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February 11, 2005

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Freedom is on the march!

(Don't let the jackboots and pennyloafers crush you)

Today's comparative history lesson:

1. Other than through the procedure prescribed by the constitution, laws of the Reich may be decided upon by the government of the Reich as well. This includes laws as referred to by articles 85 subsection 2 and 87 of the constitution.

2. Laws decided upon by the government of the Reich may deviate from the provisions of the constitution as long as they do not affect the institutions of the Reichstag and the Reichsrat as such. The constitutional rights of the Reichspräsident shall remain intact.

3. Laws decided upon by the government of the Reich shall be issued by the Chancellor and announced in the Reich Law Gazette. They shall take effect on the day following the announcement, unless they prescribe a different date. The articles 68 to 77 of the constitution shall not be applied to laws decided upon by the government of the Reich.

-from The Enabling Act, March 23, 1933

Gentlemen, it's bad enough without the Godwin violations. A quote from Tom Paine or Thomas Jefferson would be more suitable.

Gentlemen, it's bad enough without the Godwin violations. A quote from Tom Paine or Thomas Jefferson would be more suitable.

The sad thing is that Godwin's Law hasn't been invoked, as the comparison was germane to the discussion.

That said, show me a closer, more apt parallel between the above and another legislative body legally granting unlimited, unreviewed power to the executive branch, and explain why that parallel is a better fit and I'll consider using that instead - perhaps Tom Paine had a secret life the rest of us are not aware of?

One does wonder whether Mr. Godwin ever worries that the main effect of his law is to shelter dictatorial acts from criticism.

Rilkefan is correct, of course. But I suspect were Tom Paine around today, the recent pattern of events might cause him to violate the posting rules at Obsidian Wings.

With Jefferson, you never know. He might object to the expense of building the fence today and turn around tomorrow and annex half of Mexico, using the ever-mythical Social Security trust fund as collateral.

With Jefferson, you never know. He might object to the expense of building the fence today and turn around tomorrow and annex half of Mexico, using the ever-mythical Social Security trust fund as collateral.

Bad example. Set aside for the moment that Jefferson's actions did not give him unlimited power, so are not at all analagous to the matter at hand. More importantly, even Jefferson acknowledged the suspect constitutionality of the Louisiana Purchase. The Enabling Acts were undeniably enacted legally. Got a better example?

In addition, this bill requires states to verify immigration status before issuing a driver's license, and to issue drivers' licenses that includes several specific features, including "a common machine-readable technology, with defined minimum data elements", thereby enabling all states to create drivers' license databases. An amendment that "stating that a State motor vehicle database may not include any information about a person's exercise of rights guaranteed under the first, second, or 14th amendment to the Constitution of the United States" failed by a vote of 229-195. You can see the recorded vote here.

I got the point that this law converts the Driver's licence from an Informal National Id to Formal National Id with a standardized dataset, but what is the bolded part suppose to mean?

How about backing up a bit and debating the root of this measure. Do we need to wall or DMZ our borders? If unprotected borders are not a concern, if who walks into our country undetected isn't important, then all this law making is irrelevant and this law's value busting characteristics asinine. However, if the threat is real and our southwestern border is determined to be our Achilles’ heel, then we need the legal ability to make it happen and make it happen soon, in the face of all the laws in place that restrict building and development. Some of the rhetorical exaggerations about child labor and ignoring workplace safety is certainly over the top. But property rights and environmental concerns could certainly take a back seat to national security.

Blogbudsman, as hilzoy noted in the original post, DHS already has the legal authority to ignore environmental and property laws in protecting the borders. So your comment goes no further towards answering her question: What set of laws is it that DHS might suddenly, desperately need to ignore that this bill will grant them authority to do so? Nobody has questioned the basic need to protect borders, so the rest of your comment is a strawman,

DQ, my suspicion is that it means they'll be allowed to include things like your religious affiliation in this database. In any case, Federalism suffers another cut in the death by a thousand as the Party of Smaller Goverment takes effective control of yet another state power.

As for requiring states to determine immigration status before granting driver's licenses, yeah, I can see the point, but all things being equal, I'd rather have people who have been tested and determined to be competent drivers than have otherwise nonthreatening illegals driving around the DC metro area without a license. If society had not made the driver's license the de facto form of accepted identification to do basically everything in life, we could just let it be what it should be -- recognition that one is a qualified driver.

Phil, read this about the http://www.signonsandiego.com/uniontrib/20050205/news_1n5fence.html>San Diego project. It certainly doesn't dispel the argument, but maybe kicks your strawman monkey off my ass.

"The regulatory exemption, being pushed by U.S. Rep. Duncan Hunter, R-El Cajon, chairman of the powerful House Armed Services Committee, would override a decision by the California Coastal Commission to deny the project because of concerns about erosion."

I'm still not convinced the tin foil hat crowd should lead the parade here.

Er, the strawman part of your argument was insinuating that anyone here had questioned whether we need "to wall or DMZ our borders." Nobody did. And even if everyone agrees that we should, granting DHS the power to set aside any law might just be overkill. Which is the point of the post.

Blogs, your link isn't working. I'm a former resident of San Diego and would like to read your article. As I recall, erosion is a huge problem there: the richest citizens built their palaces on bluffs that want to fall into the sea.

And your lack of concern about private property is to me rather astonishing. Until the economies of countries south of our border improve, we'll always have a bunch of people trying to come here. How long will "national security" trump private property? Do you really want this precedent to be set?

I thought the president was allowed to set aside laws as he pleases anyway.

"to deny the project because of concerns about erosion.""

I am pretty convinced. I figured it was something very specific that our worthless press didn't have time to look into because they were too busy with Gannon or Davos (what was that guy's name? don't care).

And it is a pathology of lawyers and legislators to take specific problems and create too broad and over-arching solutions.

http://www.signonsandiego.com/uniontrib/20050205/news_1n5fence.html>San Diego

Although I still have custody of the proof reading monkey.

It's about setting a precedent. Get something like this passed in some obscure corner of a law. Then next time put it in a few more laws. Then a few more. Pretty soon all laws will be exempt from judicial review. Just got rid of one pesky branch of the government. When that's done, go about getting rid of the legislative branch.

With a Dear Leader as wise and all-knowing as ours, who has the inherent power to set aside the laws, who needs Congress anyway?

felixrayman: well, my point (yes, off the mark somewhat)was to soften Rilkefan's admonishment just a bit with a bit of snark and allude to the fact that I'm not sure anyone wants to hear what Paine and Jefferson might have to say on this subject. If Godwin and posting rules had been around during their time, we might have been left with quotes along the lines of: "Freedom is a pretty thing; exert thy limbs in pursuit of her bewitching allure". While of course lighting the torches and dragooning the King's representatives.

I've always wondered what dragooning consisted of.

In other words, I try to couch my Godwin violations as Mel Brooks might: in a dress and ending in a conga line. Why? Because if I stop laughing for just a moment about current events, I'll start throwing out quotes like these:

"I hold it, that a little rebellion, now and then, is a good thing, and as necessary in the political world as storms in the physical." Letter to Madison

And this gem, often quoted by the Gingrich Jacobins until their necks became exposed in what they now charmingly refer to as "public service":

"The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is its natural manure." Letter to William Stevens Smith

But I get it, and rethinking Godwin's now trite law might be a good thing.

However, once you begin quoting the Third Reich chapter and verse as historical juxtaposition, then someone (probably with a first name whose first syllable is the first name of a very big Norse god and whose last name is the same as a heroic Brit's) will come back quoting some of Stalin's dry legalisms justifying the starvation of peasants as the precedent and cornerstone for Hillarycare.

Then we all fall out into the street and break chairs over each other's heads. Which is fine by me. I'm ready to go.

But then Rilkefan will write a funny poem about it and I'll feel stupid.

I got the point that this law converts the Driver's licence from an Informal National Id to Formal National Id with a standardized dataset, but what is the bolded part suppose to mean?

I believe it was introduced by gun-rights Congressmen to keep the national ID from being used as a national gun registry -- and may I say, more power to them. I think most of the 2d amendment activism is a bit goofy, but if them keeps them focused on the Bill of Rights generally, I'm happy. Of course, it didn't pass, but they tried.

Brian comments (taken out of context) "...who needs Congress anyway?"

Well, the answer to that is, is ... the trial lawyers??

blogbudsman: my point here was not that there might not be some law that we might legitimately want to waive in this case. It was that instead of writing that waiver into law, this bill is too broad in two senses: first, it allows the Sec. of Homeland Security to waive any law he deems necessary, and second, that it allows him to do it whenever it's necessary to build any fence. (And third, I guess, that it denies all judicial review.)

The thing about laws is: what matters is what they say, not what the people who passed them wanted to say. (Though what they wanted can influence our interpretation of what the law does say.) If I write a law saying that no one gets to withdraw money from a bank ever again, and it passes, it doesn't help that all I really wanted to do was to stop Osama bin Laden from withdrawing his money to pay for a terrorist attack: whatever I wanted to do, I have made it illegal for you to withdraw your money.

That's why it matters to be careful when you draft a law, and to write a law that accomplishes what you want to accomplish, without in the process accomplishing all sorts of other things that you never thought of and don't like. That's also why the hypothetical examples matter: whatever the House members who voted for this had in mind, if this becomes law they will in fact have given the Sec. of Homeland Security the power to waive all laws.

Of course, he might not do that. But the whole point of our form of government is that we don't want to rely on the assumption that our government is made up of nice people who wouldn't do bad things; we have a government of laws, with checks and balances and a Constitution.

DQ: The worry, as I understand it, is the following. This legislation does not (as far as I can see) require the creation of a national database of drivers' licenses, but it does put in place stuff that would make it very easy to create one, and it makes it the case that such a database would contain citizenship information. Now: if you had a database, it would presumably be easy to add more data to it: to match up information from the IRS with information from the drivers' licenses, etc. This puts us in national ID card territory.

I have never shared the paranoia about national ID cards that some people on the right have. I think they make a lot of sense, and would help immeasurably with deterring voter fraud and stuff like that. (They are the obvious way of meeting both liberal and conservative concerns on that score.) However, I do think it would be nice to have some limits on what the government could make part of the database of which they would be the front end. That's what I take to have been at issue here.

Hopefully this will sink in the Senate by the same margin Bush's approval rating plummeted to today.

Yes, it will be interesting, if this language passes, to see how the word "barriers" my be construed in future legislation.

Could "barriers" mean Wal Mart?

Or, in future Democratic administrations and Congresses, could barriers mean "tariffs"?

Is a pipeline passing through the Lincoln Memorial, for example, a barrier? Or is it a "road"?


Pretty soon all laws will be exempt from judicial review.
In a sense they already will be once this bill passes. Want to violate a law? Just get DHS to assert that it's necessary for building the wall. It doesn't matter how nonsensical the connection is, because no court will be able to hear your objection since it's claimed under the wall law.

I doubt our current rulers are quite that audacious, but the law makes it technically possible.

"The thing about laws is: what matters is what they say, not what the people who passed them wanted to say. (Though what they wanted can influence our interpretation of what the law does say.)"

Actually what they say doesn't always matter either. See racial preferences and Civil Rights laws.

Is a law like this constitutional? I didn't know Congress had the power to take the courts out of the equation.

Even if this legislation is passed and signed into law it will be immediately challenged. It cannot pass constitutional challenge. At least I hope it can't. The congress can not exempt the executive, or itself, from judicial review, that is the cornerstone of our form of government.

kenB: Article 3, sec. 2 of the Constitution contains this:

"In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."

Shucks. I was trying to find out how to link to the AP story that came on my Earthlink home page this morning. It was in regards to Arizona revisiting the Patriot Jury Act, for they have found it to be entirely too broadly written. One example given was a 75-year-old woman with Parkinson's disease having to provide an excuse in writing from her doctor to be excused from showing up. This was a law that was designed just to insure that people show up for jury duty. Not meaning to divert, just supporting John Thullen's comment above.

IANAL, but offhand I wouldn't think that passage is material here -- it's referring to the Supreme Court in particular and when it has original vs. appellate jurisdiction. In context, I'd take "exceptions" to refer to switching the SC's jurisdiction between original and appellate.

This is what happens when you get bug-killers and wrestling coaches and kitty-killing doctors writing laws.

Or it is a sneaky run at the jurisdiction issue. As I channel James Madison, I think Congress can do this, without limits, but they shouldn't. Not nice to fool with Separation and create Const Crises.

Not nice to fool with Separation and create Const Crises.

sometimes you've got to break a few eggs to make a one-party state.

"I'd take "exceptions" to refer to switching the SC's jurisdiction between original and appellate."

That seems odd. Maybe it is terminology confusion. 'Original Jursidiction' refers to cases which can be brought directly to the Supreme Court without going to any other court. 'Appellate Jursdiction' is jurisdiction for cases which start in other courts. So if Congress makes an exception to the Supreme Court's broad appellate jurisdiction, and the case isn't one of the limited original jurisdiction areas, it can't decide the case.

I would suggest that as a matter of Constitutional Law Congress could do this. As a matter of Constitutional Policy, in deference to the way this matter has been worked out and evolved over the course of our nation's history, it ought not do it.

Well, I'll defer to you, since this is my first cursory glance at the passage. My reading of it was that an "exception" would consist in giving the SC original jurisdiction over a case where it currently has appellate jurisdiction.

Anyway, if Congress removes the SC's appellate jurisidiction, doesn't that imply that a lower court still has original jurisdiction, or am I misunderstanding? How does this passage allow Congress to stipulate that "no court shall have jurisdiction" over these matters?

I wonder if our resident legal experts could shed some light on this part:

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction.

Does "State" here refer to a sovereign nation, or one of our United States? I'm inclined to think the former, because in my limited experience nearly every non-Federal criminal case is listed as "State of Foo vs. Defendant", or such on. Wouldn't the State, whether in the sense of a single state or the US government, be a party in an Eminent Domain case?

Returning to hilzoy's original topic for a second, does anyone know the legal definition of "in the vicinity of the United States border" (from sec. (a))?? Could Tucson, AZ or San Diego, CA or Denver for that matter be considered by DHS to be "in the vicinity" of the border? What, if any, geographical limits or restrictions apply to the Secretary's discretion? And since his actions are not open for discussion or subject to judicial review, does that mean there are there no limits to what areas of the country Homeland Security can, at its sole discretion, wall off? Just wondering.

Returning to hilzoy's original topic for a second, does anyone know the legal definition of "in the vicinity of the United States border" (from sec. (a))?? Could Tucson, AZ or San Diego, CA or Denver for that matter be considered by DHS to be "in the vicinity" of the border? What, if any, geographical limits or restrictions apply to the Secretary's discretion? And since his actions are not open for discussion or subject to judicial review, does that mean there are there no limits to what areas of the country Homeland Security can, at its sole discretion, wall off? Just wondering.

Really hilzoy, I do appreciate your position and mostly agree with it. Having lived in the proposition state of Oregon, I am all too familiar with poorly written laws that are either stricken, ignored, or taken advantage of. Although I didn't know it at the time, I was first expose to the conundrum when I first read http://www.scwu.com/news/static/108543650260748.shtml>I, Robot ,which truly I need to read again. You - are - right - hilzoy. The citizens of this country do need to maintain awareness of how laws are written. Especially when we are tempted to allow national security to mask poorly written laws that risk sliding by in the name of patriotism. But there's an 'over the top' side to your argument, where we also need to let certain protective processes proceed to a point (alliteration unintended). 'Tis a thin line we are walking and I'm starting to believe the immediate impact of the blogoshere may help guide us through these confusing times.

I suspect that San Diego would count as "in the vicinity" since we have a border patrol checkpoint on the freeway 25 miles North of here. (Yes that is North)

I've had my disagreements with you in the past, blogbuds, but I'm 100% in agreement with your 4:39 comment. Particularly when it comes to initiative-based laws. While I can appreciate the citizen-participation and direct-democracy aspects driving the popularity of initiatives, I've found them on the balance to be a terrible idea--they're far too easily abused by a well-heeled group or individual to gather a bunch of signatures and write into law something really awful or poorly thought out.

(viz.: Tim Eyman and his seemingly unending crusade against public transit in Seattle)

"The reason why Drum and the others can't understand why they would try to push something like this through, is that they can't conceive of a situation where they would want to get out of the United States quickly or that the Administration would plan to stop people attempting to flee. Like political opponents during a purge.

Now I don't know if they're planning on doing it, but in my playbook when I see someone erecting barriers at the exits and I don't expect someone to be breaking in then the logical conclusion is that they're getting ready to stop people from leaving.

This is a law going into place people. This is not some whitepaper. This is something they're trying to push through now so they can have the legal power to erect exit barriers without legal recourse."

"oldman" at BOPNews. For your amusement, I suppose. But the first I have heard say that they might write into law the ability to create exit barriers with no legal recourse....ummm....because they want to create barriers to exit with no legal recourse.

Blogbuds: "You - are - right - hilzoy."

I think I'd better lie down. I am obviously hallucinating ;)

"here we also need to let certain protective processes proceed to a point "

We really don't.

I'm wondering at what point fear became an ennobled virtue. As exemplified probably most starkly by the bizarre and depressing turn of Sebastian's extraordinary rendition conversation at Red State, there seems to be a significant (and currently empowered) population that believes that fear is, in fact, a virtue. And that any action taken out of fear is justified by its virtuosity.

Perhaps there needs to be a few reminders that fear is an unfortunate characteristic of human life, not a virtue. . that we treasure and honor actions that defy and overcome fear, not those taken while we are frenzied with it. . that the emotion that causes animals to chew through their own children to escape danger is not one we should be self-righteously justifying sweeping changes with.

Every one of us should be embarassed by our fear, not proud of it.

bob mcmanus channeling oldman-
I see someone erecting barriers at the exits and I don't expect someone to be breaking in then the logical conclusion is that they're getting ready to stop people from leaving.

Surely this is not true. C'mon, somebody tell me this is ridiculous. Please?

Seriously, who would try a purge in a democratic country w/ a long history of rebellion/protest where half the country is pretty much opposed to your movement? It doesn't make sense. All hell would break loose and a civil war would be inevitable. Believe me, I'd be first in line to buy my AK at Walmart.

What does make sense is the more obvious answer to "why the hell would somebody try this?" : In the event of an emergency (or now, if you are so inclined), DHS may need to shut down the borders to keep the baddies out. The Bush admin, being the fascists they are (tongue in cheek, people), don't care for waiting for permission. They want to be able to do it whenever the hell they please. Now, later, whenever. As others have pointed out, DHS is already exempt from many of the enviro laws in this regard so why pass this extra saucy exclusion law? "Well, why not?" is my answer. There is little evidence the Bush admin cares to play by the normal rules, why is this an exception.

My main problem with this lies in the fact that I think they would want to act under this law as soon as it is passed rather than during an emergency. If something were to happen (dirty bomb, attack on the capitol, etc...) requiring such action, I'm sure congress would have no problem passing the law in a day. Why try to sneak it through now?

Sorry to drop by so late, but couldn't resist a comment. This is clearly constitutional, inasmuch as it is really just a re-imposition of sovereign immunity over a class of decisions by the SDHS. As for other laws, I would think that the Competition in Contracting Act and various laws related to contracting -- Davis-Bacon, for example -- are the primary targets here. Obviously, California law wasn't the problem. While no votes are lost by mentioning ESA by name, I can see why they'd want to keep CICA and DB out of the limelight.

There's a similar 'overcome all law' provision in the 1920 railroad act with respect to certain rail transactions. A true thing of beauty.

The remedy for the SDHS overstepping is impeachment. OK, no more likely to happen than a barrier designed to keep us in, I'll grant you, but it's all we've got.

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