Thursday, April 29, 2010

Why does Arizona hate police officers?

Just because you’ve identified a problem, doesn’t mean your solution is a good idea. Arizona, in response to an issue of illegal immigration that pretty much everyone agrees has not been properly handled by the federal government, has passed a controversial new law. Whether that law makes things better or worse is up for debate.

First of all, let’s lock down exactly what the new law does. Under the new law, Arizona law enforcement officers are required (that word becomes important later) to check the immigration status of any person they have a “reasonable suspicion” of being in the country unlawfully. The law also gives citizens the right to sue a local government agent or agency if that citizen believes the new law is not being enforced to “less than the full extent.”

OK, buckle up, because there’s a lot of problems in this law to go over.

The first legal problem the bill faces is the Supremacy Clause of the United States Constitution. This is the one that is very rarely discussed amongst right-wing Constitutional lovers, because it holds that federal law is the “supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

You never see that one a sign in a “states’ rights” rally, do you?

Immigration is, by definition, federal law. States like Arizona don’t get to have their own rules about who can come in or out of the country. We tried that once, with the Articles of Confederation back in 1776, and it didn’t work out so well. And the “preemption doctrine” says that when an area of law is so inherently federal (like immigration), the Supremacy Clause prevents states from passing laws in that area.

So does Arizona’s law violate the Supremacy Clause? Maybe. The law isn’t adding new rules, just mandating that state officers attempt to enforce already-existing federal rules. It’s a grey area that will certainly have to be hashed out in federal courts.

Legal problem number two is vagueness. Any law has to clearly define what is or is not prohibited and how it is to be enforced. The “reasonable suspicion” part of the law is going to be troublesome. What exactly is “reasonable suspicion” that a person is in the country illegally? The answer to that question suggests one of the biggest practical problems with the bill, in that it invites racial profiling of Hispanics.

The bill does say that race cannot be the sole grounds for reasonable suspicion – meaning that it can be part of the grounds, just not the whole thing. But even if that’s the case, what non-racial basis can be used to justify a check of a person’s immigration status? So far, that’s a question that no one – including the proponents and authors of the bill – can adequately answer. And that makes it subject to a vagueness attack.

One reason to strike down vague laws is to prevent selective enforcement. The theory goes that if a law is so vague that it’s not clear how it should be enforced, then the authorities are given leeway to abuse that law selectively against a group of people. They could get away with that selective enforcement because the law is so vague that it isn’t clear what that official is and is not supposed to do. That’s exactly what Hispanics in Arizona and those around the country interested in civil rights are afraid of.

Those are the two legal problems with the law, which will almost assuredly be vigorously litigated. I’m all for making sure lawyers get more money, but the legal bill the state of Arizona’s taxpayers will be footing for defending this law should be a whopper.

But there’s some practical reasons why this law is a bad idea as well, most notably for law enforcement officers. I have to think this law makes being a cop in Arizona a heck of a lot more difficult. Keep in mind, there’s a lot of Hispanic people in Arizona. Some of those Hispanic folks are criminals. Some are victims. Most are just Arizonans trying to live their lives in peace.

Now, every time an Arizona law enforcement officer has a “lawful contact” with those persons (or anyone else), that officer is going to have to decide if there is “reasonable suspicion” that they are in the country illegally. Of course, they’ve been given no guidance as to what that reasonable suspicion might be, so they’ll have to make it up as they go. I can’t imagine what could possibly go wrong.

It gets worse. Lots of times, officers will be investigating serious crimes, and needing to gain the trust of the people they are having “lawful contact” with in order to help their investigation. That’s going to be a lot more difficult if the officer is required – required, not encouraged, remember – to check on the immigration status of the people that officer is dealing with in an investigation.

Proponents of the bill will point to an exception that the requirement is only “when practicable.” But what does that mean? And will that mean something different to a judge and jury when the officer is being sued for not enforcing the new law?

Because that’s the part of the bill that isn’t getting nearly enough attention. Any person can bring a lawsuit against any officer or agency if that person thinks the law isn’t being enforced “to less than the full extent permitted by federal law.” A person winning a lawsuit gets their attorney’s fees and costs paid for by the losing party. And there’s plenty of anti-immigration organizations out there looking to get some publicity and a little dough for their lawyers by suing insufficiently-zealous Arizona cops, believe you me. And, again, while I am firmly in the pro-lawyers-making-scads-of-money camp, this provision is ripe with the potential for mischief.

So, imagine you’re that law enforcement officer. You’re investigating a murder, and trying to convince a witness to talk to you about what she saw. She's reluctant, because she comes from a tough background and has learned not to trust the police. But you need her testimony for your investigation. As you talk to her, you discovery she’s Hispanic, and (for whatever reason) you think she might be here illegally.

Do you, as the law requires, check your witness’ immigration status? Do you check it even if it will derail your murder investigation and let the guilty party go free? Do you not check it and risk being sued by an anti-immigration zealot, putting your job and your family’s livelihood at risk?

What a horrible position to put a law enforcement officer in. I have long thought that police officers have the hardest and most dangerous jobs in the world. Why the state of Arizona wants to make their jobs harder just to make a political point is beyond me.

There’s another angle to this story as well, one of hypocrisy. Where is the Tea Party outrage about this bill? I thought the Tea Party people were all about small government and reducing the intrusion of “Big Brother” government into our lives. I thought they loved the Constitution and just were about people being left alone.

The sole purpose of this bill is to give law enforcement – that’s the government, Tea Party folks – more authority to detain and arrest people. I’ve seen lots of your signs (some of them comically misspelled, of course) telling everyone how the Constitution prohibits health care reform and how the Constitution says President Obama isn’t actually President because he was born in Kenya, or Indonesia, or Mars, or something like that.

Hey, folks, this is an actual intrusive-government problem here! Arizona just passed a law that mandates the police to stop people on the vaguest of reasons. That’s a huge government intrusion, right? You’re all about small government, right? You should be up in arms about this, right? You’d be very concerned about this even though it is likely not to affect your overwhelmingly-white membership because you believe in freedom for everybody and aren’t even the slightest teeny tiny bit racist, right?


The Republican party’s hypocrisy is worse. In Arizona, they’re the driving force behind the new law. Remember, this is the same Republican party who thinks the economic downturn can be fixed by putting limits on patients suing doctors who butcher them. Now they’ve passed a law giving the green light for anyone to sue a police officer or police department if that person thinks Arizona’s immigration enforcement isn’t tough enough.

So, to summarize the Republican position on lawsuits: Suing doctors, bad. Suing cops, good.

And the hits keep on coming. The Republican National Committee has just set up a new fund-raising website claiming Obama is “versus” the Constitution. Plenty of Republican attorneys general are spending taxpayer money to get the newly-passed health care reform bill declared unconstitutional.

Really? Were you guys around when the PATRIOT Act was passed? When President Bush’s warrantless wiretapping program was revealed? When Vice-President Cheney tried to argue that the vice president’s office wasn’t legislative or executive and therefore not subject to oversight? When Guantanamo Bay was created as a place to hold prisoners indefinitely at the whim of the president?

You know, things that were actually violations of the Constitution.

I’ve got plenty of problems with the Obama administration, many of them revolving around his failure to stop the Constitutional violations of his predecessor. But here’s the thing. Just because you don’t like a particular policy decision Obama or anyone else makes doesn’t mean it’s unconstitutional.

People are entitled to whatever opinion they like, I guess. But they aren’t entitled to wrap themselves in the Constitution and pretend it says whatever they want it to say. And if you’ve held your tongue after eight years of a presidential administration who exhibited naked contempt for the Constitution, you really don’t get to tell me about how much you love the Constitution.

Sunday, April 25, 2010

JTG 04/25/10 - Whoo, duck, quack?

“This is home. This is where I will finish my coaching career.”

That was Dana Altman in 2007, coming back after his 48 hours as head coach of the Arkansas Razorbacks. Surely you remember what has to be one of the strangest stories in the coaching carousel. Altman took the job, got to Fayetville, had his shockingly uncomfortable “Whoo Pig, Sooey” moment, and returned to Creighton.

When he got back, he told us Creighton was home. He told us that he would finish his career with the Bluejays. And Bruce Rasmussen, Creighton’s athletic director, took him back.

Both Altman and Rasmussen are decent, honorable men, and I have no doubt Rasmussen’s decision to take Altman back was due in part to the friendship between the two. But there were other reasons to take Altman back as well.

In 2007, Altman’s Bluejays had their ninth consecutive 20-win season. In that span, Creighton had been to the NCAA tournament seven of those years and had won two first round games. Ticket sales at the Qwest Center were through the roof, and it felt like Creighton was on the verge of something special.

And, maybe more importantly, Creighton fans felt like they couldn’t do any better than Altman. If Altman left, the fans felt, the program would almost assuredly collapse into mediocrity.

Since that fateful 48 hours, though, things have changed. Creighton hasn’t made the NCAA tournament since Altman’s “Whoo Pig” moment. Their 20-game winning season streak has been snapped. Their stranglehold on the Missouri Valley conference has disappeared. And the fans have noticed.

Even more disturbing is how the tenor of the team has changed. In an effort to upgrade the talent and go to the mythical “next level” that Creighton fans demanded, Altman changed his recruiting targets. Without question, the talent level increased. The question was whether Altman’s old-school style would work on his new players.

At this point, it’s impossible to avoid looking at P’Allen Stinnett as Altman’s post-Arkansas problems in microcosm. Stinnett came in shortly after Altman’s 48-hour dabble into the SEC. He wasn’t a Kyle Korver or a Nate Funk or an Anthony Tolliver. He was an athletic and talented scorer, to be certain, but one who never could be convinced to play within Altman’s system and under Altman’s tutelage.

So, there was much trepidation looking forward to next year’s Bluejay squad. Was 2009-10 just a blip? Or was it the canary in the coalmine signifying a true descent into mediocrity?

Thanks to Phil Knight and the neon yellow folks in Eugene, we’ll never know. Three years after Creighton fans felt their program was saved by Altman’s cold feet, many now feel the program has been rescued by his itchy ones.

It’s hard not to feel a little contempt and betrayal for a man who told us three years ago that he’d retire a Bluejay. But even before his trip to Arkansas, questions were asked about Altman’s ability to advance Creighton beyond where he had taken them. And it must be remembered that all of the heightened expectations were created by Altman’s teams and their remarkable run of success.

So, while Altman’s departure does feel a little slimy on his part (as duck tends to be), I think it’s ultimately good for the program. I wish him well at Oregon (and dealing with Knight looking over his shoulder), and now have some excitement for Creighton’s potential.

Remember, Creighton is still in the top fifteen nationally in attendance. For a conference like the Missouri Valley, that’s a huge advantage. Heck, for any team, that’s a huge advantage. National coverage of Altman’s departure has drawn dismissive descriptions of Creighton as a school and a fan base with ideas above their station in dreaming of being a national power.

Dismiss Creighton at your peril. Given their attendance, history, conference, and geography, the Bluejays have the potential to be a player on the national stage in men’s college basketball. But to do so, Rasmussen and the Creighton brass must think big.

At the time of writing this column, it looks like the new coach may be Greg McDermott. He is currently head coach at Iowa State, but has the dogs nipping at his heels for the Cyclones’ lack of performance. Prior to his work in Ames, McDermott was head coach at Northern Iowa, so he has a good knowledge of the conference. He would be accepted by the fan base, and could plod the Bluejays along.

But the Bluejays need to think big. I hope that, before the hire is made, that Creighton makes a run at the big time. Altman’s former employers, Kansas State, hired Bob Huggins for a year, and set the table for the Purples to be a #2 seed in last year’s tournament.

While Kansas State might be a unique situation (and one that brings some unwanted baggage that Creighton should avoid), it was important to show that Kansas State was not satisfied to settle for less in basketball. Creighton has the opportunity with this hire to plant a flag and demonstrate they are looking to be serious players on the national scene.

It’s a risk, to be certain. Oregon did the same thing and had to “settle” for Altman. But I’d rather see Creighton take that risk and demonstrate that ambition than to immediately settle for a recycled version of Altman.

After all, when Altman left the first time, Creighton fans thought they couldn’t do any better than him. Now is the time to prove that Creighton can.

Sunday, April 18, 2010

Conservative judicial activism?

Sometimes, it’s what isn’t said that’s more important than what’s said.

Nebraska has recently passed the “Pain Capable Unborn Child Act,” which outlaws abortions in the second half of the second trimester of a pregnancy (after 20 weeks) because, according to the Unicameral, that is the point at which the fetus can feel pain.

Sounds relatively straightforward, right? Another attempt to ban later-term abortions from a conservative state in the ongoing pro-choice vs. pro-life battle, right? Nothing to see here, move along.

As college football analyst Lee Corso would say, not so fast, my friend. Nebraska’s new law is more than just your run-of-the-mill pro-life trial balloon tossed into the courts. This law is intended to challenge the fundamental basis of abortion laws in the United States.

Let’s take it from the top, though. In 1973, the Supreme Court decided in Roe v. Wade that abortion was a constitutionally-protected right that must be balanced against the state’s interest in the life of the unborn child. Roe defined viability as the threshold when the state’s interest outweighed the mother’s interest – in other words, once the fetus could survive outside the womb (was “viable”) then the state’s interest outweighed the mother’s interest and the state could restrict abortion access. In addition to keeping agitators on both side of the issue employed and well-funded for the last 37 years, that basic rule has been what has guided the courts in deciding the contours and boundaries of abortion law.

So what’s the big deal, you ask? It’s all about the premise. Nebraska’s law (like other “fetal pain” bills in states like Oklahoma and Texas) abandons the viability premise. Under Nebraska law, an abortion is illegal because the fetus can feel pain, regardless of whether it is viable or not.

That is nothing less than a frontal assault on the legal architecture of abortion law since Roe was decided in 1973. There’s no way that Nebraska’s new law could survive a legal challenge under current law. It could only survive if the Supreme Court uses a law like Nebraska’s to re-interpret the Constitution and change abortion law. Which is, of course, exactly what the pro-life community wants to see.

Now, this won’t happen overnight. There will be legal challenges to the constitutionality of Nebraska’s law filed, and they will take years to filter their way to the Supreme Court. Between taking the abortion bill to court and suing the Federal government over the health care reform bill passed earlier this year, the budget for Nebraska’s Attorney General office should be plenty stretched. Good thing the state is so flush with tax revenue.

(As an aside, I was discussing Nebraska’s new law with a very wise colleague of mine. She pointed out that the Tea Party faithful were quite upset about health care reform “stealing their freedom” by proposing a tax penalty for not buying insurance. They didn’t, however, seem nearly as upset about a bill that removed the actual freedom to receive an actual health care procedure. Good thing the Tea Party is a broad base of libertarian-minded independents and not just a collection of hard-core and somewhat cranky conservatives, right?)

So what’s going to happen once this gets to the Supreme Court? Tough to say, as we’re about to be treated to another episode of everyone’s favorite reality show, “Supreme Court Justice Confirmation.” But keep in mind, the Conservative Four (Scalia, Thomas, Roberts, and Alito) will be there regardless of who the rookie justice will be. And the Conservative Four have shown no hesitance to make dramatic changes in settled law – just go read about Citizens United and see how they turned decades of campaign finance reform on its’ collective head.

But, you might ask, shouldn’t the idea of judges making dramatic changes to settled law run counter to conservative ideals? Isn’t that – gasp – judicial activism that is so anathema to conservatives everywhere? Shouldn’t conservatives who believe in their principles just go to the ballot box and try to change law through the legislature instead of using the court to end run the will of the people, like they’ve loudly and consistently accused progressives of doing?

They should. I hope they do. I’m not holding my breath.

NU Re-View: Red 21, White 16

- TAYLOR MARTINEZ: Yes, I know, he's the guy everyone is talking about. ESPN's coverage of NU's Spring Game was basically a Martinez PR piece. But there's good reason for the coverage. The kid looked the part, particularly in what appears to be what Shawn Watson's offense is going to look like going forward. His first play was basically a Wildcat run, which he looked comfortable running. But he ran decisively, was patient in the pocket when he dropped back to throw, and definitely did not look like a freshman directing the offense. Based on what we saw on Saturday, there's no question he's in the mix in the starting quarterback race.
- THE OTHER GUY: Martinez is the shiny new car, and Cody Green suffers from a bit of the "been there, done that" syndrome. And while it is true that he didn't sparkle in quite the way Martinez did, it's also true that he was asked to air it out a lot more than Martinez was. As we have seen before, Green struggled some in the short passing game. But he had two gorgeous deep throws - and the lack of a deep threat to stretch the field was sorely lacking last season. If I had to put money on one kid to get the starting QB position next season, my money would be on Green.
- RETURN OF THE PAJAMAS: I understand that I will be in a distinct minority on this one. But I loved the red-on-red look the team had. I loved the white-on-white they've experimented with in the past. I think a uniform re-design is not warranted (although a few more throwbacks would be nice), but adding in some mix-and-match would be more than a little cool. Oh, by the way, it's nice to see Gay Dancer Herbie (tight shirt and jeans) replaced by the familiar Bib Overall Herbie. Let's hope that's permanent.

- TAYLOR MARTINEZ'S HYPE: Yes, the kid was really exciting. Yes, I think he's got a place in the offense. But, please, 'Husker fans, do not engrave his name on the Heisman just yet. Assuming he's not the starting quarterback this fall, do not start calling for him at the first incompletion thrown by Green or Zac Lee. He's good, but I can almost guarantee you that he's not as good as you think he is after watching him on Saturday.
- PLAY TO THE WHISTLE: Look, I get that it's a scrimmage. But there were at least two incidents at the end of a play where a rugby scrum broke out. In just about any actual game, those plays would have been blown dead for halting forward progress. But they weren't, and the offense pushed the pile forward. Brandon Kinnie got a touchdown after being dogpiled at the five yard line, with the dogpile getting pushed into the end zone. Great motor for Kinnie and the offense, but I have to think a defense-first guy like Bo Pelini had to be popping a vein seeing his defensive crew giving those up.
- ROW 39 IN THE EAST STANDS: Unlike some years, it was a perfect spring day in Lincoln. The sky was blue, the temperature was warm but not hot, and the wind was just strong enough to put a charge into the air. What better way to spend that afternoon, then, but to be sitting under a 50-year-old concrete overhang navigating a two-foot-wide pole? The experience was eerily remniscent to watching a baseball game in the concrete monstrosity that was Cincinnati's old Riverfront Stadium.

There was a lot to like about NU's Spring Game 2010, not the least of which were the 77,000-plus people that showed up (although, really, could 'Husker Nation not find another three thousand bodies to sell Memorial Stadium out?) Everything we saw, though - from the offensive wizardry to the introduction of the Peso to the Bouncerooski - should be viewed through the "it's only practice" prism. For the first time in a while, Nebraska is going into a season with legitimate championship aspirations. The results of the Spring Game should not be over-analyzed to presume those championships are won already.

More than anything, what struck me is that this group of 'Huskers looked more like a complete roster of players Pelini is looking for. In the previous two Spring Games, it felt like Pelini was piecing together a hodgepodge roster of leftover Callahan players and trying to see where the square pegs and round holes were located. This year, the direction and philosophy seem more settled and there seems to be legitimate competition for the positions to execute that direction. For the most part, the NU roster looks and feels deeper than it has for some years. Sure, there's holes to fill (you don't move your best tight end to wide receiver on a whim), but the signs are there that Pelini was right about Nebraska being back and here to stay.

Western Kentucky @ Nebraska, September 04, 2010.

Is it September 04, 2010, yet?


GBR, baby.

Tuesday, April 13, 2010

Oklahoma legislators channel their inner Somali warlord

There’s tone-deaf, and then there’s the Oklahoma state legislature.

As we approach the 15th anniversary of the bombing of the Murrah Federal Building in Oklahoma City – perpetrated by anti-government domestic terrorist Timothy McVeigh in which 168 people died – members of the Oklahoma legislature are discussing the formation of a “volunteer militia” to “defend” the state against what they view as “unwarranted” intrusions from the federal government.

Remember, McVeigh believed that the federal government was an enemy force responsible for killing Americans in Waco and Ruby Ridge. He believed that deadly force – including the bombing of a federal building – was necessary to resist the federal government’s “unwarranted” intrusions. So, really, what better way to commemorate McVeigh’s victims than to organize a group McVeigh would stand in line to join?

Think about it for just a moment. State senators think it would be a good idea to create a volunteer militia – a group of armed citizens who enforce the rules as they think they should be enforced. And, at least one thinks that it would be legal.

“The Second Amendment deals directly with the right of an individual to keep and bear arms to protect themselves from an overreaching federal government,” said Randy Brogden, a Republican state senator and (naturally) candidate for governor.

Um, actually, not so much. There are arguments to be made as to whether the Second Amendment’s intent was to protect the right to bear arms for hunting and recreation, or to repel foreign invasion. There is no argument, historically, that the purpose of the amendment was to keep the federal government in check.

Besides, Oklahoma (along with 49 other states) already has a state militia. It’s called the National Guard. At the time the Second Amendment was written, there was no such organization. Heck, there wasn’t even supposed to be a standing army. Times and laws have changed to make such a “minuteman” style of army both unnecessary and unwise.

Now, in fairness, recently the Supreme Court has ruled that the Second Amendment guarantees an individual right to bear arms, which as taken any meaning out of the whole “well-regulated Militia” part of the Second Amendment. But this isn’t an issue about whether individuals can possess firearms.

If the argument for an armed force protecting a state from an “overreaching federal government” sounds familiar, it should. In 1957, the governor of the state of Arkansas ordered the National Guard (the state militia, remember) to prevent black students from attending a previously-all-white high school. Arkansas’ governor at the time, Orval Faubus, believed the Supreme Court’s decision requiring schools to be desegregated was an “overreaching federal government” intruding upon the rights of the state of Arkansas. In 1962, then-governor George Wallace attempted to use the Alabama National Guard to prevent the integration of the University of Alabama. Wallace believed that the federal court’s decision that the state could not prevent blacks from attending the school was the act of an “overreaching federal government” intruding upon the rights of the state of Alabama.

And now, because in 2014 people will face a tax penalty if they don’t purchase health insurance, Oklahoma state legislators want to mobilize private armies with the blessing of the Oklahoma legislature. I thought private armies were what Somali warlords used to help maintain control of their territories, not what Americans used in political disagreements.

But let’s think this through. We’re talking about volunteer armies that would be somehow deputized by the state legislature based on a particular political belief. Would everyone get to do that?

On “The Daily Show,” comedian Wyatt Cenac played a supporter of health care reform and was asked his response to the violent and separatist language used by health care opponents. He said “bring it on, I mean, we’ve got guns too.”

Apparently no one told the Oklahoma legislature that he was kidding.