Mischaracterizing The Checks and Balances In Our Constitutions Framework: Justice Scalia's Dissent in Arizona v. USA

As promised I have had a chance to read, reread and digest the Supreme Court ruling on Arizona v. United States where a majority of the Supreme Court ruled Arizona's controversial Immigration law a\k\a SB1070 as unconstitutional.

You can read the original decision or get the cliff notes here

What most caught my attention however was not the majority decision which I think is about as correct an interpretation as one could give here, but the very political dissent by Justice Scalia.

Now many of you know how much I am a fan of Antonin Scalia. We might not be from the same political theory family (Original/intentionalist v. Original/textualist see a further discussion here but we are certainly kissin cousins.

With that said, I also have to say that while I understand his frustration, (it has to be hard being so close to having a majority on every issue and preempting the other two branches of government with a ruling) He has allowed his frustration to overcome his understanding of the checks and balances within the Constitution.

Look, in the original Constitution, The Founders contemplated a bunch of things that could be done for one branch to veto the other two branches. The Congress passes a law, the President vetoes it. Congress can override the veto, if they do, the Supreme Court might decide that the law is Constitutional or it is not Constitutional. Ok so we have a law than the Congress wants the President doesn't and the SCOTUS says the law passes Constitution muster. Now what options does the Constitution leave the President? Well enforcement of law is left to.... THE EXECUTIVE BRANCH (ie the President). He can choose to enforce that law or not or do it the way he sees fit. Now Congress has another option. It can impeach the President for NOT Enforcing the law, The Supreme Court Chief Justice presides over a trial in the Senate and if he loses the Senate vote, he is gone.

Now Scalia's problem here seems to be, he really doesn't like the way the President has chosen to act on the failure of Congress to pass the Dream Act (lets remember what Scalia is angry about is the President's decision (through the Dept. Of Homeland Security) not to deport students who came to the United States as children because their parents didn't abandon them when they came to the US to find a better life) by not forcing these children to leave the only country they really know so that they can go back to a culture where they very well know no one and may not even know the language.

(In fact opponents of immigration reform like Federation of Americans for Immigration Reform (a well known hate group with ties to the KKK and other Xenophobic entities)want to send children BORN IN AMERICA to undocumented aliens out of their (our)country)

In his frustration, he lashes out politically at the President in his dissent stating:

...U. S. immigration officials have been directed to “defe[r] action” against such individual “for a period of two years, subject to renewal.”6 The husbanding of scarce enforcement resources can hardly be the justification for this, since the considerable administrative cost of conducting as many as 1.4 million background checks, and ruling on the biennial requests for dispensation that the non enforcement program envisions, will necessarily be deducted from immigration enforcement. The President said at a news conference that the new program is “the right thing to do” in light of Congress’s failure to pass the Administration’s proposed revision of the Immigration Act.7 Perhaps it is, though Arizona may not think so. But to say, as the Court does, that Arizona contradicts federal law by enforcing applications of the Immigration Act that the President declines to enforce boggles the mind.
The Court opinion’s looming specter of inutterable horror—“[i]f §3 of the Arizona statute were valid, every State could give itself independent authority to prosecute federal registration violations,” ante, at 10—seems to me not so horrible and even less looming. But there has come to pass, and is with us today, the specter that Arizona and the States that support it predicted: A Federal Government that does not want to enforce the immigration laws as written, and leaves the States’ borders unprotected against immigrants whom those laws would exclude. So the issue is a stark one. Are the sovereign States at the mercy of the Federal Executive's refusal to enforce the Nation’s immigration laws?

In fact the Constitution does not allow the states to enforce Federal laws that the President decides he will not enforce. If it did, it would give every state Governor and legislature a separate check on the President and on Congress as well.
Would Scalia say the same thing if the states were disagreeing with the court? In fact after Brown v. Board of Education, many states continued to say they didn't have to follow Supreme Court "law" and had the Presidents at that time decided not to send Marshals and troops to enforce the decision there would have been nothing the court could have done.

Scalia's comments are thus a political attack against POTUS's decision to get some of the rights the Dream act would have granted. It isn't the court's place to rule politically. I have no problem with much of his dissent (though I would not have joined in it as I think it twists to a great degree the law on federal preemption in Immigration enforcement) but I feel he has allowed his dissents to fall into the fanaticism that encompasses most of today's political debate. By suggesting the President was not within his right to set Executive priorities and that states can act on their own, is just not the law, it is not forwarding understanding the checks and balances of our Constitution and frankly it is beneath Justice Scalia's ability as a SCOTUS Justice.

THIS JUST IN:US SUPREME COURT OVERTURNS MOST OF ARIZONA'S ANTI IMMIGRATION LAW!!

I hope to have more details on this later after digesting the 76 page decision but it seems SCOTUS has knocked out everything in the law that Civil Rights advocates attacked except for the stop and check of status.

Immigrants do not have to "carry registation papers"; the State Police cannot arrest allegedly illegal aliens without a warrant and they cannot get such a warrant from the state courts;and overturning the law which allowed the state to charge a misdemeanor against an undocumented alien from holding a job.

Even the "stop and check" portion of the law is in danger as the court invited civil rights advocates to bring other attacks against the law.

The majority has upheld federal exclusivity in setting and prosecuting Immigration policy. Interestingly both Kennedy and Chief Judge Roberts were in the majority.

More later I hope.
Hattip: The New York Times on Line

Legislating Civility and Freedom of Speech: The Free F***ing Speech Demonstration in Middleborough MA.

I begin this by saying that I strongly believe in the First Amendment and believe you cannot legislate civility. The City Counsel or Board of Selectmen or whatever they have in Middleborough MA. disagrees with me. (No kidding, there is something new. People disagreeing with That Lawyer Dude, unheard of.)They passed a law outlawing certain words (we usually refer to them as "Dirty Words") and if you violate it, they fine you Twenty ($20.00)Dollars. This so obviously violates the Constitution of both Massachusetts and the USA that I cannot wait to see the first challenge to the law.

The Free F***ing Demonstration at the Middleborough Town Hall is supposed to gather tens of people to stand there and well in the words of organizer Adam Koresh:"... a large civil disobedience protest on Monday, June 25th from 12:30-1:00pm. Bring your bullhorn and foulest vocabulary to the Town Hall at 10 Nickerson Avenue, Middleborough MA 02346 and engage in the most profane conversation possible with your fellow liberty lovers. Let's show these uptight a**holes what freedom of f***ing speech is all about! Here is a NSFW Video announcing the action.

Now I am sure that the bullhorn is probably just as bad an idea as the actual legislation is but putting that aside, I think there is more to this.
Middleborough's officials are in the firestorm of what happens when civility clashes with the law. Sure I don't like hearing "F*** You!" screamed at the top of someone's lungs while I am walking outside of church. I don't like to hear it when I go into the visiting area of the jail. Why? Well because even though I don't believe in the concept of dirty words, I was raised to keep a civil tongue and although I can be profane, I still flinch when I hear the words spoken.

The Issue is one of who is going to decide what constitutes "dirty words" and who gets to make the rules. It can't be done. No matter what derogatory words are used, someone is going to be angry about them. Curse words depending on their use can mean a lot of things. They can mean the speaker doesn't like something strongly, they can mean the speaker is trying to show disdain for the concept of Dirty Words, it can mean the speaker doesn't even know the words are "forbidden." I could keep going but I think you all get my point.

On the other hand, I think the better protest would be a silent one. One where hundreds stood in the square with a copy of the State or US Constitution being held in each of their hands and say nothing NOTHING for a half hour, then at 1 PM BURN THOSE CONSTITUTIONS and maybe an American flag too. Now that is a more appropriate demonstration. It is respectful, memorable and should send a much stronger message than a bunch of children acting out against authority.

Either way, this ought to get coverage, but It is far better I think to send a strong reserved message than to shout from the rooftops at people who are not listening.

Mr. Romney, Your Silence is Deafening: Where is the Real Republican Immigration Plan

Yesterday I was pretty critical of President Obama about what I consider to be a basically valueless change in Administrations policy on Immigration. Today I want to make it clear I am just as unhappy with the Republican Presidential Candidate Mitt Romney. You see, Obama hasn't really kept his campaign promises to pass comprehensive Immigration reform, however Mr. Romney has yet to even make a promise with any proposal. I am actually more inclined to be angry at Republicans for not trying to come to the table with a plan than at Obama who has at least put forth a plan that Republicans promise to filibuster. Look it is easy to say NO! It is hard to say, "this is what we need and we know what you are looking for and here is our proposal."

Five times yesterday, Bob Schieffer of CBS News asked Romney on "Face the Nation" if he would undo the Napalitano Order to not seek deportation of "Dream actors" for now. Five times he failed to say what he'd do. Thing is, I think Mitt doesn't really dislike the Presidents plan, he just can't say it without alienating every xenophobic wingnut who is supporting him on the right. Here is the thing, George W. Bush had a great plan, but the wingnuts took over and ruined any chance the Republicans had of passing the plan, fixing the problem and winning the day. That is the problem with "Pure" politics. You cannot get anything done with someone who is "my way or the highway."

The Majority of Americans favor a road to citizenship for people who are already here. The majority also seeks a plan that would make it counter productive for someone to come over here and be illegal. The people who vote in the cock-eyed primaries, aren't those people. Here is the thing, Bush was willing to fight his party, but he really couldn't fathom a way to do it. As a result he lost the Hispanic vote for McCain. McCain (who also shot himself in the foot by abandoning everything he ever stood for and with his Sarah Palin Fiasco)paid for it dearly. Romney has caved on EVERY THING for which he ever stood. Now no one, not the conservatives, not the libertarians, and not the American public will ever trust him. If I were an anti-immigration Republican, I wouldn't vote for this guy, I don't know what he will ultimately do. As a Pro-immigration Libertarian, I wouldn't vote for Romney because he is a living disaster for America and especially on this issue, even if I believe a President Romeny will flip (when the pollsters tell him to.)

I will probably cast a vote for Gary Johnson, who is better than either Romney or Obama. Then again, I may be so fed up by November I may not vote at all... (don't get excited, I will probably vote, I like doing it too much to give it up.)

Not In The Best Interest Of The Child: Why Should a Custodial Parent Not Be Charged With Kidnapping

Up front I want to thank Lenny Sienko (http://lennyesq.wordpress.com/) for putting me onto the case of People v. Leonard (http://newyorkcourtofappealsopinions.justia.com/2012/06/01/people-v-leonard) wherein the NY Court of Appeals twists and contorts the law so that it can permit the Government to intrude unnecessarily in the most important relationship in the world, that between a parent and a child. It is not enough that for whatever reason, the state refuses to acknowledge a privilege between child and parent so that one can be forced to testify against the other, but now a custodial parent can be charged with kidnapping. Thats right the custodial parent can be charged with taking his own child illegally. The facts of the Leonard case are simple and sad. Father and Mother conceive child out of wedlock. Mom stays with dad until child is born and then takes child from Brooklyn to Ulster County. She never seeks an order of custody or sole custody. Dad goes to Ulster and visits with mom and child and possibly engages in an act of domestic violence against mom. Dad now has child and wants to keep him (as is his legal right at that point). Cops arrive, dad has child and a knife, cops chase dad into a bedroom dad allegedly holds knife to child's throat and tells cops he wants to leave with his son. They refuse and are rightly in fear for the child's safety. Ultimately the child is taken back and the cops arrest the Father for??? Endangering the welfare of a child??? NO Of Course not, the DA and Cops want to shred the law and want to bring as high a charge as they can so, they charge KIDNAPPING!!!! Judge Smith in the Ct of Appeals and the majority (it was a 4-3 divided opinion) goes into a convoluted twisting of the meaning of words when the real issue is, did the legislature ever in its wildest dreams think a court would allow the Kidnapping statute to be used against a parent who had custodial rights?? NO! In fact the legislature would say we have a law... THE ENDANGERING THE WELFARE OF A CHILD law. Smith and the others in the majority know it is a bad decision. They know it because in their opinion they use dicta to explain that this outcome should only be precedent in cases with similar fact patterns. SURE! RIGHT JUDGE! Like that is going to happen. Look it is a bad case but we know that when courts do not have the backbone to stand up to the bad case, it makes bad law. Why is this bad law, because: 1. It was not predictable to the Father that this would be the outcome of trying to take his own custodial child. 2. It further damages the relationship between the parent and child. We have no privilege with our children, CPS can interfere in that relationship in the name of protecting the child and the family courts do not consider the needs of parents at all but only what the court decides is in the best interest of the child. 3. Criminal court is not the place to decide cases like this and they are better handled in Family court. 4. It over criminalizes activities and gives parents another sword in which they can hold over each other's heads. Here is an example. Mother and father at odds, child with father, mother comes to father's house takes child in a raid with 3 other of mom's family members mom is in such a hurry to outrun father that she leaves child's asthma meds in house. Well, did she kidnap kid?? I think so. Especially under this ruling. What is kid dies of an asthma attack? Is it Murder? Since Kidnapping is an intentional crime, is this intentional murder? Forgetting bad consequences, any law that keeps parents and child apart without actual physical damage being done to the child, is not a good law. Parents need room to discipline children, teach them their religion, and give them education. A parent nurtures a child in ways that a community can't (Apologies to Madame Secretary of State Clinton), and mostly the law needs to stay as far away from our homes as it possible can. We do not need a cop or a lawyer or an appellate judge (especially not an appellate judge :) ) determining what should pass for reasonable behavior and what doesn't pass in the lives of our children. What say you??