Hunchin' of the voting party: Has Texas got an illegal voter problem?

Texas Attorney General Ken Paxton announced on January 25, 2019, that Texas Secretary of State David Whitley had identified 95,000 non-citizens on Texas voter rolls, and it appears that 58,000 of these people have voted in an election from 1996 to 2018.

President Trump repeated this claim on Twitter and offered it as evidence that illegal immigrants are voting in U.S. elections, which means that the need for a border wall is urgent. Several bloggers and media personalities further sounded the alarm.

It does sound pretty bad. It’s a terrible blow to those who argue that voter fraud is rare and that illegals don’t vote in large numbers. This isn’t a handful of votes we’re talking about; it’s 58,000! If true, this is a significant problem.

Texas is on the border, of course, and so it has a large population of Mexican and Central American immigrants—both legal and illegal. It also has one of the strictest voter ID laws in the nation.

How could this happen?

Green cards and visas

First, it’s important to understand the underlying claim, which has been distorted as it has been repeated.

Attorney General Paxton and Secretary Whitley did not claim that these voters are illegal immigrants. Instead, they used the term “non-citizens.”

Nobody on this list is an illegal immigrant, it turns out. The list includes only non-citizens who are Lawful Permanent Residents (LPR) or visa holders.

LPRs are citizens of another country who have been granted the right to reside permanently in the U.S., through a lengthy application process. (An LPR is said to have received a “green card” when his or her application to become an LPR is approved, because the LPR identification card was green when the term was coined.)

Once an LPR has resided in the U.S. for five years, he or she is allowed to apply for U.S. citizenship.

A visa holder is anyone who has permission to be in the U.S. There are various types of visas (from permanent immigrant visas to short-term tourist visas). Some visa holders become LPRs, while some do not.

In Texas, LPRs and certain visa holders are allowed to apply for a provisional Texas driver’s license. Illegal immigrants are not.

LPRs, visa holders, and other legal resident non-citizens are not allowed to register to vote in Texas, however.

How they got the numbers

The Texas Secretary of State’s office asked the Texas DMV to supply a list of LPRs and visa holders who had gotten Texas driver’s licenses between 1996 through 2018.

The Secretary of State’s office then took that list of names and compared it with the list of registered voters in Texas from the same time period. This search returned 95,000 matches of people who once held Texas driver’s licenses as LPRs/visa holders and who were also registered to vote in Texas at some point.

Of this list of 95,000, it appears that 58,000 have cast a vote in at least one election.

A critical eye

Voters’ rights and immigrant advocates in Texas argue that some of the cases may be mistaken identity. In other words, the names may be substantially similar, but the voting record may belong to a person with a similar name and address who is a U.S. citizen.

Further, the report does not account for the fact that more than 50,000 LPRs in Texas become naturalized U.S. citizens every year. For example, an LPR who got a Texas driver’s license in 1996 could have become a citizen in 2001, and may have registered to vote at that time. The period in question spans 22 years (1998-2012), and the matches were not compared with a list of naturalized citizens from that period. Visa holders may become LPRs and then apply for citizenship after five years’ residence as an LPR.

Under Texas law, election officials must mail a notice to voters 30 days prior to their voter registration being revoked. The voter then has this 30-day period to show proof that his or her voter registration is valid. (In this case, the voter would submit immigration paperwork to prove citizenship.)

A similar 2012 matching report in Colorado did not lead to discoveries of voter fraud or other illegal voting, and no changes were made based on that report.

Until the Texas matches are verified (by allowing those suspected of voting illegally to provide proof of citizenship and by asking county voting officials to verify identities), it is premature to say that 58,000 people voted illegally in elections in Texas from 1996 through 2018.

The truth helps: our search for something real

“Above all, don’t lie to yourself. The man who lies to himself and listens to his own lie comes to a point that he cannot distinguish the truth within him, or around him, and so loses all respect for himself and others. And having no respect he ceases to love.”—Fyodor Dostoevsky, “The Brothers Karamazov”

“Don’t say that you’re telling the truth. I don’t know what truth is. Report the facts.”—Conrad Fink, intimidating but legendary UGA journalism professor

Before I was a lawyer, I was a journalist.

Both professions value facts, which we should define as statements that are supported by empirical evidence.

The public trusts neither profession, however, and it hurts to hear my colleagues targeted with “first we kill the lawyers”-style comments, while once-trusted news sources are derided as “fake news.”

In a way, I understand it. I’m being cynical here, but political and commercial influencers try to persuade us to believe THEIR version of the truth so they can win our votes and our dollars.

There’s nothing wrong with this--up to a point. Political hucksterism and sales puffery are an American tradition.

It becomes a problem when we’ve lost faith in our system of government. If we don’t believe that our vote matters, then we feel we haven’t got a voice. We’re not invested in the system, and our representative republic is compromised.

Reporting the facts

While journalistic accuracy is a vast subject and is outside the scope of this post, I wanted to explain the above quote from my journalism professor, Conrad Fink, because I think it makes an important point about truth.

In class, Mr. Fink would pose as various public officials and hold mock press conferences. He would then grade us on the quality of our questions and on our resulting mock news articles.

He was a stickler for accuracy. He would penalize us for failing to ask the speaker how to spell his name—and for misspelling it in our article. He took even more points off if you took one of his statements at face value and failed to ask follow-up questions.

One of his pet peeves was our tendency to be sloppy with how we quoted sources. Don’t say, “The mayor believes…” or “The witness saw….” You don’t know that!

The correct way to do it: “The mayor said he believes that the factory will create jobs” or “The witness said that she saw a red car in the driveway.”

It sounds nitpicky, but it’s important. We don’t know what the mayor thinks or what the witness saw. We can only know what these people SAY. We report the facts and leave it up to the reader to determine the TRUTH.

It’s the same with law. We submit evidence, but it is up to the trier of fact to decide whether the evidence is credible and how much weight to give it. We report the facts and leave it up to the jury to return a verdict.

These are noble statements, but how do we get it so wrong? Why are we all seeing the same things but perceiving them differently?

What is the truth, and why can’t we find it?

Confirmation bias

We like to think that we form our opinions by gathering reliable information and then using those facts to shape our well-reasoned opinion.

We do the opposite, however.

Instead, we form our opinions, and then we cherry-pick facts that support our opinion. We give greater weight to information that is favorable to our viewpoint, while we discount or ignore information that contradicts it.

This phenomenon is called confirmation bias, and we all do it.

No matter what your political beliefs are, you’ve probably disagreed with someone recently about politics. You were frustrated to find that, the more facts you offered to support your argument, the more your friend defended HIS argument. You’d think you could change your friend’s mind by calmly offering facts that disprove his theory, but you can’t.

Surprisingly, the opposite is true. The more you argue, even when you’re offering verifiable facts, the more attached your friend becomes to his theory. Remember, we form our opinions emotionally and not factually, so we’re emotionally attached to them. When others attack our opinion, we’re defensive and hold our opinion even closer in order to protect it. It reminds me of the way we defend our family members, even when we know they’re imperfect. We can criticize them, but if someone else does, “Hey! That’s my sister you’re talking about!”

Case study: Vaccines

The ongoing debate regarding the safety and efficacy of vaccines is the perfect tool to understand confirmation bias.

Consider an argument I witnessed recently between a person who believes vaccines are safe and effective, and someone who thinks they are unsafe and unnecessary.

The anti-vaxxer’s main points were: 1) Big pharma and doctors make more money when we’re sick, so they conspire to keep us that way. 2) Vaccines contain harmful chemicals that can injure young children. 3) Vaccines do not prevent disease, and it is instead other phenomena that have eradicated disease (such as the availability of better health care and improved sanitation). 4) Anecdotes featuring children who were vaccinated and developed neurological symptoms thereafter.

The pro-vaxxer’s main points were: 1) That’s ridiculous about big pharma. 2) Vaccines don’t contain harmful chemicals, and they’ve “greened” vaccines in the last few years. 3) Vaccines prevent disease. Diseases have been eradicated, and study after study proves the safety and efficacy of vaccines. 4) We were vaccinated, and we turned out fine.

If you believe vaccines are safe and effective (as do I), you’re rolling your eyes at the anti-vaxxer’s familiar arguments. You’ve noticed that she did not provide any evidence to support her theories. She’s a victim of confirmation bias!

BUT WAIT: Did you notice that the pro-vaxxer didn’t offer any evidence to support his counterarguments? While he could have easily located peer-reviewed scientific studies to show that vaccines are safe and effective, he had never done so and could not name any diseases that had been eradicated.

The anti-vaxxer is a victim of confirmation bias. She can’t support her arguments with facts and was quite defensive when challenged. The same is true of the pro-vaxxer, however.

They formed their opinions without gathering facts, and they walked away from the argument even more convinced that their position was the correct one.

Us and them

Our judgment is compromised by confirmation bias, and it can be further muddied by our tribal mentality. We pick a side, and we stick with it.

My friend Tim and I have frequent deep, philosophical conversations. I thoroughly enjoy these talks, and Tim’s perspective makes me a deeper, more careful thinker. Everyone should have such a friend!

Once Trump was elected president, we noticed that people who criticized Obama for his presidential power grabs were supportive when Trump committed similar overreaches.

We theorized that those who identify themselves as either conservative or liberal do not necessarily subscribe to the full range of conservative or liberal ideals. Instead, they choose their party based on a single issue, or perhaps two.

For example, we surmised that someone who is anti-abortion and pro-gun rights would likely choose to vote Republican, even if they weren’t particularly interested in, say, limited government and the free market. Meanwhile, a liberal voter may not be invested in core liberal principles but may support Democrat policies on gay marriage or single-payer health care, for example.

In these cases, the constituent votes Republican or Democrat accordingly, but he or she would continue to vote this way even if the candidate was a member of their party but didn’t exactly embrace the party’s core principles. In other words, as long as the candidate’s policies supports MY core principles, I’ll vote for the candidate even if the rest of the candidate’s platform is counter to my chosen party’s philosophy.

Recently, we wondered if it’s not even deeper than that. I wonder if we choose a side, and then stick with it until it becomes impossible for us to do so. Until we cross that line, however, we stick with our “side” past the point of all reason.

Trump provides an excellent example of this. Pre-Trump, conservative voters abhorred socialism and presidential overreach and valued small government, constitutional originalism, family values, and military service. Suddenly, we’re being told “I voted for a president, not a pastor” and “Trump should use his emergency powers to bypass the legislature and use eminent domain to build that wall!”

My law school classmate argued that Trump (strong, central federal government) should take control of pharmaceutical companies (the private means of production) so Americans could buy medicine cheaply (for the greater good of the collective). Let’s have some price controls to manage this free market economy. Finally, we’ve gotten rid of that Marxist Obama!

Obama supporters weren’t immune to this, however. I was stunned to find that liberal voters who had protested war under Republican presidents now overlooked the war machine’s continued grind under Obama, with its trillion-dollar expenditures, drone strikes, failure to address Guantanamo, assassination of Gadaffi, and various other hawkish decisions made by Obama with Hillary Clinton as Secretary of State.

Confirmation bias causes us to cherry-pick facts, but apparently it also causes us to cherry-pick wars!

We’ve chosen our team, and once we’re firmly attached, we’ll be true to our school until we conclude that it has become untenable.

Your level of tenable may vary.

Survival of the fittest

A tribal mentality sounds primitive and therefore sounds like a bad thing.

In a way, it’s necessary, however.

Evolutionary biology required us to form tribes and to be wary of new people and new ideas. Having an open mind and a childlike curiosity would get you eaten by a saber-tooth tiger or enslaved by a rival clan. (This is primarily why, despite his faithful adherence to a paleo diet and vigorous exercise routine, the Paleolithic man had a short lifespan.)

This fear of the other has followed us into the modern age and is likely a basis for irrational and harmful tendencies, such as racial prejudice and antisemitism.

To be fair, however, it would be hard to make decisions without at least a moderate amount of group consensus. We can’t painstakingly weigh every minute decision. Sometimes, it’s necessary to follow your tribe, and a two-party system tends to bring things into balance.

We’re social animals, and we make judgments socially, for better or for worse.

I want the truth

It can be hard to separate fact from fiction, but if we’re going to outsmart confirmation bias, we’ve got to try.

Recognize bias

We’re all biased, but we’re ashamed of this so we try to ignore it. We shouldn’t.

When I believe that I may be giving too much weight to one set of facts, I play a mental trick on myself and pretend that I’m a person who believes the opposite. How would I view these facts if I were on the other “side”? This is uncomfortable, but it’s worth it.

I also use this to dismantle road rage. When someone cuts me off in traffic, rather than blow my horn in anger, I pretend that the other driver is me. Maybe I’m unfamiliar with the neighborhood, or a family member is sick and I’m distracted.

We judge our actions and statements by our underlying intentions. We judge other people’s actions and statements by the things themselves. If you can make this mental switch, you can trick yourself into getting around your biases.

Real news

In the Internet age, so many websites masquerade as legitimate news sources. There’s nothing wrong with blogs, but it’s just one person’s analysis (including this one).

At least make sure it’s a dot-com and not a dot-com-co (say… nbcnews.com and not nbcnews.com.co). Also, is it a news source at all, or a special interest group with a blog (such as environmental group or perhaps a religious organization)?

Many people check suspicious stories through Snopes or PolitiFact, while others do not trust these fact-checking sites. Still, if you read their reports, you’ll see that they list their sources. You can check the sources yourself if you don’t trust the fact-checkers.

Even if it is a legitimate news source, however, the story can be hastily written and therefore inaccurate.

How many sources are cited and are the sources reliable?. Even if it’s a public official who is in a position to know, do they offer evidence of what they’re saying? Also, it’s worthwhile to examine whether the person is who they claim to be.

For example, someone recently disagreed with a statement I had made on immigration, and to support his argument, he sent me a link to a news article from a right-wing website. The article quoted a man who identified himself as a rancher who owns land on the Mexican border in a particular county in Arizona and claimed to have found discarded Muslim prayer rugs on his property, meaning that Muslim terrorists were entering the U.S. at this point. Because of MY confirmation bias, I was skeptical of this man’s statements. I accessed the real property records of this county and found that no one of this name owned property anywhere near the Mexican border. In fact, this man owned a modest home in a subdivision 20+ miles from the border. He had recently bought the home, where he had moved from Berkeley, Calif., and has apparently never worked in ranching (according to his profile on LinkedIn).

Reporters should be doing this follow-up, but if they don’t, you can do it with public records available for free on the Internet.

The American Press Institute has published a guide on how to tell if a news source is legitimate. I find it thorough, fair, and helpful: https://www.americanpressinstitute.org/publications/six-critical-questions-can-use-evaluate-media-content/

Socratic method

When someone is trying to convince me to adopt their political position, I listen carefully but then ask: What are the downsides to this policy?

Law students recognize this as the “argue both sides” exercise. It’s very effective, but don’t just ask other people to do it. Do it to yourself. You’ll find weaknesses in your own argument.

If an argument can survive this, it’s probably a sound one.

Follow-up questions

I try not to believe everything that I hear.

I ask follow-up questions to see if the story holds up.

For example, people often tell me that they’ve witnessed shoppers buying beer and cigarettes with Food Stamps. (You can’t buy beer and cigarettes with Food Stamps, and one wonders how the witness knew how a stranger was paying with an EBT card and not a regular debit card.) You won’t get very far by saying that, however. Instead, I ask: “Which store? When was this, approximately? Did they go through the line to buy the beer, and then pay with the same card when they went to customer service to buy the cigarettes?” By this point, the story has fallen apart.

This is a helpful tool to examine specious anecdotal evidence. It also makes you popular at dinner parties. Everyone loves to have their stories picked apart by a self-righteous lawyer type!

Truth or consequences

As I was writing this post, I read the ideas of a few philosophers on the concept of truth itself.

Many wonder whether truth exists at all.

Who can say, but I’m with Conrad Fink on this one: Give me the facts, and I’ll do my best to find the truth.

What other choice have we got?

State of exclusion: Does Trump need Pelosi's permission to speak in the House?

I confess that I dislike the State of the Union address. It was intended to be a report given to Congress by the president to inform them of, well, the state of the union.

That sounds like a great idea—that the three branches of government should communicate—but it’s more than a great idea. It’s a constitutional requirement.

Constitutional basis

The president “shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such measures as he shall judge necessary and expedient.” U.S. Const. art. II, § 3, cl. 1.

You’ll notice right away that “from time to time” is vague, and this nonspecific requirement to give “Information” is a long way from what the speech has become: An annual display of clichéd rhetoric, pure grandstanding. Members of the president’s party rise to their feet to give a hearty standing ovation after each trite phrase, while members of the opposing party sit stonily, arms crossed and lips pursed. No matter who the president may be, he offers little new or necessary “Information.”

To be honest, I don’t watch it, and neither do most Americans.

The king’s speech

While George Washington gave at least one such report in speech form, Thomas Jefferson strongly objected to this practice because it resembled an address given by a king from his throne. For this reason, most presidents didn’t give a speech at all but sent a written report to Congress, usually at the end of the calendar year.

President Woodrow Wilson more or less started the modern speech tradition, which really took off under FDR. At that time, it came to resemble the yearly display before both houses of Congress that we see now. It was broadcast on radio, and then television and thereby became to be seen as an address to the American people rather than a report to Congress.

It’s still a report to Congress, however. We tend to forget that, but President Trump finds himself reminded of it now.

House rules

When anyone, including the president, wishes to address a joint session of Congress, he or she must be invited. If the speech is to be given in the House chamber, the Speaker of the House issues the invitation. The Speaker of the House, of course, is Nancy Pelosi, who issued this invitation to Trump several weeks ago.

She has not formally rescinded the invitation, but she has written to Trump to inform him that she does not want him to give the speech while the federal government is shut down.

Trump wrote to Pelosi that he planned to give the speech in the House chamber anyway, or at least somewhere in the Capitol building, despite her wishes.

Can he do this? While Trump could physically burst into the House chambers and start speaking, it wouldn’t be an official report. In order for official remarks to be delivered in the House chamber, the House must be in session, and that is up to Pelosi’s discretion.

Further, Pelosi could have the lights and microphones in the House chamber turned off, making it impossible for Trump to have his speech broadcast (unless someone used a camera phone, at which point Pelosi could rebuke him). The speech still wouldn’t be officially recognized.

Apparently, someone has informed Trump of this, and at the time I wrote this, he had backed down.

Alternative locations

There is no requirement that the address be given in the House chamber.

One possible alternative is the Senate chamber. In fact, when it was given as a speech, the State of the Union was always held in the Senate chamber until the capital was moved from Philadelphia to D.C. in 1801.

Trump could also speak from any other location, including the White House.

Various GOP legislators have offered venues in their home states, from the SuperDome in New Orleans to the state capitol building in more than one state. Several lawmakers suggested he deliver the address at the Mexican border.

While all of these alternatives are possible, they wouldn’t really be an address to Congress, however, so it is unclear which location if any Trump will choose.

The Awful Truth: What really happened with the Covington Catholic students

Saturday’s video of the incident involving Covington Catholic High School students and a Native American man is troubling, no matter which account you believe.

We don’t like to see veterans or Native Americans insulted, and we especially don’t wish to believe that a group of teenagers could be capable of this. No version of these events is a good one.

It’s no surprise in our divided nation that some people view the teens with more sympathy, while others support the Native American protesters.

What’s even more surprising, however, is that we can all view videos shot in broad daylight with clear sound and come away with entirely different versions of what happened. Forget a difference of opinion; we’ve also got a difference of FACT.

I watched TWO HOURS of unedited smart phone video from various participants and bystanders. I also read statements from more than ten witnesses and read five or more newspaper articles about the incident.

These are my findings.

Summary

If you don’t want to read my rather detailed analysis of the video and witness accounts, I’ll summarize it up front.

1) The Native American group is almost entirely blameless here. The videos support their version of events almost entirely. They appear to have acted peaceably.

2) The speaker(s) from the Black Hebrew Israelites said some inflammatory and controversial things in the rambling speech (which was given in a rambling, invective style of a street preacher). Some of the things he said were racist and homophobic. While he appears to be, well, disturbed, that is no excuse. He said many offensive things, and this is part of what started the confrontation.

3) The students were the truly bad actors here. While many people have said that the students were judged unfairly based on incomplete information, the entire video shows that the reports are accurate. In fact, it’s worse than what you’ve seen. The prolonged video of the students’ behavior is hard to watch.

The parties

Three different groups participated in the events.

CovCath students

Covington Catholic High School is a private school in the Cincinnati suburb of Covington, Ky. The school brought a group of its students to Washington, D.C., to participate in the annual March for Life, an anti-abortion protest.

While I would not normally use a minor’s name, the teenager who is featured prominently in the video has given statements to various media outlets using his full name. For that reason, I will use it here: Nick Sandmann.

Native Americans

Several Native American groups attended the Indigenous People’s March Friday, and were protesting on the National Mall on Saturday.

The drumming man in the video is Nathan Phillips, an elder of the Omaha tribe.

Phillips, 64, is a Native American activist and Vietnam veteran.

Black Hebrew Israelites

Also protesting on the National Mall was a small group (it appeared to be three men, but it’s hard to say) who call themselves the Black Hebrew Israelites. This group appears to adhere to elements of both Christianity and Judaism. (Some called them “black Muslims,” which is inaccurate.)

The men in the group were giving speeches that were Biblically-themed and lasted for hours. In the manner of the street preacher, the speaker wove various passersby into his polemic.

This is where the trouble began.

The incident

If you watch the video snippets, you’d get the impression that the incident lasted a few minutes. In fact, the confrontation unfolded over the course of more than an hour.

On Saturday, tourists, protesters, and other groups were milling about the National Mall.

The Black Hebrew Israelites were speaking in front of the steps of the Lincoln Memorial, while the Native groups chanted and drummed somewhat nearby.

At one point, before the students got involved, the Black Israelite speaker noted the Native groups and began tailoring his invective toward them. In general he made statements such as “…you are not savages… but you lost your land because you do not worship the living God of Israel….” and similar statements.

At one point, a Native man approached the speaker, presumably to disagree with him, but there was no real confrontation that I saw and the man walked away.

A few minutes later, the CovCath teens assembled in the speaker’s line of sight. Many of the students began wearing “Make America Great Again” hats. The speaker picked up on this and made general statements that America wasn’t great for the American Indian or African slaves.

The CovCath students began to notice the speaker and took issue with his speech, which was inflammatory at times. The debate became heated. The Black Israel speaker began saying some offensive things at the students (“cracker,” for example, and said something about supporting “faggots,” although it is not clear what he meant by this).

The students began to yell insults back at the speaker, although it is unclear what they said. Other students were trying to debate the speaker, and did not appear to be insulting him.

Bad to Worse

Things continued to escalate, and the students formed a large circle around the speaker. At this point, someone takes a 360-degree video from the speaker’s point of view, and the teens are surrounding him in a complete circle of more than 100 people.

Tensions increase. Other people (perhaps tourists) notice the spectacle and join the circle. Now, it’s a circle that is getting tighter and has grown to more than 200 people.

Several of the teens are yelling now. One of them throws something (a water bottle, perhaps) towards the speaker.

Another student comes to the center of the circle, removes his shirt, and leads the students in the Haka, the “dance of life” of the Maori, who are the native people of New Zealand. The students cheer loudly.

The situation appears to be potentially dangerous now.

The Native group

At this point, but three men (including Phillips) from the Native American group approach, drumming and chanting. While it’s impossible to know anyone’s intentions, the video supports Phillips’s later statements that the men approached to try to disperse the crowd.

The men walk into the circle, which closes around them.

All the while, the students are jeering and loudly mocking the Native men.

For example, the students yell and laugh at the men and mug for the camera. They do the controversial “tomahawk chop” at the men and yell out war whoops. They mimic the men’s chants. There is no question here that the students are mocking the Native men, and frankly they are laughing and delighting in it.

Here, the student Nick Sandmann is visible. He, too, is laughing and mocking the men. As the men are encircled by Sandmann and the others, they stop.

This is an important point: Some report that Sandmann stepped up to Phillips, while others say that Phillips approached Sandmann. In reality, neither statement is true. The two came together through the motion of the crowd. Phillips is walking slowly, drumming and chanting. Sandmann and his friends are circling, but neither person approaches the other deliberately.

In addition to the rest of the noise, one or more of the students yells “Make America Great Again!” Phillips says that someone in the crowd yells “build the wall!” I did not hear this on the video.

Where were the chaperones?

This is a fair question.

At no point in the video are chaperones visible. At the very end, after it’s over, a woman is seen leading the students away, but it’s too late.

The situation became dangerous, and it unfolded over a long period of time.

An adult should have stepped in and stopped the students while things were escalating with the Black Israel speaker. If a chaperone was witnessing this, it’s disturbing that he or she didn’t step in at this point.

Am I biased?
We all are, and I try to be aware of my biases and account for them.

I’m not sure where my biases lie here, though.

On the one hand, I didn’t want to believe this about the students. I also don’t want to believe this about the future of my country.

On the other hand, I was sickened to see a Native elder and a Vietnam vet (or anyone at all) disrespected.

I also hoped the media got it right, because this would be a very unfortunate mistake to make.

Further, I have been very vocal that I do not like many of Trump’s policies. I did not vote for him, so I’m not a MAGA fan as these students are.

Those are my biases, so please note that I was watching and reading with those in the background. I was watching and reading, though, and what I saw would have been upsetting to the most ardent Trump supporter, I believe.

Doxing and defamation

Conservative pundits have accused various celebrities of doxing the students and have suggested that the students sue for defamation.

I agree that doxing is wrong, and I am dismayed at our society’s tendency in this online age to destroy people’s lives who made a dumb mistake. (To be clear, these teens are guilty of more than just a small lapse in judgment, but I still don’t want to see them destroyed. It would be nice if they could visit a reservation and do some hard volunteer work alongside some elders, who could teach them.)

It’s also important to note that the CovCath students did this for an extended period in public, and their clothing identified their school. Many of them were shooting video of themselves and their classmates at the time, so I think much of the doxing criticism is misplaced. It would be hard for them to argue successfully that they were embarrassed by this revelation.

Regarding defamation: Without getting into a complex legal analysis of a defamation lawsuit here, it’s clear that the teens haven't got one. To cut a long story short, they would have to prove that the accusations against them are false.

The videos show the awful truth.

Ordinary times, extraordinary measures: Trump considers a national emergency for the wall

Why is Barack Obama constantly issuing executive orders that are major power grabs of authority?—Donald Trump, July 10, 2012

During the election, comic Roseanne Barr quipped that she wanted Donald Trump to win, if for no other reason than to give comedians plenty of material. President Trump supplies fodder for another profession: the constitutional lawyer. Today’s tripwire is the national emergency, and whether the embattled Trump can declare one in order to begin construction on his border wall.

(United) states of emergency

National emergencies are so much a part of the nation’s essence that the first one was declared in the days before the United States became a nation at all.

The Continental Congress bypassed the legislative process to deal with events that arose during the Revolutionary War by passing a series of acts from 1775 to 1781.

President Washington was of course the first president—and the first president to declare a national emergency, when he seized control of state militias to quell the Whiskey Rebellion by establishing the Militia Acts of 1792. During the Civil War, Lincoln declared a national emergency to blockade the Southern states, bypassing Congress and suspending habeas corpus.

More recently, President Bush invoked his emergency powers during 9/11, Carter did so during the Iran hostage crisis, and Obama invoked his during the H1N1 outbreak.

Trump himself has three unrelated national emergencies in effect now, while 28 remain in effect from previous administrations.

The fire this time

Because Trump is frustrated that Congress will not appropriate funds for him to begin construction of his proposed border wall, he has warned that he will declare a national emergency to bypass Congress.

Given the way the government is structured with its separation of powers among the three branches of government, this doesn’t sound right to us. We take little notice when a president declares a national emergency in order to respond to a hostage crisis, terrorist attack, or a disease epidemic, and we may even support the idea. This time, we’re paying attention, asking: Can the president declare a national emergency to sidestep Congress when he doesn’t get what he wants?

The answer is yes, but of course it’s complicated.

The president’s emergency powers

What constitutes a national emergency isn’t defined very well in any legislation.

The truth is, very little is required for the president to declare one.

Following the Watergate scandal, when the nation had become wary of leaving too much power in the president’s hands, Congress passed the National Emergencies Act, 50 U.S.C. § 1601 (1976).

The Act limited the president’s ability to declare a national emergency. Under the Act, the president must formally declare the national emergency to Congress and must specify under which law he’s invoking the power. (Example: President Bush issued Executive Order 13224 on September 23, 2001, invoking his emergency powers under the Emergency Economic Powers Act in order to impede terrorist’s ability to fund their activities.)

Still, 136 different statutes allow the president to invoke emergency powers under various scenarios, and his power is broad.

Can Congress stop him?

Yes, but they are unlikely to do so.

Under the Act, Congress can terminate the president’s decree with a joint resolution, but that requires the president’s signature, which he would not give in this situation.

Congress can then override the president’s veto, but they would need a two-thirds majority vote in both chambers, and that is unlikely to happen.

If Trump declares an emergency, he will be successful.

Money problems

Perhaps Trump’s biggest problem is funding, and declaring a national emergency won’t solve that.

Even if Trump bypasses Congress, he must also point to statutory authority that allows him to reallocate funds for the wall, and that will be difficult to do.

Trump’s best chance at redirecting funds would be to get the money from the military by invoking his emergency powers found in 10 U.S.C. § 2808 and 33 U.S.C. § 2293.

To make this pass Congressional and constitutional muster under these statutes, he would have to show two things: 1) That border security here requires the use of the military and 2) That the wall itself is military construction. That’s nearly impossible to do, in part because border security is not the purview of the Department of Defense but of the Department of Homeland Security.

Few if any members of Congress (including and especially conservative Republicans) support the use of military funds and/or personnel to assist in this massive public works project. They argue that military funds are needed for, well, the military—particularly for recent proposals furthered by Trump himself.

The courts

Assuming Trump accomplishes all of this and manages to bypass Congress, lawsuits can be filed in federal court to stop him from invoking his emergency powers under these (or any other) statutes.

The cause of action is clear-cut, so now all you need is a plaintiff with standing (a person who is affected by the action and who has therefore got the right to bring the case before the court).

Here, you’ve got many plaintiffs with a good cause of action in the form of the landowners along the border. These landowners are already prepared to sue and in some cases have already got lawyers in place. This includes the members of the Tohono O’odham Nation, the Indian tribe. Other possible plaintiffs would be the governments of the four states that line the border, especially various water boards and other agencies.

This case would reach the Supreme Court, a Court that Trump feels confident would be sympathetic to his cause. His confidence is misplaced, because the conservative justices are constitutional originalists who value property rights and the separation of powers. If you doubt this, read Thomas’ dissent in the Kelo case—and Gorsuch’s emails praising it.

Three-dimensional chess?

Trump’s wall is hindered by problems of funding and land acquisition, and this doesn’t change in a national emergency. In his attempts to bypass Congress and the constitution, Trump continues to build a wall, but it’s not the one he intended.