Topic: Law and Civil Liberties

Immigration Argument Reaction: Much Ado about a 4-4

The conventional wisdom that United States v. Texas would be one of the handful of 4-4 ties in the post-Scalia era looks pretty wise indeed. After an hour and a half of argument and huge masses of demonstrators outside the courthouse – more people than I’ve ever seen – that result would be anticlimactic: DAPA remains enjoined, without a Supreme Court opinion.

That’s a good thing for two reasons:  1) in my view, President Obama’s executive action goes beyond executive power under the immigration (and administrative) laws and 2) because the next president will almost certainly rescind (if a Republican) or expand (if a Democrat) the program – mooting or transforming the case. While the government’s supporters had been hoping that the 26-state lawsuit would be dismissed for lack of standing – perhaps Chief Justice John Roberts could be swayed to that technical solution – there do not seem to be five votes for that solution either.

But even though we aren’t likely to get a real decision, this morning’s argument highlighted the importance of the case beyond the immigration context, raising key separation-of-powers issues. As the Obama administration has taken executive power to heights it has never been before, the U.S. solicitor general at one point mentioned “the change in federal law” that DAPA represents – and, of course, it takes a new law passed by Congress to change an old law. Justice Kennedy thus asked about a limiting principle – echoing past arguments over Obamacare and other battles over federal power – and how to define “the limits of discretion.”

With respect to immigration, Texas’s solicitor general concisely boiled down the case to a matter of transforming deferred action (a non-binding decision not to seek removal) into a grant of legal status. That’s the nub: much as we would want an immigration system that makes sense, that allows peaceful people to be productive members of society, that’s not what we have, and the president can’t just use his pen and phone to fix it.

As Justice Robert Jackson put it in his canonical statement about constitutional structure in the 1952 Steel Seizure Case, courts must be last, not first, in giving up on the separation of powers. Just because we might like a policy or think that its costs outweigh its benefits, doesn’t mean that it’s constitutional.

Reading the Tea Leaves of Police Militarization

What do you get when you combine family trips to a gardening store and loose-leaf tea in your trash? To Kansas law enforcement, it’s probable cause to get a search warrant and perform a SWAT-style raid on a private home.

In 2011, Robert Harte and his 13-year-old son went to a store for hydroponic equipment to grow tomatoes for a school project. A state trooper had been assigned to watch that store and write down the license plates of any customers (apparently, shopping at a gardening store translates to marijuana production). To follow up that stellar bit of police work, the Johnson County Sheriff’s Office twice examined the Hartes’ trash. They found, both times, an ounce or so of “saturated plant material.”

The Keystone Kops couldn’t tell the difference between tea and tokes using their senses, so they field-tested the substance and the test came back positive for marijuana. (“A partial list of substances that the tests have mistaken for illegal drugs would include sage, chocolate chip cookies, motor oil, spearmint, soap, tortilla dough, deodorant, billiard’s chalk, patchouli, flour, eucalyptus, breath mints, Jolly Ranchers and vitamins,” notes Radley Balko.)

Congress Is Getting a Special Exemption from ObamaCare—and No, It’s Not Legal

The Heritage Foundation’s John Malcolm and I have a new oped where we draw from newly uncovered to documents to show that the officials who bestowed upon Congress its own special exemption from ObamaCare likely violated numerous federal laws. Malcolm is a former assistant U.S. attorney, a former deputy assistant attorney general in the Department of Justice’s Criminal Division, and the current chairman of the Criminal Law Practice Group of the Federalist Society.

First, a little background. The Affordable Care Act threw members and staff out of the Federal Employees Health Benefits Program, and basically says they can only get health benefits through one of the law’s new Exchanges. Under pressure from Congress and the president himself, the federal Office of Personnel Management (which administers benefits for federal workers, including Congress) decided the House and Senate would participate in the District of Columbia’s “Small Business Health Options Program,” or “SHOP” Exchange, rather than the Exchanges that exist for individuals. The reason is that federal law would not allow members and staff to keep receiving a taxpayer contribution of up to $12,000 toward their premiums if they enrolled in individual-market Exchanges. Yet putting Congress in a small-business Exchange isn’t exactly legal, either. Both federal and D.C. law expressly prohibited any employer with more than 50 employees from participating D.C.’s SHOP Exchange. The House and Senate each employ thousands upon thousands of people.

Olympia Considers Putting Washingtonians into the National ID System

Tacoma, Washington’s News Tribune has editorialized about the REAL ID Act in a way that will be unfamiliar to followers of the national ID law and its implementation. The state has been “dawdling,” it says, by not moving forward on the national ID. The Department of Homeland Security (DHS) has been “patient to a fault” and “dispensed grace” to the 28 states (NT’s number) that have escaped federal punishment. Next we’ll be told that the federal government is efficient and responsive.

If you’re just tuning in, last fall DHS began a major, concerted effort to bring state governments in line with the provisions of the REAL ID Act, a federal law designed to create a national ID system. Washington State has resisted this federal power-grab up over the last decade, but Senator Curtis King (R) recently introduced legislation that would bring Washington into compliance. This threatens Washingtonians privacy and liberty.

Passed in 2005, the REAL ID Act is a federal law designed to coerce states into adopting uniform standards for driver’s licenses and non-driver IDs. Compliance would also require the Washington State Department of Licensing to share drivers’ personal data and documents with departments of motor vehicles across the country through a nationwide data sharing system. If fully implemented, REAL ID would create a de facto national ID card administered by states for DHS. The back-end database system the law requires would expose data about drivers and copies of basic documents, such as birth certificates and Social Security cards, to hacking risks and access by corrupt DMV employees anywhere in the country.

If the Laws are Inconvenient, Just Change Them: The Dubious Legality of Another Puerto Rican Reform

The FT published a piece this week suggesting that it’s actually perfectly legal for the Puerto Rican government–which is on the brink of insolvency–to change its constitution and repudiate its guarantee to general obligation bondholders, in a rhetorical sleight-of-hand that makes me convinced that Jacques Derrida has won the war for the hearts and minds of America’s youth.

The article’s proposal is at once banal and unserious, and much of it they credit to their students, presumably because they recognize this: the first is that while the Puerto Rican constitution may guarantee the payment to the general obligation bondholders with the full faith and credit of the government, that doesn’t mean that the commonwealth’s government couldn’t just change the constitution and eliminate this pesky promise. Legality achieved! Laws change all the time–even constitutions–they aver, and debtors shouldn’t be surprised if that happens in a way that just happens to hurt them financially.  

Another way for the commonwealth to get around the constitutional promises, they suggest, is to make use of provision 3105 of Puerto Rico’s civil code, which “recognises that creditors sometimes have a duty not to enforce debt in ways that prejudice other creditors.”

The other creditors in this instance are the retirees and state employees of Puerto Rico, who may see their wages or pension benefits frozen as a part of the island’s financial reforms. Doing such a thing is, in their perspective, always and everywhere a disaster, and setting aside the law is justifiable because of the harm that would be done if other government spending were ever forced to be cut in order to pay the island’s debt.

Overfederalization at the Airport

People who fly a lot will invariably have a bad experience at the airport, sooner or later. Delays, cancellations, huge lines, and overbooked flights can wear on people, and sometimes individuals take their frustrations out on an airline employee. And, once in a while, the person goes too far and crosses the line into assaulting that employee.

In no airport in America is assaulting an airline employee legal under state law. The laws against simple assault—that is, unwanted physical contact, often without injury—apply just as much at the terminal gate as they do at your local bar or walking down the street. But, as with seemingly every bad thing that happens, someone wants to make a federal case out of it. Literally.

Senator Maria Cantwell (D-WA) introduced an amendment to a bill before the Senate to make the simple assault of an airline employee punishable up to ten years in federal prison. This is a problem for a bunch of reasons, but here are two that stick out.

First, the crime lacks what criminal justice folks call a “nexus” to a federal interest. That is, unlike disrupting a flight while on board a plane—which is regulated by federal law and the Federal Aviation Administration—or interfering with a federal government employee—such as a TSA agent or air marshal—there is no particular reason a simple assault of a private business employee triggers federal involvement. If a ticket agent is spat upon or touched without consent by a would-be traveler, that agent has every right to call the local (or airport) police and file charges if he chooses. For these reasons, the law is duplicative and unnecessary.

Second, the possibility of ten years in prison is too much for contact without injury. The statute that would be amended included an enhanced penalty to protect TSA employees who are charged with keeping America’s skies safe from would-be terrorists. One could argue—indeed, I would—that the original statute includes a penalty too stiff relative to the crime. Most simple assault statutes in the federal code include sentence maximums between six months and one year. It’s hard to understand how an angry person grabbing the arm of a ticket agent walking away from them potentially carries ten times the maximum sentence if that person had instead shoved a member of Congress. (see 18 U.S.C. § 351 (e))

A skeptic might say that, in practice, no one will get ten years for petty actions. Perhaps that’s true, but then why should we make such a sentence possible in the first place?

No one should shove a member of Congress or assault an airline employee, period. Simple assault is a crime already, as well it should be. But as the conversation about mass incarceration and sentencing propriety continues on Capitol Hill, legislators should internalize the lessons learned from years of disproportionate sentencing and overcriminalization.

The federal criminal law should be limited to those crimes that properly fall under federal jurisdiction, demonstrate a particular need that is not being met by local authorities, and, when needed, provide sentences proportionate to the severity of the given crime.  This proposed amendment failed all of these aims.

 

The 1994 Clinton Crime Bill

With the New York primary just days away, a policy fight has erupted on the left regarding the 1994 Clinton Crime Bill.  I have a piece today over at Newsweek on the subject.  Here’s an excerpt:

The Crime Bill maddens today’s BLM activists because it earmarked $7.9 billion in grants to the states for the building of prisons. To be eligible for the funds, states had to meet certain conditions. The idea was to encourage the states to embrace the stricter policies found in the federal system, which had abolished parole and limited good time credits for prisoners, which allow well behaved inmates to earn an earlier release date.

Many states were eager to do just that. During the 1990s, America was building a new prison every week, on average. And as soon as those facilities opened up, they were soon operating beyond their original design capacity.

Many of the prisoners were young minority men, nonviolent drug offenders who were serving mandatory minimum sentences….

Hillary has tried to sound like a reformer, saying, “We need a true national debate about how to reduce our prison population while keeping our communities safe.”  

Such throwaway lines are not nearly enough for BLM activists. For them (and others too), support for the 1994 Crime Bill is the political equivalent of Hillary’s vote to support the Iraq war: It was a key indicator of policy judgment—and the Clintons failed the test.

I also point out that Cato’s 1995 Handbook for Congress called for repealing the Clinton Crime Bill precisely because it would lock up thousands and thousands of people who do not belong there.  We urged policymakers to call off the drug war and to reserve prison space for violent offenders.  Alas, Congress turned away from our policy advice.