Opinion
4A
Saturday, February 20, 2021
Other Views
Constitutional
debates only make
the process better
O
ne of the best parts of law school is reading
opinions, dissents and concurrences penned by
the Supreme Court. They concisely and, often-
times, creatively express some of the biggest questions
facing our democracy. One that’s come up repeatedly
in my Administrative Law class: Did the Constitution
create an effective, efficient and energetic government
or did it set
out a formula
for ensuring
KEVIN
accountability,
FRAZIER
adherence to
LAW STUDENT
bright-line rules
and clear jobs
for each branch of government?
You may be inclined to say the Constitution meant to
do both. And you may be right. But the questions that
reach the Supreme Court often don’t allow for that kind
of answer.
For example, in Free Enterprise Fund v. Public Com-
pany Accounting Oversight Board, the Supreme Court
did not have the luxury of finding the middle ground:
Either the Public Company Accounting Oversight Board
within the Securities and Exchange Commission was
unconstitutionally removed from presidential oversight
or it wasn’t.
Though that question may sound drier than the
Alvord Desert, its answer boiled down to whether the
justices thought the Constitution should be read to allow
Congress to create agencies tailored to address modern
issues, or if its bright lines were never meant to be
crossed, regardless of how the times had changed since
1789.
Supreme Court Justice Steven Breyer came out on the
side of an action-oriented Constitution. He’s known for
his creative metaphors, imaginative hypotheticals and,
above all, his functionalism. In Breyer’s dissent, joined by
three of his colleagues, he quoted Chief Justice Marshall
in McCulloch v. Maryland (1819) and argued: “Immutable
rules would deprive the Government of the needed flexi-
bility to respond to future exigencies which, if foreseen at
all, must have been seen dimly.”
According to Justice Breyer, he and Chief Justice Mar-
shall correctly realized the Framers aimed to create a
Constitution that would “endure for ages to come,” which
requires granting Congress the ability to respond to the
“various crises of human affairs.”
On the other side, writing for the majority, Chief Jus-
tice Roberts channeled a formalist interpretation and
made the case for a Constitution designed to frustrate
speedy responses, if necessary to maintain bright lines
between the branches. Citing Supreme Court precedent,
Roberts asserted: “The fact that a given law or procedure
is efficient, convenient, and useful in facilitating functions
of government, standing alone, will not save it if it is con-
trary to the Constitution, for convenience and efficiency
are not the primary objectives — or the hallmarks — of
democratic government.”
The fun (and frustrating) part about law school is that
these justices are all persuasive, articulate and steeped
in Supreme Court precedent. They rarely make bad
arguments and they force even the most fierce function-
alists to see some merit in a more formalist interpreta-
tion, and vice versa.
With a majority of the Supreme Court adopting a for-
malist interpretation, though, those who share Breyer’s
view of democracy have a tough battle ahead. Count
me among those who think our government ought to be
guided by outcomes.
The wonderful part about our democracy is the
people are the sovereigns. Functionalists and formalists
alike agree all power exercised by the president, Con-
gress and the Supreme Court is derived from the people.
That means We the People — you and me — have the
obligation and opportunity to make sure our power is
used toward whatever objectives we view as the hall-
marks of our democracy.
Outcomes-oriented governance is not easily accom-
plished. If some people advocate more persuasively
or more persistently, their outcome might win the day.
Which is why we ought to do all we can to bring more
voices into the delegation of our collective power to our
delegees.
Oregon has long championed finding ways to bring
the people into the process of power sharing. From the
initiative to automatic voter registration, the state has
found ways to give people the chance to divvy out their
share of power. Those innovations have paved the way
for a lot of participation, but there are still some people
who find it easier than others to distribute their power.
We can achieve an outcomes-oriented democracy if
we can bring everyone into the fold. That’s why we need
to lower barriers to folks simply looking to fulfill their
role as sovereigns.
———
Kevin Frazier was raised in Washington County.
He is pursuing a law degree at the University of
California, Berkeley School of Law.
Other Views
President Biden’s problematic polling
JOE
GUZZARDI
IMMIGRATION ANALYST
P
residential honeymoons have
remarkably different lengths.
President Barack Obama’s hon-
eymoon, at least with the press, began
the day he announced his candidacy,
Feb. 10, 2007, and the blissful union
continues today.
On the complete opposite end of
the honeymoon spectrum is Presi-
dent Donald Trump, an impeachment
target from before his inauguration
in 2017 until February 2021, a month
after he left office.
Surprisingly, the polls show that
President Joe Biden is, after only four
weeks in the White House, having
a rough go of it with the very Dem-
ocrats who helped elect him. The
Morning Consult poll, a partnership
with the left-leaning journalism com-
pany Politico, found that several of
Biden’s Executive Orders — espe-
cially those immigration-related —
are among the most unpopular with
voters.
Of the voters polled, only 45% sup-
port including illegal immigrants in
the census, and only 46% approve
halting the Trump administration’s
Remain in Mexico policy, which the
Biden administration has undone.
Effective Feb. 19, the first of an even-
tual 25,000 immigrants will begin
entry into the United States. Others
entered earlier and illegally were,
despite the COVID-19 pandemic,
caught and released with orders to
appear in immigration court at a later
date.
Biden’s lenient immigration pol-
icies have encouraged large migrant
caravans to come north. As one of
thousands of border-bound Hondu-
rans told CNN, Biden is “going to
help all of us” to become legal resi-
dents. When asked how the admin-
istration could refute the widely
held perception that the 100% surge
increases meant migrants interpreted
the borders were open, an opinion
Mexican President Andres Manuel
Lopez Obrador shares, White House
press secretary Jen Psaki avoided
giving a straightforward answer.
The least popular among Biden’s
executive orders is his goal to expand
refugee admission to 125,000 from
President Trump’s 15,000, a greater
than 800% increase. Among those
polled, 48% of voters somewhat or
strongly oppose the president’s plan
to increase refugee resettlement in the
upcoming fiscal year, while 39% sup-
port it.
Summing up the Feb. 5-7 survey
among 1,986 registered voters, and
accounting for a 2% error margin,
Morning Consult’s senior editor
Cameron Easley wrote, “Orders per-
taining to immigration and immigrant
rights constitute five of his seven
Letters
Inclusion, fairness are more than a trend
I’m the person who started the Black Lives Matter protests in La
Grande. I’m in seventh grade at La Grande Middle School. As I told
The Observer, I woke up one morning, saw the news and saw that
there were protests all over the country. I thought there was no reason
we shouldn’t have a rally here.
I have always thought that everyone should be treated equally
regardless of things they can’t control (gender, race, sexual orien-
tation, class, etc.). I learned this behavior at a very young age from
my parents and just seeing it everywhere; I lived in New York until
I was 9 and it was always very apparent to me there. So I try to live
that behavior all that I can by organizing events like our Black Lives
Matter rally.
La Grande doesn’t have as much diversity as some other places
so it makes me think about — and we all should think about — how
hard it is to be in a minority here. I believe we all need to treat people
who are out of the mainstream equally and fairly.
I am planning to pursue social equity issues in my free time, in
school and after I graduate. I’m also invested in creating events for
our community. Like, some of my friends and I would like to orga-
nize a pride parade in the future.
I hope that our community can come together to support inclusion
and fairness for everyone, even when it is not a trending hashtag.
Miri Koltuv
La Grande
least popular actions among voters,
and are particularly animating for
Republicans.”
As a result, Easley concluded,
“immigration will be tricky political
territory for the president.”
Americans are puzzled at what
the thought process may be behind
Biden’s urgency to liberalize immi-
gration laws when there’s no link to
how his actions help the millions of
economically distressed, employ-
ment-anxious citizens and lawfully
present residents. Biden’s immigration
actions will expand the labor pool —
the Bureau of Labor Statistics employ-
ment-population ratio that mea-
sures the number of people employed
against the total working-age popula-
tion is a dismal 57.5%.
Biden is urging Congress to pass
amnesty that would legalize and
provide lifelong valid work per-
mission to millions of aliens, a big
gamble for the new president. With
only a five-seat margin in the House
of Representatives, the Senate tied
at 50-50, and with history showing
that the midterm elections cost the
majority party about 25 seats, Biden
could be, as the Morning Consult
poll editor warned, plunging into
cold and murky water.
———
Joe Guzzardi is a Progressives for
Immigration Reform analyst who has
written about immigration for more
than 30 years. Contact him at
jguzzardi@pfirdc.org.
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