Integrity Legal

Posts Tagged ‘United States Constitution’

19th August 2011

It recently came to this blogger’s attention that the Department of Homeland Security (DHS) may be poised to begin placing holds on some deportations. In order to provide further insight it is necessary to quote directly from the website of The Washington Times, WashingtonTimes.com:

The Homeland Security Department said Thursday it will halt deportation proceedings on a case-by-case basis against illegal immigrants who meet certain criteria such as attending school, having family in the military or are primarily responsible for other family members’ care. The move, announced in letters to Congress, won immediate praise from Hispanic activists and Democrats who had chided President Obama for months for the pace of deportations and had argued he had authority to exempt broad swaths of illegal immigrants from deportation…

The administration of this web log strongly encourages readers to click upon the relevant hyperlinks above to read this article in detail.

Although this blogger has been reluctant to support blanket amnesty per se, especially for those who have entered the United States illegally; there are often unique and extenuating circumstances which require adjudication in order to equitably administer American immigration law and regulation pursuant to legislative and executive plenary power. It remains to be seen how this policy will be practically implemented.

In news related to the struggle for LGBT Equality, it recently came to this blogger’s attention that the federal delegation from the sovereign State of New York may be more supportive of DOMA repeal since a Congressional Representative from that State was recently noted for comments on this issue. In an effort to provide further insight it is necessary to quote directly from the website Towleroad.com:

After waiting for New York State to legalize gay marriage, Democratic Rep. Bill Owens now says he supports the repeal of the Defense of Marriage Act that prohibits federal recognition of same-sex marriage. “I indicated I would not become a co-sponsor until New York took action,” said Owens, who represents the Empire State’s 23rd Congressional district. “Once they did that, I felt I had an obligation to the citizens in the state to make sure they weren’t adversely impeded by federal law.” Owens continued, “I think that people should have the freedom to make those kinds of decisions…”

The administration of this web log asks readers to click on the hyperlinks above to read this article in detail.

For those who are unaware of the evolving nature of this issue it should be noted that the provisions of the so-called “Defense of Marriage Act” (DOMA) preclude federal recognition of same sex marriage. This federal non-recognition is enforced even where one of the sovereign American States has legalized and/or solemnized the underlying same sex marriage. There are some who would argue that this activity violates the Full Faith and Credit Clause of the United States Constitution while others could argue that such discrimination violates the Equal Protection Clause. In any case, the result in an immigration context is that same sex bi-national couples (even those who have entered into a same sex marriage in a US State) cannot receive the same visa benefits (such as the CR-1 visa, IR-1 visa, or K-1 visa)  as their different-sex counterparts. Some federal legislators, such as New York delegation member Representative Jerrold Nadler, have attempted to remedy this problem through introduction of bills such as the Uniting American Families Act (UAFA: to address the specific issue of discrimination in an immigration context) and the Respect For Marriage Act (RFMA: a proposal which would accord federal “certainty” to State licensed same sex marriages). However, it remains to be seen whether such legislation will ultimately see passage.

In news related to the aforementioned issues it also came to this blogger’s attention that further “mainstream media” attention is being focused upon the case of the same sex bi-national couple who were married in the Commonwealth of Massachusetts, but face the prospect of separation due to the fact that the American government may remove the foreign spouse since their marriage is not recognized pursuant to the provisions of DOMA. In an effort to provide further detail this blogger is compelled to quote directly from the official website of The Washington Post, WashingtonPost.com:

Mr. Makk’s case illustrates the profound injustices meted out by DOMA, which was passed in 1996. The Obama administration this year denounced the Clinton-era law as unconstitutional because it deprives same-sex couples equal protection of the law. In April, Attorney General Eric H. Holder Jr. put on hold the deportation of a British man who has lived in the United States since 1996 but who never obtained a green card or citizenship. The man, Paul Wilson Dorman, has been in a committed same-sex relationship for 15 years and entered into a civil union with his partner, a U.S. citizen, in 2009. Mr. Holder asked an immigration court to determine whether Mr. Dorman should be considered a “spouse” under New Jersey law and thus entitled to stay in the country. Mr. Makk’s deportation should also be put on hold, as should those involving anyone in legally recognized same-sex relationships whose only infraction involves immigration status…

The administration encourages readers to click upon the hyperlinks noted above to read this article in detail as this situation is poignant indeed.

Although this blogger can at times get caught up in the rather academic details of the debate on federal recognition of same sex marriage readers should be aware that this issue has a truly human context since couples like the one noted above could have their personal lives substantially disrupted as a result of federal policy with respect to same sex couples. There is some speculation that this matter may ultimately see resolution in the US Courts, but until such time as a final decision is made on the matter same sex couples and the Greater LGBT community in America are left to hope that their federal legislature will pass legislation akin to the RFMA or the UAFA. Perhaps in the meantime officers in the American immigration system can utilize their statutory authority and plenary powers to provide equitable relief to those who find themselves facing the prospect of being separated from their loved ones due to questionably Constitutional law.

For information pertaining to legal services in Southeast Asia please see: Legal.

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13th August 2011

It recently came to this blogger’s attention that an 11th Circuit Court of Appeals decision apparently found certain sections of the law enacting American health care reform to be unconstitutional. In order to provide further details this blogger is compelled  to quote directly from an article written by JENNIFER HABERKORN and posted to the website of Politico, Politico.com:

The 11th Circuit Court of Appeals on Friday ruled that the health care reform law’s requirement that nearly all Americans buy insurance is unconstitutional, a striking blow to the legislation that increases the odds the Supreme Court will choose to review the law…The 2-1 ruling marks the first time a judge appointed by a Democrat has voted to strike down the mandate. Judge Frank Hull, who was nominated by former President Bill Clinton, joined Chief Judge Joel Dubina, who was appointed by George H.W. Bush, to strike down the mandate…

The administration of this blog asks interested readers to click upon the relevant hyperlinks noted above to read this interesting and insightful article in its entirety.

Where governmental officials impose restrictions upon individual rights there may be an argument that said activity violates the United States Constitution. Meanwhile, it remains to be seen whether this case will be appealed to the United States Supreme Court and, if it is appealed; whether the Supreme Court will grant Certiorari. Even if the Supreme Court opts to review the matter it is difficult to speculate as to their decision since Supreme Court decisions should never be considered foregone conclusions. Hopefully the ultimate decision in the matter benefits all concerned while remaining in compliance the the law and principles of the United States Constitution.

In news pertaining to the Association of Southeast Asian Nations (ASEAN), it recently came to this blogger’s attention that the Deputy Secretary-General of ASEAN for ASEAN Economic Community was noted for comments regarding ASEAN’s perspective on economic issues in the United States and Europe. To provide further elucidation on these developments it is necessary to quote directly from the website MYSinchew.com:

MANADO, Indonesia, Aug 12 (Bernama) — The Association of Southeast Asia Nations (Asean) learns a lot from debt crisis in Europe and the United States, looking ways to avoid such disaster, a high-ranking official at the Asean Secretariat told Xinhua news agency in an exclusive interview on the side lines of Asean Ministers Meeting in North Sulawesi provincial capital city of Manado. Deputy Secretary-General of Asean for Asean Economic Community Sundram Pushpanathan said that in term of the current situation in Europe, Asean has agreed to stay vigilant. “After experiencing two crises in the region (in the past), ASEAN recognizes the importance of coordination of policies and keeping each other informed, so that the region stays stable in the situation. And of course, I think that from the EU, we have learned a lot of lesson,” he said…[sic]

This blogger asks readers to click upon the hyperlinks noted above to read this article in detail.

Many of the jurisdictions which comprise ASEAN (Brunei Darussalam, Cambodia, Indonesia, Laos, Myanmar, Philippines, Singapore, Thailand, Malaysia, and Vietnam) have shown strong growth in economic terms. Meanwhile, further integration facilitated by trade is likely to lead to further economic advantages for the ASEAN region in the coming months and years. Discussion regarding a unified ASEAN visa could result in tangible benefits to business travelers and those wishing to streamline regional business operations.

For information about legal services in Southeast Asia please see: Legal.

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11th August 2011

It recently came to this blogger’s attention that officials from the jurisdictions which comprise the Association of Southeast Asian Nations (ASEAN) are being encouraged to implement the ASEAN Economic Community (AEC) Blueprint. In order to provide further insight into these developments it is necessary to quote directly from a fascinating article posted to the Live Trading News website, LiveTradingNews.com:

The Association of Southeast Asian Nations (ASEAN) Wednesday was urged to implement the ASEAN Economic Community (AEC) Blueprint 2015 timely. “This year’s ASEAN Economic Ministerial meeting takes place at a critical juncture when there is so much uncertainty about the global economy given the fiscal situations in the United States and members of the European Union. From Indonesia’s perspective, it is imperative that ASEAN implements the AEC Blueprint 2015 on time as this will bring benefits to all of its members and allow ASEAN to grow together with our dialogue partners,” said Indonesian Trade Minister Mari Elka Pangestu…

Readers are encouraged to click upon the relevant hyperlinks noted above to read this article in detail.

Those who read this web log with any frequency may be aware of the fact that there have been many significant developments pertaining to the Association of Southeast Asian Nations (ASEAN). One major announcement, from this blogger’s perspective, was the broaching of the subject of a possibly unified ASEAN visa similar to the Schengen visa scheme currently utilized in Europe. Concurrently, in the context of the Kingdom of Thailand; there has been discussion surrounding the idea of creating Thailand Plazas throughout the ASEAN jurisdictions in order to promote Thai business interests in the region. With respect to geopolitics, ASEAN has been in the news recently as this organization seems poised to eventually promulgate a formal declaration with respect to freedom of navigation in the South China Sea. How such matters will ultimately evolve remains to be seen.

In news pertaining to United States immigration, it recently came to this blogger’s attention that the Governor of the sovereign State of Arizona has petitioned for Supreme Court review of that State’s recently enacted immigration law. In order to provide further insight it is necessary to quote directly from the official website of Politico, Politico.com:

Arizona Gov. Jan Brewer announced late Wednesday she has filed a petition asking the Supreme Court to consider her state’s appeal to a lower court ruling that put on hold key parts of Arizona’s anti-illegal immigration law. “I am hopeful that the U.S. Supreme Court will choose to take this case and issue much-needed clarity for states, such as Arizona, that are grappling with the significant human and financial costs of illegal immigration,” Brewer said in a statement released by her office. “For too long the Federal government has turned a blind eye as this problem has manifested itself in the form of drop houses in our neighborhoods and crime in our communities. SB1070 was Arizona’s way of saying that we won’t wait patiently for federal action any longer. If the federal government won’t enforce its immigration laws, we will.” Brewer, a Republican, vowed this spring to take the case to the high court after a ruling by the 9th Circuit Court of Appeals rejecting her motion to throw out a district court’s ruling that blocked implementation of parts of the law. The deadline to do so was Wednesday…

This blogger asks interested readers to click upon the relevant links above to read this article in detail.

As noted previously on this web log, the powers related to immigration and often wielded by the federal legislature and the federal executive are plenary in nature as immigration is one of the relatively few areas in which the United States federal government maintains virtually unfettered seemingly exclusive jurisdiction. That stated, how said jurisdiction interrelates with reserved States’ Rights and prerogatives is an interesting and almost interminably unsettled question. Hopefully, the Supreme Court of the United States can provide insight into these issues and possibly delineate a framework which will facilitate a better understanding of all of these issues and their interaction within the context of the United States Constitution.

For information related to US immigration from the Kingdom of Thailand please see: K1 Visa Thailand.

For information pertaining to general legal services in Southeast Asia please see: Legal.

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10th August 2011

It recently came to this blogger’s attention that the Department of Homeland Security‘s United States Citizenship and Immigration Service (USCIS) is apparently compelling an Australian man, who is currently a partner in a same sex marriage with an American Citizen, to depart the USA. In order to provide further clarity on this situation it is necessary to quote directly from the official website of the San Fransisco Chronicle, SFGate.com:

Citing the Defense of Marriage Act, the Obama administration denied immigration benefits to a married gay couple from San Francisco and ordered the expulsion of a man who is the primary caregiver to his AIDS-afflicted spouse. Bradford Wells, a U.S. citizen, and Anthony John Makk, a citizen of Australia, were married seven years ago in Massachusetts. They have lived together 19 years, mostly in an apartment in the Castro district. The U.S. Citizenship and Immigration Services denied Makk’s application to be considered for permanent residency as a spouse of an American citizen, citing the 1996 law that denies all federal benefits to same-sex couples. The decision was issued July 26. Immigration Equality, a gay-rights group that is working with the couple, received the notice Friday and made it public Monday. Makk was ordered to depart the United States by Aug. 25. Makk is the sole caregiver for Wells, who has severe health problems…

The administration of this web log encourages interested readers to click upon the relevant hyperlinks noted above to learn further details from this interesting story.

Frequent readers of this web log may recall that the provisions of the so-called “Defense of Marriage Act” (DOMA) preclude the federal government from recognizing a same sex marriage for purposes of distributing federal benefits. Therefore, same sex bi-national couples cannot acquire the same travel documents and visa benefits (such as the K-1 visa, CR-1 visa, or an IR-1 visa) as a different-sex couple notwithstanding the fact that the couple may be legally married in one of the State jurisdictions which legalize and/or solemnize such unions. It should be noted that legislation such as Representative Jerrold Nadler‘s Uniting American Families Act (UAFA) or the Respect for Marriage Act would rectify this situation to one degree or another. As of the time of this writing it remains to be seen whether this legislation will ultimately see enactment.

Meanwhile, in news of further interest to those who follow immigration matters; it recently came to this blogger’s attention that DHS has issued an announcement regarding a nationwide program to be administered by the United States Immigration and Customs Enforcement Service (USICE, sometimes colloquially referred to as ICE). To provide further insight it is necessary to quote directly from the official website of the Washington Times, WashingtonTimes.com:

The District could be forced to participate in an immigration-enforcement program now that the federal government has issued a letter to states that voided their participation agreements and emphasized the program’s mandatory nature. The Department of Homeland Security sent the letter last week to governors of 39 states, including Maryland and Virginia, after three states expressed interest in opting out of their contracts with the federal Secure Communities program. The program allows U.S. Immigration and Customs Enforcement to access fingerprints collected by state and local law enforcement and shared with the FBI. It was started in 2008 and has helped ICE identify and deport more than 86,000 convicted criminal aliens. “This is to avoid any further confusion,” ICE spokeswoman Nicole Navas said Monday. “We’ve made it clear. There’s no opting out.” DHS voided the agreements to clarify that they essentially served no purpose, and that states are required to remain in the program. Federal officials no longer will seek agreement with newly enrolled states and jurisdictions, and will simply notify them when they plan to implement the program…

This blogger asks readers to click upon the relevant hyperlinks noted above to read this article in detail.

Matters pertaining to immigration can be difficult to understand especially in the context of the United States Constitution since many of the immigration-related powers of the American Legislature and Executive are plenary in nature. How such powers interact with States’ Rights can be difficult to ascertain as the legal principles involved can be quite subtle. In any case, the ultimate resolution of this issue remains to be seen. Hopefully, a solution will present itself which will prove amenable for all concerned.

For information related to United States immigration from Thailand please see: Legal.

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2nd August 2011

It recently came to this blogger’s attention that personnel of the United States Justice Department have filed a case challenging the provisions of a recent State immigration law enacted by the sovereign State of Alabama. In order to provide further information this blogger is compelled to quote directly from the website AL.com:

BIRMINGHAM, Alabama — The U.S. Justice Department today filed a lawsuit challenging Alabama’s new immigration law, which is slated to go into effect next month. In its lawsuit, the Justice Department says Alabama’s law unconstitutionally interferes with the federal government’s authority over immigration. “To put it in terms we relate to here in Alabama, you can only have one quarterback in a football game. In immigration, the federal government is the quarterback,” said Joyce White Vance, the U.S. Attorney for the Northern District of Alabama. Justice Department lawyers write in the lawsuit that the department is filing the action “to declare invalid and preliminarily and permanently enjoin the enforcement of various provisions” of the state law, according to the lawsuit filed in U.S. District Court in Birmingham this afternoon. Provisions within the state’s immigration law “are preempted by federal law and therefore violate the Supremacy Clause of the United States Constitution…”

The administration of this web log asks readers to click upon those relevant hyperlinks noted above in order to read this insightful article in detail.

Frequent readers of this blog may have noted that this blogger has rather strong feelings regarding inherent States’ Rights and the inherent prerogatives which are reserved to State sovereigns notwithstanding the enumerated powers of the federal government pursuant to the United States Constitution. That stated, American immigration is one of the relatively few fields in which Congress has virtually monopolistic power regarding the imposition of laws, rules, and regulations. This is due to the fact that immigration falls into the jurisdiction of Congressional and executive plenary power. Therefore, it is little wonder that this recent case was filed since the Alabama law would seem to be operating in violation of that aforementioned plenary power. How this case will ultimately be resolved remains to be seen, but clearly issues pertaining to US immigration can be dramatic in a political context.

Of further interest to those who find the information above to be noteworthy, it recently came to this blogger’s attention that the American Congress seems to be attempting to create some sort of extra-Constitutional body for legislative purposes. To provide further elucidation regarding these developments it is necessary to quote directly from the official website of the Huffington Post, HuffingtonPost.com

This “Super Congress,” composed of members of both chambers and both parties, isn’t mentioned anywhere in the Constitution, but would be granted extraordinary new powers. Under a plan put forth by Senate Minority Leader Mitch McConnell (R-Ky.) and his counterpart Majority Leader Harry Reid (D-Nev.), legislation to lift the debt ceiling would be accompanied by the creation of a 12-member panel made up of 12 lawmakers — six from each chamber and six from each party. Legislation approved by the Super Congress — which some on Capitol Hill are calling the “super committee” — would then be fast-tracked through both chambers, where it couldn’t be amended by simple, regular lawmakers, who’d have the ability only to cast an up or down vote. With the weight of both leaderships behind it, a product originated by the Super Congress would have a strong chance of moving through the little Congress and quickly becoming law. A Super Congress would be less accountable than the system that exists today, and would find it easier to strip the public of popular benefits. Negotiators are currently considering cutting the mortgage deduction and tax credits for retirement savings, for instance, extremely popular policies that would be difficult to slice up using the traditional legislative process…

This blogger asks that readers click on the appropriate hyperlinks above to read this article in detail.

This blogger would argue that this proposed so-called “Super Congress” is a prima facie violation of the United States Constitution since there is no explicit reference to such an institution within the text of the Constitution itself and because Congress cannot delegate their lawmaking function to this institution per the doctrine of nondelegation. As noted in the quotation above, under the proposed scheme “rank and file” Representatives and Senators would not be able to make amendments or changes to proposed legislation emanating from this questionably Constitutional body, but would be required to vote “yes” or “no” only. This blogger would not have a Constitutionality issue with the proposed scheme if it were proposed as an Amendment to the Constitution and not as a statute since, again, the Nondelegation precludes such a transfer of power and therefore any law passed pursuant to this scheme may not be in compliance with notions of due process of law in American jurisprudence since there is a specific Constitutional framework for enacting legislation which does not include a “Super Congress”. For those who wish to understand this issue through the prism of analogy there are certain parallels between the argument that this scheme violates the Nondelegation doctrine and the argument that the so-called federal “line item veto” violated the Presentment Clause of the American Constitution. The future circumstances of this scheme have yet to unfold, but clearly there are many legal aspects of this plan which could face challenge down the road.

– Benjamin Walter Hart

For information pertaining to legal services in Southeast Asia please see: Legal.

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29th July 2011

Notwithstanding the fact that the American federal government currently finds itself in gridlock due to issues such as the debate over the raising of the debt ceiling and other issues pertaining to the national deficit there appears to be one issue that seems to be continually overlooked by members of both parties in the United States Congress. That issue is: federal recognition of State licensed same sex marriage. Regardless of the provisions in the United States Constitution regarding Full Faith and Credit as elucidated in the language of the Full Faith and Credit Clause, the third section of the so-called “Defense of Marriage Act” precludes federal recognition of same sex marriage even in situations where such unions are legalized and/or solemnized in one of the American State jurisdictions which license such marital unions.

In the interests of full disclosure, this blogger originates from the Great State of Kansas and that State has opted to pass a ban upon same sex marriage as a State Constitutional amendment. This blogger disagreed with the promulgation of that amendment at the time because he has always believed that the States have no right to legislate as to We The People‘s natural rights and prerogatives. That stated, where State legislation augments personal liberty and is not preempted expressly by the enumerated powers of the federal Constitution, such legislation should be accorded Full Faith and Credit pursuant to the United States Constitution not to mention pursuant to the law of the land in the United States of America.

Bearing the above in mind, the issue of same sex marriage and federal recognition thereof is a thorny one since there are those States which expressly ban such unions while concurrently there are those which expressly permit such unions. Therefore, there could be a situation where a same sex marriage is performed and thereby legalized in one State and thereafter the couple cannot be divorced in another State jurisdiction as said jurisdiction does not permit such unions pursuant to State public policy. The courts in the non-recognizing State may be required to recognize that a same sex marriage in another jurisdiction exists in fact, but may not allow the same sex couple to receive a divorce. For more on these concepts it is prudent to review the previous blog posting regarding the concept of vertical vs. horizontal Full Faith and Credit.

Bearing all of the above in mind, it is this blogger’s opinion that the issue of same sex marriage recognition, at least at the federal level, is a virtually non-partisan issue since it touches upon basic human rights as well as those notions inherent to the concept of States’ Rights. As a result, politicians should not have a “tough sell” on this issue with respect to their constituents as Republican legislators can note that support of legislation such as Representative Jerrold Nadler‘s Respect For Marriage Act is supportive of reserved State prerogatives. Meanwhile, Democrats can note that support for repeal of DOMA is in the interests of human rights, civil rights, and Equal Protection.

It remains to be seen how these concepts will come to evolve as the legislative session continues, but it is clear that this issue dovetails many key concepts that Americans associate with personal freedom and Constitutional law.

– Benjamin Walter Hart

For further information regarding federal recognition of same sex marriage please see: Certainty.

For information pertaining to legal services in Southeast Asia please see: Legal.

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1st July 2011

During a recent exploration of the World Wide Web it came to this blogger’s attention that there are increasing numbers of websites reporting on issues associated with same sex marriage and the legal ramifications of such unions upon both the accordance of federal benefits and the issuance of United States visas. In a previous posting on this blog it was noted that the sovereign State of New York recently enacted legislation which would legalize same sex marriage in that jurisdiction. However, there are those who would argue that the struggle for LGBT Equality is far from finished. To provide further insight into these unfolding events it may be best to quote directly from the TheNation.com:

[W]hile this is certainly a moment to celebrate, same-sex couples in New York are not out of the woods yet. Because of the “Defense of Marriage Act” (DOMA) passed by Congress in 1996, the federal government does not honor any same-sex marriages performed in the states. So as thousands of gay and lesbian couples are married in New York over the coming months, the federal government will treat those legally married couples as strangers and deny them more than a thousand federal rights and protections of marriage, including Social Security spousal benefits, fair tax treatment and the right to sponsor a spouse for a visa or citizenship.

Readers are encouraged to click upon the relevant hyperlinks noted above to read this interesting article in detail. As noted previously in multiple postings on this web log the provisions of the so-called “Defense of Marriage Act” (DOMA) create a situation in which the federal government precludes recognition of same sex marriage even where one of the sovereign American States has legalized and/or solemnized such a union. This has lead some to note that failure on the part of the federal government to recognize such unions results in something of an abrogation of the notion of Full Faith and Credit as enshrined in the United States Constitution’s Full Faith and Credit Clause. That stated, some federal legislators, such as Representative Jerrold Nadler and Representative Mike Honda, have introduced legislation  such as the Uniting American Families Act (UAFA), the Respect for Marriage Act, and the Reuniting Families Act which are designed to mitigate some of the discrimination imposed by application of DOMA. As of the time of this writing, however, none of the aforementioned legislation has been enacted.

Bearing in mind the facts noted above, the reader should note that there have been some other positive developments, albeit relatively minor, in the struggle for full equality. In order to shed further light upon these developments it may be prudent to quote directly from the website LGBTQNation.com:

Another battle which is loosening the Jenga pieces under this bigoted piece of legislation is the fight for immigration rights by bi-national couples. One such case that we’ve covered is that of Henry Valendia and Josh Vandiver, a legally married couple residing in New Jersey. Under DOMA, Valendia, a Venezuelan national, was denied legal residency. Last month, U.S. Attorney General Eric Holder vacated a decision made by the Board of Immigration Appeals (BIA)…[S]ome incredible news came to the Valencia-Vandiver family on Wednesday in the form of a dismissal by Jane H. Minichiello, the chief counsel at the Newark office of Immigration and Customs Enforcement, and arm of the Homeland Security Department…

The administration of this web log asks readers to click upon the appropriate hyperlinks noted above to learn further details from this fascinating article.

It is certainly heartening to see that the United States government appears to have dismissed the proceedings related to this same sex bi-national couple. That stated, it is certainly possible that this may remain, at least for the time being, an isolated incident as the provisions of DOMA appear to still be in force. Hopefully, this case is the first in a long line of cases in which the LGBT community sees Full Faith and Credit and Equal Protection under the law of the United States of America.

For related information please see: US Visa Thailand.

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1st June 2011

It recently came to this blogger’s attention that the administration of President Barack H. Obama is poised to take a more commonsensical approach to issues pertaining to United States Immigration. In order to shed further light upon this issue it may be best to quote directly from an article entitled New Common-Sense Immigration Reforms to Strengthen Our Economy written by Aneesh Chopra & Alejandro Mayorkas and posted on the White House blog at WhiteHouse.gov:

President Obama recently reaffirmed the urgent need to fix our broken immigration system, so that America can compete and win in the 21st century.  Immigrants make extraordinary contributions to our economic well-being, as demonstrated in study after study. For evidence, you can turn to recent analyses from the Treasury Department, the bipartisan Partnership for a New American Economy, or the U.S. Chamber of Commerce.

Or simply visit Silicon Valley.  Aneesh participated in a roundtable yesterday hosted by the Silicon Valley Leadership Group where nearly half of the executives in the room were immigrants. They were unanimous in their call for action in the high skilled area — a top priority for the group, along with a new service campaign to connect the  best and brightest in the Valley with  kids in need.  But they were also frustrated with our inability as a country to tackle these issues as it has been several years since they began such conversations.

Aneesh did review the White House’s Blueprint for Building a 21st Century Immigration System, reinforcing what they already knew — that our economic competitiveness would be strengthened by a legal immigration system that reflects our values and meets our diverse needs…

The administration of this web log strongly encourages readers to click on the hyperlinks noted above to read further from this insightful piece.

This blogger is personally anxious to see a new common sense strategy employed in the administration of America’s immigration system. In a previous posting on this blog it was noted that the Obama administration in conjunction with Senator Amy Klobucher have taken steps to move forward on legislation designed to reform certain aspects of the American visa system. This initiative appears to be undertaken in an effort to generate further revenue for America in the form of tourist dollars. Furthermore, there are some who would argue that a reform of the immigration system would result in an increase in foreign direct investment in the USA as foreign nationals travel to America on visas such as the E-2 visa or the EB-5 visa in order to engage in trade or start a business.

Credit where credit is due: the administration appears serious about making positive changes to the US visa process and for this reason their efforts to that end should be admired. However, not everyone is enthusiastic about every aspect of the Obama administration’s policies and procedures as was recently discovered by this blogger while surfing the internet for information regarding the recent Patriot Act Extension. It would appear as though the issue of the Patriot Act’s extension is not the salient point for some as the President’s method of “signing” the recent legislation has been called into question. To quote directly from an article written by Benjy Sarlin posted on the website TalkingPointsMemo.com:

President Obama’s use of a mechanical “autopen” to sign the new PATRIOT Act extension from abroad has at least one Republican lawmaker worried about a “dangerous precedent.” According to Rep. Tom Graves (R-GA), using a machine to sign legislation could one day bring about a dystopia in which robotic writing utensils are used to enact all manner of phony legislation.

“I thought it was a joke at first, but the President did, in fact, authorize an autopen to sign the Patriot Act extension into law,” Rep. Tom Graves (R-GA) said in a statement. “Consider the dangerous precedent this sets. Any number of circumstances could arise in the future where the public could question whether or not the president authorized the use of an autopen. For example, if the president is hospitalized and not fully alert, can a group of aggressive Cabinet members interpret a wink or a squeeze of the hand as approval of an autopen signing? I am very concerned about what this means for future presidential orders, whether they be signing bills into law, military orders, or executive orders.”

The administration of this web log recommends that readers click upon the relevant hyperlinks noted above to read this interesting posting in its entirety.

Representative Tom Graves is not the only one with concerns regarding this method of enacting legislation via “autopen” as those who subscribe to a so-called “formalist” or plain language interpretation of the United States Constitution (which this blogger has been known to agree with on certain issues) seem to have taken some offense to the notion of being able to sign legislation, especially legislation as important as the Patriot Act extension, into law through usage of an “autopen” especially in light of a plain language interpretation of the U.S. Constitution itself. To further elucidate this point it may be best to quote directly from a very astute comment on the CBSnews.com website attributed to Bojax39 on May 31, 2011:

Justice Department’s Office of Legal Counsel: “…we conclude that the President need not personally perform the physical act of affixing his signature to a bill he approves and decides to sign in order for the bill to become law. Rather, the President may sign a bill within the meaning of Article I, Section 7 by directing a subordinate to affix the President’s signature to such a bill, for example by autopen.”Article 1, Section 7 of the U.S. Constitution: “Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approves he shall sign it…” Now how the name of chicanery did the OLC “conclude” that? Just where does the Constitution say it’s okay for a machine to sign laws? What happens years from now when the government wants to prove to the people that it’s had the power to do some legal trickery for years? Drag out a former president’s autopen program to retroactively sign an empowering bit of “legislation”, wait for the ink to dry and tell us the law is really decades old?..

The administration of this blog again strongly recommends that readers click upon the hyperlinks noted above to read this comment fully. That stated, one is always encouraged to take some opinions posted on the internet with a proverbial “grain of salt,” but under the circumstances the points raised in the citation above are valid.

Clearly, there is room for debate as to the legitimacy of “autopen” usage in the adoption of legislation. In fact, there could be an argument that failure to fully adhere to Article 1 Section 7 noted above creates an implication that the extension of the Patriot Act fails to conform to notions of due process of law under the American Constitution. How this issue will play out in the months and days ahead remains to be seen, but it seems likely that further discussion of “autopen” usage may arise in the future.

For related information please see: Legal.

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31st May 2011

It recently came to this blogger’s attention that the Republican position regarding same sex marriage in the District of Columbia (Washington D.C.) is being analyzed by both media and political observers. To quote directly from a recent article written by Ben Pershing and posted on the website of the Washington Post, WashingtonPost.com:

[D]espite past efforts, Republicans have not mounted an assault this year on the District’s same-sex marriage law: No bill has been introduced to overturn it, nor has any lawmaker publicly sought support from colleagues for such a measure.

Those unfamiliar with the United States Constitution are wise to take note of the fact that the United States Congress is responsible for administering the American capitol city. The scope of such jurisdiction extends to matters which in the context of a sovereign State could be viewed as intrastate issues. However, as the District of Columbia is substantially different in nature from sovereign States the same legal rules and analysis that applies to States may not apply to the District. To quote further from the aforementioned article:

House Oversight and Government Reform Chairman Darrell Issa (R-Calif.) said he knew of no campaign to repeal the law. “My committee has no intention at this time of overturning gay marriage,” Issa said this month, although he later clarified that he was speaking for himself as chairman and not for individual lawmakers. Rep. Trey Gowdy (R-S.C.), now chairman of the D.C. oversight subcommittee, responded similarly Tuesday. He said that he would support a bill to overturn the same-sex marriage law if one were introduced but that he had no interest in spearheading such an effort. “I was not elected to be D.C. mayor, and I don’t aspire to be,” Gowdy said, echoing a previous comment by him on local issues. The fact that no Republican has introduced a bill this year could be a sign that the majority plans to use a different tactic…

The administration of this weblog strongly encourages readers to click upon the relevant hyperlinks above to view this article in its entirety.

The observations noted above go to the heart of any analysis of the current struggle for the LGBT community to gain at least some modicum of equal protection pursuant to United States law. In a previous posting on this blog it was noted that in order for the LGBT community to hope to see passage of legislation such as the Uniting American Families Act (UAFA), the Respect for Marriage Act, or the Reuniting Families Act broad based bipartisan support may prove crucial. That stated, it would appear that where once there was stiff resistance toward a compassionate or tolerant policy towards the LGBT community, now there are signs of something of a “thaw” on the right especially as States’ Rights issues have been raised regarding the Constitutionality of the current application of the so-called “Defense of Marriage Act” (DOMA).

Currently, sovereign American States such as the Commonwealth of Massachusetts have heeded the call of their Citizenry and taken measures to legalize, solemnize, and/or recognize same sex marriages or marital unions. Notwithstanding this fact, the United States federal government still will not accord federal benefits (including immigration benefits) even to those legally married in a sovereign American jurisdiction.

It is this blogger’s opinion that the issue of same sex marriage in the United States may ultimately be resolved by activity emanating from US Courts, especially if a case on point is heard by the United States Supreme Court. This blogger forms this opinion after contemplating the issues associated with Full Faith and Credit and the Full Faith and Credit Clause of the United States Constitution. Bearing this in mind, the reader is urged to remember that these issues have yet to see full resolution.

Meanwhile, it would appear that activists in the international LGBT community are taking steps to secure further equality in other parts of the world as The Nation newspaper’s print edition in Thailand reports that LGBT activists are seeking political support for the cause of same-sex marriage in the lead up to Thai elections. To quote directly from the Nation’s official website, NationMultimedia.com:

Rights activists for the so-called “third sex” – gays, lesbians and transsexuals – have urged political parties to allow a same-sex marriage law. Natee Teerarojjanapongs, president of the Sexual Diversity Group and the Gay Political Group of Thailand, and transsexual singer known as Jim Sarah (Sujinrat Prachathai) said yesterday they would visit the Democrat and Pheu Thai parties today to submit a letter asking them to issue such a law for the “third gender” if they lead the next government…Their groups will seek commitments from the parties and say they will reward promises of action by campaigning for votes among their supporters…

The administration of this web log strongly encourages readers to click upon the hyperlinks noted above to learn more from this insightful and well written article.

Readers should be aware of the fact that the Kingdom of Thailand is one of the most tolerant jurisdictions on the face of the Earth when it comes to matters pertaining to LGBT issues. As a tourist and recreational destination, Thailand ranks among the top tier of destinations frequented by the LGBT individuals and couples as Thailand boasts a vibrant LGBT community. That stated, under Thai law in its current form same sex marriage is not recognized. Therefore, it is not possible for a same sex couple to register a Thai marriage at, say, an Amphur Office (Civil Registrar Office), in the same manner as a different-sex couple. As noted above, Thai advocates may be taking measures in the near term to change this state of affairs. How this issue will play out in the run up to a Thai election remains to be seen, but it may prove interesting.

In analyzing United States immigration in a Thai context the reader should note that if Thailand began allowing registration of same sex marriage and the United States passed legislation such as the aforementioned UAFA it is conceivable in the future that a same sex bi-national Thai-American couple could register their marriage in Thailand and thereby use that marriage as a basis for seeking American immigration benefits such as a K3 visa, CR1 visa, or an IR1 visa. That stated, such a scenario would require a departure from current law and policy.

For related information please see: US Visa Thailand or K1 Visa Thailand.

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