Friday, February 13, 2015

Declining to Preempt: The New Nullification?

The refusal of the current administration to enforce selected federal laws in selected states has led to what may be an unprecedented legal question: what happens when a federal statute clearly preempts a state law, but the federal government refuses to enforce it? Colorado's neighbors are dealing with this question. The LA Times reports:
In December, the attorneys general of Nebraska and Oklahoma filed a lawsuit to stop what they say is a steady flow of marijuana across the Colorado state line. Kansas is considering joining as well.

The suit, filed directly to the U.S. Supreme Court, seeks to strike down Colorado's law legalizing recreational marijuana. It argues that Colorado's statute conflicts with federal drug laws, which consider marijuana illegal, even in small amounts.

...

Colorado's marijuana law was approved by voters in 2012. It allows the sale and possession of up to an ounce of marijuana for recreational use for anyone 21 and over with a valid driver's license.

Shortly after the new law took effect, the U.S. Justice Department outlined its enforcement priorities, saying it would not interfere with Colorado's legal pot operations but would instead focus on, among other things, preventing marijuana from crossing state lines.
Colorado's marijuana law clearly conflicts with and is preempted by federal law which, if enforced, would negate it. But how does federal preemption work when the executive refuses to enforce federal laws? If Colorado had, for example, lowered its minimum wage (currently $8.23/hour) to even $6/hour, it would be superseded by the federal minimum wage (currently $7.25). It would be inconceivable for the federal government to look the other way.

Colorado's neighbors are not, as many have suggested, trying to impose their views outside of their borders in a hypocritical assault on federalism. Those views were already imposed on the entire country through The Controlled Substances Act and further upheld in Gonzales vs. Raich.

Federal laws are already responsible for banking problems faced by Colorado's new marijuana dealers. Financial institutions are more than aware of the litany of federal crimes they could be charged with, despite promises from the Department of Justice that they would probably not be prosecuted. From Forbes:
It is easy to see why banks remain wary of marijuana money. Notwithstanding the Justice Department’s memo, [University of Alabama law professor Julie Andersen Hill] notes, “Any bank or credit union providing services could face criminal prosecution at any time.” FinCEN’s guidance, even if it is interpreted as creating a safe harbor, “seems to set the bar for financial institution compliance quite high.” In any case, Hill writes, “the Department of Justice and FinCEN are only two of the many federal authorities with regulatory oversight of financial institutions.” Banks and credit unions also have to worry about how the Federal Reserve, the Federal Deposit Insurance Corporation, and the National Credit Union Administration will view their willingness to serve state-legal businesses that routinely commit federal felonies.
Congress could make an exception for Colorado, but it hasn't.
Legally, the federal felonies are still federal felonies.

As a very short civics lesson, note that the case goes directly to the Supreme Court:
Taking advantage of a provision of the Constitution covering cases “in which a State shall be Party,” Nebraska and Oklahoma filed their complaint in the Supreme Court of the United States. (Justia.com)
For various technical reasons (e.g., standing, non-commandeering) legal commentators are dismissive of the lawsuit. The Court may also find it difficult to formulate a remedy to inaction.

In a sense, the state of Colorado is participating in a criminal enterprise, but the federal government will not act against it. Colorado cannot be compelled to enforce federal law, but can it actively assist its citizens in breaking it?

For further discussion of non-enforcement, the Federalist Society had a good panel discussion in January on the topic: "The Executive Power to Not Enforce the Law."

Tuesday, January 20, 2015

Wherefore Art Thou Walls?

A lost, unpublished post from October/November 2006, but a wonderful lesson in history.

Following in the footsteps of Eugene "I-Forgot-About-Internment" Robinson, Washington Post's Joel Garreau argues that a fence on the Mexican border is pointless because... the Allies won World War II?

He begins with a poetry-based public policy:
"Something there is that doesn't love a wall," wrote Robert Frost in "Mending Wall." The poem is in part about being driven nuts by a neighbor who ceaselessly repeats "Good fences make good neighbors."
Poems are always a good basis for public policy, right? I vaguely recall a similar short story that concluded that what is most neighborly is a fence with a gate.
As part of his own version of a good neighbor policy, President Bush signed into law yesterday the "Secure Fence Act of 2006." It authorizes construction of 700 miles of new walls along parts of the 1,951-mile-long border from San Ysidro, Calif., to Brownsville, Tex. The Secure Fence Act does not include funding for the project, the cost of which is estimated to be at least $6 billion.
The first $1.2 billion was actually provided in an earlier bill.

While the Great Wall of China was designed to keep people out, the Berlin Wall was built to keep people inside; ultimately, neither structure lasted.

Starting 2,200 years ago, Chinese dynasties built walls to keep the Mongols at bay. The most famous of these is the Great Wall, which is twice as long as the U.S.-Mexico border. It did not prevent the Manchu from conquering China in 1644.

I guess this one is a math question. If we take Mr. Garreau's figures, that's somewhere around one thousand eight hundred and forty four years of effective defense.
The Romans built Hadrian's Wall across 74 miles of what is now northern England to keep the tribes from Scotland in their place. This did not prevent the Romans from eventually abandoning this outpost of empire.
Hadrian's Wall served as an effective border for more than two centuries and inspired other border fortifications throughout the Roman Empire.
The Berlin Wall was a shock because it was intended to keep people in. To this day, hefting chunks of it can feel spooky. Maybe it's all in the imagination, but those shards of pebble and concrete still seem to give off a palpable chill of evil.
And it kept people in - for almost three decades.
However, history tells us that walls usually work the other way.
That would mean walls draw people in. Those aren't walls, those are escalators.
After World War I, the French built the Maginot Line to slow down the Germans. The Germans invested in high mobility. When they moved, they drove and flew around and over this wall. They were well into France in five days.
The existence of the Line made getting around and over it one of the primary tactical goals of a major industrial nation (hence the investment mentioned above). The Maginot Line suffered from the same kind of short-sighted thinking that almost brought about France's defeat in World War I.
During World War II, to defeat an Allied invasion, the Nazis built the Atlantic Wall along the west coast of Europe from the French-Spanish border to Norway. It included 6 million mines in northern France, concrete pillboxes, machine guns, antitank guns, light artillery and underwater obstacles. Devotees of "Saving Private Ryan" know how that movie ends.
Devotees of "Saving Private Ryan" also know how that movie begins, with a difficult and bloody invasion. No soldier remarked "I'm so glad the Nazis fortified the coast, it will make our invasion so much easier."

It sounds like Mr. Garreau needs an apology trip to Normandy American Cemetery, where nearly ten thousand American soldiers are buried - men who I doubt share Mr. Garreau's cartoon-like views of the Atlantic Wall.

A quote "devotees of 'Saving Private Ryan'" should recall:
"Every inch of this beach has been pre-sighted. You stay here, you're dead men."
Besides all the bad history, the attempt to draw analogies between organized invading armies and illegal immigrants seeking work and welfare should be very disturbing.

One of the founding premises of cities -- from the beginning of fixed settlements 8,000 years ago -- was that you were safer inside their walls than out.

"The archetypal chieftain in Sumerian legend is Gilgamesh: the heroic hunter, the strong protector, not least significantly, the builder of the wall around Uruk," writes Lewis Mumford in "The City in History."

That wall evolved into the medieval walls of Vienna, raised against the Turks, along with walls around cities from Avignon to Fez. The expression "beyond the pale," now meaning beyond acceptable behavior, once referred to things outside walls made of palings, forming a palisade of poles.

The example of Vienna is particularly instructive, since it was at Vienna in 1529 and 1683 that the Muslim Ottoman Empire was repelled from Central Europe. The walls saved Vienna.
Walled cities with gates that closed at night existed in China in the 20th century. In America, the walled city was represented by frontier stockades like Fort Laramie in Wyoming. Artillery and airplanes decreased the strategic effectiveness of city walls. Many of them were torn down. The small Tuscan city of Lucca, however, neglected to modernize, and now is the richer for it, with tourists coming to see its walls.
Should we be anticipating illegal immigrants with "artillery and airplanes"?
The conceptual artist Christo even loved a Roman wall enough to wrap it in cloth in 1974.
That's... nice.
As this recitation suggests, not only can walls be beautiful and quaint, they are reassuring. They unquestionably show that the leaders are doing something.
And they work.
It will be interesting to see what effect our latest wall has. With some 350 million legal crossings per year, the U.S.-Mexico boundary is the most frequently crossed international border in the world, according to the American embassy in Mexico City.
There isn't really a point here except to remind us why it might be good for those crossings to be through legal points of entry.
Once walls existed to keep one culture from taking over another culture, but in this case, that battle has long since been lost by both sides. There is a broad swath of North America from the Pacific to the Gulf, and from Denver to very deep into Northern Mexico -- as far as Cabo San Lucas and San Luis Potosi -- where it is increasingly difficult to know where abstractions like the United States and Mexico begin and end.
Given the DC Metro system's recent replacement of incomprehensible English announcements with incomprehensible Spanish announcements, that's an interesting point, but again, not the purpose of the border fence.
According to the book of Joshua in the Bible, Jericho was a city of walls. When determined enough people challenged them, they came tumbling down.
So now not only do American leftists want to take God out of public discourse, but they want to take him out of the Bible too? Jericho fell because God delivered it to the Israelites who in turn slaughtered and razed all but the house of Rahab. The city did not fall because of unpopular walls, but because of an act of God and Israelite invasion.

History teaches us this: walls help and when they don't, you were going to lose either way.

Monday, January 05, 2015

When Poverty is not Poverty and Wealth is not Wealth

The New York Times notices that states are not all the same. Richard Florida writes:
Red state economies based on energy extraction, agriculture and suburban sprawl may have lower wages, higher poverty rates and lower levels of education on average than those of blue states — but their residents also benefit from much lower costs of living. For a middle-class person, the American dream of a big house with a backyard and a couple of cars is much more achievable in low-tax Arizona than in deep-blue Massachusetts. As Jed Kolko, chief economist of Trulia, recently noted, housing costs almost twice as much in deep-blue markets ($227 per square foot) than in red markets ($119).
This is a perfect example of why the federal government should not be in the business of deciding who is poor and who is rich. Without cost of living, the largest of which is housing, setting minimum wages, poverty lines, and even tax brackets can never be fair. (And with so much variation across the country, attempting to consider cost of living at a federal level would quickly become unmanageable.)

We relocated from Washington DC to rural South Dakota in January 2013. The cut in pay was substantial--from nearly six figures to approaching the federal proverty line--but our actual standard of living did not decline. Housing costs were no longer consuming every other paycheck. But for federal policymakers, $27,910 in South Dakota is the same as $27,910 in New York City.

We do not need the federal government to penalize "red states" for the difficulties "blue states" have made for themselves (Mr. Florida's main concern later in the article). We need to let state and local governments know their own economies and serve their own people.

Thursday, December 04, 2014

The Foreseeable Future Did Not Last Long

March 18, 2013 (The Atlantic):
"The days of $100-a-barrel crude, [Saudi Arabia's longtime oil minister, Ali Al-Naimi] told the crowd, are here 'for the foreseeable future.'
December 3, 2014 (Wall Street Journal):
"OPEC’s biggest oil producer, Saudi Arabia, now believes oil prices could stabilize at around $60 a barrel...
Brent crude dropped 62 cents a barrel to $69.92 on Wednesday.
...
[Saudi Oil Minister] Mr. al-Naimi told the ministers that enduring lower prices would force high-cost oil producers outside of OPEC, like U.S. shale-oil companies, to cut back production themselves, tightening the market by the second half of 2015..."

Wednesday, March 13, 2013

The Italian Non-Italian

From The Washington Post:
As the third non-Italian pope after the Polish John Paul II and the German Benedict, Francis seems to have ended the era of Italian dominance of the papacy.
The Wall Street Journal adds a few details about this "non-Italian":
The former Cardinal Bergoglio... was born in Buenos Aires to Italian immigrants.
Also from The Wall Street Journal:
In many ways, Cardinal Bergoglio is an ideal figure to transition from a centuries-old line of European popes. His father was an Italian immigrant, giving him roots in a country that is, along with Spain, considered a mother country of Argentina. That cultural affinity may have helped Cardinal Bergoglio with many of his Italian peers that dominate the Curia.
So, the third non-Italian pope who ends the era of Italian dominance of the papacy is Italian (born to Italian parents) and known to be Italian by the Italians.

Thursday, October 23, 2008

Is Informed Consent "Paternalistic"?

Emily Bazelon writes on "Oklahoma's gallingly paternalistic ultrasound law" at Slate:
Four states-Alabama, Louisiana, Mississippi, and Oklahoma-have taken the galling step of requiring [pre-abortion ultrasounds] regardless of need. They recently passed laws that go beyond offering ultrasounds to mandating them. Oklahoma's new statute dictates that either the doctor performing the abortion or a "certified technician working in conjunction" with that doctor do the ultrasound, "provide a simultaneous explanation of what the ultrasound is depicting," and also "display the ultrasound images so that the pregnant woman may view them."
I'm not sure what law couldn't be described as gallingly paternalistic, but as long as I can't opt out of the gallingly paternalistic Ponzi schemes of Social Security and Medicare, I'm not going to worry about it.

Tuesday, April 22, 2008

On Conversion

In an article about Pope Benedict XVI's visit to the United States, Ed Koch writes:
Earlier in the week, I was asked by a reporter how I felt about the Pope's approving a prayer asking for the conversion of the Jewish people to Catholicism. The reporter said that many Jews were upset with the prayer. I said I was not and considered the Catholic desire that we join them in conversion as a compliment. "They love us and they want us even closer" were my words. I also said, "I hope they convert to Judaism. Then, instead of there being only 13 million Jews worldwide, there would be 1 billion 13 million Jews, and that would be very comforting."