These relations lapsed with the loss of all papal territories in 1870.

From 1870 to 1984, the United States did not have diplomatic relations with the Holy See. Several presidents, however, designated personal envoys to visit the Holy See periodically for discussions of international humanitarian and political issues. Myron C. Taylor was the first of these representatives, serving from 1939 to 1950. Presidents Nixon, Ford, Carter, and Reagan also appointed personal envoys to the Pope.

It is with the Holy See that we have an embassy. Harvard law professor Mary Ann Glendon is the current ambassador.

Now let’s disentangle two issues. First, is there anything constitutionally incongruous about the US having an ambassador to the Vatican? Second, as a matter of policy, is it a good idea?

The idea that diplomatic relations between the USA and the Holy See somehow violate the establishment clause of the First Amendment hardly deserves serious consideration. Indeed, courts have generally refused to even consider the issue. See, e.g., Phelps v. Reagan, 812 F.2d 1293 (10th Cir. 1987) (Taxpayer and Baptist minister brought action against President and Ambassador to Vatican seeking declaratory judgment that appointment of Ambassador violated establishment clause. The United States District Court for the District of Kansas, Richard Dean Rogers, J., dismissed action, and taxpayer appealed. The Court of Appeals, John P. Moore, Circuit Judge, held that: (1) taxpayer and minister did not have standing to challenge appropriations involved, and (2) question of whether to appoint Ambassador was vested solely in executive branch, and could not be reviewed by court.).

As a policy matter, the UN recognizes the Holy See as a state for purposes of international law, granting it Non-Member State Permanent Observer status. At present, ”the Holy See maintains full diplomatic relations with one-hundred seventy-four (174) countries out of the one-hundred ninety-two (192) member countries of the UN.” For the US to ignore the state staus of the Holy See in international law and relations thus would put us in opposition to virtually the entire world.

The USA and the Holy See have frequently cooperated in the pursuit of mutual aims. As Mary Ann Glendon has explained:

Your Holiness, this year marks the sixtieth anniversary of two important international documents that were the fruits of collaboration among persons of many different faiths and cultures - the Universal Declaration of Human Rights and the Convention on the Prevention and Punishment of the Crime of Genocide. These documents emerged from the darkness and horror of the Second World War. They stand today as beacons for the inalienable dignity and rights of the human person. They also stand as testimony to the progress that can be made through reason and good will even in troubled times. Today, both the United States and the Holy See actively promote the principles contained in those documents. It is my heartfelt desire that we will work together to commemorate the anniversary of both the Declaration of Human Rights and the Genocide Convention in a fitting manner.

The United States and the Holy See have collaborated in recent years on many projects to protect and enhance the dignity of the person. The United States is particularly proud of its initiatives to tackle trafficking in human beings. U.S. funded programs have provided anti-trafficking training and support to hundreds of women religious in Europe, Africa, Asia and South America. Similar programs for the clergy and male religious will be offered this year. We are confident that these combined efforts will eventually result in the elimination of trafficking in men, women and children.

What then explains the residual hostility towards full diplomatic recognition in some American quarters? The opposition traditionally was led by hard-line anti-Catholic Protestants. The folks who opposed diplomatic relations with the Holy See were the same sort of folks who brought us Blaine amendments, the release time controversy, and other episodes of organized anti-Catholic bigotry. As Time reported in 1951:

Across the U.S., an organized Protestant drive to block the appointment of an ambassador to the Vatican was getting into high gear. Items last week:  In Atlanta, the general board of the National Council of Churches (29 Protestant and Eastern Orthodox religious groups) named a six-man committee to help channel grass-roots opposition, make sure it reaches the ears of Congress.  On the West Coast, Author Paul (American Freedom and Catholic Power) Blanshard was in the midst of a nationwide tour with a party of speakers representing a militant organization with the nonstop name, Protestants and Other Americans United for the Separation of Church and State. Aim: to reach 100 major audiences in ten weeks, wind up in a P.O.A.U. rally in Washington, Jan. 24.  In Chicago, an audience of more than 3,000 heard Methodist Bishop G. Bromley Oxnam attack the appointment of an ambassador as “unwise, unnecessary and un-American,” then voted by acclamation to “oppose the confirmation of this nomination ... in every legitimate way open to us in our democratic system.”

Today, opposition comes from an odd mixture of far right and left-liberals. On the one hand, there are Protestant fundamentalists like Fred Phelps. On the other, there are a variety of left-liberal groups, mostly opposed to the Vatican’s position on abortion, such as various “women’s” groups. You shall know them by the company they keep.

There simply is no sound policy or legal basis for the US not to have diplomatic relations with the Holy See. The question then becomes whether it’s good policy to appoint an ambassador you know will offend a host country.

Lori Drew Verdict and the Virtue of Shame

Wkipedia:

Megan Taylor Meier[1][2] (November 6, 1992 – October 17, 2006) was an American teenager from Dardenne Prairie, Missouri who died by suicide in October 2006.[3] Her suicide was attributed to cyber-bullying through the social networking website MySpace. The account through which the bullying took place purportedly belonged to a 16-year-old male named “Josh Evans,” but was actually created and monitored by the mother of a friend of Meier,[4] whom a police report identified as Lori Janine Drew.[5]

The purpose of the cyberbullying was to use Megan’s e-mails with Josh Evans to later humiliate Megan in retribution for her spreading gossip about Sarah Drew, the daughter of Lori Janine Drew

Jezebel:

Lori Drew has been found not guilty of felony hacking charges, but was convicted of three misdemeanors, according to Wired. The one charge of conspiracy remains undecided, as the jury was deadlocked on that count. Wired elaborates: “Jurors found Drew guilty only of conspiring to gain unauthorized access to MySpace for the purpose of obtaining information on Megan Meier — a misdemeanor that will likely carry no jail time. The jury unanimously rejected the three computer hacking charges, and a felony conspiracy charge that alleged the unauthorized access was part of a scheme to intentionally inflict emotional distress on Megan.” CNN legal analyst Jeffery Toobin says that Drew is likely to get probation and nothing more. There is still a chance that Judge George Wu may throw out the entire case and acquit Drew, as he said he would decide on a defense request after the jury’s verdict.

Legal scholars for whom I have a lot of respect, such as Orin Kerr and the good folks at the Electronic Frontier Foundation, have argued persuasively that the federal charges were based on a dubious reading of the relevant statutes. Having said that, what Lori Drew and his cohorts did was morally reprehensible and, sadly, they seem to have exhibited no sense of remorse or even understanding that they had done something wrong.

There has been a long debate on the merits of social shaming as a sanction. I think cases like Drew’s illustrate forcefully that shaming has a legitimate place in social regulation. Her conduct was—and probably should not be—criminalized. Yet, she has been subjected to an array of reputational and other social sanctions that, one may hope, serve as a social purgatory. It’s not clear that Drew can be rehabilitated (remorse is usually the first step in any true rehabilitation), but perhaps the next Lori Drew can be deterred. In addition, shaming sanctions also function as a means of retributive justice.

Interestingly, Orin Kerr--who eventually joined Lori Drew’s defense team-- has written that:

I think that so-called “shaming punishments” are less of an affront to human dignity than most other punishments, such as severe prison sentences. ...

Don’t [shaming punishment’s] rely on, and ultimately reinforce, the notion that the offender is a valued member of the community? It seems to me that the offender feels shame precisely because he values his position in the community. Thus judges hand down such punishments only when they think the offender values his position and will want to restore it to its earlier status. In that sense, then, shaming punishments are not about dehumanization, but about hope and community: the punishment is based on and recognizes the hope that the offender will feel a strong enough connection to the community that he will feel shamed, and that the community will value that person’s connection to the community enough to react to the offender. Put another way, only a community that values its members would find shaming punishments punishment at all. If no one cares about the offender, and the offender doesn’t care about anyone else, there is no shame and no punishment. In that case, they can just lock him up and throw away the key.

To be clear, this doesn’t mean that shaming punishments are good; I don’t see myself as an affirmative proponent of them. Like any type of punishment, shaming punishments may be appropriate in some cases and will be inappropriate in others. My point is only that I find flat opposition to them based on human dignity concerns to be unpersuasive.

Granted, Orin doesn’t endorse shaming punishments and, in any case, is discussing judicial punishments intended to shame rather than social sanctions. Yet, the argument about community seems to me to be an argument for precisely the sort of social sanctions to which one hopes Lori Drew will remain subject.

Kmiec as Ambassador to the Holy See?

Michael Winters sends up the trial ballon:

Ambassador to the Holy See is not like most ambassadorships. ... The job has never gone to a career diplomat but is usually awarded to a prominent Catholic political ally. ...

Obama deserves his own person at the post and, in the event, there is a perfect candidate: Professor Douglas Kmiec. He is a lifelong pro-life legal scholar who served as head of the Office of Legal Counsel in the Justice Departments of both Ronald Reagan and George H.W. Bush. He was Dean of the Catholic University Law School and now teaches law at Pepperdine. His published works evidence a find legal mind and thorough familiarity with the natural law tradition that has been the dominant lens for Catholic social thought. Kmiec would be well known to prominent American churchmen in the Eternal City and a jewel in the crown of the intellectual milieu that surrounds the Holy See.

Despite his Republican credentials, Kmiec endorsed Barack Obama this year and penned a thoughtful book, “Can a Catholic Support Him?” The question is ridiculous to most ears and, in the event, most Catholics did support him. But for some extremists on the right, there was a firm conviction that no Catholic could vote for Obama. A Dominican priest even denied Kmiec communion at a Mass in May. (The priest was later reprimanded by Cardinal Mahoney.) Longtime associates of Professor Kmiec denounced him, often in ways that lacked all charity, suggesting bad logic or bad motives or both. There is no better way to answer those who argued that no Catholic could vote for Obama in good conscience than to see the man who wrote the book (literally!)defending the proposition that Catholics can and should vote for Obama being received in the Sala Clementina by Pope Benedict XVI!

I take it that, as a general rule, one should not choose ambassadors whose appointment will insult the country to which they are credentialed. One would not expect Obama to appoint a known anti-Zionist as ambassador to Israel, for example. Yet, while Winters and other pro-Obama US Catholics might delight in tweaking the Holy father by appointing Kmiec as ambassador to the Vatican, it would be tantamount to sending Norman Finkelstein to Israel.

Doug Kmiec chose to turn his back on a life time of support for conservative and, in particular, pro-life causes to endorse Barack Obama. This despite the fact that Obama ran on the most pro-abortion rights platform in memory and despite Obama’s repeated promises to sign the Freedom of Choice Act, which would invalidate almost all federal and state restrictions on abortion and, many believe, go so far as to invalidate freedom of conscience laws that allow health acre providers to opt out of providing abortion services when it would offend their religious beliefs.

Since the election, Kmiec has further angered pro-life Catholics by, among other things, his recent love letter of praise for Edward Kennedy. Kmiec claims that Ted Kennedy has “built up” the culture of life, citing various left-liberal statutes that are purportedly pro-family. Kmiec’s argument, of course, is specious. On key issues like abortion and embryonic stem cell research, Ted Kennedy’s political track record has been consistently inconsistent with Church teachings. Indeed, defiant is not an inappropriate characterization of Kennedy’s position vis-a-vis the Church on these issues. Kmiec’s paean to Kennedy thus tells us a lot about just how far off the reservation Kmiec has now wandered. His main role in public life now seems to be giving cover to pro-abortion rights Democrats.

The Vatican has made clear that a Kmiec appointment would be most unwelcome:

An official from the Vatican’s Secretary of State department has reacted to the recent suggestion that Pepperdine professor Douglas Kmiec should become the U.S. Ambassador to the Vatican by saying, “it will never happen.” ...

The official noted that prominent American Catholics at the Vatican -such as Cardinal James Francis Stafford or Archbishop Raymond Burke- look at Kmiec as a “traitor,” and “their opinion will certainly count heavily.” ...

“Those who [Michael Winter’s] article refers so disrespectfully as ‘extremists on the right,’ or ‘the far right political fringe,’ are the serious, loyal Catholics [the Vatican] precisely takes into account, because they are the ones who are there when the Church needs them,” the official also explained.

As two “serious, loyal” Catholics explained during the campaign:

“Throughout this campaign, I fear that Doug Kmiec has wandered ever farther through Lewis Carroll’s looking glass, into a world in which the White Queen teaches herself ‘impossible things before breakfast’—impossible things, like the manifest absurdity that Barack Obama, NARAL’s poster child, is, in fact, the real pro-life candidate,” said George Weigel. “If and when a President Obama and a Democratic Congress (led by a self-professed ‘ardent Catholic’) begin dismantling every legal achievement of the pro-life movement over the past three decades, it will be interesting indeed to see what Professor Kmiec has to say. As for Archbishop Chaput, he is a model bishop, and the Church in America should pray for two hundred more bishops with his insight and his courage,” Weigel continued.

Austin Ruse, president of the Catholic Family and Human Rights Institute, also weighed in: “Doug Kmiec is not just arguing with Archbishop Chaput but with at least 100 other bishops who have spoken out strongly against a Kmiec-like position. We have never seen so many bishops willing to risk an IRS audit to speak out against the idea that other issues are proportionate to abortion or the absurd notion that Obama is anti-abortion. The first thing Obama will do is sign the Freedom of Choice Act, which will overturn every tiny but meaningful restriction on abortion that has ever passed the Congress and the States. This includes things like waiting periods for adolescents and laws against taking a minor across state lines for an abortion. Kmiec’s position that Obama is anti-abortion is tragically wrong on its face.

Obama may have won the vote of a majority of America’s cafeteria Catholics. Even so, to appoint Doug Kmiec as ambassador to the Holy See would be an insult to both the Vatican and to “serious, loyal” Catholics everywhere.

Update: Henry Farrell offers a thoughtful critique of this post and, BTW, makes a couple of very kind remarks about yours truly in response to some critics.

Turning to the merits, Henry writes:

Kmiec’s support for Barack Obama clearly falls within the limits that the Catholic church has suggested are allowable (Kmiec continues to state his opposition to abortion, while suggesting that the question of whether Obama or McCain would have been the best person to lower abortion rates was a matter of prudential judgment, and that he personally plumped for Obama as the better prudential bet).

It is certainly true that Catholc doctrine permits one to vote for a pro-abortion rights candidate. Useful guidance on that question was provided by Oregon Archbishop Vlazny’s 2004 statement on the reception of communion by pro-choice candidates and those who vote for them:

"Should Catholics who choose to vote for pro-choice politicians refrain from reception of the Holy Communion? If they vote for them precisely because they are pro-choice, I believe they too should refrain from the reception of Holy Communion because they are not in communion with the Church on a serious matter. But if they are voting for that particular politician because, in their judgment, other candidates fail significantly in some matters of great importance, for example, war and peace, human rights and economic justice, then there is no evident stance of opposition to Church teaching and reception of Holy Communion seems both appropriate and beneficial."

This has always struck me as a perfectly plausible application of the principle of double effect.

Henry is quite right that Kmiec has made clear that he supports Obama despite the latter’s abortion position, grouding his support on peace and other social justice concerns.

In my view, however, there is a difference between simply voting for a pro-choice candidate and being a highly public supporter of that candidate. Kmiec went so far as to write a book trying to persuade pro-life Catholics that it was okay to vote for Obama. In doing so, I believe he gave Obama significant political cover. Kmiec’s high profile position allows Obama to make an argument by appeal to authority to people who aren’t as informed on these issues or have failed to make a close study of the relevant doctrines as has Kmiec.

In addition, I believe Kmiec’s interpretation of Obama’s position was fundamentally incorrect.  I remain convinced that Obama ran on the most pro-abortion rights platform in memory and despite Obama’s repeated promises to sign the Freedom of Choice Act, which would invalidate almost all federal and state restrictions on abortion and, many believe, go so far as to invalidate freedom of conscience laws that allow health acre providers to opt out of providing abortion services when it would offend their religious beliefs. In the face of those positions, the double effect argument becomes even more tenuous. It would take a great weight of social justice concerns to balance out Obama’s positions on abortion.

I thus remain of the view that Kmiec at best came dangerously close to the line between what is allowable under the principle of double effect and what amounts to formal coperation with material evil.

Kmiec is a Catholic in perfectly good standing, no better or worse in the eyes of the church than those who adopt a more conservative position on these issues (to the best of my knowledge, the general class of ‘cafeteria Catholic’ has yet to be properly defined under canon law ). In principle, the appointment of Kmiec should be no more or less insulting to either the Vatican (as a state governed by the Catholic church) or to the Pope (as head of the Catholic church) than the appointment of any other Catholic. Very obviously, Kmiec’s appointment might be construed as an insult to a particular (and quite powerful) conservative faction within Catholicism – but in the absence of a formal church statement to the contrary, that faction’s opinion of Kmiec’s position is no more binding than any other opinion within Catholicism’s internal debate on these issues.

Now there certainly is a prudential issue – to the extent that the Pope is (as he likely is) highly sympathetic to the conservative faction, Kmiec’s appointment might not be politically well-judged. But that’s an entirely different question to that of whether Kmiec’s appointment would be an insult to the church, which is what I understand Steve’s position to be.

Insult is a strong word. Certainly, appointment of Kmiec or someone else of his ilk would not amount to, say, the diplomatic insult the king of the Ammonites gave King David by shaving off one half of the beards of each of the envoys King David had sent to his court. It’s not even in the league with Sarkozy’s appointment of a married gay man as French ambassador to the Vatican, which was pretty clearly intended to be rejected from the outset so that Sarkozy could score political points at home.

Instead, if one wants a historical precedent, the case of Cardinal Prince Gustave von Hohenlohe-Schillingfurst comes to mind. German Chancellor Otto von Bismark sought to appoint Cardinal Hohenlohe as Germany’s ambassador to the Holy See despite knowing that Hohenlohe and, even more so, other prominent members of his family were closely associated with Bismark’s kulturkampf policies and opposition to the First Vatical Council. Pope Pius IX chose to regard this as a serious diplomatic insult on Bismark’s part, since Hohenlohe’s views on the key theological issues of the day were known to be uncongenial (at best) to the Pope.

Back when he was Cardinal Ratzinger, Pope Benedict wrote that:

In the face of fundamental and inalienable ethical demands, Christians must recognize that what is at stake is the essence of the moral law, which concerns the integral good of the human person. This is the case with laws concerning abortion and euthanasia (not to be confused with the decision to forgo extraordinary treatments, which is morally legitimate). Such laws must defend the basic right to life from conception to natural death.

He also wrote that:

Not all moral issues have the same moral weight as abortion and euthanasia. For example, if a Catholic were to be at odds with the Holy Father on the application of capital punishment or on the decision to wage war, he would not for that reason be considered unworthy to present himself to receive Holy Communion. While the Church exhorts civil authorities to seek peace, not war, and to exercise discretion and mercy in imposing punishment on criminals, it may still be permissible to take up arms to repel an aggressor or to have recourse to capital punishment. There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia.

It is this statement, by the way, which I believe most clearly calls into question the double effect justification Kmiec and his ilk used to justify their support for Obama. The immorality of the Iraq War weighs a lot less in the balance than does the immorality of abortion.

The conflict between Kmiec’s high profile advocacy of Obama and the stated views of Pope Benedict thus remind me a lot of the case of Cardinal Hohenlohe. If not an insult to the Holy See, at the very least a Kmiec nomination likely would be insultingly uncongenial to the Holy Father himself.

Accordingly, I’m inclined to endorse the words commenter mpowell put in my mouth:

If the Vatican has already made it clear that Kmiec’s appointment would be quite unwelcome, wouldn’t it really be an insult to appoint him? I understand that you’re trying to hold the Church to a standard of regarding all Catholic’s in good standing in the same light, but I am not really sure why you think this standard is appropriate. First of all, I think it is very reasonable for the Church to distinguish between members who are doing a good job of advancing the stated goals of the Church versus members who are not doing such a good job, but are still acting in good faith and have not done anything to ruin their standing in the Church. Secondly, if the Church decides that Kmiec’s prudential judgment is not very good, couldn’t they reach this conclusion pretty easily? I am not convinced that on the terms Bainbridge defines he isn’t right.

In sum, the gist of my argument is that offering up someone whose high profile views are known to be uncongenial to one’s host is a form of diplomatic insult. I am prepared, however, to adopt as a substitute the words “imprudent” and “impudent.”

Update: Washington Monthly blogger Steven Benen opines:

To Bainbridge, voting for Obama seems to be a deal-breaker.

Did Benen even bother to read--let alone try to understand--the argument? Nowhere did I say that voting for Obama is a deal breaker. Obviously, Obama is going to appoint someone who supported him.

The question is whether this specific Obama supporter ought to be chosen. The point has been that Kmiec presents a unique combination of facts that I find problematic.

All I can say, is that the Washington Monthly has gone way down hill since Kevin Drum left. Although I rarely agreed with Drum, at least he was willing to have an intellectually honest discussion. benen is just shoddy.

Immigration Reform Pending?

Democratic Senate Majority Leader Harry Reid recently said that:

On immigration, there’s been an agreement between (President-elect Barack) Obama and (Arizona Republican Sen. John) McCain to move forward on that. ... We’ll do that.

So this seems like a good time to revisit my 2004 TCS column on immigration:

It’s been a very long time since U.S. politicians addressed illegal immigration in anything approaching a comprehensive way. President Bush came into office planning to change that through negotiations with Mexico and new legislation. Those plans got derailed by 9-11, but last week the President put illegal immigration back on the policy front burner with a major policy address.

The reactions across the political spectrum were predictable but still disappointing. The extreme left dismissed President Bush’s plan as an effort to revive the controversial post-World War II bracero program. The Democratic presidential candidates mostly supported the idea of immigration reform, while claiming they would do it better, fairer, or whatever. And, not surprisingly, many voices on the right condemned the plan as an amnesty that will encourage even more illegal immigration. The National Review Online’s Corner blog, to cite a particularly prominent example, has been dominated by vehement attacks on Bush’s plan, such as Rich Lowry’s call for “conservatives [to] go to the mattresses on this one.”

Granted, the devil is in the details, but the broad outline set out by President Bush deserves praise rather than censure. The plan is good for the economy. It will contribute to our national security. It will address pressing humanitarian problems posed by the current system.

The Benefits

The President’s plan rewards work—matching “willing workers” with “willing employers.” Only those undocumented workers with jobs will be eligible. If there are freeloading illegal immigrants sponging off the welfare state, as some of the more extreme voices on the right claim, this plan does nothing for such immigrants.

Employers will benefit because they will be able to fill low-wage jobs without having to break the law or worry about the INS raiding them. The President’s critics complain, however, that illegal immigrants take jobs away from U.S. workers or, at the very least, drive down wages for unskilled labor to levels US workers will not accept. This argument is just plain wrong. First, the President’s plan expressly provides that employers must make reasonable efforts to find an American to fill a job vacancy before hiring a foreign worker. Second, a comprehensive recent review of empirical studies reports that the “near uniform finding is that immigration has, at most, a small negative effect on wages” in the United States. Finally, even if immigration did drive down domestic wages, the money saved by employers would not go up in smoke. Instead, it would be invested in other places and ways, contributing to overall economic growth.

Another economic benefit will follow from moving more undocumented workers out of the shadow economy. Many undocumented workers already pay substantial amounts in taxes. Regularizing their status will make it even easier to collect taxes from them, so that they can help pay for the social services they use.

The economic benefits will not be limited to the United States. The President’s plan is intended to create incentives for guest workers to return to their home countries. Guest workers will be able to build up savings here through social security contributions and maybe even tax-sheltered savings plans that they can then draw on when they go home. It’s not too hard to imagine a guest worker building up a nest egg here and then going home to start a business.

The potential to funnel economic benefits back to guest workers’ home countries is critical to solving the problem of illegal immigration in the long-term. There is considerable evidence that the rate of illegal immigration is directly correlated with wages in Mexico. Repatriating guest workers’ wages and savings to their home countries thus may be the best way of reducing the rate of illegal immigration.

In addition to the economic benefits, the President’s plan should help promote national security. Regularizing undocumented workers will help Homeland Security get a better handle on who is in the country and where they are.

Finally, creating a workable guest worker program is the humanitarian thing to do. The border crossing has become quite hazardous. Once they make it here, illegal immigrants are highly vulnerable to exploitation by unscrupulous employers. Our current national policy is to avert our eyes from the ways in which border coyotes and sweatshop operators exploit illegal immigrants. Providing a legal route to enter and leave the country will alleviate the crisis along the border. In addition, once they are here, regularized workers will be more likely to get the protections of labor and safety laws. The President’s plan would have us emulate the Good Samaritan rather than the priest and the Levite of the parable, which strikes me as sound conservative policy.

The Criticisms

Bush’ critics on the right complain that the plan is an amnesty that rewards law breaking. This seems to particularly gall conservatives such as National Review’s John Derbyshire, a legal immigrant: “Most native-born Americans have no idea what you, and anyone desiring to employ you, have to go through to accomplish a legal immigration. When you have wrestled with that beast, the idea of handing out Green Cards to people who sauntered across the border on spec just seems grossly unjust.”

I’m not unsympathetic to those who feel like they had to wait in line only to see illegal immigrants cut the line. Derbyshire’s criticism, however, misrepresents the President’s plan. The plan in fact acknowledges that undocumented workers are here illegally. There is no blanket amnesty. Linda Chavez predicts that the final plan will be limited to those undocumented workers who can show that they have been working continuously, paid taxes, and not broken other laws. Those who participate may even have to pay a small fine. Finally, nothing in the President’s proposal contemplates “handing out Green Cards.” The President’s plan explicitly states: “Some temporary workers will want to remain in America and pursue citizenship. They should not receive an unfair advantage over those who have followed the law, and they will need to be placed in line for citizenship behind those who are already in line. Those who choose the path of citizenship will have an obligation to learn the facts and ideals that have shaped America’s history.” In short, illegal immigrants will get no preference for green cards.

In any event, what else would the critics have us do? There are somewhere between 8 and 12 million undocumented aliens in the U.S. At least three quarters of a million more arrive each year. Stepped up border enforcement hasn’t stopped people from coming to this country. It just made it harder, forcing them to try more hazardous routes and to rely on exploitative smugglers. If people are willing to die to come work in this country, how are we going to close our borders—let alone deport all the undocumented aliens who are already here—without becoming a de facto police state?

“All That We Can Expect...”

Our current immigration policy is badly broken. It has failed to stop illegal immigration, succeeding only in creating a shadow economy and a humanitarian crisis along the border.

In fixing our immigration system, conservatives should take heed of Russell Kirk’s famous dictum that conservatives are wary “of ‘sophisters, calculators, and economists’ who would reconstruct society upon abstract designs.” Instead, as Kirk explained: “All that we reasonably can expect is a tolerably ordered, just, and free society, in which some evils, maladjustments, and suffering will continue to lurk.” President Bush has come forward with a pragmatic and realistic proposal that will enhance orderliness, justice, and freedom. Instead, it is his critics on the right who are pursuing the utopian dream that we can deport and deter all illegal immigrants.

Obama and the Abortion Floodgates

Melinda Henneberger:

[During the campaign, Catholic bishops argued that,] under Obama, Catholic hospitals that provide obstetric and gynecological services might soon be forced to perform abortions or close their doors. Auxiliary Bishop Thomas Paprocki of Chicago warned of “devastating consequences” to the health care system, insisting Obama could force the closure of all Catholic hospitals in the country. That’s a third of all hospitals, providing care in many neighborhoods that are not exactly otherwise overprovided for. It couldn’t happen, could it?

You wouldn’t think so. Only, I am increasingly convinced that it could. If the Freedom of Choice Act passes Congress, and that’s a big if, Obama has promised to sign it the second it hits his desk. (Here he is at a Planned Parenthood Action Fund event in 2007, vowing, “The first thing I’d do as president is, is sign the Freedom of Choice Act. That’s the first thing I’d do.") Though it’s often referred to as a mere codification of Roe, FOCA, as currently drafted, actually goes well beyond that: According to the Senate sponsor of the bill, Barbara Boxer, in a statement on her Web site, FOCA would nullify all existing laws and regulations that limit abortion in any way, up to the time of fetal viability. Laws requiring parental notification and informed consent would be tossed out. While there is strenuous debate among legal experts on the matter, many believe the act would invalidate the freedom-of-conscience laws on the books in 46 states. These are the laws that allow Catholic hospitals and health providers that receive public funds through Medicaid and Medicare to opt out of performing abortions. Without public funds, these health centers couldn’t stay open; if forced to do abortions, they would sooner close their doors. Even the prospect of selling the institutions to other providers wouldn’t be an option, the bishops have said, because that would constitute “material cooperation with an intrinsic evil.” ...

At the very moment when Obama and his party have won the trust of so many Catholics who favor at least some limits on abortion, I hope he does not prove them wrong. I hope he does not make a fool out of that nice Doug Kmiec, who led the pro-life charge on his behalf. I hope he does not spit on the rest of us—though I don’t take him for the spitting sort—on his way in the door. I hope that his appointment of Ellen Moran, formerly of EMILY’s List, as his communications director is followed by the appointment of some equally good Democrats who hold pro-life views. By supporting and signing the current version of FOCA, Obama would reignite the culture war he so deftly sidestepped throughout this campaign. This is a fight he just doesn’t need at a moment when there is no shortage of other crises to manage.

During the campaign, I pointed to evidence that Barack Obama was the most pro-abortion rights major party Presidential candidate ever. (See, e.g., Obama, Abortion, and Catholics, and The Democrats’ Life Platform.) If FOCA passes, and Obama signs it, and all state abortion restrictions are threatened with federal preemption, and federal funding of abortions is restored, and Catholic hospitals have to close because freedom of conscience laws are preempted, and the number of babies that die before being born goes up, I wonder if Kmiec will be man enough to admit he was wrong.

Time and Me on the Mark Cuban Insider Trading Case

There is an excellent post on Time.com addressing the legal issues in the SEC’s insider trading case against Dallas Mavericks owner Mark Cuban. I spoke to the reporter at some length and was really impressed with her concern for getting it right, which is reflected in the care and craftsmanship in the article. Unlike a lot of reporters who just want me to give them a quote that fits their pre-existing story plans, she really wanted to understand what was going on in this case.

Did Mark Cuban have a duty to Mamma.com? That question will take center court as the Securities and Exchange Commission (SEC) sues Cuban, an Internet entrepreneur and owner of the Dallas Mavericks basketball team, for selling his stake in the Web company after the CEO slipped him nonpublic information about an additional stock offering. Cuban, known for his outsize personality, has come out swinging against the SEC and what he calls its “win at any cost ambitions,” promising to keep the case — and the murkiness of insider trading law — in the public spotlight in a way not seen since Martha Stewart’s sale of her ImClone shares.

Ms. Kiviat then goes on to review the relevant legal rules concisely and clearly. She concludes:

Stephen Bainbridge, a law professor at UCLA who has followed insider trading law for two decades and written a book on the topic, points out that the case law around whether or not a contract of confidentiality suffices for illegal insider trading “is not as clear as one would like.” Some court findings, he says, suggest that it’s not enough for two parties to merely agree to keep information confidential — they must also have a higher-level relationship, like that of a lawyer and client or a company and employee.

The SEC has brought charges against Cuban under a particular legal theory — but the legal theories around illegal insider trading have a long history of getting rewritten in the courts. “He’s an interesting guy for them to have picked. He’s not going to roll over and play dead,” says Bainbridge. “If he wants to, he has the resources to take this case all the way up to the Supreme Court.” If it comes to that, the case could take on real significance.

FT and me on the Cuban Case

Financial Times:

Litigation experts have exposed weaknesses in the Securities and Exchange Commission’s insider trading case against billionaire investor Mark Cuban, saying current securities laws are ambiguous about whether he would be considered an insider. Whether or not Mr. Cuban gets off, the case shows that private investments in public equity, or PIPEs, are becoming a larger bone of contention for short-term investors. ...

Some, such as UCLA securities law professor Stephen Bainbridge, think the SEC has a good case.

Writing on his blog last week, Mr. Bainbridge said the SEC might try to prove that Mr. Cuban is a “constructive insider.”

In some cases, he said, accountants, lawyers or other outsiders may become fiduciaries if given inside information for corporate purposes. Although Mr. Cuban was a non-controlling shareholder, previous lawsuits have shown that a simple confidentiality agreement could have made Mr. Cuban an insider.

Yes, but. I also said that the SEC will need to “get a court willing to give the rules a liberal construction on one key point”; namely, whether Cuban is a constructive insider. As I explained in the post, I think the precedents supporting the SEC’s position are weak. And, as I explained in a later post, if the facts are as Cuban claims, even those precedents will not justify imposing liability.