Constitutional challenges to the immigration bill

Several lawsuits have been filed against the Arizona immigration law. two Constitutional claims arise amidst these challenges: a weak equal protection challenge and a stronger preemption challenge. I'll start with the equal protection challenge.

One of the most criticized clause of the bills is the command in Section II that law enforcement officials must verify a person's immigration status when the officer reasonably suspects "that the person is an alien who is unlawfully present in the United States." The law bars law enforcement from relying on illegal factors such as race, color, or ethnicity; but how many white guys are they going to pull over trying to thwart massive Canadian invasion of Arizona? Although the law prohibits racial profiling, you wonder unless the individual confesses that they are from another country how they would "reasonably suspect" they were unlawful occupants.

Under current law, a discriminatory effect is not sufficient for an equal protection claim. One must prove that the law has discriminatory intent. This might be tricky. It is hard to say on the face of the law that it is specifically directed towards racial minorities. It does have that provision prohibiting racial profiling. However, the argument can be made that without real guidance on what one should be suspicious of, it tacitly condones racial profiling. Unfortunately, I don't think this is a winning argument. It would strike down an awful lot of immigration laws because most tacitly discriminate against minorities.

The second claim is the preemption claim. The argument is that the Constitution vest all immigration and naturalization rulemaking in the hands of Congress. Due to the Supremacy Clause--that the Constitutional laws are the supreme laws of the land, the federal laws supersede any state laws.

University of Missouri-Kansas City law professor and author of the bill Kris Kobach rejects this argument. He argues that the bill is an enforcement bill--that it doesn't create any new legal standards, the role of Congress, but rather empowers Arizona law officials to enforce Congress' standards. Apparently this strategy has worked with other immigration bills that he has worked on.

Professor Erwin Chemerinsky, author of everybody's favorite con law book, contends that there is still a preemption violation with the Executive. Preemption analysis for enforcement of bills generally remains in the federal government unless Congress expressly says otherwise. I am not too familiar with the immigration code, but I have not heard of Congress delegating the responsibilities to the States. Assuming this is so, there is a decent chance that the federal government has a case. Courts never like to strike down laws and a conservative Court may be leery of violating state sovereignty, but that violation is at the root of preemption analysis and at the heart of the our Constitutional government.

Here's to hoping that one of these works!

Howard gets $125 million

Ryan Howard of the Philadelphia Phillies signed a 5-year $125 million contract extension today.

I assume that Philly was thinking that in two years, when the extension goes into effect, salaries will have gone up and that this will be under what he could command in two years. He does have an MVP under his belt and wallops homeruns like few other; but he's a below average fielder at a position that's a dime a dozen and he's a strike out machine.

The Phils may have cornered themselves into this when they re-signed him a couple of years ago and agreed to pay him $19 million this; and maybe this is a fair value compared to other players of his status; but he's not a Mauer and he's not a Pujols and I think he'll be laughing to the bank for another 7 years.

It's a moderate Republican's Congress, but who will cross party lines ?

After the tragic Massachusetts run-off election, this has become a moderate Republican's Congress. Because the Dems' 59-seat majority falls one vote short of the 60-vote super majority needed to beat a filibuster, an opportunistic moderate could step in and write a lot of the legislation that they like until next January when the mid-term electees are seated. Senator Graham has shown some promise of coming over to the dark side of bi-partisanship.

However, given the Senator McCain's recent trouble with the emerging far-right, having to recant his "maverick" title, it's unlikely that a Senator will take advantage of the chance to play the Anthony Kennedy of the Senate for fear of getting sacked by Palin's ilk in the GOP primaries.

It will be interesting to see how the Tea Party movement influences opportunistic moderates as Congress works on hot button bills for immigration, financial reform, climate change and the nomination of Justice Steven's replacement before the Fall elections.

My long, continuing conversion from Calvanism

A couple of weeks ago I gave the Elders Quorum lesson on the spirit of optimism which runs through the Gospel. I get to teach about once every four months on a topic of my choice. I felt that given the hardships with the economic downturn and the trials that we all inevitably face, it was particularly appropriate.

The gist of my lesson was this: yes it's going to be hard; there will be trials, and shortcomings, and delays; but the message of the gospel is that in the end, if you do your best, the Atonement of Christ is sufficient for all of us and things will work out. I'm not exactly sure if the lesson resonated with anyone else, but I have been impressed by some of the lessons that I learned as the Spirit has testified of some of those truths to me in the following weeks. I call it my continuing conversion from Calvinism.

There are a lot of scriptures which I believe illustrate needs for diligence as well as the Atonement. I like 2 Nephi 25:23, "for it is by grace that we are saved, after all that we can do."

I tend to focus on the "all that we can do," more than the "by grace," my Calvinist tendencies. There are legitimate reasons to focus on what we can do. We can control what we do. Although Christ is bound when we obey, generally I don't feel that I control how Christ acts. However, focusing solely on my responsibilities is an incomplete accounting of the Heavenly calculus. Atoning grace, ultimately, is what will complete the plan.

This is something that I know. As a missionary I taught these truths ever day of my mission. But it's not always something that I act on or believe. Someone who truly believes that everything will work out should be have an abiding optimism and hope. I'm kind of a cynic.

And not that an optimist can't think critically, but personally it seems like sometimes skepticism can be a self-fulfilling prophecy and something that I should avoid.

The other main idea that has been running though my head is the appropriate level of worrying. Again, it's good to be realistic, but if you spend your whole time wondering "can I hack it," chances are the answer is no, because you spent too much time thinking when you should have been acting. So again, the take-home message for me is to stop overthinking and start acting.

It's a long, complex balancing act: balancing the work/faith, diligence/grace calculus. I have been shocked at how often the message of the gospel, albeit it is you must work hard, it is that things will work out and stop freaking out so much. It's been pretty refreshing realizing that.

Denny's and the Tea Party Movent

It's 12:30AM, an hour and a half past my bedtime. But I saw a Denny's ad (video link is forthcoming) set to the "Battle Hymn of the Republic" and thought about a recent patriotic meeting hosted by the Minneapolis Convention Center. So I figured I would churn out a quickie on the Tea Party.

My thoughts on the Denny's ad: I wonder if they are trying to capitalize on the Tea Party movement. My guess is that they are. There is seasonal reason to tap into patriotic fervor. Presidents Day is past, Memorial Day and the Fourth of July are months away. There must be some other reason...(this is where I once again reveal my liberal snobbery).

I think Denny's knows their demographic. I think that they know a lot of the people who go out to Denny's are probably pretty sympathetic to Palin's ilk. The ad portrays some common man finding cheap "American" deals on breakfast meals. It's a complete appeal to Tea Party-style prurience. It has to be.

Speaking of the Tea Party...I'm I the only person who thinks about the Jacobean reign of terror in A Tale of Two Cities every time that I hear about a protest? It's not just the herd/mob-mentality which Dickens portrayed that reminds me of them, but the emphasis on being "patriots." I swear, all I can hear in my head is Madame DeFarge saying "I say, Jacques" or "good day, fellow patriot." Certainly I can't be alone.

And about that Tea Party...I promise this is the last point: I found a favorite Tea Party group: the delightful Anger is Brewing. I had heard a rumor that the Tea Party is going to run a third-party candidate against Harry Reid and whoever the GOP fields. It turns out it is true. A Romanian named Scott Ashjian claims that he will run on the Tea Part platform, much to the chagrin of the populists at Tea Party National). When searching the TP's web page I came across the group.

AIB is a small, Nevada TP group that proclaims there are only two motivations: anger and fear. Fortunately for the TPers, they're not afraid. (Gwahaha.) I know this is probably a fringe group within a "semi"-radical right-wing fringe, but you wonder where the news media might get ideas about violence within the TP movement.

That's enough of my liberal snobbery...for now.