A blog devoted to law, politics, philosophy, & life. Nothing in this blog is to be construed as legal advice.

Thursday, December 25, 2003

Vincente Fox, Great President.
Vincente Fox has been upset with Bush for a couple of years. The problem? Bush has not given amensty to illegal immigrants. Nor has Bush loosened immigration practices.

Fox should be mad. It is not within the self-interest of Mexico for Bush to deny opportunity to Mexicans who will presumably send some of this wealth to Mexico. In a perfect world - for Fox, et al. - the Mexicans would travel across the border; work; and then return to spend their money.

And so, Fox is an advocate for the Mexican people. THIS IS GOOD. I like Fox because he is an advocate for the interest of his citizens, and thus, his country.

Maybe president Bush will look out for American citizen by denying Fox.
An Idea Stolen From Ann Coulter: On Pandering.
Ann Coulter said that republicans are foolish to pander to liberal special interest groups because such pandering, at best, will placate. The CEO of NOW is not going to vote Bush no matter what he does. The President of NAMBL will not vote Bush, even if he lowers the age of consent to 8. Nor will MECHA members suddenly support Bush, even if he gives amenesty to every illegal immigrant in the country. Couler said that Reagan ran on a platform of principles, even when some argued that those principles would offend many special intersts. But he won. Twice. Republicans who run on a platform of pandering may well lose because those to whom they pandered will still not vote republican.

Let's apply this principle to Bush's plan to liberalize (literally and politically) immigration. [Note: I am not saying Ann Coulter would make this argument.]

Such liberalization would please the National Council of La Raza (literally, "the race"). It would please business owners who seek to exploit cheap labor. CATO will also be pleased. But the move will anger rank-and-file republicans. This move is stupid. Here is why.

No one in La Raza will vote for Bush, even post immigration changes. No one in business who regularly exploits unskilled workers (this category of people presumably already votes republican) will change his vote based on this move. The republicans are good for business; was, is, always will be. Thus, Bush will see no net gain in votes from these categories of people based on legalizing the illegals.

But the rank-and-file, the farmer in Iowa, the mother in Nebraska, the person who cares about culture in Calfornia, may change their votes based on this move.

Bush is mistaken to think that hispanics will suddenly vote Bush because of this move. But a great many people may vote for a strong 3rd party candidate with truly conservative ideals. Did we forget about Ross Perot?

Aha! But since there is no such 3rd party candidate, Bush will pander. Why not pander (or "experiment") when he will not likely suffer an adverse consequeces at the ballot box?

In other words, absent this candidate, conservatives lose. Where is this person? Can we amend the Constitution in time for Margaret Thatcher to run?
The One-Million Man (and Woman) March.
With Bush seeking to legalize illegal conduct (invading the country vis-a-vis illegal immigration) while our culture is facing a Romanesque declince, I have to ask a favor.

Please complete the following: Tom McClintock was to Arnold Schwarzenegger who __________ is to President Bush. "Wishful thinking" is not the correct answer.

What the California election proved is that there is a still a strand of conservatism in America. McClintock ran on a platform of true conservatism. And although he did not almost win; he proved a point. Namely, at least one-million people were conservative enough to risk allowing Cruz BustaMECHA elevation to the governor's mansion. Although this is a meek voice in a state election, imagine the thunder such voting would have on the national election.

I propose that conservatives be willing to give up the white house for 4 years. Vote strategically for the house and senate. But send a message to the chief executive. Show him that he will win or lose as conservatives.

Now, whose name belongs in the above blank space.
The terminology of crime.
Does anyone else feel insecure when speaking about the status of a citizen caught up on the criminal justice system? Appellate cases often refer to the prisoner as "defendant." But since this person has been convicted, is he not now a "convict"? And what do we call a citizen/suspect who has been indicted. Is this person an "indictee" or "criminal defendant"? Do we further distinguish by saying pre-trial defendant vs. in-the-arena defendant? Or does one size fit all?

First step, citizen. Then suspect. Then criminal defendant. Then convict or prisoner. Am I correct here?
If the defendant prevails at trial, is he now the "acquitted" or does he remain the "accused"? I prefer citizen but I note much inconsistency in usage (my own included).
Qualified Immunity Makes Ignorance Blissful.A police officer who violates a citizen's Constitutional rights may nonetheless be immune from suit unless that Constitutional right was "clearly established," where clearly established means that a reasonable state actor would have known of the law. Qualified immunity protects all but the dumbest and the meanest. In other words, the police are not liable unless the act they are taking is pretty shady. So shady that they out to know something is wrong with their conduct.

Would this not make a great model for ALL laws? We all can agree that some things are ALWAYS wrong, e.g., murder, exploiting minors, & etc. Or at least all SANE people can agree that those things are always wrong. (See NAMBL, a perverted organization that condones conduct too disguisting to place here. Or see the Americal Psychological Association, which has argued that such relationships are good "mentoring.")

But conduct taken in ignorance of other laws that proscribe conduct not so clearly wrong is no defense to criminal or civil liability. We must obey even stupid laws, or else face a lawsuit or prosecution.

I do not buy into the argument that, well, they have a tough job and have a lot of discretionary functions to perform. And so, we should not restrain their discretion. Nor am I afraid that a police officer would be compelled to study Con Law if he were not granted qualified immunity. Anyone who has ever been pulled over is confident that police officers are quite adept at memorizing and reciting law.

We the People also have many discretionary functions to perform. Everything from water-pressure to the rise and run of stairs are covered under some federal law, euphemistically called "regulations". Imagine being an employer who has to fire an employee. That employer has to decide whether this will subject himself to liability; whether it will "prove" him a racist or sexist if he fires someone in a protected class, & etc. No immunity from civil liability for him. No immunity for Mrs. Atwater, a soccer mom who was arrested (yes, cuffed and stuffed) for not wearing her safety belt. (See Mugged by the State for more examples of government misconduct).

I propose that citizens ignorant of ignorant laws should be both criminally and civilly immune from suit. This new defense will not work for murderers, perverts, & etc., but it might be enough to stave off the EEOC.
Has anyone else read the oral argument transcript in Fellers v. United States? If not, it is available here:

Does anyone else find it funny that the supreme court justices are worried stiff that creating a bright line rule requiring a waiver of the 6th Amendment right to counsel before interrogating an indicted criminal defendant is overly "technical" or "formal"? Our whole legal system is based on technicalities. Many crimes are crimes not because they are wrong in themselves, but because they violate a legislatively-crafted technically, re: a law.

The funniest example I heard of such technicalities applying to ordinary people is in the context of war protesting. If you are protesting near a federal building, you may be guilty of a local crime, if you are blocking the flow of traffic, etc. But if you step on the grass, you may be guilty of a federal crime, since you are on federal soil. Imagine the poor guy who jumps from the road to dodge a car and falls onto federal soil. Two for the price of one. Odd.

And yet I have never seen a case dismissed on the ground that the law violated was a mere formality, or overly technical. Imagine the supreme court saying, "We hold that the defendant was wrongfully convicted because the law is too technical; does not make sense; and is difficult to comply with."

But when it comes to the police, well, we do not want to hinder them with such formalism. Where the formalism comes, of course, from the Constitution. Today the Bill of Rights are obstacles to be overcome rather than rights to be enforced.

Alas, poor Jefferson. I knew him, Rehnquist.
My First Blog: Please Excuse Miscues & Etc.
This is my first blog. It will be devoted to law, philosophy, politics, & life. I hope it is not boring.

If some of the legal postings are unnecessarily overly dry or technical, I apologize. I am particulary interested in federalism as a legal doctrine. Federalism IS technical, although it need not always be.

The political commentary should always be juicy and accessible to all. The law should also be this way. But then, who would pay all the lawyers? ("I say, first, let's pay all the lawyers!")

Please excuse any typos or other mistakes I make early in this process. I am only beginning to get a feel for the blogger software. Later mistakes are inexcusable.
Sabri v. United States.
Why has this case not received more ink? I did a Google search w/"Sabri v. United States" and received only 5 pages of hits, of which many were duplicative. This is a MAJOR case. Major if you consider United States v. Lopez and United States v. Morrison to be major cases.

Sabri asks, among other questions, whether congress has power under either the Spending or Sweeping Clauses to enact the federal program bribery statute, 18 U.S.C. s 666(a)(2)? [The other questions involve matters of statutory interpretation and the application of a facial challenge to criminal statutes]. In other words, did Congress exceed its enumerated powers by creating a law that criminalizes monetary exchanges not involving federal funds?

Sabri is a property developer who allegedly offered three bribes to a city councilman, Brian Herron: One each for $5,000; $10,000; and $80,000. Sabri allegedly said he would pay Herron $10,000 to threaten people who owned property that Sabri wanted with the city's power of eminent domain if those property owners would not sell to Sabri. The $5,000 was allegedly offered in exchange for Herron's ensuring that Sabri would obtain regulatory approval over a major development project. The $80,000 was allegedly offered as a 10% kickback to Herron if he would divert $800,000 of city money to Sabri's project. [Isn't is grand that city councilpersons may condemn your property notwithstanding the public use requirement of the Takings Clause?]

Anyhow, the government contends that because it provides Minneapolis with over $10,000 a year in federal funding (28.8mm precisely), it has the power to criminalize bribes aimed at municipalities with control over that money, even if the person making the bribe is not after the federal money. In support of this position, the government offers at least three arguments.

FIRST, because Congress SPENDS money, it may enact legislation pursuant to those expenditures. Applied here: Congress spent 28.8mm. Section 666 is a regulation enacted pursuant to this expenditure. Or, SECOND, Section 666 is attached as a condition to federal expenditures. To wit, even if Congress did not have an independent textual power to enact Section 666, it is allowed to attach conditions to federal funds, even if those conditions, if passed as separate legislation, would be unconstitutional. When Minneapolis accepted the federal money, it agreed that its citizens would be subjected to criminal liability for offering bribes. In other words, the citizens of Minnesota, by and through their duly elected representatives, accepted those conditions. Or, THIRD, under the Necessary and Proper Clause congress may enact any legislation that is rationally related to another textual power. The textual power here is the Spending Clause.

And the argument goes: Congress had the power to spend money (in the form of grants and other allocations) for local public works projects. Then, Congress rationally concluded that Section 666 was necessary and proper to protect the money from either being corrupted or from appearing that it could be corrupted. For some reason, the FBI is better and ferreting out corruption than local governments. Even if that is not true, Congress was at least rational to conclude This..

In opposition to this position rests common sense and an origional understanding of the Constitution.

Outside the legal arguments we see that the problem, of course, is how in the hell does Congress have the power to punish the $5,000 and $10,000 bribes that were allegedly offered to a local councilman as a quid pro quo for helping Sabri obtain development approval? If the government is correct, then Sabri offered Herron some money for favors regarding a local development project. What PROPER interest does congress have in such local dealings? These dealings, if true, are shady. But isn't that a problem for Minnesota? Why is the local politics of Minneapolis, Minnesota my business in Alabama, Arkansas, or New York? Why is such local conduct worthy of national attention?

There are also legal arguments against this power-grab by congress.

As a first principle, Congress is limited to enumerated powers. If there is no text in the Constitution granting Congress the power to enact a law, then congress may not enact such law. Nowhere in the Constitution is congress given a general police power - the power to define and punish crimes. Textually, congress may punish or define a couple of crimes, such a counterfeiting, treason, and felonies committed on the high seas. But that is the textual limit.

And although the supreme court has read into the Commerce Clause congressional power to punish crimes, those intances are limited to activities that substantially affect interstate commerce. Nowhere has the court read into the Spending Clause a similar power. Instead, a proper reading of the Spending Clause is that it confers upon congress the power to tax and spend. Nothing more. A criminal law is far removed from spending money, outside the salaries of federal enforcers, facilities, & etc.

The conditions doctrine must fail since Sabri was not in-privy to any alleged condition. Besides, congress can not violate principles of federalism in attaching conditions to money. Punishing local corruption, such as involved with the first two alleged bribes is solely a state matter. When congress seeks to put its nose in that tent, it violates principles of federalism, which allows congress only enumerated - and therefore limited - powers. And so, on federalism grounds, the conditions argument must fail.

Similarly, the necessary and proper argument fails because a law that violates principles of federalism is, by definition, not-proper.

The 8th Circuit Court of appeals opinion: here

The government's opposition to Sabri's petition for cert. is here

Sabri's brief on the merits is here

The CATO Institute's amicus brief is here