Mark R. Weaver's Op-Ed on Immigration Published in Both the Cincinnati Enquirer and The Columbus Dispatch

Mark Weaver from our firm wrote a thought-provoking op-ed on who ought to make immigration policy. The piece was published by both the Columbus Dispatch and the Cincinnati Enquirer. Read below or click here.

Stop looking to the White House for new immigration policy

By Mark R. Weaver

We teach our children that cheating in school is dishonest. We tell them it’s wrong and self-defeating to seek the outcome – a better grade – without achieving the very purpose of the enterprise: learning.

I thought about that concept this week as the left and the right engaged in social media slap fights over President Trump’s decision to end what President Obama called a “temporary, stop-gap measure” of allowing certain children of illegal immigrants to remain in America. My own opinion about the fate of so-called DACA “dreamers” takes a back seat to my larger concern – who determines the policy?

Our founding fathers thought deeply about the kind of nation they wanted to build, given that they’d just parachuted out of what many believed was the greatest nation on earth. They knew future generations would scuffle and scrap about how government should operate, so they gave us the Constitution. That document acts as the guardrails along the path of managing the worst impulses of tyrants and tyrants in training.

A president might want to make treaties without interference, but the Constitution requires Senate ratification. Congress could try to make budget decisions alone, but the Constitution gives the president veto power. And federal judges may wish to gavel their whims into law but the Constitution allows Congress to impeach them if they fall short of “good behavior.”

Article I of the Constitution gives “all legislative powers” to Congress. Unlike so many constitutional questions, that are as clear as the vista from a midnight sandstorm, who gets to decide federal policy is straightforward: 435 representatives and 100 senators.

That’s why the policy question of whether bank robbery should be a federal crime belongs to Congress. What should the federal tax rate be? Ask Congress. And, most pertinently now, whether citizens of other countries can come to America and permanently live here is a question unequivocally left to Congress. 

These are policy choices, and the founders wanted them to be made by just one part of government – the legislative branch. It makes sense. That’s the branch most immediately accountable to voters with elections for all of the House and one-third of the Senate every two years.

Alexander Hamilton was a prolific booster of this approach. In fact, if you loved him on Broadway, you’ll love him even more in the Federalist Papers, the pro-Constitution tracts he co-authored in 1788. Hamilton said (sorry, this was before he learned to rap): “It is essential to liberty that the government, in general, should have a common interest … and an intimate sympathy with, the people. Frequent elections are unquestionably the only policy by which this dependence and sympathy can be effectually secured.”

Federal law currently makes it illegal for a foreign national to remain here without permission. Indeed, the law that every elected official swore to uphold says that people here illegally “shall upon the order of the Attorney General be removed.” That’s the law currently in force, enacted by Congress who, we must presume, acted with the legitimate mandate of those who elected them.

There’s only one valid way to undo that law – pressure Congress to pass a different law. If this sounds a bit like eighth-grade civics, that’s because it is. But far too many of those shouting and shrieking over desired policy outcomes are ignoring these civic truths. They want what they want and to heck with the process. Yet even when Congress fails to enact the laws we want, our sole legal remedy is to change the Congress.

Which brings us back to the student who wants the good grade but doesn’t want to get it the way the system was designed to give it – by studying and learning. The substantive process matters – often as much as the result.

There may be good policy reasons to allow “dreamers” to stay here. If that’s your viewpoint, go instruct your member of Congress. If Congress doesn’t fulfill your request, go elect a congressional majority that will.

Good ideas that have broad support tend to get passed into law, if only because legislators want to avoid the ire of angry constituents demanding action. When Congress doesn’t act, it’s fair to assume that not enough people have pressured them to do so. 

President Obama’s executive order was an end-around run of the policy-making structure given to us by Hamilton and his supporting cast. Bypassing that system by seeking a desired policy result from someone other than the designated policy maker is anti-democratic, unconstitutional, and – it’s cheating.

Mark R. Weaver is a Columbus attorney and former deputy attorney general of Ohio. He teaches at The Ohio State University College of Law and his new book is “A Wordsmith’s Work.” Twitter: @MarkRWeaver.

Read Mark Weaver's Latest Op-Ed on the Bill Cosby Trial

Here's Mark Weaver's latest op-ed column, this one published in the Cincinnati Enquirer. Topic: the Bill Cosby trial and Cosby's false defense of racism. Click here or read below:

Cosby trial may worsen racial divide

By Mark R. Weaver

While I happily practice law here in Ohio, this week my mind goes back to my days as a young attorney in suburban Philadelphia. In the Pennsylvania county and courthouse where I first practiced law, Bill Cosby is now on trial for what could essentially be a life sentence following charges of sexual assault.

The man once known as “America’s Dad” is accused of being America’s rapist. These are ugly allegations and the details and legal rhetoric may get uglier.

I’ve prosecuted cases here in southwest Ohio, including many charges of sexual assault. No matter what the outcome, everyone emerges from these matters somewhat worse for wear. Victims, who must publicly recount painful details, end up stressed and distressed. Defendants – even those who emerge acquitted – often find their lives and personal relationships overturned like a five-car pileup.

Cosby is, of course, presumed innocent in the court of law. We must respect that.

Just as certainly, however, Cosby has already been tried and convicted in the court of public opinion. This court differs drastically from the one we find beyond the marble columns at the local courthouse. Unlike a court of law, the court of public opinion has no rules concerning what evidence is admissible.

In court, hearsay is typically forbidden. In the press, it’s ubiquitous.

At trial, accusers are subject to rigorous cross-examination. In the news cycle, allegations are often presumed true, simply because the victim states them with such emotional emphasis.

Anonymous testimony is forbidden in our justice system. In news stories, journalists claim a certain cache and credibility by featuring “well placed” anonymous sources.

If a lawyer tells a jury something out of line, the judge can respond by telling jurors to ignore it or finding the lawyer in contempt. Appearing live on TV, lawyers are largely free to make claims unchallenged and the legal ramifications are less restrictive.

And while there’s only one judge in the court of law, there are millions of judges in the court of public opinion.

These are the hallmarks of the American justice system and public opinion in 2017, but – as unappetizing as this daily fare may be – I fear we will see something much more pernicious in the Cosby case.

In a national radio interview, Cosby publicly blamed racism for his own questionable behavior. Even if he didn’t violate laws, the actions he’s acknowledged are enough for polite society to rebuff him. No racist urged him into intimate moments with women not his wife, and no bigot procured the drugs that quickly reduce a woman to an unconscious target of rape.

When I worked in the Civil Rights Division of the U.S. Department of Justice, I saw unsettling instances of racism in America. We must all stipulate that, when prejudice arises, people of good will and those who strive for the moral law must confront and condemn it. But just as disquieting are those who cry racism with the carelessness of the boy who cried wolf. Call it diversion by defamation. This slander is its own unique brand of hate.

If Cosby tries to blame his situation on race, it will be despicable. History’s account of racism in America is rife with the vilest of deeds. Indeed, racism still exists at an attenuated level. But those matters are separate from the issues in the Cosby case.

We saw a corollary to this just last week. Self-described “D-list” celebrity Kathy Griffin inexcusably mocked the president with an ISIS-style beheading simulation. Her actions were well beyond even the off-ramps of the acceptable traffic lanes of American political discourse. Yet, when called to account, rather than accept responsibility, she claimed sexism by those who were disgusted by a display that would insult second-year students to describe as sophomoric.

People who break the law or shock the conscience of society are fully responsible for what they do. Deflecting blame by pushing society’s hottest of hot buttons is wrong. The use of sexism or racism as an all-purpose defense or shield from shame by the malevolent must stop.

In the 1980s, Cosby helped us have constructive discussions about race. Dr. Cliff Huxtable, sporting a goofy sweater, encouraged us to understand the nuances of race at a time when many were uncomfortable with changing societal norms.

If Cosby continues to raise a spurious specter of race to defend sexual assault, he will further exacerbate complex issues of race in this country. In doing so, he will increase his likelihood of conviction in a court of law, while simultaneously earning the enmity of his countrymen in the court of public opinion.

Mark R. Weaver is a Columbus attorney and former deputy attorney general of Ohio. He teaches at The Ohio State University College of Law and his new book is “A Wordsmith’s Work.” Twitter: @MarkRWeaver.

Mark Weaver's Op-Ed Inspired by the Women's March

Today the Columbus Dispatch newspaper published an op-ed from Mark Weaver of our team. In this essay, Mark addresses the view among many in the news media that women all think alike and how that misconception drove coverage of the "Women's March." Click here or read below:

Women’s political views range across the spectrum

By Mark R. Weaver

This week, millions of women rejoiced at the inauguration of Donald Trump, many of them trekking to Washington to be heard. Other women, also in the millions, decried President Trump’s ascension to power, some also heading to the nation’s capital or nearby venues to protest. What do these women — or women in general — have in common? Almost nothing. And, when it comes to politics, that’s a good thing.

For example, nearly every poll tells us that women are about equally split on whether they identify as pro-life or pro-choice on abortion. There’s no “women’s position” on that issue, or, for that matter, any issue. Every issue is a woman’s issue — and a man’s issue. And, while there’s a “gender gap” in some election results, factors like race, locale, and age are much stronger predictors of partisan leanings than a voter’s sex.

Even if a stray issue here or there does show a marginal difference between attitudes of men and women, there’s no intellectually honest claim that women’s views are monolithic. Yet news media coverage often suggests otherwise.

As my byline suggests, I’m not a woman. But the notion that only women can accurately analyze the views of women and politics is as wrongheaded and over-simplistic as the assumption that women are some odd species whose attitudes are fully in sync. Nowhere is that common fallacy more destructive than politics and policymaking.

When people who make laws believe that women think one way and men another, the result can be regulations that perpetuate a Balkanization of the sexes. In a nation where our motto is “from many, one” we must strive to turn away from this direction lest we all become denizens of division. Indeed, identity politics should have no place in a country where the only relevant identity is being American.

Several times a year, I speak at women’s leadership conferences. I help develop opportunities for young women to be more involved in public affairs and government. I was proud to see my wife and daughter become active in these programs and glad to see others benefit from them as well. I support these efforts not because women have a unique voice that must be heard. Female perspectives are multiple and varied, not uniform. To claim otherwise is to diminish women’s role as equal partners in politics.

So, women ought to be involved in the process of self-governance not because there’s a “woman’s viewpoint,” but because when we’re all in it together, our decisions are usually better. When women — conservative, moderate, and liberal — are less involved in a government of, by, and for the people, the resolutions of our republic may be rejected. Indeed, it was Founding Mother Abigail Adams who reminded her husband John that women “will not hold ourselves bound by any laws in which we have no voice or representation.”

Years ago, I moved to Ohio to work as the deputy attorney general for Betty Montgomery — the first woman elected as our state attorney general. Yet her place in history was secured by her character, vision, and dedication to this state. Her gender was more footnote than foundation.

Electing a woman simply because she’s a woman is as ill-considered and small-minded as voting against a woman for the same reason. And as we enter the era of President Trump, one-dimensional views of whether women support or oppose his policies have the ironic effect of advancing that which so many feminists reject: the notion that women should be of one mind on anything. Politically speaking, men are complicated. It’s not breaking news that women are, as well.

Women, whether in the era of Obama or Trump, should march on Washington to counter leaders and legislation they oppose. But that burden of representative democracy also falls to men. Americans are the shareholders of this nation and we ought not be silent partners in it. And this mandate applies without regard to gender, since the chromosomes of our body matter infinitely less than the DNA of our democracy.

Mark R. Weaver is an attorney and communications consultant in Ohio. His written work and book is featured at Twitter: @MarkRWeaver