Sunday, July 28, 2013

A note about federalism

This past Saturday morning, I had the privilege of speaking at Community Brainstorming, a weekly forum held at St. Matthew's AME Church. The topic was the Supreme Court's recent decision in Shelby County. Although Shelby County is often simply described as "gutting" the Voting Rights Act, it actually struck down the 48 year old formula by which certain states are required to seek the permission of the federal Department of Justice before they can implement any change in their election laws. Denying or abridging the right to vote on the basis of race continues to be prohibited by the Voting Rights Act and the United States Constitution.

I don't want to repeat the arguments for and against the result in Shelby County. Wisconsin was never one of these pre-clearance jurisdictions. I want to make a larger point about federalism.

In the course of our debate, Chris Ahmuty, Executive Director of the ACLU, asked why we should be worried about the rights of the states as opposed to the rights of the people. I think that's the wrong question; what our President would call a "false choice."

Although we so often lose track of the point, our system of federalism was conceived as check on governmental abuses. In other words, it is one of the ways in which the liberties of the people are protected. This happens in two ways. First, it is far easier for any one of us to exert influence on the state and local level than to have an impact on what happens in Washington DC. This is particularly true today, when much of what the federal government does is the product of administrative regulations and fiat. Under the Voting Rights Act regime of preclearance, it is not the President or Congress, but lawyers in the Department of Justice who hold up laws enacted by the legislatures and executives of covered states.

But even more importantly, a system of federalism disciplines government. The ability of, say, Illinois to overreach is limited by the ability of its citizens to move to Wisconsin. The option to vote with one's feet can protect liberty just as much as the ability to vote for politicians.

Of course, there is a proper role for the national government. That is why we have federalism and not confederation. But the presumption that Washington knows better - or even that Washington will always be friendlier to racial minorities - is not self evidently true.

I understand that, if you believe that the government ought to heavily tax and regulate a minority of the population - say those that are wealthier or own businesses - then this view will be less appealing to you. You will worry that the people who you want to take from money from or businesses that you want to control will leave. This may be why I suspect my view of federalism was not shared by many of the Brainstorming attendees.

But it seems to me that, if you believe that your policies are right, if you think that "the blue model" leads to Seattle and not Detroit (and "red model" produces, say, rural Mississippi and not Dallas), then you ought to have the courage of your convictions.

Cross posted at Purple Wisconsin.

Friday, July 26, 2013

A more substantial disregard of the law

I was happy to see that the editorial board of the Milwaukee Journal Sentinel has decided that respect for the rule of law has become an important issue. What I found astonishing is that, while the board mentioned the desire of a few rogue Republicans who wanted states to "nullify" the badly misnamed "Affordable Care Act"  by arresting federal officials who sought to enforce it  (admittedly a goofball idea), it has ignored the actual nullification undertaken by the President.

There is no legal justification - none - for delaying the implementation of the law's employer mandate. (Yes, I know a few people have tried a justification but have only managed to resemble Jon Lovitz' Tommy Flanagan.) The law clearly requires that the employer mandate be enforced beginning in 2014 and the President's failure to do so is a blatant disregard of his constitutional duty to faithfully execute the laws. That editorial writers and others ostensibly dedicated to the "rule of law" are not up in arms about this is amazing.

While it doesn't matter why the administration is doing this, I think that there are two reasons. First, it has finally figured out that implementation of the plan is going to be a train wreck. They don't that to occur during an election year.

Second, we have always been told that ObamaCare was a complex mechanism that required all of its various elements to work. For example, in defending the individual mandate, the administration argued that it was necessary because of the requirements for community rating (sick people cannot be charged more) and guaranteed issue (pre-existing conditions must be covered.) Once you enact the latter two, people must be compelled to buy coverage or the cost of insurance will go through the roof. Once you set up exchanges and subsidies, you need the employer mandate to prevent - or at least limit - the dumping of employer coverage.

So ObamaCare cannot work without the employer mandate or, for that matter, verification of a person's eligibility for coverage (which has also been scuttled by Obaman decree). It doesn't take a cynic to think that the President is delaying the necessary pain to get the public wedded to the benefits that cannot exist for long without them. The hope is that the political landscape will change so that a law which Republicans have always said cannot work can be modified in a way that the Democrats prefer.

However you feel about health care policy, this should not be made to happen by ignoring mandated provisions of the law.

The Journal Sentinel editorial raises the City of Milwaukee's defiance of state repeal of residency requirements and the Mukwonago School Board's commitment to hang on to its "Indians" nickname as examples of "ignoring the law." Perhaps, but neither holds a candle to what Obama has done.

There are occasions when the only way - or at least the only practical way - to challenge an unconstitutional law is to violate it and then raise its unconstitutionality in ensuing enforcement proceedings. To be sure, there are other ways to do it but there can be difficulties that can make those routes impractical or even unavailable. I'm not saying this is so for the City of Milwaukee or Mukwonago schools, but the point is that both bodies will quickly have to defend their position in court.

Because of restrictive rules regarding standing (i.e.., the ability of a person to even bring a suit) in federal court, that may not happen with the President's defiance of the law. All the more reason that those who value the rule of law should be speaking loudly.

Yes, the handful of legislators who seemed to advocate arresting federal officials were off the rails. Perhaps the City of Milwaukee and Mukwonago schools should take a different route. But to get the vapors over these examples in the face of an extraordinary piece of national lawlessness is like the cop who writes a parking ticket in front of a bank that is being robbed.

Cross posted at Purple Wisconsin.

Thursday, July 18, 2013

Bobo's false narrative on Zimmerman

One of the least thoughtful columns written in the wake of the Zimmerman verdict was written by Larry Bobo, a professor of African-American Studies at Harvard. (By way of full disclosure, I took Bobo's deposition many years ago but I remember little about it and I'm sure he remembers even less. He was a minor witness in a desegregation case.) He uses the verdict to argue that America is irretrievably racist because ... well ... "because" is where the trouble starts.

He writes:

The most elemental facts of this case will never change. A teenager went out to buy Skittles and iced tea. At some point, he was confronted by a man with a gun who killed him. There is no universe I understand where this can be declared a noncriminal act. Not in a sane, just and racism-free universe.
Professor Bobo's understanding needs formation. A person might be found "not guilty" (not the same as a determination that his actions were "noncriminal") in a universe where we don't decide criminal cases based on a selective recital of the "most elemental facts." That universe - our universe - would insist on considering all of the relevant facts. In a sane, just and racism-free universe, we would understand that such a scenario could comprise a "noncriminal act" if the teenager attacked the man who reasonably used the gun in self defense. In our sane, just and racism-free universe, we would assess the evidence without trying to fit it into the prefabricated narrative of left wing academic.

In that universe, someone who is smart enough to have earned a Ph.D. could - even without a law degree - understand that we require guilt be proven beyond a reasonable doubt. If a jury does not have sufficient evidence to conclude who was the aggressor - if there is no way to choose between alternative hypotheses (i.e., did Zimmerman attack Martin or did Martin attack Zimmerman), then it must acquit.

I don't know exactly what happened that horrible evening. I am also pretty certain that Larry Bobo doesn't either. I do know that the jury's conclusion that the state did not prove it's case beyond a reasonable doubt can be explained on grounds other than racism.

Bobo's recitation of the "most elemental facts," by the way, is a typical trick of the post-modern academic. One raises a fact pattern or case (law professors are among the worst offenders) to a level of abstraction that allows one to assert connections and conclusions that would be unwarranted on a more "granular" (i.e., complete) view of the matter.

Cross posted at Purple Wisconsin

Monday, July 15, 2013

George Zimmerman and the mob

This morning I appeared on Mid-Day with Charlie Sykes (except it was Brian Fraley) to discuss the Zimmerman verdict. From a legal perspective, the verdict was almost a forgone conclusion and manslaughter was not an appropriate alternative. If the United States Department of Justice abjures political considerations and follows it's guidelines - indeed if it wants to avoid the disaster that befell Florida's politicized prosecution - it will stand down. A civil trial, on the other hand, while unlikely to succeed, is a very different proposition. The burden of proof is lower and Zimmerman will either have to testify or, if he can still invoke his privilege against self-incrimination(due to potential federal charges) risk have his silence used against him.

Folks who are upset about the George Zimmerman verdict have been motivated by a concern about racial profiling. They are not wrong to be concerned about the issue. I don't believe that racial profiling is as frequent as it is claimed to be (there are stronger cultural sanctions against it is than is commonly supposed) and much of what is claimed to be racially motivated suspicion is not. Of course, that doesn't mean it doesn't happen or is not a problem when it does.

I don't know whether George Zimmerman followed Trayvon Martin because he was black. The evidence is not strong. The "gated community" in which he lived is a multi-ethnic, working class development with a not inconsiderable crime problem. Zimmerman appears to have been a zealous "neighborhood watch" guy who frequently called the police on "suspicious characters." He seems not to have been racially motivated as much as prompted by a (perhaps) overzealous desire to protect his community and outsized idea about himself as an instrument of law and order.

And, strictly speaking, whether or not he was racially motivated has little - not nothing, but little - to do with his guilt or innocence on the charges he faced. Even if he had singled out Martin because of his race, he was still entitled to defend himself. Why he was where he was that night matters far less than what happened while he was there.

When you examine what we know about that, it was always clear that a criminal conviction was never going to happen. It is certainly possible (if, as the evidence came in, highly unlikely) that George Zimmerman committed a crime. It is not possible to conclude that he did so beyond a reasonable doubt.

This should remind us - again - of the dangers in using a criminal trial as a form of political and social expression. Crowds chanting "no justice, no peace" are not what "democracy looks like." They are - however well intentioned -  mobs bent on something that looks uncomfortably like vigilante justice. They are what demagoguery looks like.

This is not to say that George Zimmerman is a hero or even an admirable character. In this instance, it would have been better had he stayed in his car and not tried to play Cop. His conduct may reveal him as a fool. But it doesn't make him a murderer.

Cross posted at Purple Wisconsin