Monthly Archives: March 2017

About Those Threats…

Trump has issued a number of threats against so-called “sanctuary” cities and states, and his supporters (most of whom, ironically, would be considered “states’ rights” supporters) have declared such local designations illegal.

So it was interesting to read a recent column by Ilya Somin, a conservative legal scholar, analyzing the relative constitutional rights involved.

President-elect Donald Trump has repeatedly promised to engage in large-scale deportation of undocumented immigrants. In order to accomplish that goal, he is likely to need the cooperation of state and local governments, as federal law enforcement personnel are extremely limited. But numerous cities have “sanctuary” policies under which they are committed to refusing cooperation with most federal deportation efforts. They include New York, Los Angeles, Chicago, Seattle, and other cities with large immigrant populations. Sanctuary cities refuse to facilitate deportation both because city leaders believe it to be harmful and unjust, and because local law enforcement officials have concluded that it poisons community relations and undermines efforts to combat violent crime. They also recognize that mass deportation would have severe economic costs.

The arguments and links in the foregoing paragraph, of course, are policy arguments. They detail why the proposed policy is stupid, but (as I frequently remind my students) just because something is stupid and/or mean-spirited and/or counterproductive doesn’t mean it is also unconstitutional.

After listing the reasons the policy is ill-considered, however, Somin does address the question of constitutionality.

Under the Constitution, state and local governments have every right to refuse to help enforce federal law. In cases like Printz v. United States (1997) and New York v. United States (1992), the Supreme Court has ruled that the Tenth Amendment forbids federal “commandeering” of state governments to help enforce federal law. Most of the support for this anti-commandeering principle came from conservative justices such as the late Antonin Scalia, who wrote the majority opinion in Printz.

But what about Trump’s threat to withhold federal funds from cities and states that refuse to help him implement his deportation program? According to Somin, while the President may be able to withhold some funds, the threat is far less “formidable” than it may seem.

Few if any federal grants to state and local governments are conditioned on cooperation with federal deportation efforts. The Supreme Court has long ruled that conditions on federal grants to state and local governments are not enforceable unless they are “unambiguously” stated in the text of the law “so that the States can knowingly decide whether or not to accept those funds.” In ambiguous cases, courts must assume that state and local governments are not required to meet the condition in question. In sum, the Trump administration can’t cut off any federal grants to sanctuary cities unless it can show that those grants were clearly conditioned on cooperation with federal deportation policies.

It’s been truly  heartening to see how hobbled Trump has been by his complete ignorance of the way American government actually works. (For that matter, his obvious ignorance of the way law in general works helps to explain why he has been involved in–and lost–so many lawsuits.)

In an update to his original column, Somin highlights a “states’ rights” irony that might be filed under “be careful what you ask for.”

It is worth noting that if Congress were to pass a law stripping sanctuary cities of all their federal funding unless they help facilitate federal deportation efforts, it would be unconstitutional under the Supreme Court’s decision striking down the Obamacare Medicaid expansion in NFIB v. Sebelius (2012), which forbids funding conditions so coercive that they amount to a “gun to the head” of a state or local government.

Short version: If the federal government can’t force states to expand Medicaid, neither can it force states to help deport undocumented people.

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Walking in that Other Guy’s Shoes

Martin Marty is an eminent religious scholar at the Divinity School of the University of Chicago. He also issues a weekly newsletter, called Sightings because it “sights” public reports with religious or spiritual dimensions. His most recent reflection was thought-provoking, to say the least:

What if the Sioux Nation decided to build a pipeline through Arlington Cemetery? This question from Faith Spotted Eagle—who lacks a Ph.D. in comparative religion and who would never be employed to teach the phenomenology of burial ritual—got at the heart of at least one of the three main issues in the prolonged debate over the Dakota Access Pipeline project.

The other two issues, of course, were environmental degradation and the behavior of Big Oil, and those issues certainly generate a significant percentage of the opposition to the pipeline. Marty’s focus, however, was on the religious importance of the site to the Sioux–and the lack of appreciation of its sanctity by Americans who would have been horrified by a similar proposed desecration of their holy sites.

Why the comparison to a sacred place like Arlington Cemetery? Or the Tomb of the Unknown Soldier, or key monuments at Gettysburg? What makes this Sioux site sacred, inviolable in the eyes of those for whom this place in North Dakota has drawn so much national attention? The environmental concerns alone would have been ominous enough to agitate the Native Americans on the scene. But the Cannonball River, which flows nearby, and the complex of tributaries connected to the Missouri River, are not merely sources of water. No, Spotted Eagle has said, water is “the best medicine,” the sustainer of life from a mother’s womb until its issue, years later, breathes no longer. Water is necessary for the sweat lodge, so important in Sioux worship, and it serves as a purifier and calmer in sacred ceremonies. And much more.

What motivates her and her fellow worshippers, above all, is concern that the pipeline will profane the burial sites over and around and through which it will flow. All of the governmental action is thus, in the eyes of the Native Americans, a profanation.

Sightings spends so many lines on this one out of many contested revered sites in the “flyover country” of the Great Plains—my homeland—in the interest of giving attention to the rites of some of the peoples who have been plundered, exploited, silenced, and murdered for more than 500 years by us newcomers, who now make the rules, establish the rituals, and bring the edicts and the guns to enforce them. Weekly, if not daily, we hear and read of the ins and outs, the ups and downs, of this most recent conflict. We observe how readily disdained the protesters are. But we are moved by the fact that leaders and sympathizers of many religious bodies, including Jews and Muslims, Catholics at the highest level, mainline Protestants, and some Evangelicals, have publicly sided with the Sioux.

There may be perfectly valid, even persuasive arguments for building the pipeline and for  its chosen route. I don’t know enough to evaluate those arguments. Ultimately, however, those arguments are irrelevant to the injustice being perpetrated here.

The undeniable fact is that a pipeline routed through a site designated as holy by a more privileged, more powerful, more “established” religious constituency would have received far different–and far less dismissive– treatment. At the very least, the claims of such a constituency would have met with more official respect.

It has been–and remains– difficult to ensure the constitutionally-required equal protection and application of the laws. I wonder if we will ever achieve–or even approach– equal civic respect for the rights of people who don’t look or worship like us.

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It’s the Turnout, Stupid!

Do references to “President” Trump make you wonder how we ended up with a Congress and an Administration so wildly at odds with what survey research tells us the majority of Americans want?

This paragraph from a recent Vox article really says it all:

A general poll doesn’t reflect voters very much anymore. A general poll would have had Donald Trump losing substantially and the Democrats winning the House. About 45 percent of people in general polls don’t vote at all. What you saw in the election was that Republican voters came out at a very high rate. They got high turnout from non-minority people from small towns.

There are multiple reasons people fail to vote. There is, of course, deliberate suppression via “Voter ID” laws , restrictions of early voting periods and purposely inconvenient placement of polling places.

Gerrymandering, as I have pointed out numerous times before, is a major disincentive; why go to the polls when the overwhelming  number of contests aren’t really contested?

And of course, there are the holdover mechanisms from days when transportation and communication technologies were very different–state, rather than national control of everything from registration to the hours the polls are open, voting on a Tuesday, when most of us have to work, rather than on a weekend or a day designated as a national holiday, etc.

The Vox paragraph illustrates the repeated and frustrating phenomenon of widespread public antagonism to proposed legislation that nevertheless passes easily, or support for measures that repeatedly fail. If vote totals equaled poll results–that is, if everyone who responded to an opinion survey voted–our political environment would be dramatically different.

Americans being who we are, we are extremely unlikely to require voting, as they do in Australia. (Those who fail to cast a ballot pay a fine.) We can’t even pass measures to make voting easier. I personally favor “vote by mail” systems like the ones in Oregon and Washington State; thay save taxpayer dollars, deter (already minuscule) voter fraud, and increase turnout. They also give voters time to research ballot issues in order to cast informed votes. (Informed votes! What a thought….)

If the millions of Americans who have been energized (okay, enraged) by Trump’s election want to really turn things around, the single most important thing they can do is register people who have not previously voted, and follow up by doing whatever it takes to get them to cast ballots.

Voter ID laws a problem? Be sure everyone you register has ID. Polls and times inconvenient? Help them vote early or drive them to their polling place.

Gerrymandering a disincentive? First make sure that someone is opposing every incumbent, no matter how lopsided the district, and then help people who haven’t previously voted get to the polls. Those gerrymandered district lines are based upon prior turnout statistics; on how people who voted in that district previously cast their ballots. If even half of those who have been non-voters started going to the polls, a lot of so-called “safe” districts wouldn’t be so safe.

Not voting, it turns out, is a vote for the status quo. There are a lot of Americans who are cynical and dissatisfied with the status quo who don’t realize that the plutocrats and autocrats they criticize are enabled by–and counting on– their continued lack of involvement.

If everyone who has found his or her inner activist would pledge to find and register three to five people who haven’t previously voted, and do what it takes to get them to the polls, it would change America.

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