Commentary Magazine


Topic: search warrant

RE: Grandstanding on Immigration

As I noted, the Arizona immigration bill is what comes from the confluence of federal inaction and election-year jockeying on both sides of the political aisle. Neither pro-immigration nor anti-immigration forces have the wherewithal to push through legislation, so the next best thing is to try to tempt the other side into embarrassing themselves. That’s not hard in this arena. As the Wall Street Journal‘s editors write:

Arizona’s new immigration law shows what happens when a state on the front lines of a failed immigration policy reaches the bursting point. What you get is a blunt instrument that produces lawsuits, more political polarization (if that’s possible) and the risk of hostility between the local police and the public.

The law makes it a state crime to be in the U.S. without proper documents. It allows the police to stop anyone on “reasonable suspicion” that they may be in the country unlawfully and arrest them on the spot if they can’t produce identity papers. The police aren’t required to have a search warrant or even to suspect some illegal action has occurred before questioning a person. Traditionally the federal government has enforced immigration laws, so this is an extraordinary state criminalization of a heretofore federal authority.

Democrats see an opportunity born of their own delinquency in addressing immigration. (“Congressional Democrats have no intention of enacting serious immigration reform before November. President Obama is surely playing politics with the situation in Arizona for gain in the fall. He’d like to pick a fight and define Republicans as anti-Hispanic going into the election, without having to propose anything substantive.”) So they decry the motives of their opponents and take offense at the notion that law enforcement should enforce immigration laws. Meanwhile, a segment of conservatives thinks this plays well to the base and that liberals’ overheated rhetoric makes them appear “pro-illegal immigration.” But the result is a crass political food fight in which each side’s normal concerns are swept aside. (Are conservatives really in favor of what will amount to near-unbridled discretion by police to stop suspected illegals?)

Those hoping for any semblance of real reform should take note: the alliance of those who oppose any “path to citizenship” and the relaxation of legal immigration restrictions is a classic political marriage of convenience, with Big Labor and immigration restrictionists joined at the hip to block virtually any variation of reform that might conceivably pass. And the most extreme pro-immigration forces don’t do their cause any favors by suggesting that legitimate concerns for border control are nothing more than a cover for racism. So expect the political charade to go on.

As I noted, the Arizona immigration bill is what comes from the confluence of federal inaction and election-year jockeying on both sides of the political aisle. Neither pro-immigration nor anti-immigration forces have the wherewithal to push through legislation, so the next best thing is to try to tempt the other side into embarrassing themselves. That’s not hard in this arena. As the Wall Street Journal‘s editors write:

Arizona’s new immigration law shows what happens when a state on the front lines of a failed immigration policy reaches the bursting point. What you get is a blunt instrument that produces lawsuits, more political polarization (if that’s possible) and the risk of hostility between the local police and the public.

The law makes it a state crime to be in the U.S. without proper documents. It allows the police to stop anyone on “reasonable suspicion” that they may be in the country unlawfully and arrest them on the spot if they can’t produce identity papers. The police aren’t required to have a search warrant or even to suspect some illegal action has occurred before questioning a person. Traditionally the federal government has enforced immigration laws, so this is an extraordinary state criminalization of a heretofore federal authority.

Democrats see an opportunity born of their own delinquency in addressing immigration. (“Congressional Democrats have no intention of enacting serious immigration reform before November. President Obama is surely playing politics with the situation in Arizona for gain in the fall. He’d like to pick a fight and define Republicans as anti-Hispanic going into the election, without having to propose anything substantive.”) So they decry the motives of their opponents and take offense at the notion that law enforcement should enforce immigration laws. Meanwhile, a segment of conservatives thinks this plays well to the base and that liberals’ overheated rhetoric makes them appear “pro-illegal immigration.” But the result is a crass political food fight in which each side’s normal concerns are swept aside. (Are conservatives really in favor of what will amount to near-unbridled discretion by police to stop suspected illegals?)

Those hoping for any semblance of real reform should take note: the alliance of those who oppose any “path to citizenship” and the relaxation of legal immigration restrictions is a classic political marriage of convenience, with Big Labor and immigration restrictionists joined at the hip to block virtually any variation of reform that might conceivably pass. And the most extreme pro-immigration forces don’t do their cause any favors by suggesting that legitimate concerns for border control are nothing more than a cover for racism. So expect the political charade to go on.

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The Cornhusker Highjack and the Constitution

Senator Ben Nelson of Nebraska was handsomely bribed to vote for cloture on the health-care bill. While most states will have to pick up much of the tab for new enrollees in Medicaid beginning in 2017, Nebraska will not. Instead, the federal government will pay for that state’s increased costs.

Such bribery has a long history in Congress, but so far as I know (and I’d be delighted to hear of other, earlier instances), bribes always came in the form of highways, post offices, bridges to nowhere, and other infrastructure, or in offers of higher office for the person being bribed. They were not in the form of a special deal allowing a particular, not impoverished state to have a lower share of costs in an ongoing federal program. There are, of course, plenty of the old-fashioned sorts of bribes in this bill. Connecticut will get a new hospital at federal expense, for instance.

But is it constitutional for the federal government to give some states a better deal on a national program than it does other states? It is not obviously unconstitutional, as, say, having a lower federal income tax rate for Nebraska would be, since Art. I, Sec. 8, requires that “all Duties, Imposts and Excises shall be uniform throughout the United States.” However, one could argue that Nebraskans will be getting what amounts to a rebate on federal taxes through the back door of lower state taxes.

Another constitutional provision, in Art. IV, Sec. 2, provides that the “Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in Several States.” But this clause has always been interpreted to apply to state action vis-à-vis citizens of other states, forbidding them to discriminate against nonresidents, such as forbidding nonresidents to be admitted to the state bar. The privileges and immunities clause in the Fourteenth Amendment applies specifically to states.

Yet another provision, in Art. I, Sec. 9, requires that “No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another.” The health-care bill’s constitutional underpinning is the commerce clause of Art. I, Sec. 8, giving Congress the power to “regulate Commerce with foreign Nations and among the several States.” Narrowly interpreted, the ports clause is simply a limitation on that power, forbidding the federal government from, say, requiring that all imports of steel flow through the port of Charleston. More broadly interpreted, it can be construed to forbid the federal government from using its powers under the commerce clause to discriminate among the states.

How would the Supreme Court rule here? Well, first one has to ask who would have standing to sue. Individuals almost certainly would not under the first two arguments above, as an individual’s interest is too small. But states might well have standing to sue with regard to the ports clause. How a state so suing would fare is anyone’s guess. A strict constructionist would throw the case out of court. Nebraska, after all, doesn’t have any ports in the 18th-century sense (although it does have a navy). But it is not too great a stretch to say that the bribe that Nelson received violates the clear spirit of the ports clause — that powers under the commerce clause must be applied equally in all states. It was just this type of reasoning that led the Supreme Court to rule in the 1920s that tapping a telephone line required a search warrant under the Fourth Amendment, which, of course, nowhere mentions telephones.

Senator Ben Nelson of Nebraska was handsomely bribed to vote for cloture on the health-care bill. While most states will have to pick up much of the tab for new enrollees in Medicaid beginning in 2017, Nebraska will not. Instead, the federal government will pay for that state’s increased costs.

Such bribery has a long history in Congress, but so far as I know (and I’d be delighted to hear of other, earlier instances), bribes always came in the form of highways, post offices, bridges to nowhere, and other infrastructure, or in offers of higher office for the person being bribed. They were not in the form of a special deal allowing a particular, not impoverished state to have a lower share of costs in an ongoing federal program. There are, of course, plenty of the old-fashioned sorts of bribes in this bill. Connecticut will get a new hospital at federal expense, for instance.

But is it constitutional for the federal government to give some states a better deal on a national program than it does other states? It is not obviously unconstitutional, as, say, having a lower federal income tax rate for Nebraska would be, since Art. I, Sec. 8, requires that “all Duties, Imposts and Excises shall be uniform throughout the United States.” However, one could argue that Nebraskans will be getting what amounts to a rebate on federal taxes through the back door of lower state taxes.

Another constitutional provision, in Art. IV, Sec. 2, provides that the “Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in Several States.” But this clause has always been interpreted to apply to state action vis-à-vis citizens of other states, forbidding them to discriminate against nonresidents, such as forbidding nonresidents to be admitted to the state bar. The privileges and immunities clause in the Fourteenth Amendment applies specifically to states.

Yet another provision, in Art. I, Sec. 9, requires that “No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another.” The health-care bill’s constitutional underpinning is the commerce clause of Art. I, Sec. 8, giving Congress the power to “regulate Commerce with foreign Nations and among the several States.” Narrowly interpreted, the ports clause is simply a limitation on that power, forbidding the federal government from, say, requiring that all imports of steel flow through the port of Charleston. More broadly interpreted, it can be construed to forbid the federal government from using its powers under the commerce clause to discriminate among the states.

How would the Supreme Court rule here? Well, first one has to ask who would have standing to sue. Individuals almost certainly would not under the first two arguments above, as an individual’s interest is too small. But states might well have standing to sue with regard to the ports clause. How a state so suing would fare is anyone’s guess. A strict constructionist would throw the case out of court. Nebraska, after all, doesn’t have any ports in the 18th-century sense (although it does have a navy). But it is not too great a stretch to say that the bribe that Nelson received violates the clear spirit of the ports clause — that powers under the commerce clause must be applied equally in all states. It was just this type of reasoning that led the Supreme Court to rule in the 1920s that tapping a telephone line required a search warrant under the Fourth Amendment, which, of course, nowhere mentions telephones.

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