Monthly Archives: March 2017

Sanctuary Cities and Federal Funding

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San Francisco asked a federal judge Wednesday to block President Trump’s order threatening to strip federal funds from so-called sanctuary cities that bar police from enforcing immigration laws.

This suit has a good chance of succeeding.  In 1987’s South Dakota v Dole, the Supreme Court ruled (in a dispute over the State’s minimum drinking age and Federal highway funds transfers to the State) that the Federal government cannot withhold already agreed Federal funds from a State in order to coerce State acquiescence with Federal wishes.  Funds can be withheld to “persuade,” but the withheld funds must be related to the question at hand rather than a blanket withholding, and the amount withheld cannot be coercive in its size, but only persuasive.  Without naming a threshold for the amount, the Court held that the 5% withholding imposed by the Federal government was not coercive.

Right or wrong, that’s the law of the land as things stand.  Congress and the President will have to statutorily overrule the Supreme Court to enable such a broad withholding of Federal funds from San Francisco.

On the other hand, stopping sending all Federal funds to all cities altogether would bypass the Court’s ruling (although legislation still would be necessary to stop completely the funds transfers).  In the end, we have to ask why the citizens of Illinois, for instance, should have to pay any part of, let’s say, San Francisco’s expenses at all.

It’s true enough that we’re all in this republican democracy nation of ours together, and so we support each other.  But that mutual support includes cities like San Francisco not creating themselves as burdens on the rest of our nation with its irresponsible, profligate spending while demanding OPM to pay for that spending.

A Circular Judge-Made “Law”

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A jury can’t deliberate impartially and independently if its deliberations are going to be overseen by the presiding judge or any other government representative.  Such government oversight smacks of Bushel.  Yet that’s what the Supreme Court has decided must be in certain cases.

The Supreme Court on Monday ruled courts must review typically secret jury deliberations when a juror relies on racial or ethnic stereotypes to convict a defendant.

The 5-3 opinion by Justice Anthony Kennedy found the Constitution’s call for a colorblind justice system outweighed traditional interests in promoting robust jury deliberations and protecting verdicts from challenge.

In an all too typical case of lawmaking from the Bench, Kennedy wrote

A constitutional rule that racial bias in the justice system must be addressed—including, in some instances, after the verdict has been entered—is necessary to prevent a systemic loss of confidence in jury verdicts….

And so, with his opinion, Kennedy usurped the authority of We the People and legislated on his own (lack of) authority.  It may be that such a statute, even an Amendment to our Constitution, is necessary, but that’s a political decision, and so it’s exclusively for us to decide, not a lone judge (or five lone judges in the present case).

Note that Kennedy’s “constitutional rule” is not, in itself, a direct attempt to amend our Constitution or otherwise to legislate.  It is, instead, a backdoor attempt, by creating a judicial rule that directs how the Constitution or a State’s law must be applied from outside of the plain text of the thing.

Aside from that, in order to legitimize (arguendo) such a penetration of the secrecy of jury deliberations, the existence of racial bias must first be shown.  Yet how that bias can be shown without penetration the cloak of secrecy has been elided by the five justices.  Kennedy centered his new rule on a juror in the present case voluntarily speaking up, but this is a thin reed, indeed.  Not all jurors will come forward, and of those that do, not all can be believed.  Especially with the former situation extant, under Kennedy’s rule there no longer can be equal protection under law—only “protection” when it suits a juror, and hopefully a juror with no axe to grind.

No, the answer is a proactive one, and it’s one that already exists: pre-trial juror selection.  A suitably qualified lawyer—and so are they all, all qualified lawyers—can tease out bias in a juror while the juror still is only prospective, and exclude him.

Disingenuous Targeting

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Recall that President Donald Trump has signed a revised Executive Order that imposes a short moratorium on entry into the US from six (down from seven under his original EO) Middle Eastern countries.  Hawaii Attorney General Doug Chin has filed suit in Hawaii’s Federal District Court to try to block this new EO.  The EO, Chin claims, will damage Hawaii’s

economy, educational institutions, and tourism industry; and it is subjecting a portion of the state’s citizens to second-class treatment and discrimination, while denying all Hawaii residents the benefits of an inclusive and pluralistic society.

This is disingenuous.  The folks whose entry is being temporarily blocked represent a vanishingly small per centage of Hawaii’s tourist population.  The foolishness of “damage” to educational institutions I’ve already addressed regarding a Washington Federal judge’s ruling on the earlier EO.  Chin’s beef about Hawaii citizens is nothing more than a cynically dragged red herring: the EO doesn’t even address American citizens, much less those who also are citizens of Hawaii.  This EO impacts only some refugees and potential immigrants.

About those refugees and potential immigrants: Chin made this charge in his filing, and he actually kept a straight face as he filed it:

This new executive order is nothing more than Muslim Ban 2.0.  Under the pretense of national security, it still targets immigrants and refugees.

Of course, the EO cannot be a ban; it’s a temporary moratorium with an expiration deadline.  More than that, it cannot be a ban of Muslims; it impacts only about 10% of the world’s Muslims.

Of course, it does target potential immigrants and refugees—those are folks outside our nation, and they are not citizens of our nation.  As such, these people have no right to enter our nation without our prior permission, nor do we have an obligation to let them in.  That’s what nation means, that’s what borders are for.

Nor do we know who these folks are, really—which is why the EO imposes the moratorium: to give State and DHS time to improve our vetting procedures, another requirement of the EO, and a requirement carefully ignored by Chin.

Of course Chin knows all of this.  The utter disingenuousness of this Democrat’s charge ought to get his filing dismissed on its face.

Europe Going Nuclear?

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That’s what The New York Times says the European Union is talking about.

…a European Union nuclear weapons program.

Under such a plan, France’s arsenal would be repurposed to protect the rest of Europe and would be put under a common European command, funding plan, defense doctrine, or some combination of the three. It would be enacted only if the Continent could no longer count on American protection.

Leaving aside the cynically manufactured hysteria underlying this idea, there are a couple of flaws in it.  One is that it assumes that France remains a part of the EU.  A Marine Le Pen victory in this spring’s French presidential election cycle would toss the whole idea into the circular file.  Another is that the French, extremely individualistic when it comes to military action and their military, would agree to such a thing.  Another is that bit about American protection.  The idea that we’d withdraw it is someone’s straw man; we’ve only argued that it’s time for our treaty partners to pay the shares they committed to paying when they signed up to NATO.

And: would Germany trust France—could Germany trust France—to risk French existence defending an attacked Germany, or would Germany begin to acquire its own nuclear arsenal?  After all, this scheme depends on German financing for the French—to show solidarity, of course—and the money might be thought better spent on acquiring a German nuclear arsenal they could more directly and completely control.  On the other hand, could the Germans, with their guilt complex, trust themselves with nuclear weapons?

Of course, there’s an upside, too.  The notoriously unreliable French military participation in NATO would be ameliorated by getting those nuclear weapons more reliably included in the NATO (not EU) arsenal, fulfilling some of the requirement that NATO signatories actually live up to the they obligations incurred with their signatures.

Defense

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The People’s Republic of China objects to the US’ planned deployment of a missile defense system in the Republic of Korea to defend the RoK and Japan against northern Korean attack.  The PRC has already engaged in low-grade economic warfare, barring certain trade arrangements from going forward.  Now, however, the PRC is making threats against us and the RoK if we go through with the deployment.  Foreign Ministry spokesman Geng Shuang:

China firmly opposes the deployment of THAAD.  We will definitely be taking necessary measures to safeguard our own security interest.  All consequences entailed from that will be borne by the US and (South Korea).

Lou Yuan, a retired PLA general, was more explicit.  The PLA, he said,

could conduct a surgical hard-kill operation that would destroy the target, paralyzing it, and making it unable to hit back[.]

When one nation objects to another nation having an ability to defend itself, it’s necessary to ask after the motivations of the one—what does that nation have planned for the to-be-defenseless one, either directly or through a client?