Bob Schwartz

Category: Law

October 1, 2015

Oregon College Shooting: Republican Debate to Move to Umpqua Community College

How many shot dead today in Roseburg, Oregon? How many more injured?

We will soon have an exact body count. But while we wait for the numbers, here’s another big question: What is wrong with us?

I now hear that certain Second Amendment-loving, NRA-fearing presidential candidates are tweeting messages of sympathy for the community and for the families of those affected.

So here’s the next questions: Are you kidding me?

The answer is not better mental health oversight, treatment and identification, although that would be nice. The answer is not more guns, guns for everyone, so that the supposedly mentally ill shooters will rationally think twice about being gunned down themselves by a teacher or other student.

The answer is as few guns as we can manage to get along with, day after day. Which should be a lot fewer than we have, according to practically every other civilized country in the world. (Of course, those are ordinary countries, as opposed to exceptional America. Exceptionally absurd numbers of mass shootings, that is.)

The answer is to moderate a gun culture that is out of control. One way to do that is to…reduce the number of guns. Anyone who thinks that the current number of guns is a good idea, or that even more guns would be better, because that is what our Constitutional fathers wanted, is not mentally ill. They are historically, politically, and morally ill.

I am not going to cast too broad a net by suggesting that all the current Republican presidential candidates are strong and unconditional supporters of the NRA. But I think that may be true. In that case, I suggest that instead of holding the next Republican debate at the University of Colorado, they move it to Umpqua Community College. There they will be free to peddle all their NRA talking points nonsense to an audience filled with hundreds, thousands of people who understand all too well what the Second Amendment really and tragically means.

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September 8, 2015

Bacon and Ribs Illegal in America When Jews and Muslims Take Over

When Orthodox Jews or Muslims are in charge, bacon, ribs, and all sorts of other things will be made illegal.

Of course, that will never happen. Not because Orthodox Jews or Muslims will never take control of American democracy (anything’s possible). But because the U.S. Constitution—that imperfectly perfect protector of individual rights—would not permit it.

In the secular sphere, there is no higher law than the Constitution. Beyond being the law of the land, it is the law of the law of the land. Those who study it in the context of world history and politics recognize that it is a one-of-a-kind, no-other-time-or-place achievement.

Those who say there is some kind of higher law than that in the civic arena are misinformed, or in some cases, such as Ted Cruz who should know better, strategically mistaken. The question those folks have to answer is this: If there is higher law than the Constitution, whose law is it? If it’s “God’s” law, recall that God talks to lots of people in lots of religious traditions, and apparently isn’t always heard to say the same thing to everyone. It will shock some Christians to learn that God has been speaking to Jews for thousands more years, and while there seemed to have been plenty of talk about a messiah, nothing to indicate that one actually arrived. Or asked county clerks in Kentucky to stop issuing marriage licenses. Or told presidential candidates who claim to believe in law and order to defy the law of the law of the land. In his name. Amen.

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January 25, 2015

NFL Priorities

NFL

Which of these three NFL issues deserves the deepest continuous attention by the league, by fans, by the media, and by the public?

1. Frequent on-field concussions that demonstrably lead to players having permanent brain damage, diminished quality of life, and premature death.

2. Frequent off-field antisocial and possibly criminal behavior by celebrated players.

3. A possibly deflated football.

Note: It is possible that more scientists have been covered talking about the football that New England Patriots quarterback Tom Brady may have had deflated than about the concussions in the NFL.

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November 20, 2014

The President’s Speech: Prosecutorial Discretion in Immigration Enforcement

CRS - Prosecutorial Discretion in Immigration

The following will not necessarily make you smarter than the hundreds—thousands?—of talking heads you will hear opining and pontificating about the President’s speech tonight on immigration. But it just might.

For those who haven’t followed this political drama, the President has long awaited Congressional action on immigration reform, and in the absence of that, has decided to take executive action. Reports are that this will include deferring legal proceedings against a large number of undocumented immigrants. Charges are already flying from political opponents, claiming that the President is exceeding his authority, with impeachment even being discussed.

It appears that the basis for this executive action may be prosecutorial discretion. As you may know (and as recent events in Ferguson, Missouri have highlighted), prosecutors have broad, virtually unlimited and unreviewable discretion to decide who to prosecute and not prosecute. There are principles and theories about how this discretion might be less than absolute, but as a matter of practice, it is quite broad.

The Congressional Research Service (CRS) is the very valuable but little-known non-partisan government service that answers questions that Congress has about any issue that Congress is interested in. You name the topic or issue, CRS has probably studied it.

Last December, CRS answered a question that is at the heart of the President’s approach to the immigration crisis: What, if any, are the limits on prosecutorial discretion in immigration?

The report, Prosecutorial Discretion in Immigration Enforcement: Legal Issues is a must-read. It is true that legal opinions on many issues differ (see the Supreme Court), but CRS is supposedly the starting point for any questions that Congress has. Congress members may have disagreements with the reports, but few question the impartiality or skill of CRS researchers.

CRS concludes:

Regardless of whether it is characterized as “prosecutorial discretion” or “enforcement discretion,” immigration officers are generally seen as having wide latitude in determining when, how, and even whether to pursue apparent violations of the INA [Immigration and Nationality Act]. This latitude is similar to that possessed by prosecutors in the criminal law enforcement context and enforcement officials in other federal agencies. Whether and how to constrain this discretion has been a recurring issue for some Members of Congress, particularly in light of the June 2011 DHS [Department of Homeland Security] memorandum on prosecutorial discretion and the more recent DACA [Deferred Action for Childhood Arrivals] initiative. While some Members have expressed support for the DACA initiative, or called for expanded use of prosecutorial discretion by immigration authorities in other contexts, others have sought to prohibit DHS from granting deferred action or extended voluntary departure to removable aliens except in narrow circumstances, or to “nullify” particular policies regarding prosecutorial discretion that have been articulated by the Obama Administration….

In addition, the degree of intrusion into executive enforcement decisions may also impact a court’s review of any congressional response. For example, legal precedent suggests that Congress probably cannot directly limit the President’s exercise of discretion by requiring that the executive branch initiate enforcement actions against particular individuals. On the other hand, Congress would appear to have considerable latitude in establishing statutory guidelines for immigration officials to follow in the exercise of their enforcement powers, including by “indicat[ing] with precision the measures available to enforce the” INA, or by prohibiting DHS from considering certain factors in setting enforcement priorities.

However, the existing judicial presumption that “an agency’s decision not to take enforcement action [is] immune from judicial review,” and the deference potentially accorded to an agency’s interpretation of its governing statute, suggests that such statutory guidelines would likely need to be clear, express, and specific. The use of “shall” in a provision of the INA may not, in itself, suffice for a statute to be construed as having provided enforceable guidelines for immigration officials to follow in exercising prosecutorial discretion. Absent a substantive legislative response, Congress may still be able to influence the implementation of DACA or other discretion-based policies by the immigration authorities, including by engaging in stringent oversight over the DHS program or by exercising its “power of the purse” to prohibit DHS and its components from implementing particular policies related to the exercise of prosecutorial discretion that Congress does not support.

Translation: Congress cannot force the executive branch to enforce particular immigration provisions, which means that an executive policy to defer enforcement is not subject to Congressional control. (This is as good a point as any to mention that President Obama has already overseen a record number of immigrant deportations and he is not “soft” on undocumented immigration). However, in the view of CRS, Congress has “considerable latitude in establishing statutory guidelines for immigration officials to follow in the exercise of their enforcement powers.” That is, Congress could exercise its will by simply passing laws on this significant issue. Or on any significant issue that it claims to be vexed about. But it won’t. So can you blame the elected leader of the American people for being frustrated, and choosing to do what he can to step in where the brave and bold members of Congress are—how to say this politely—too fainthearted to go?

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October 27, 2014

Ebola Stress Test

Kaci Hickox

Stress tests. We see them in medicine, in banking, in construction.

How well will the patient’s heart perform when he is on a treadmill? How sound are a bank’s finances in the worst case scenario? How will building materials stand up under maximum pressure?

Public crises are stress tests. So far, Ebola is the latest demonstration of the tendency for our civic infrastructure to crack—or show signs of it—under pressure.

Quietly, where no one can hear, some leaders and citizens are probably worried that if this was a real Ebola outbreak in the U.S., and not the thankfully tiny and so far isolated problem it is, we would fall apart. Utterly fail the test.

The latest episode concerns this weekend’s rapid response by multiple states to Craig Spencer, a doctor returning from West Africa and becoming sick with Ebola in New York City last week. In addition to New York and New Jersey, other states are now or may be requiring returning health care workers to be quarantined.

There is a problem: none of these states appear to have thought through any of it—most especially the practical aspects of whisking someone coming home from a heroic medical mission into isolation that is supposed to be comfortable, suitable, sensible, and sensitive under the circumstances. It now seems the scenario is act first, plan later.

Nurse Kaci Hickox is the first one caught in this trap. She is not sick and is showing no symptoms. Arriving at Newark Airport Friday night, she was taken to a tent behind a hospital, with a portable toilet, no shower, no television, and little cellphone reception. She castigated all involved, particularly Governor Chris Christie, who said she had symptoms and was sick, when she hadn’t and wasn’t. She plans a federal lawsuit challenging the quarantine.

“I also want to be treated with compassion and humanity, and I don’t feel I’ve been treated that way in the past three days. I think this is an extreme that is really unacceptable. I feel like my basic human rights have been violated.”

(Update: Governor Christie has relented, allowing her to return home to Maine, where, if you read between the lines, the message is that it will then be Maine’s problem to monitor her and where, if something goes wrong, it will be on their head.)

We seem to have forgotten how to solve problems, enthralled by our own voice either positing solutions, making points, or complaining. Or maybe it is that this is America, with a history of being bigger, stronger, smarter, and most of all, righter, in all circumstances. Even if that was ever true, politics—in the big sense of privileging positions over effective and thoughtful answers—has poisoned that well. Worthy questions and deliberate solutions are rejected out of hand because of the source, because they don’t fit some preconceived notion or program, or simply because they won’t help win or not lose elections.

Whether or not quarantine of heroic Ebola care givers returning from West Africa is a good idea, it is certainly a good idea to evaluate and plan exactly how you are going to practically handle it. Maybe, though, we shouldn’t be at all surprised. In recent years we did, after all, send hundreds of thousands of troops abroad, and when the promised rewards for their heroic service came due, we seemed unable to fulfill and, worse, were suddenly unenthusiastic about keeping the promise anyway.

If this is a war on Ebola, we better make sure we are committed to those who are sacrificing, part of which is actual planning and resourcing, not ignorant and reflexive pontificating and politicking. So far, this is looking too much like some of our other recent wars. Maybe we can use this as an opportunity to get better and be better at it.

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September 12, 2014

We Are at War with ISIL but Not at War with ISIS

We are at war with ISIL, the White House has just announced. But only yesterday, Secretary of State John Kerry said we are not at war with ISIS.

As mentioned previously there seems to be some confusion about what to call this entity: ISIS, ISIL, or Islamic State.

And that explains it. President Obama is talking about one enemy. John Kerry is talking about another. That is, we are at war with one but not the other.

Seriously, not being able to decide on what to call an enemy is not unimportant. But it pales beside not being clear, within the administration, about whether this is war. And then trying to reconcile it by saying that whether you call it war or not is splitting semantic and legal hairs.

The White House would have been better off pleading confusion about which names the President and the Secretary of State were using.

There is something deeper in this talk about war. The explanation by the White House is that it is just like the “war” against al-Qaeda. There is no mention of the War on Terror, the War on Drugs, or other quasi-metaphorical wars. It isn’t that we haven’t had military conflicts with non-state actors. And Obama was clear in his big speech about the maybe-war: “ISIL is certainly not a state.” It’s just that whenever we do have stateless enemies, things get very confused and confusing.

If you don’t believe me, read our history. Or just watch and wait.

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September 2, 2014

We Need a Doctor: Who Hasn’t Seen Jennifer Lawrence’s Breasts or Why We Need Social Therapy

Bohemian Paris of Today

One of the biggest stories of the weekend was the posting of nude photos of Jennifer Lawrence and other female celebs, apparently stolen from their cloud storage accounts. The search activity for these photos almost brought the Internet down.

So in the immediate aftermath, with more to be revealed, what might we learn, besides how these beautiful strangers look without their clothes?

We are no closer than ever to figuring out what we think about privacy, or even what privacy means, especially now.

Digital didn’t create the issue, just heightened it exponentially. Inquiring minds have always wanted to know, and see. Celebrities, some though not all, have used degrees of exposure for publicity—or in some cases to put curious fans off the trail of the truth. Now we have an entire industry of programs about the “real” lives of unknowns, used-to-be-knowns, just-a-little-knowns, and soon-to-be-knowns because they are on a reality show.

Then there is the willingness of many people to chronicle everything. Twitter long ago dropped its signature question, but the most important phrase of the century so far may be “What are you doing?”, which was supposed to be answered in 100 characters or less. It turns out that people are more than willing to talk about what they are doing, what they are thinking, how they are looking, and anything else.

This doesn’t mean people don’t deserve privacy, morally and legally. It’s that line-drawing is now so hard for so many, and that goes along with a certain amount of confusion or even hypocrisy. The same people who searched for these photos or others like it in the past would be fuming if anyone stole their private shots and published them. They might try to rationalize the distinction, but it would be pretty feeble. Yet, not to forgive their double-standard, it is not surprising under the circumstances.

When we are confused about anything, and have difficulty drawing a line, sex makes it worse, clouding our judgment and our actions. Private parts are signifiers of sex, and if the private parts of loved ones or of strangers are arousing, the private parts of the quasi-strangers who are celebrities are positively crazy-making. So it is understandable, if not acceptable. People are only human, or so we say. But that doesn’t mean a little help and discussion—about privacy, about the cloud, about celebrity—might not be valuable. Maybe a little social therapy is in order.

We need a doctor, call us a doctor
We need a doctor, doctor to bring us back to life

(apologies to Dr. Dre, Eminem, and Skylar Gray)

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July 2, 2014

Shoes Required and Guns Permitted in Stores

No Gun

Target today “respectfully requested” that customers not bring guns into their stores, even where it is permitted by law. It joins other shops and restaurants in responding to new state laws that are allowing firearms, including automatic weapons, to be carried just about everywhere in public.

Every day at Target, in everything we do, we ask ourselves what is right for our guests? We make all of our decisions with that question in mind. Questions have circulated in recent weeks around Target’s policy on the “open carry” of firearms in its stores. Today, interim CEO, John Mulligan, shared the following note with our Target team members. We wanted you to hear this update from us, too.

The leadership team has been weighing a complex issue, and I want to be sure everyone understands our thoughts and ultimate decision.

As you’ve likely seen in the media, there has been a debate about whether guests in communities that permit “open carry” should be allowed to bring firearms into Target stores. Our approach has always been to follow local laws, and of course, we will continue to do so. But starting today we will also respectfully request that guests not bring firearms to Target – even in communities where it is permitted by law.

We’ve listened carefully to the nuances of this debate and respect the protected rights of everyone involved. In return, we are asking for help in fulfilling our goal to create an atmosphere that is safe and inviting for our guests and team members.

This is a complicated issue, but it boils down to a simple belief: Bringing firearms to Target creates an environment that is at odds with the family-friendly shopping and work experience we strive to create.

Let’s not talk about whether the legal situation, or messages such as Target’s, or video of people walking around American cities gleefully brandishing semi-automatic rifles are insane. There are plenty of other places where ordinary citizens are walking around exactly the same way. Think Syria. Think Iraq. Think dozens of other countries which we aspire to emulate.

Let’s talk about the fact that across the country, virtually all establishments reserve the right to refuse you service and ask you to leave if you show up without a shirt or shoes. Yet some of the biggest businesses in the country are having trouble telling some customers to leave if they show up with weapons. Now that is insane.

But also rational. This is business. If even a small number of Second Amendment zealots turn their sites on a chain, there is no doubt it will hurt the bottom line. The shoeless and the shirtless have no lobby. The gun advocates do.

Maybe what’s needed is another line item added to the classic “No Shirt, No Shoes, No Service” sign. Or maybe stores will choose to engage a little more forcefully than a simple respectful request.

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June 30, 2014

Hobby Lobby and Peyote

Peyote

Peyote is at the heart of today’s Supreme Court decision in the Hobby Lobby case.

Hobby Lobby does not sell peyote. When Hobby Lobby attends church, its religious practices don’t include eating peyote. Its Christian beliefs do include opposition to certain forms of contraception, and therefore it opposed having to provide health insurance under ACA that includes such contraception.

Hobby Lobby’s objections reached the Supreme Court. In today’s 5-4 decision, the Court found that the entity that is Hobby Lobby has a claim to religious freedom from that requirement, grounded in the First Amendment and in the Religious Freedom Restoration Act of 1993 (RFRA). And that is where peyote comes in.

This begins with the case of Employment Division, Department of Human Resources of Oregon vs. Smith (1990). Two employees of the State of Oregon were members of the Native American Church, and ingested peyote as a sacrament. They failed a drug test and were fired. The Supreme Court found that despite their claim of religious freedom, Oregon had the right to terminate them.

In response to this and other decisions, activists from the left and right, religiously and politically, came together to push for a legislative remedy. How universal was support for a fix? The House vote for RFRA was unanimous, the Senate 97-3, and President Clinton signed it.

More than twenty years later, what hath God and Congress and the Court wrought? Characterizing this new allowance for religious exceptions to laws as narrow seems wishful, hopeful, or just plain wrongheaded. There will be more attempts than before to see just how big this hole is and what sort of company policy vehicle can be driven through it on the basis of religious freedom.

Quite possibly, the next big test will be to see exactly what closely held companies that have religious objections will be permitted to do about homosexual employees. We have no federal law on employment discrimination against gay people, and in a country where we can’t even pass equal-pay for equal-work for women legislation, that isn’t likely any time soon.

God apparently doesn’t endorse IUDs but approves of peyote. His judgment on Hobby Lobby and the Supreme Court is still out.

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June 26, 2014

Aereo: Agreeing with Justice Scalia

Aereo

It doesn’t happen often that I agree with Justice Antonin Scalia. On the law or much else.

But his dissent in today’s Supreme Court decision in ABC v. Aereo is pretty good and pretty right. By 6-3, the Court decided to allow Aereo to be subject to violation of copyright law.

As explained in an earlier post at the time of oral arguments, Aereo has devised a complex tech scheme by which it captures over-the-air-broadcasts at the request of subscribers, using tiny antennas that subscribers essentially time-share, and then allows subscribers to watch those broadcasts online.

In the opinion, the majority agreed with the networks, finding that this is just a too-clever-by-half way of getting around copyright law and avoiding paying retransmission fees, as cable companies are required to do. Justice Scalia found the reasoning and judgment of the majority deficient in many ways, and his dissent is well worth reading.

Among the points, he notes that exploiting loopholes is not illegitimate, and is in fact one of the things that lawyers are good at and are supposed to do. Justice Scalia does not necessarily think that Aereo should go without liability or responsibility, but that trying to make the law fit to reach a desirable result is not the way to get there. If the law doesn’t fit the technology, Congress is charged with and capable of fixing it. (Note that this is the connection between his strict constructionism and his very progressive position in this particular case.)

There was a lot of apocalyptic talk at oral arguments (Aereo would destroy broadcasting as we know it), and there is apocalyptic talk today (the somewhat fuzzy majority opinion leaves all sorts of cloud-based services under legal suspicion). The earlier post repeated the maxim: hard cases make bad law. This is a hard case, and whether the law is bad or not, it sure is an irresolute path to the future. About that, Justice Scalia is right.

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