Archive for July 2010
I can’t say I liked Ultimate Fakebook before they were cool, but I liked them just the same.
I was able to read the order before any of the editorializing about it, and I can confirm that the flawed analysis really does leap off the page. Most of the ruling strikes me as sound. To remove my predispositions concerning the issues as I read the opinion, I imagined the ruling was talking about trademark law—another body of law subject to the plenary authority of Congress. In that regard, I tended to agree that creating new crimes for acts that the Constitution reserves to Congress to regulate is probably subject to preemption.
But what about the portion of SB 1070 that required Arizona’s law enforcement simply to verify immigration status? Why should this be objectionable? Again, as I was reading the opinion, I thought to myself, what if Arizona simply wanted to verify that companies registering to do business in the jurisdiction complied with applicable federal trademark laws. It might be an extra burden on the state, but why should that be objectionable to anyone else?
Judge Bolton, however, did find it objectionable:
The United States argues that the influx of requests for immigration status determination directed to the federal government or federally-qualified officials would “impermissibly shift the allocation of federal resources away from federal priorities.” (Pl.’s Mot. at 30.) State laws have been found to be preempted where they imposed a burden on a federal agency’s resources that impeded the agency’s function. See Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341, 351 (2001) (finding a state law preempted in part because it would create an incentive for individuals to “submit a deluge of information that the [federal agency] neither wants nor needs, resulting in additional burdens on the FDA’s evaluation of an application”); cf. Garrett v. City of Escondido, 465 F. Supp. 2d 1043, 1057 (S.D. Cal. 2006) (expressing concern in preemption analysis for preliminary injunction purposes that burden on DOJ and DHS as a result of immigration status checks could “impede the functions of those federal agencies”).
Pursuant to 8 U.S.C. § 1373(c), DHS is required to “respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status . . . for any purpose authorized by law, by providing the requested verification or status information.” DHS has, in its discretion, set up LESC, which is administered by ICE and “serves as a national enforcement operations center that promptly provides immigration status and identity information to local, state, and federal law enforcement agencies regarding aliens suspected of, arrested for, or convicted of criminal activity.” (Pl.’s Mot. at 6-7 (citing Palmatier Decl. ¶¶ 3-6).) Mr. Palmatier states in his Declaration that LESC resources are currently dedicated in part to national security objectives such as requests for immigration status determination from the United States Secret Service, the FBI, and employment-related requests at “national security related locations that could be vulnerable to sabotage, attack, or exploitation.” (Palmatier Decl. ¶ 4.) Thus, an increase in the number of requests for determinations of immigration status, such as is likely to result from the mandatory requirement that Arizona law enforcement officials and agencies check the immigration status of any person who is arrested, will divert resources from the federal government’s other responsibilities and priorities.
(Emphasis added.) In other words, Congress has required that the Department of Homeland Security (“DHS”) respond to reports from state officials concerning illegal aliens. The Obama Administration argued that the Arizona law should be enjoined because it would increase the number of such reports, thus creating more work for the DHS. The extra work would create irreparable harm to the United States, thus requiring injunction of Arizona’s law. The judge bought it.
On the bright side, it is very possible the Ninth Circuit, depending on which judges sit on the panel, will reverse the ruling. The Supreme Court, if and when the case makes it up that far, would very likely uphold SB 1070. Until then, the Obama Administration will continue taking on water for waging this unpopular lawsuit.
[I also forgot to mention another odd argument the DOJ and some liberal bloggers have made that has gone largely unnoticed: that the “federal government” has plenary power over the subject of immigration. This would be to misstate what the Constitution actually says. It is true that Article I, section 8 of the Constitution provides that “The Congress shall have Power . . . To establish an uniform Rule of Naturalization.” But notice this power is given to “The Congress”—not to some amorphous “federal government.” In other words, Congress is given complete discretion to determine what immigration laws apply, but this grant of legislative authority does not mean that Congress, the President, or the courts can prevent the states from enforcing those laws.]
Donald Kochan, my property law professor at Chapman, has this op-ed today in the LA Times. It raises a question I have been mulling over for some time.
The luxurist may be destructive to himself, but in the process he is constructive in the lives of many who are employed in the enterprise of creating those “unnecessary” things: “A vain silly Fellow builds a fine House, furnishes it richly, lives in it expensively, and in a few Years ruins himself, but the Masons, Carpenters, Smiths and other honest Tradesmen have been by his Employ assisted in maintaining and raising their Families, the Farmer has been paid for his Labour and encouraged, and the Estate is now in better Hands.” [Quoting Benjamin Franklin.] Of course, this ancillary impact occurs in varying degrees whenever one spends (rich or poor) and however (wisely or unwisely) they do so.
Assume the endeavor truly was vain and foolish in a very profound way—the economy takes such a turn that few if any can afford to take up stewardship over the fine and richly furnished house. The value of this property plummets, and it goes either unused, or sold off in pieces for fractions of their original value. In such an instance, the masons, carpenters, smiths, and tradesmen may have found that the value of their experience in building fine and rich houses and furnishings is less than originally thought, since there are no other “silly fellows” left with the means to build such things. For all their skill, they are left without work. The economy, once the supply of fools has dried up, can no longer afford to remunerate the fools’ employ.
Of course, I am talking about the housing bubble, and the harm created when efforts are improvidently directed at endeavors with over-inflated and artificial value, only to later find those efforts were wasted. This period of wasted, vain economic activity requires laborers to retrain themselves as the economy reorients itself around endeavors with actual value.
So misspent money, I think, can indeed be a serious problem. But the reason for the misspending is more often misguided government incentives, subsidies, and policies—i.e., the policies responsible for the housing bubble—rather than the hapless “vain and silly Fellows” that Benjamin Franklin talked about.
“Cleave” means to split apart and to stick together.
A “sanction” is a formal or legal decree. It is also a punishment—say, for violating a sanction.
Inflammable means flammable? What a country!
According to WordPress, this is the 300th post since I started this blog in August 2008. I’ve appreciated your readership, and in particular your comments. Looking forward to the next 300!
Thom Hartmann has been preaching there are just not enough resources to sustainably support the number of humans on this planet:
if all six billion people on the planet lived even at the US. poverty level of $16,000 for a family of four, we would still need four planet Earths to provide the necessary raw materials for them. It is simply not possible.
If you’re going to be the brand of environmentalist like Hartmann who wants to see humanity move closer to some pre-civilized, betrothed-to-nature status, wouldn’t this also imply a rejection of modern medicine? A cease-and-desist of efforts—if not a deliberate reversal of efforts—to increase life-expectancies? And if “equality” of medical care is the modern moral imperative placed on progressive man, then what does equalized health care look like spread evenly across 6 billion humans?
Truly “universal” health care is a pipe dream, unless you’re talking about universally crummy care.
I don’t typically read the comments to the blogs I subscribe to, and yesterday I was reminded of the sound reason for that policy. Catching up on current events in Google Reader, I decided to read Kevin Drum’s take on the shenanigans in the city of Bell, where the Chief Administrative Officer Robert Rizzo earned a salary of more than $787,000, the police chief earned $457,000, and the assistant city manager earned more than $376,000—all in a city with fewer than 40,000 people. Although all three have announced their resignations, they will still receive handsome taxpayer-guaranteed pensions:
Still, Rizzo would be entitled to a state pension of more than $650,000 per year for life, the Times said. That would make him the highest-paid retiree in the state pension system.
At age 62, when Rizzo could also begin receiving Social Security payments, his annual pension would rise to $976,771, topping $1 million two years later.
If he lives to age 83, his annual payout would rise to $1.48 million.
Adams could get more than $411,000 per year, and Spaccia, who is 51-year-old, could get as much as $250,000 a year when she reaches 55.
So, back to the reason I was reading Drum, a liberal, on this story. This is obviously the sort of story that transcends ideology, so it occurred to me that Drum and his readers would have the same basic reaction as everyone else, right? Drum’s intuition is right when he says:
All I can say is: there just has to be something illegal here. I don’t know what, but is it really possible that such an obvious abuse of the public trust can be legal?
In some respects, the answer is yes. California suffers from something like battered women’s syndrome, in that we enable those who abuse us, and fail to enforce the provisions in our own Constitution that would end many of the problems in the upside-down pension system. California’s June primaries did not yield very many nominees tough on pensions, which tells me that while we’re getting more clued in to the pension Ponzi scheme the unions are running, we’re not clued in quite enough to do topple that regime just yet.
But then here comes the very first two commenters at Drum’s site, deciding they’ve figured out the root of the problem in Bell:
It is dispiriting to see this level of lack of understanding of how corporate governance works, because this is the very opposite lesson that we ought to learn from the city of Bell. If Bell were a corporation, these salaries would have been posted immediately in an 8-K, and the shareholders would have reacted swiftly by voting out the directors who authorized the overblown compensation at the next regular shareholders’ meeting, if not sooner at a special shareholders’ meeting. Shareholders, in contrast with the typical American voter, is engaged in and observant in what happens in the corporation in which he is invested—I draw your attention to the lack of “Rock the Vote” ads directed to shareholders.
People get the government they deserve. Bell’s citizens were obviously asleep at the switch to let these gangsters swindle from them for so long. Perhaps the problem, other than a decline in civic responsibility, is that we’ve got too much government coming at us from too many different directions. While you’ve got Obamacare forcing you to pay for acupuncture, and the county of LA forcing you to pay for a new light rail boondoggle, and the state doubling the car registration tax, trying to increase the sales tax, and cutting the child deduction, the city of Bell swooped in under the radar to give its officials astronomical salaries. That’s just too many fronts for a responsible citizen guard against.