Archive for August, 2010

18
Aug

Cell Phone Radios?

   Posted by: Robert    in News

In the news recently is a story, apparently breaking on the technology blog ArsTechnica, suggesting that Congress may soon consider the question of whether or not cell phone manufacturers should be required to include FM radios in all of their devices.1  Required, as in, Congress is going to pass a law making FM radio receivers mandatory.  Even for this current Congress, where payoffs, bribery, and corruption runs rampant, this entire move is somewhat incredible.

As I understand the story right now, the FM radio mandate is part of a proposed compromise between two special interest groups lobbying hard in Washington over the relatively obscure issue of broadcast radio royalties.  Under current copyright law, radio broadcasters are only required to pay performance royalties to songwriters, not to artists or recording labels, but internet radio broadcasters are required to pay all three.  Suffice it to say, internet radio broadcasters don’t like this scheme because it places them at a competitive disadvantage, and the recording labels and artists don’t like this scheme because they don’t get paid.  Both groups have been lobbying hard in Congress to change the law to force broadcast radio to pay all three royalties; broadcast radio, of course, prefers the current system.

Congress, being Congress, is apparently considering doing what it does best:  Bailing out special interests with payoffs using our money.

In this case, the scheme involves mandating FM radios in cell phones.  Under the deal, broadcast radio would need to pick up the tab for all three royalties, up to a certain monetary cap.  In exchange, Congress will mandate that FM radio receivers be placed in portable devices including cell phones, presumably along with MP3 players and their ilk as well.  In this way, the artists and labels get their money and FM radio gets receivers in more places which should increase the number of listeners.  Everybody wins.

Everybody, that is, except for people who want to buy one of these devices.

It should go without saying that FM receivers don’t come free.  There’s circuitry involved, an antenna, and given the digital nature of most portable electronics, software to be written as well.  It’s difficult to say how much money it would cost to add FM radios to cell phones, but it’s clear from the overwhelming lack of FM-enabled phones that, whatever it costs, it’s more than people would be willing to pay.  But, with a congressional mandate, the people wouldn’t be left with a choice.  Manufacturers will pass along those costs, and consumers will still need to buy cell phones.

The good news is that this so-called compromise appears to still be pretty far away from making its way into law.  For the love of free markets, I hope it stays that way.

  1. Ars, so far, appears to be the only one with this story, with other sources around the Internet simply referring back to their article.  As someone who follows their blog, I have generally found their technology-related writing to be accurate, so I’m inclined to believe that their post reflects something that is actually happening.  Even so, the lack of other sources is worth noting. [↩]

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6
Aug

The Citizenship Clause and Anchor Babies

   Posted by: Robert    in Law

I was recently linked to an article by Ann Coulter which offers her take on the legal history of the citizenship of illegal alien born babies under the 14th Amendment.  Her article is interesting, and quite possibly the most reasonably presented argument I’ve seen from her.  The essence of her article is to point out that anchor babies — children born of illegal aliens on US soil which illegal aliens can use as an “anchor” to tie themselves to the US — are the product of a misunderstanding about the meaning of the 14th Amendment.  As she points out, the question whether the Citizenship Clause would apply to the children of aliens came up at the time the Clause was drafted, and rejected by its author.  Unfortunately, the history on this point is not so clear as she would cause us to believe, and is, in any case, irrelevant to the text of what the 14th Amendment actually says.

The Citizenship Clause of the 14th Amendment states:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside

This clause has two essential parts.  In the first, it identifies a group of people (“All persons born or naturalized in the United States, and subject to the jurisdiction thereof”) and then grants that group citizenship.  The essential question is whether or not the children of illegal immigrants are part of the identified group of people.  Based on the text and structure of the Clause, it is apparent that they are.

The part of the Clause that identifies the group is a conjunction of two separate conditions.  To qualify, you must be a person “born or naturalized in the United States.”  Anchor babies, by their very definition, are “born … in the United States,” so they pass this first test.  Having been born in the United States, you then must be “subject to the jurisdiction [of the United States].”  If there is a reason to believe that illegal aliens are not subject to US jurisdiction, it is difficult to imagine what that reason might be.  Illegal aliens are generally expected to obey US law, are subject to arrest, and can be imprisoned — all classic indicators that illegal aliens, while in the country, are subject to US jurisdiction.

However, as Ann Coulter points out:

The very author of the citizenship clause, Sen. Jacob Howard of Michigan, expressly said: “This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers.”

She takes that statement as evidence that, when it comes to conferring citizenship on aliens, illegals’ babies need not apply, because the author of the Clause himself was sure that it would not be so.  Her basic argument has two flaws.  First, it is entirely possible that the Clause’s author wrote something that he did not intend; if so, that’s unfortunate, but it is the text, not the author’s intent that controls.  Second, and more importantly, his words do not say what Ms. Coulter takes them to mean.  Senator Howard is not talking about illegal alien babies; he’s talking about “aliens, who belong to the families of ambassadors or foreign ministers.”

In the constitutional analysis, the difference between illegal alien babies and foreign ambassador babies is important.  Foreign ambassadors, by diplomatic tradition and legal history, do not normally become subject to the jurisdictions wherein they perform their official duties.  This fact is the basis of diplomatic immunity, which ambassadors enjoy along with their families who join them during their travels.  For Senator Howard to say that the Citizenship Clause does not apply to “the families of ambassadors or foreign ministers,” he is not saying anything that isn’t clear from the Clause’s text.  Because they are not “subject to the jurisdiction [of the United States],” they are not part of the group that enjoys automatic citizenship.  Illegal aliens, however, have no diplomatic immunity, or any foreign immunity of any kind.  That fact leaves them in the automatic citizenship group and leaves us with anchor babies.

Ms. Coulter’s other examples of who falls into the group and who doesn’t break down along similar lines.  Native Americans are out because they are under tribal rather than US jurisdiction.  Legal immigrants are in because they have crossed into and, thus, subjected themselves to US jurisdiction.  And she finishes with a tale of welfare state horribles that have nothing to do with the constitutional question at hand.

Although it would be nice if the existence of anchor babies rested entirely on a misunderstanding of the 14th Amendment, that is, unfortunately, not the case.  By its plain terms, if you are born in the US and subject to US jurisdiction, you’re automatically a citizen.  Because babies born to illegal aliens on US soil meet both criteria, their citizenship is constitutionally guaranteed.

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