Ken Klukowski

Ken Klukowski

Ken Klukowski is a D.C.-based attorney, journalist, and fellow and senior legal analyst with the American Civil Rights Union. He has worked in several positions in government and for public interest organizations, and currently writes, consults and speaks on legal and public policy issues. A frequent contributor to a number of media outlets, Klukowski’s work focuses on religious liberty, the Second Amendment, national security, federalism, and elections. His scholarly publications on constitutional issues have been published and cited by a number of respected legal journals and in court filings. He holds an undergraduate degree in business from the University of Notre Dame, studied history and political science at Arizona State University, and earned his law degree from George Mason University.

Marco Rubio is the Second Hispanic Democrats are Trying to Keep Down

by Ken Klukowski

It’s been revealed that the Obama White House is trying to beat Marco Rubio to keep Hispanic-Americans from having a choice when it comes to political parties. This is the second time Democrats have done this, and the fact that they’re willing to take down another minority candidate to do so shows that it’s the Democrats, not Republicans, who are trying to keep minorities down in America today.

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With the White House’s approval, President Bill Clinton tried to convince Congressman Kendrick Meek—an African-American Democrat—to drop out of the U.S. Senate race in Florida, and support independent (and former liberal Republican) Charlie Crist.

They did this for one reason: They want to deny minorities a choice, deceiving them into thinking that only the Democratic Party cares about minorities. They are happy to take down minority candidates—even Democratic candidates—to perpetuate this falsehood.

This is the second time Democrats have done this to a Hispanic. In 2001, Miguel Estrada was nominated to a seat on the nation’s second-highest federal court, the U.S. Court of Appeals for the District of Columbia Circuit. Estrada was an American success story, a child immigrant from Honduras who didn’t speak English, who went on to be a top graduate from Columbia, then Harvard Law School, later clerking for the Supreme Court and serving under the U.S. solicitor general in both Democratic and Republican administrations. He’s a partner at Gibson Dunn, one of America’s top law firms.

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Three Silver Linings in the Bad Arizona Court Decision

by Ken Klukowski

Wednesday’s federal court decision on Arizona’s immigration law is being rightly criticized for a number of reasons. But there are three silver linings to this situation, which may result in the rule of law prevailing in the end.

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On July 28, Judge Susan Bolton of the U.S. District Court for the District of Arizona issued a preliminary injunction—meaning she stopped from going into effect—most of the key provisions in Arizona’s new law. As I’ve written previously, this law should be held constitutional because it’s not an immigration law; it doesn’t determine who can become a citizen or who can be on American soil. Instead it’s a police-power law, where Arizona says that if you’re not permitted to be in this country, then you’re trespassing if you enter Arizona, and if you have a run-in with the cops for some other reason, then those cops can ask if you’re in this country illegally.

This is not an immigration law. It’s also not racist. It’s not racial profiling. And it’s not usurping the role of the federal government (which has abysmally failed here).

Instead, it’s an employment law and property law. That authority arises from Arizona’s police power to make laws for public safety, health, and societal welfare—which the Constitution reserves to the states through the Tenth Amendment.

But as bad as the federal court’s decision is, there are three silver linings to it that could see the rule of law prevail in the end, to the benefit of everyone—including foreigners who want to work here.

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The Supreme Court, Elena Kagan, and Guns

by Ken Klukowski

This week’s historic Supreme Court case on gun rights has pivotal implications for Elena Kagan’s Supreme Court confirmation hearings. From now on, the biggest battles over the Second Amendment will be won or lost in the Supreme Court.

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In the 2008 case D.C. v. Heller, the Supreme Court held 5−4 that the Second Amendment secures an individual right to own a gun. But because the Bill of Rights only applies directly to federal laws (such as those in D.C.), Heller only made the Second Amendment a right against the federal government.

On June 28 of this year in McDonald v. Chicago, a new 5−4 Supreme Court decision held that the individual right to own a gun from Heller is a fundamental right, and as such extends through the Fourteenth Amendment as a right against state and local governments as well.

Justice Stephen Breyer wrote a dissent that Justices Ruth Bader Ginsburg and Sonia Sotomayor joined in full. (Justice John Paul Stevens wrote a separate dissent.) That dissent contains a telling revelation about Barack Obama’s Supreme Court.

When Sotomayor was nominated for the High Court last year, she was asked by Judiciary Committee Chairman Pat Leahy (D−VT) whether after Heller it is now a matter of settled law that the Second Amendment secures an individual right to own a gun. Her answer was clear and direct: “Yes, sir.”

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Debating Church and State in Texas

by Ken Klukowski

A battle is raging in Texas over our children’s minds. One of the focal points is the “wall of separation” between church and state. It’s a wall based on a false assumption, one that has distorted religious freedom in this country.

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The Texas Board of Education must approve textbooks taught in Texan public schools. Its members are the gatekeepers who determine whether a textbook meets curriculum requirements. That board recently met to approve the next generation of books.

But as goes Texas, so goes the nation, because Texan standards are then adopted for textbooks sold all over America. So publishers take drafts to Texas for consultation and approval, making changes as necessary.

One of the changes that conservatives are pushing is for these textbooks to include a discussion of the “wall of separation between church and state.” More specifically, they are pushing for a discussion of what the Founding Fathers thought of this wall.

That is a worthwhile classroom discussion, because the Founding Fathers never created such a wall. That’s why it’s not mentioned in the Constitution.

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Stripping Terrorists’ Citizenship and Obama’s Blueprint

by Ken Klukowski

In the wake of last week’s attempted terrorist bombing in Times Square, legislation is being proposed to strip the would-be bomber of his American citizenship. Team Obama is opposing this bill, a bill at odds with the president’s blueprint for America.

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The man who attempted to detonate a car bomb in New York City on May 1, Faisal Shahzad, was born in Pakistan and recently became an American citizen. Senator Joe Lieberman is now pushing legislation to strip Shahzad of his citizenship so that he can be treated as a foreigner in the U.S. legal system.

The pushback from President Obama’s supporters has been swift. Senator Chuck Schumer immediately declared such a bill unconstitutional. On a Sunday morning talk show, Attorney General Eric Holder expressed reluctance to pursue citizenship stripping. And others on the left are spouting off about this as well.

The constitutional law on this question is muddy. In 1958, the Supreme Court upheld a citizenship-stripping law in Perez v. Brownell. But then in 1967, the far-left Warren Court overruled Perez by a 5−4 vote in Afroyim v. Rusk, holding that Congress cannot strip anyone of citizenship unless that person voluntarily renounces it.

Then in the 1980 case of Vance v. Terrazas, the Supreme Court split the difference, moving back in the opposite direction. The Court modified its 1967 holding to clarify that in addition to renouncing American citizenship verbally or in writing, a person can renounce their citizenship by their conduct. The Court also held that whether their conduct amounts to renouncing citizenship can be determined by a “preponderance of the evidence,” meaning that the odds only need to be better than 50−50, instead of a higher standard such as “proof beyond a reasonable doubt.”

So the law is unclear in this case.

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White House Hypocrisy on Executive Privilege

by Ken Klukowski

Congress wants the White House staff director involved in the now-infamous “gatecrasher” dinner to explain what happened. She won’t, because President Obama is invoking executive privilege. While there’s a decent claim for executive privilege here, Barack Obama’s hypocrisy is nothing short of stunning.

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Most people have heard about the Virginia couple who apparently crashed the White House official dinner for the prime minister of India on Nov. 24. (It’s called an “official dinner” instead of a “state dinner” because the prime minister is not India’s head of state.) Congress has launched a probe and is demanding answers as to how uninvited people could end up shaking hands with the president of the United States and posing for photos with the VP and chief of staff.

One person Congress wants to speak with is Desiree Rogers, the White House Social Secretary. For dinners in previous administrations, the White House Social Office posted staffers at the entrance with a list of the invited guests to make sure fiascos like this can’t happen. Rogers, who holds her job because she’s an old buddy of First Lady Michelle Obama, evidently didn’t care enough to take this simple precaution.

But Congress won’t get the chance to ask Rogers, because President Obama is invoking executive privilege. That’s the legal doctrine for the president and certain executive-branch officials around him to refuse to testify in court or before Congress.

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