Ruling on Arizona Immigration Law

Let me in, immigration man
I won't toe you line today
I can't see it anyway
--Crosby & Nash

Yesterday the US Supreme Court voted 5-3 to strike down some portions of Arizona law seeking to deter illegal immigration. Mainstream media are widely reporting that this ruling upholds federal authority to set immigration policy and laws.

What isn't being widely reported is that, of the 14 sections that originally comprised the Arizona law, 11 still stand, and the High Court ruled against only a portion of the 12th section. Moreover, the portion of the section that cleared the Court was the right of police to question their immigration status--in and of itself likely to drive many illegal immigrants to leave Arizona.

It should also be noted that last year the Court cleared an earlier Arizona bill that requires employers to electronically verify the immigration status of potential employees.

As such, the Arizona law provides a Court-approved framework for other states that do not want to sit idly by while illegal immigrants help themselves to resources that states have reserved for their citizens.

That said, it is still disturbing that the Supreme Court struck down any provisions of Arizona SB 1070. In his dissenting opinion (begins on pdf p. 30), Justice Scalia argues that there is nothing unconstitutional in the provisions of SB 1070 under Court review.

The Constitution provides that "the Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States" (Article IV, Section 2). However, if one state had particularly lax citizenship standards, then that state would serves as a gateway for unwanted aliens to obtain entry and resources in other states. Therefore, the federal government was given authority "to establish a uniform Rule of Naturalization...throughout the United States" (Article I, Section 8, Clause 4).

As long as states are not in violation of federal law, then the power to exclude unwanted aliens rests with the states. As Justice Scalia discusses, no provisions of SB 1070 violate federal law. Absent such violation, he concludes that Arizona is within its jurisdication.

Moreover, he observes that the primary impetus behind Arizona's legislation has been the inability, or unwillingess, of the Federal government to adequately protect the state's borders. Justice Scalia questions, "Must Arizona's ability to protect its borders yield to the reality that Congress has provided inadequate funding for federal enforcement - or, even worse, to the Executive's unwise targeting of that funding?"

We can confidently surmise how the Framers would answer that question...

Based on events over the past few weeks, it appears that federal priorities to allocate scarce immigration enforcement resources are not the problem here. The Obama administration recently proclaimed that it will exempt some 1.4 million illegal immigrants aged 30 or less from federal immigration law enforcement. Justice Scalia observes that we can confidently conclude that this is not a decision grounded in cost cutting, as the administrative cost of verifying exemption must necessarily be deducted from the cost of enforcement.

Justice Scalia does not mention this, but this situation raises the question of how a president can pick and choose among the laws that he is constitutionally obligated to execute. What President Obama appears to be engaging in is discretionary rule.

Scalia ends by asking the central question: "Are the sovereign States at the mercy of the Federal Executive's refusal to enforce the Nation's immigration laws?" He answers the question by filling the shoes of state attendees to the Constitutional Convention who, if a clause were written into Article 1 Section 8 that the President would obtain discretionary power over the immigration law enforcement, would surely have bailed from the convention.

The Justice concludes that Arizona has rightly moved to protect its sovereignty - not in contradiction of federal law, but in full compliance with it. "If securing its territory in this fashion is not within the power of Arizona, then we should cease referring to it as a sovereign State."

Antonin Scalia

"The world must construe according to its wits. This court must construe according to the law."
--Sir Thomas More (A Man for All Seasons)

Justice Antonin Scalia died in his sleep early Saturday morning. He was 79. Scalia was appointed to the Court by President Reagan in 1986.

Until my 'awakening' to the notions of liberty and truth, I had little interest in Supreme Court rulings and could not name one sitting justice (or past one for that matter). This, of course, has changed as a search of these pages demonstrates.

I have consumed dozens of Supreme Court opinions during my journey. The writings of no contemporary justice has stood out more to me than Antonin Scalia's. Although he occasionally strayed from the mark, his opinions aligned closer to natural law as expressed by the Constitution than any other sitting justice.

Personally, I thought Scalia was at his best in his dissents, where he was not afraid to skewer his colleagues for their negligence in the law (see, for example, immigration and Obamacare). His 'SCOTUScare' dissent, aimed primarily at Chief Justice Roberts, is a classic screed on the consequences of judicial activism, interested courts, and rewriting law from the bench.

In 1840, Abel Park Upshur wrote that an interested court would be the icing on the cake that destroys the checks and balances designed by the Framers to protect liberty. With Justice Scalia's passing, the Supreme Court has lost much of what little checking and balancing capacity that it had left.

Penalties, Taxes, and Rewriting Law

There's something happening here
What it is ain't exactly clear
--Buffalo Springfield

In the Affordable Care Act (ACA), the 'individual mandate' requires people to purchase health insurance. If they do not purchase health insurance, then they must pay a penalty. Failure to pay the fine results in criminal prosecution.

This is how the statute was written and presented to the American people. When asked repeatedly about whether the individual mandate was really a tax, DC Democrats repeatedly denied it. President Obama famously did so himself on national television.

However, when arguing before the Supreme Court, federal government lawyers asked the justices to consider the argument that, indeed, the individual mandate was indeed a tax. The government's brief states, "the minimum coverage provision is independently authorized under Congress's taxing power."

Previous cases argued before the Supreme Court have established clear lines between taxes and penalties (Scalia et al dissenting, 18). A tax is an enforced contribution to provide for the support of the government. Taxes 'raise revenue' for government programs. A penalty is an exaction imposed by statute as punishment for an unlawful act.

Because previous statutes have occaisionally blurred the two concepts, previous Courts have sought criteria that guides distinguishing a penalty from a tax. "When an act 'adopts the criteria of wrongdoing' and then imposes a monetary penalty as the 'principal consequence on those who transgress its standard,' it creates a regulatory penalty, not a tax." (Scalia et al dissenting, 18-19)

The simple question then, is whether the exaction imposed by individual mandate provision is a penalty or a tax. Clearly, as demonstrated by Scalia et al dissenting, 19-21, the statute itself imposes a penalty. The statute itself calls the exaction a penalty at least 18 times throughout the Act.

The dissenters observe that Congress may have developed the ACA on the basis of taxing but it chose not to do so in this case. From Scalia et al dissenting, 18:

"...we cannot rewrite the statute to be what it is not. 'Although this Court will often strain to construe legislation so as to save it against constitutional attack, it must not and will not carry this to the point of perverting the purpose of a statute...' or judicially rewriting it. In this case, there is no simple way, 'without doing violence to the fair meaning of the words used,' to escape what Congress has enacted: a mandate that individuals maintain minimum essential coverage, enforced by a penalty."

As we now know, Chief Justice Roberts labored to do otherwise (Roberts opinion, 31-44). By editing out the word 'penalty' and replacing it with the word 'tax,' the chief justice has rewritten law from the bench.

Roberts opined that judges should restrain from lawmaking since this is something that should be directly taken up between Congress and the people. However, by rewriting the statute in the form of a tax, he has done precisely this.

Most people understand that the primary reason why DC Dems did not slant the statute in the context of a tax is that taxes are politically unpopular with many Americans. A tax of the magnitude implied by the ACA may have made it generally unpalatable among the people during its development in 2009-2012. By waiting until after the law was passed and signed before declaring it a tax, Roberts has provided some measure of political cover for lawmakers.

Whether this political cover is effective or not remains to be seen. Plausibly, the American people will see through the process used here as one of gimmickry and subsequently reject its legitimacy. Moreover, Republican are already using the ruling to claim that Democrats duped people into supporting one of the largest tax increases on record. This could injure Democrats on the campaign trail.

In any event, it is hard to imagine a more straightforward example of judicial rewriting of law in the history of Supreme Court jurisprudence.

Textualism and Originalism

"I think that when statesmen forsake their own private conscience for the sake of their public duties, they lead their country by a short route to chaos."
--Sir Thomas More (A Man for All Seasons)

In a tribute to his friend Antonin Scalia, Judge Nap notes as have these pages that Scalia was "the most aggressive and consistent defender on the Supreme Court of the primacy of the text of the Constitution in the post World War II era.

Prior to WWII, this approach was regularly observed in high court rulings. Opinions written by the "Four Horsemen," for example, can be interpreted in this manner. Once FDR was able to pack the court in his favor, however, adherence to the Constitution when judging matters of law became passe and nearly non-existent under some courts (e.g., the Warren regime).

Scalia's powerful arguments over the years helped turn the tide such that today even ideological opponents on the Supreme Court feel obligated to pay lip service to the Constitution as a backstop for legal decisions.

Theories of interpreting the Constitution according to the plain meaning of the words go by two names: textualism and originalism.

Textualism is grounded in the assertion that the Constitution means what it says. Because it says that it is the supreme law of the land, and that American judges take an oath to uphold it, then judges are bound by the text rather than interpreting it as they wish. Thus, "no law" means no law, "due process" mean fair process due to all, and constitutional guarantees are real guarantees.

If the text is ambiguous, then it is the duty of judges to ascertain the original meaning of the words that form the ambiguity. This is originalism. Originalism often requires a study of history but, thanks to the founders, the historical record is ample.

Rejecting this line of thinking opens a Pandora's Box of discretionary rule. Judges are permitted to interpret the Constitution in novel and creative ways according to their own ideologies and interests.

There are several reasons that we KNOW that textualism and originalism were intended by the framers. Federal judges were specified to have lifetime tenure because they were meant to be the anti-democratic part of central government. Their insulated, institutional role was to preserve constitutional norms, structures, and guarantees from interference by branches of government subject to popular election (and thus favor). It can be argued that the framers were naïve in their belief that federal judges could remain insulated from political influence and kept beyond reproach, but there seems little doubt that a grant of lifetime tenure was intended to preserve, rather than dismantle, the constitutional framework that the framers toiled over.

Inclusion of the constitutional amendment process also is consistent with textualism and originalism theory. If the supreme law of the land could be subjectively interpreted, then there would be no need for a meticulous amendment process that required supermajority votes for change. Interpreting law using a "living Constitution" approach or other discretionary means clearly negates the need for any amendment process as law can be legislated from the bench.

If constitutional laws need to be changed, then it is role of neither the legislative, executive, nor judicial branches to do so exclusively. Instead, the amendment process must be followed. Difficulty in changing the law in this fashion is demonstrated by the fact that so few amendments to the Constitution have been passed using this process over the past 200+ years.

Healthy distrust of government guided the framers' hands when crafting the supreme law of the land. The Constitution can easily be viewed as a straightjacket for government, one that the framers knew was necessary to restrain constant attempts at overreach. Distrust of government is a timeless, not an outdated, concept. The role of a properly functioning judicial branch is to advocate that distrust in defense of individual liberty.

Textualist and originalist approaches helped Justice Scalia play his jurist role well.

SCOTUScare

I'll pick up my guitar and play
Just like yesterday
And I'll get on my knees and pray
We won't get fooled again
--The Who

The primary goal of judicial process is arriving at and acting on the truth. Sometimes this does not occur. The process may be erroneous or incomplete which prohibits the truth from being obtained. Even if obtained, the truth may not be acted on due to either intentional or incompetent misbehavior.

In high courts, responsibility for arriving at and acting on the truth lies with a judge or panel of judges. A jury does not process evidence and render decision. Instead, it is the bench's duty to obtain the truth.

An institution that permits outsiders to evaluate the extent to which judges have upheld this responsibility when rendering decisions is the written opinion. High courts must explain their rationale in writing. If some judges dissent from majority opinion, then they are invited to put their counterarguments in writing.

As long as this institution remains, anyone can evaluate the extent to which judges have arrived at the truth when making decisions. The is because written opinions lay bare judicial reasoning. They expose errors in thought process and possibilities of judicial interest rather than disinterest. No amount of sophistry can obscure incomplete or erroneous judgment when a reasoning mind carefully examines written judicial opinion. As such, judges who fail to arrive at or act on truth have nowhere to hide when they write their arguments down. They can only hope that onlookers do not scrutinize their work.

By analyzing both the affirming and dissenting opinions in King v. Burwell, we can conclude that the majority of the Supreme Court has once again abdicated its truth-seeking process regarding the Affordable Care Act. Similar to his affirming opinion written three years ago, Chief Justice Roberts displays tortured rationale to justify why, under section 36 of the Act, health insurance sold on an "Exchange established by the State" actually means "Exchange established by the State the Federal Government."

In defense of his decision, Roberts offers various arguments involving the statute's context, design and purpose, and "inartful drafting." He also suggests that the decision is consistent with the principle of judicial restraint. His arguments are weak and at times preposterous, as demonstrated by the ease with which each of them is excoriated by dissenting Justice Scalia.

For example, with respect to the argument that the majority of the court is practicing judicial restraint in this case, it is easy to see that they are engaging in just the opposite--judicial activism. The court is rewriting the law by adding words that do not appear in the statute. As Scalia (p. 20) observes, the court's revision authorizes the IRS to collect billion$ in taxes on federal exchanges, it changes insurance prices for millions of Americans, reduces state participation in implementing the ACA, and expands the reach of the law's individual mandate.

A straightforward and wholly appropriate response consistent with judicial restraint would have been to send the law back to Congress so that it can hammer out the problems with the current statue. The legislative branch would thus be doing what it is supposed to do: write clear law--which by the Roberts majority's own admission the current statute is not.

It is easy to conclude that, similar to the case three years ago, Roberts is grasping at straws because he is interested. He wants the law to 'work' and he is willing to sacrifice the truth in doing so.

Near the end of his dissent, Scalia (p. 21) concludes as much, suggesting that because the majority of the court is rewriting law, effectively working in tandem with other branches of government rather than providing a constitutional check, in order for the health care program to work out as they hope, "We should start calling this law SCOTUScare."

Once again, the highest court in the land demonstrates how truth can been subjugated in favor of interest.

Government and Marriage

C.K. Dexter Haven: Sometimes, for your own sake, Red, I think you should have stuck to me longer.
Tracy Lord: I thought it was for life, but the nice judge gave me a pardon.
C.K. Dexter Haven: Aahh. that's the old redhead. No bitterness. No recrimination. Just a good swift left to the jaw.
--The Philadelphia Story

Strong words taken from Justice Scalia's dissenting opinion of the Supreme Court's DOMA decision earlier this week. His main point is that the Court does not have standing in this case. The question of the legality of gay marriage is one for the states, not for the Court, to decide.

He makes a good point. And I am sympathetic to federalism arguments.

But the complicating factor here is that government is currently an originator of marriage contracts. If government is involved by law, then there is an argument to be made that equal protection applies.

This is the problem that should be addressed. Government is involved in writing marriage contracts, an endeavor in which it has no lawful business. Marriage is a contract between individuals. It is a private agreement. Government's role is to see that such contracts are enforced and to protect against fraud. It has no business brokering marriage contracts.

To truly 'let the people decide' as Justice Scalia argues, remove government from the marriage contract origination business.

Supreme Court Appointment

"Smile, Natalie, there is justice in the world."
--Bud Fox (Wall Street)

Last night President Trump nominated Neil Gorsuch, currently an appellate judge on the 10th Circuit, for the Supreme Court. Gorsuch would replace Justice Antonin Scalia who died suddenly last February.

During his campaign, Trump promised to appoint an individual with strong constitutional grounding. Many thought that Trump was just blowing smoke--essentially trying to entice skeptics in the Republican party to come over to his side.

However, like many other actions that he has taken in the short time since he was sworn in, Trump appears to have fulfilled another promise. A review of Neil Gorsuch's record suggests that he is every bit the originalist and textualist that Scalia was--perhaps even more so. Assuming that he makes it through the blockade that leftists are certain to mount during the confirmation process, Gorsuch appears to have the stuff to be a justice dedicated to upholding constitutional rule of law.

An interesting implication of this appointment is that, because the president himself has not demonstrated that he is ideologically grounded in the Constitution, Trump could find himself at odds with Gorsuch's legal opinions, particularly if the new justice is able to persuade others on the bench to join him. It also makes one wonder about the approach the president would take should he be required to nominate others to the high court during his time in office.

Nonetheless, evidence at this time suggests that liberty has taken a step forward.

Beware the People Weeping

Ed Harrison: And, yeah, we'll put the old boy on himself. You know, the forgotten man angle. Tear their hearts out.
Bob Wallace: Sorry, Ed, but that's out. We're not capitalizing on the old man's hard luck. No chance.
--White Christmas

Judge Nap adds to our recent discussion of emotional capture and institutional failure in the context of gun control. Of course, he does it in a much more eloquent manner than these pages ever could. In my view, this is one of the Judge's more insightful pieces (and that's saying something). Reading and re-reading is recommended.

I would like to discuss several of his thoughts here.

Putting traumatized kids before television cameras soon after a tragedy virtually guarantees emotional capture, or what the Judge calls 'madness' among the children and onlookers. Madness in this sense is "the passionate and stubborn refusal to accept reason." Madness is common after a tragedy. The Judge cites poet Herman Melville, who after witnessing the railroading of individuals accused of being involved with President Lincoln's assassination, wrote, "Beware the People weeping. When they bare the iron hand."

The lesson: it is nearly impossible to argue rationally with tears and pain. Take a step back from a tragedy before addressing it with 'legalized' force.

The concept of natural rights can be viewed religiously or aesthetically. Those who believe in an all loving God see natural rights as the claims and privileges attached to humanity by Him. For those who do not accept the existence of a Supreme Being, the argument for natural rights still holds. Because it is obvious that humans are the superior rational beings on earth, our exercise of reason leads us to the exercise of freedoms that are integral to our humanity and independent of government. The first among these is our right to life--the right to be and to remain alive.

The right to life implies the right to defend one's life. Our founding ancestors recognized this right when they ratified the Second Amendment. They wrote it to ensure that all governments (in place then and in the future) would respect the right to keep and bear arms as a natural extension of the right to self-defense.

The Supreme Court has characterized this right as 'pre-political'--meaning that the right pre-existed government. If it pre-existed government, then it must be a natural right, i.e., it must come from our human nature. When Judge Nap asked the late Justice Antonin Scalia why he used the term 'pre-political' instead of 'natural' when authoring the majority opinion in the landmark District of Columbia v. Heller case, Scalia replied, "You and I know they mean the same thing, but 'natural' sounds too Catholic, and I am interpreting the Constitution, not Aquinas."

The Heller opinion also recognized that the Second Amendment was written soon after a war had been fought against a king and an army that was regarded as the most powerful army on earth. That war would surely have been lost had not the colonists borne arms equal to or better than those of the British troops.

The Second Amendment was not written to protect the right to shoot deer. It was written to protect the right to defend against acts of aggression, whether those acts are perpetrated by bad guys, crazy people, or tyrannical government. Heller articulated that the right to self defense means that individuals have the right to use guns that are of the same level of sophistication as their adversaries.

Gun grabbers are unwilling to accept this. A colleague recently asked the Judge on air: Suppose we confiscated all guns? Wouldn't that keep us safe? The Judge replied that we'd need to start with the government's guns. No, his colleague said. What if we confiscated guns from the civilian population only?

An extension of this question would be: What if we confiscated 'assault style' weapons from civilians but left them in the hands of government?

To the reasoning mind that grasps the concept of institutional failure, the answer is obvious.

High Court of Interest

All for freedom and for pleasure
Nothing ever lasts forever
Everybody wants to rule the world
--Tears for Fears

Captures the current situation well.

In our government framework, the last bastion against arbitrary rule under the principle of judicial review is the Supreme Court. Even if the executive and legislative branches fail to uphold their constitutional oaths, a high court that adheres to the rule of law protects liberty.

Of course, that is not what we have. As demonstrated by the SCOTUScare decision last week, we have an interested court willing to facilitate, rather than check, discretionary rule.

The last paragraph of Justice Scalia's dissenting opinion summarizes the predicament (p. 21):

"Perhaps the Patient Protection and Affordable Care Act will attain the enduring status of the Social Security Act or the Taft-Hartley Act; perhaps not. But this Court's two decisions on the Act will surely be remembered through the years. The somersaults of statutory interpretation that they have performed ("penalty" means tax, "further [Medicaid] payments to the State" means only incremental Medicaid payments to the State, "established by the State" means not established by the State) will be cited by litigants endlessly, to the confusion of honest jurisprudence. And the cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites."

175 years ago, Abel Parker Upshur wrote that an interested court would be the icing on the cake in destroying the system of checks and balances that protect liberty. He and the AntiFeds were spot on.

Deadly Healthcare

You had me down, 21 to zip
Smile of Judas on your lip
--Robert Palmer

The Supreme Court is likely render its verdict on the constitutionality of Obamacare in the next few days. The Intrade contract currently reflects a near 80% chance that the Court will rule the individual mandate unconstitutional. Note that the odds almost doubled since the SC hearings, and have crept higher recently on the back of public snippets from Justices Ginsberg, Kennedy, Scalia, and perhaps others.

While we await, here is an interesting article from a Russian economist who worked on Gorbachev's staff. He highlights (lowlights) the progression (digression) of the Russian healthcare system after the Soviet Union declared 'universal' health care coverage for its people in 1918.

Sadly, while some of his examples are sickening, they were totally predictable once socialized medicine was put in motion. With certainty, we can forcase the following consequences of socialized medicine: Resources will be squandered, quality falls, costs rise.

Standard of living declines.

The author raises another interesting point. Today's comparisons to other systems rarely compare apples to apples. Typically, comparison appearing in the media constitute more propaganda than fact. For example, oft cited stats on higher infant deaths in the US rarely add the important footnote that the US metric is more inclusive than elsewhere.

In fact, governments operating socialized systems are more likely to distort their data to make their systems look better. The author recounts the USSR practice of discharging near death patients so that their expiry would not count as in-hospital deaths.

A couple years back, Sarah Palin observed socialized medicine in the US would result in 'death panels' that would determine who would have access to critical care. While her choice of words may have been unfortunate, her observation was nonetheless on the mark. Health care resources are scarce and must be 'economized.' In unhampered markets, price is the primary rationing mechanism.

Socialized systems have no pricing mechanism. Instead, panels of bureaucrats must decide what health care resources get produced and who gets them.

A natural outcome of this, as the author notes, is a multi-tiered system where those who can can curry political favor get better care than others. He notes examples from Russian, UK, French, and Canadian systems.

These multi-tiered systems that favor special interests have not made it into mainstream media discourse here in the US. There is little doubt as to why, as the biased media realizes that broad awareness of this method of rationing health care resources would turn public opinion even more strongly against Obamacare.

Let's hope that we don't have to experience the squalor first hand before recognizing the deadly (quite literally in this case) flaws associated with increasing the degree of socialization in our health care system.

Bench Jockeying

How many years can some people exist
Before they're allowed to be free?
How many times can a man turn his head
And pretend that he just doesn't see?
--Bob Dylan

After Justice Scalia's sudden death, attention turns to who his successor will be. As always, it will be a battle between natural law and positivism. Opinions of judges grounded in natural law are durable. Opinions of judges grounded in positivism are discretionary--they blow with the wind.

Special interests favor positivist judges. Special interests realize that the keys to the vault often rest with the Court. Appoint a friendly and special interests have a Court ruling to mobilize strong armed government agents in their favor.

All under pretense of 'the law.'

Which side will win this battle? The answer, my friends, is likely blowin' in the wind.