A Flea in the Fur of the Beast

“Death, fire, and burglary make all men equals.” —Dickens

Category: Law

Trump Goes Kafka

by evanmcmurry

This line from Trump, on the Central Park Five’s settlement with the city, says a lot about what we get wrong about crime:

“The recipients must be laughing out loud at the stupidity of the city…Speak to the detectives on the case and try listening to the facts. These young men do not exactly have the pasts of angels.” [E.A.]

Leaving aside that Trump doesn’t exactly have the past of an angel either, the supposed mistakes of one’s past doubling as a presumption of guilt is how we get to “Trayvon Martin deserved to be shot because he maybe smoked pot once.” It’s a focus on the person rather than the action, a bizarre conviction that having sinned once means you’re guilty of any sin going forward. If only someone would write a book about that.

“The Law Works, So Let’s Get Rid of It”: The Right’s New One-Size-Fits-All Argument

by evanmcmurry

Pierce spots a winner in the argument against abortion clinic buffer zones, in which the fact that the buffer zones have prevented the incidents they were meant to prevent is evidence that they’re clearly not necessary:

Mark Rienzi, the Catholic University law professor who represents the protesters, said there has not been a documented case of violence at a Massachusetts clinic since the 1994 killings. “The idea that someone like that will be deterred by a painted line on the ground is nonsensical,” he said. “In the meantime, you shouldn’t be able to use that to stop women from being offered these other options. As a practical matter, that’s what happens.”

“The law works, so we should get rid of it” argument is identical to the one trudged before the Supreme Court against Sections Four and Five of the VRA—an argument SCOTUS bought. Here’s John Roberts, cashing in his ACA-is-a-tax chit:

Nearly 50 years later, things have changed dramatically. Largely because of the Voting Rights Act, “[v]oter turnout and registration rates” in covered jurisdictions “now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.” Northwest Austin, supra, at 202. The tests and devices that blocked ballot access have been forbidden nationwide for over 40 years. Yet the Act has not eased [its] restrictions or narrowed the scope of [the formula that determines which parts of the country that are covered]. Instead those extraordinary and unprecedented features have been reauthorized as if nothing has changed, and they have grown even stronger.

This is becoming a Thing on the right. Julia Ioffe caught Rand Paul doing the same backflip last summer, as he wondered at the necessity of environmental regulations when the air had gotten so much cleaner over the last century—thanks, you know, to those very same regulations:

In case you didn’t follow that: Government regulation of coal is bad and useless, and environmentalists talking about smoke stacks polluting the air are hysterical. The reason the former is bad and useless is that the air has been getting cleaner. The air has been getting cleaner because of government rules, which, so bad and useless otherwise, have here produced a result—cleaner air that gets increasingly more clean with time—which, again, is what makes the liberals and environmentalists look crazy. Which all, somehow, proves to Paul that regulation now, to deal with a different but similar problem—global warming or drowning polar bears—is not the answer, because regulation doesn’t work. Which is why the environmentalists are crazy for wanting it. Get it?

It’s no wonder this argument is attractive, as a) it’s portable, and b) it dovetails with a rational conservative view that government becomes <spooky>Big Government</spooky> somewhat via inertia. The state doesn’t just overreach through unnecessary laws, but through necessary laws that outlast their necessity.

But that falls apart pretty quickly. Voting, pollution, and clinic harassment are iterative issues. They don’t get “solved” or “cured.” If anything, the very people declaring these laws expired draw attention to the exact events—voter ID proposals, chemical spills in West Virginia or exploding plants in West, Texas—that demonstrate the danger awaiting a slackening of enforcement, let alone repeal.

Call Me When We Get To Some Real Fascism

by evanmcmurry

Guess what! The judge who thought Obamacare was the creep of fascism is the same judge who approved the expansive NSA data-mining program.

Next time a progressive wants to pass anything, they should just make some shit up about how it fights terrorism. That’s all it ever comes down to.

Fake Crises Bad, Says Senator Who Fakes Crises, Fakely

by evanmcmurry

Obama is set to nominate three judges at once to the DC Court of Appeals (better several years late than never). The GOP is calling this “stacking the court,” even as they’re endeavoring to get rid of the three positions altogether to retain the conservative bias of the court. That’s the moral arithmetic here: Obama’s doing what a president is supposed to do (nominate judges for vacancies) is “stacking the court,” but flat out changing the composition of the court for ideological supremacy is just fine.

Still, nobody should allow Chuck Grassley to get away with the following:

“This is part of the majority’s attempt to create the appearance of obstruction where none exists,” Mr. Grassley said last week in a speech on the floor of the Senate. “It is a transparent attempt to manufacture a crisis.”

Here’s a link to the story of the debt ceiling crisis of 2011—we have to distinguish them by years, now!—but you shouldn’t really need it.

UPDATE: Jon Chait has more on how the GOP, via the Wall Street Journal editorial page, concocted the “packing the court” line, and points out that the real battle here is over Obama’s coming proposal of new carbon regulations for power plants, the legal challenges of which will flow through the DC Court. Read the whole thing.

A Grab Bag Of Reasons to Read Tsarnaev His Miranda Rights

by evanmcmurry

Adam Serwer with two good points on reading Dzhokhar Tsarnaev his Miranda rights:

Tsarnaev’s interrogators didn’t read him his rights. Nor did the “Obama administration,” as some, including Sen. Dan Coats (R-Ind.), have claimed. A judge did it.

Cuz it’s, you know, the law. And two:

The feds have every reason to play this one by the book. Few things could compound the tragedy of Boston like jeopardizing Tsarnaev’s prosecution because of a rush to trample his constitutional rights.

I’ll add that hostility toward Miranda rights didn’t begin with Boston or terrorism. There’s a common notion that criminals don’t deserve rights, and that the Miranda text is some liberal limpwristery. Or, to quote Chief Wiggum, “You have the right to remain blah blah blah.”

Is Paul Clement Secretly A Dumb-Dumb?

by evanmcmurry

We’re all having a great time (and rightfully so!) over the new DOMA briefs from the anti-gay marriage groups arguing…something pertaining to marriage, unintended procreation, and the state’s interest in enforcing shotgun marriages (see Gin and Tacos and Wonkette for funnies).

But lost in all this: it’s Paul Clement making these arguments.* Clement is one of the most renowned constitutional litigators out there!

Or at least he’s supposed to be. Clement had a moment last spring when he seemed to knock both the Obamacare and SB 1070 arguments out of the park for the conservatives. Especially after Donald Verrilli whiffed both oral arguments (I still want to bring Verrilli a glass of water), Clement arose as the superior rhetorician, single-handedly plucking Obamacare from constitutional inevitability and Arizona’s immigration law from certain defeat, mounting a successful last stand against Obama’s overreach not via vitriol but calm, cool logic. He was crowned King Orator before the decisions were even handed down.

But then those decisions were handed down, and the rest is history. The world was so consumed by the drama of the Court’s rulings—Roberts is a librul! Obama bullied SCOTUS!—nobody bothered to revise the judgment of Clement’s abilities; he snuck out the back with his provisional crown still on.

That Clement is slinging some embarrassing slop in the DOMA case is probably just a sign that no good arguments against gay marriage remain. (As djw points out, one of the unintended benefits of deciding these matters in the court is making bigots actually construct logical arguments to support their prejudices, with the predictably absurd consequences you see before you.) But at some point, we need to start wondering whether Clement actually is the inestimable constitutional warrior we’ve made him out to be.

* And we’re paying him to do it!

Poor Donald Verrilli, Warrantless Wiretapping Edition

by evanmcmurry

Let us now continue to cringe on behalf of Poor Donald Verrilli, last seen somehow triumphing in both the SCOTUS oral arguments over the SB 1070 and Obamacare despite needing the world’s biggest glass of water, who now finds himself arguing that the gummiment can’t be sued over secret wiretapping because nobody can prove it exists because it’s secret. Unlike W’s counsel, who made a sport of bending the law into new Kafka shapes, Poor Verrilli doesn’t seem like the type to enjoy the Alice in Wonderland version of civil rights that currently comes with the executive branch. At this point, I have to think he jumps every time the phone rings.

Republicans Are Less Likely To Support Obamacare After SCOTUS Ruling, Which Makes Sense Until You Think About It

by evanmcmurry

Dave Brockington at LGM with a good find from yesterday’s NPR poll:

Perhaps the most interesting finding from this survey, at least most likely to induce a chuckle, is the response to this question (page 9):

Does the fact that the Supreme Court said the health care law is constitutional make you more likely to support the law, less likely to support the law, or does the Supreme Court decision have no effect on your support for the law?

Overall, 21% are more likely to support the ACA, 16% less likely, and it makes no difference to 58% (again, supporting the hypothesis that it’s all about pre-existing partisanship).  [Battleground] voters are a near exact replication of the overall sample (21/17/58). However, when limited to Republican respondents, the numbers are 8/30/56.

30% of Republican respondents are less likely to support the ACA because the Republican led Supreme Court ruled it constitutional.  One might excuse the 6% of Democrats believing this, but Republicans?

This is clearly a wording issue. The question was “are you more or less likely to support the ACA since SCOTUS upheld it?” and what 30% of Republican respondents heard was “are you more or less pissed off that SCOTUS upheld the ACA?” But still, an open-ended follow-up would have been fascinating in this case: “What specifically about John Roberts’s decision made you less likely to support health care reform? Use additional sheets if necessary.”

There’s No Such Thing As Voter Fraud

by evanmcmurry

A court strikes down Wisconsin’s voter ID bill:

The court found no evidence in the record presented of impersonation voter fraud which would support an i.d. requirement.  The court found credible cases of people who would have difficulty getting voter i.d. under the Wisconsin law, which the court called the strictest in the nation.

In other words, someone finally spells out, in plain English, that Voter ID laws do more to undermine democracy than the non-existent voter fraud the laws were erroneously drafted to prevent. Was this really so hard? (Via)

Virginia v Abortion Clinics, A Play In Infinite Acts

by evanmcmurry

After an ill-conceived experiment in Mississippi, states are back to using the cloak of “concern for women’s health” to pass non-sensical abortion restrictions. Yesterday, a Virginia law that would require all clinics that provide abortions—including the 20 clinics already standing—to meet the “strict architectural standards” of new hospitals just cleared an important administrative hurdle. The law’s implementation will force most of the existing clinics to close, as they could not possibly have been built in compliance with a future regulation. Which, of course, is exactly the point, but all parties involved are maintaining that the regulation is in the interest of women’s health:

“The women of Virginia deserve safety in any medical situation, abortion included…The abortion industry should want to provide the best standards of care for their clients.”  (via the Virginia-Pilot)

Note the lack of explanation. The “undue burden” part of Casey v. Planned Parenthood has been so narrowly applied by the courts that states need only invoke the motive of protecting women to pass any restriction they want, no matter how onerous, or how irrelevant to women’s heath. What forcing 20 existing clinics conform to regulations on new construction has to do with women’s health doesn’t matter; the claim need only be made.

This is the exact type of move that Mississippi may have endangered when it didn’t even bother to invent an excuse for its most recent abortion restriction that mandated OBGYNs who perform abortions have admitting privileges in local hospitals (the hospitals refused their requests, completing the trap). The bill was such a blatant attempt to close the last remaining abortion clinic in MS that a George W Bush appointed judge struck it down, citing a complete lack of evidence that it was enacted in the interests of women’s health.

The question now is whether Mississippi just accidentally tipped the entire pro-life movement’s hand—i.e., can the motives of a legislature that passes a bill like Virginia’s now be taken credulously, when their play is so obvious? It’s like catching someone at a poker table cheating; how much are you going to believe their next hand of four aces?

It will be interesting to see if higher courts strike down Mississippi’s law for good, and how broadly they write their opinion if/when they do so; they may decide Mississippi has gone too far, and that Casey needs to be applied more actively to all abortion restrictions. If so, it would be nice poetic justice if this bill Virginia just passed is struck down because it doesn’t meet the demands of a future law.