Can States Legislate Immigration?

(By Andrew MacKie-Mason)

Arizona's new immigration restrictions have been talked about a lot over the past weeks. One interesting point raised in the debate is whether or not Arizona (or any state) can pass any laws related to immigration.

The relevant passages from the Constitution are the Tenth Amendment:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

And Article 1, Section 8 (in part):

The Congress shall have the power to establish an uniform Rule of Naturalization.

It seems pretty clear that immigration laws are part of "the powers...delegated to the United States by the Constitution" and thus the power to restrict immigration is not "reserved to the States respectively".

So, the conclusion seems to be that no state can pass laws regarding immigration. Does this make sense? Or am I off base?

Conservative Christians Still Scared by Harry Potter

(By Andrew MacKie-Mason)

Harry Potter is a gift that never stops giving. Never stops providing us with endless, amusing conservative outrage, that is. The latest comes to us from ChristWire.org (Conservative Values for an Unsaved World) courtesy of the wonderful vote_larry.

The gist? Emma Watson is beautiful (and therefore to tempting to be allowed near boys)...and yeah, that's about it. Just for good measure, though, we learn that "Harry Potter is a dangerous movie series about witchcraft, blood cults and homosexuality" and that J.K. Rowling is a man. (This, though, is surely a harmless mistake. I mean, how could the author be expected to know that women are capable of writing novels?)

One of the most interesting claims made in the piece is that the following photograph is somehow related to Brown University. Keep in mind, though, that the image I'm about to show you is highly dangerous. Let me defer to Dan Nordgren, though. He says it best.

Warning: Following is digital media featuring Harry Potter actress, Emma Watson, and a Brown University pose. Please immediately order all women/children to leave the room before praying then reviewing this image for your parenting/media alert group.

Yes. You are about to see digital media. Be very very scared.

Are you ready? Are the women/children gone? Have you prayed?

Here you go:


Shocking, isn't it? I can hardly believe this is allowed on the internet. But honestly, how could the author have thought this had anything to do with Brown University? If you look at the bottom left of the image, it says "exclusively for Vanity Fair."

Yes, Vanity Fair now takes Brown school photos. This will actually be printed on Emma Watson's Brown school ID.

Welcome to our world. (P.S. Sex must now be written S*x. You have been warned.)

Does the Wall Street Journal Understand Miranda?

(By Andrew MacKie-Mason)

I'm going to continue catching up on topics that have piled up during my off time, so some of the things I comment on will be a little old. Hopefully, though, you won't find the topics dated.

It seems that at least one blogger at the Wall Street Journal doesn't actually understand the concept of Miranda rights.

She writes:

“If this individual has information that could help us prevent future attacks and loss of life nothing should stand in the way of that, including Miranda,” said Rubio, a favorite of the tea party movement. “If they stop talking, people can die.”

...

The debate over reading Miranda warnings to terrorism suspects came up in the case of the Christmas Day bomber as well. In March, Sens. John McCain (R., Ariz.) and Joe Lieberman (I., Conn.) introduced a bill that would give authorities time to interrogate those people held on suspicion of engaging in acts of terror against the U.S. Lieberman also plans to introduce new legislation that would strip Americans of their citizenship if they were arrested on terrorism charges on U.S. turf.

Earlier today, McCain and Rep. Peter King (R., N.Y.), also expressed concern over the decision to read the Miranda warning to Shahzad before finding out as much information as possible about the plot and others involved.

On ABC radio’s “Imus in the Morning,” McCain, the top Republican on the Senate Armed Services Committee and a member of the Homeland Security and Governmental Affairs Committee, said the immediate use of Miranda rights is a “mistake.” “Don’t give this guy his Miranda rights until we find out what it’s all about,” he said.

There are two problems with the opinions quoted by Jean Spencer in her piece.

First of all, Miranda does not prevent questioning a detainee in order to prevent a future attack. In fact, Miranda does not ban any type of questioning at all. All that it does is prevent any evidence gained from such warningless questioning from being used in a criminal prosecution.

So, the FBI and CIA have every right to interrogate a detainee for as long as they want without reading them their rights. They can then use that information to disrupt other ongoing plots. All that they cannot do is use that information against the defendant at trial.

Secondly, Miranda does not grant rights, at least not in the way that's implied by John McCain's statement. Miranda grants the right to be warned of your other rights: the right to remain silent, the right to an attorney, etc. However, those rights themselves are not granted by Miranda. Even prior to Miranda v. Arizona being decided by the Supreme Court, people had the right to remain silent and to talk to a lawyer. The police just didn't have to remind them.

So, we are not "giving" someone their Miranda rights, if John McCain means giving them the right to remain silent or the right to an attorney. The only Miranda right is the right to be reminded of your other rights.

It's sad that a somewhat respectable newspaper like the Wall Street Journal can't find writers who actually understand the United States Constitution and related Supreme Court opinions. It's true that Ms. Spencer only quoted others, but if she actually knew what she was talking about she would have corrected them in the body of her piece.

Of course, that would have made her article less interesting. Thank God for the brain dead media.

Harvard 3L Wrap-Up

(By Andrew MacKie-Mason)

Here's some wrap-up for the controversy a few weeks ago about a 3L at Harvard Law who sent a supposedly racist email.

My post.

Some thoughtful posts on the issue by Eugene Volokh, here here and here.

A ridiculous op-ed by a university professor that both mischaracterizes the original email sent by the student and argues that she should be expelled.

Trying Juvenile Alleged Terrorists

(By Andrew MacKie-Mason)

Stewart Baker at the Volokh Conspiracy had a thought-provoking post a little while ago. He talked about Omar Khadr, who allegedly started fighting for Al Qaeda in Afghanistan when he was 15. Baker then talks about how the American government is hesitant to charge Khadr with terrorism because he was a child when his crimes were committed:

Why? Because some US officials “don’t have the stomach to try a child for war crimes” the National Post reports, and a Canadian repatriation request would put a diplomatic cover on an outcome they badly want to engineer for other reasons...

You’d think from the administration’s gunshy approach that there must be a big legal problem with trying someone for crimes committed at fifteen. If so, I can’t find it. Practically every state in the union allows juveniles to be tried as adults at the discretion of juvenile court judges, which often use a standard that combines the best interests of the child and of society. Many states create a presumption that the juvenile will be treated as an adult in the case of serious crimes; the presumption kicks in at 15 or less in most of these states...

So what’s the problem with the case? It is widely believed to have a stronger evidentiary basis than any other likely military prosecution. Despite this, the administration is apparently so spooked by emanations and penumbras of international law that it is ready to send the killer of an American soldier back to his loathsome family after a few years — and perhaps immediately, if he gets credit for eight years already served.

I've argued before (1, 2) that charging any juvenile in criminal court is unconstitutional. It's also illogical: society doesn't think children are responsible enough to be able to vote, but it does think they're responsible enough to make decisions that send them to prison for the rest of their life.

But the real problem with Baker's analysis is that it presumes that what is legal is the same as what is right, that the government should use every power it has to prosecute people. Baker, it seems, missed the lessons on prosecutorial discretion and ethics.

Just because a prosecutor could convict someone does not mean they should. Prosecutors play a role in the criminal justice system not only in choosing to prosecute, but also in choosing not to prosecute. If prosecutors think a certain person should not be charged with a crime, that prosecutor should not pursue the case, even if they could win it.

Even if the Obama administration has the legal authority to charge a juvenile with a crime in normal court, they are exercising admirable restraint by not doing so, in the best tradition of prosecutorial discretion.

Government as a Tool of Cooperation

(By Andrew MacKie-Mason)

I apologize again for the slow blogging this past week or so. I've been busy academically as well as having been drawn into a new hobby (some may say addiction). Hopefully my blogging will pick back up again soon. Tomorrow, for instance, I hope to post a good bit about President Obama's newest nominee for the Supreme Court, Elena Kagan.

For today, though, I'll look at the recent BP oil spill. Katrina Kuh at PrawfsBlawg relays an interesting story from the New York Times:

owever, a recent article in the New York Times detailing the plight of local Louisiana fishermen made me reflect on a larger question for environmental policy lurking in the spill’s messy aftermath. The Times article describes the plight of a fisherman whose skiff was destroyed by Hurricane Katrina (a loss exacerbated by subsequent hurricanes) and then forfeited more income during a fishermen’s strike (protesting the low price of shrimp). Now faced with the prospect of fisheries closing as a result of oil contamination, he was attending a training session in hazardous materials removal.

Consumption (in particular of cheap energy) has long been viewed as a driver of economic growth. The traditional solution to our fisherman’s economic woes? More consumption, more growth, more jobs, more money! But our fisherman’s plight illustrates in any number of ways the dangers of overconsumption.

The point being, of course, that the activities traditionally viewed as helping the fisherman (growing his business, using more energy, etc) actually end up hurting him in the long run.

What does this situation tell us about the role of government? That government compulsion (in environmental or other areas) can be useful to find the best overall solution when free competition would lead to a worse solution.

In the case of the fishermen, they would all be better off with slightly lower consumption. They would still be competitive without creating long-term dangers to their economic fortunes. However, there is no incentive for the individual fisherman to remain in that state. The additional consumption of one single fisherman is extremely unlikely to impact the climate, or to get a large number of other fishermen to also back out of the implicit agreement. However, once every fisherman decides to start overconsuming again, we arrive back at a state that is worse for everyone.

In effect, the fishermen want to have the restrictions, so long as everyone else is following them. How does government come into it? It can ensure that everyone plays by the rules. The government can require all of the fishermen to lower their consumption, creating a better result for everyone.

For a more mathematical approach, read on:

This same concept can be understood through game theory. Let's consider two people (players 1 and 2), both making choice A or choice B. There are four possible combinations of choices: A-A, A-B, B-A, B-B. Each one has a payout for each player. A payout is a numerical value: higher payouts are better.

Consider the following chart of choice combinations and payouts. The columns are the choices made by player 1, the rows are the choices made by player 2. The first number in each payout set is player 1's payout, the second is player 2's payout.

*******A***********B

A**+5/+5********+6/+2


B**+2/+6********+3/+3

It's clear that the best overall outcome is A-A. It results in a total payout of +10. However, considering player 1's choice alone, he should always pick B. No matter what player 2 does, player 1 will get a higher payout with choice B than choice A. If player 2 picks A, player 1 will get +6 with B and only +5 with A. If player 2 picks B, player 1 will get +3 with B and only +2 with A.

The same logic applies to player 2. No matter what player 1 does, choice B always results in a better outcome.

Thus, the "equilibrium" of this game will be found in the worst overall outcome: B-B, for a total payout of +6, instead of +8 or +10. Government regulation, of course, can force the players to choose A, for a better outcome, both overall (+10 instead of +6) and individually for each player (+5 instead of +3).

The "unbalanced" cells (A-B and B-A) are the most attractive to the individual players, but the most unstable. If player 2 chooses B, why wouldn't player 1 also choose B?

Of course, we must guard against government regulation that doesn't actually lead to the best possible result. I'm not trying to argue that governments are always perfect, but it's equally fallacious to claim that free competition always ends in a better result than regulated decisions.

SWAT Invasion

(By Andrew MacKie-Mason)

Sorry I haven't been blogging much lately, it's been crazy for the past week or so. I'll have more soon, but for now, "enjoy" this video. It's a real taping of what happens when a SWAT team invades a house looking for drugs.

As a fair warning, it's not pleasant. They shoot the family dogs (off camera, luckily) and drag the inhabitants out, screaming. In the end, they found a misdemeanor amount of marijuana and had the audacity to charge the parents with child endangerment.

Pointer comes from Robert Guest at the Dallas Criminal Defense Lawyer Blog.

Anti-Semitism Panel

(By Andrew MacKie-Mason)

Howard Friedman calls our attention to a House committee hearing on anti-Semitism. What caught my attention was the witness list: all of the witnesses were members of prominent groups that consider anti-Semitism a major human rights problem. I don't necessarily disagree with those groups, but isn't such a panel almost designed to bring about a strong response to the problem where a lighter one would, perhaps, be more appropriate? At the very least, the panel would have been more balanced with some representatives of groups who think that the anti-Semitism problem is exaggerated in the modern world.

Father's Religions Freedom

(By Andrew MacKie-Mason)

Howard Friedman (of Religion Clause) talks about a case where a father claimed a First Amendment right to force his children to live in a religious compound. The court disagreed, saying that the state's interest in protecting the children trumps the father's interest in keeping them in the compound.

This seems like the right outcome to me. As I've talked about before, I don't see a justification for interpreting a parent's religious freedom rights as including the right to indoctrinate their children.

Classified Cases

(By Andrew MacKie-Mason)

Mirriam Seddiq, who writes "Not Guilty" hosts a fascinating story by Kathy Manley (another criminal defense lawyer.) It talks about the dangers of classified evidence and police entrapment. Well worth a read.

Guantanamo

(By Andrew MacKie-Mason)

Detention at Guantanamo has been a problem ever since it was conceived. Some previous political elites thought it would be a good way to avoid responsibility (political and legal) for dubious detention. The same factors that gave them cover (it being in uncharted legal waters, so to speak) are now coming back to bite us.

One main issue is how to deal with detainees who the courts have ordered freed, for one reason or another. Congress has only made it harder by forbidding the President (in an overwhelming, bipartisan vote) to transfer former Guantanamo detainees to the United States proper in order to free them. This means that the release of detainees depends on the President's ability, and willingness, to find other countries who will accept these formerly accused terrorists.

Personally, I think that Congress' actions are an unconstitutional suspension of the writ of habeas corpus. People who support these restrictions on transfer, though, sometimes argue that forbidding entry into the United States is a traditional part of the government's immigration powers.

Really, though, what's at issue here isn't immigration. These people have already been effectively brought into the United States by being captured and held illegally at Guantanamo. The only question is where in the States they will be, a question that Congress traditionally cannot decide.

Of course, if our government hadn't illegally detained these individuals in the first place...