Saturday, July 2, 2011

Chamber of Commerce v. Whiting

Chamber of Commerce v. Whiting is a case of such clarity that the District Court, the Ninth Circuit Court, and the Supreme Court all reached the same decision; one is only left to wonder how three members of the Supreme Court could have failed to come to the same conclusion. In this case, the U.S. Chamber of Commerce and others filed a lawsuit against the state of Arizona alleging that Arizona’s “Legal Arizona Workers Act” violated the U.S. Immigration Reform and Control Act (hereafter IRCA). The Obama administration supports this challenge and filed an amicus brief in support of the Chamber of Commerce arguments.[1] This claim has been overturned from court to court as the suit went forward.

The IRCA makes employing an illegal alien illegal; such employers can face both federal civil and criminal punishments. To achieve uniformity across the nation, the IRCA prevents states and local governments from enacting similar laws punishing employers of illegal aliens “other than through licensing and similar laws.”[2] This prohibition is what is known as a federal preemption. The IRCA also gives a definition of “unauthorized alien” as one who is not legally a permanent resident or one who is not authorized to be employed.

The Chamber of Commerce challenged the Arizona law on the basis of the federal preemption. The “Legal Arizona Workers Act” provides that for a first offence the employer must fire all unauthorized alien workers, submit to a three year probationary period, and sign an affidavit swearing that he has ceased employment of all unauthorized aliens; if he refuses, his business licenses will be revoked by the state. For a second violation “the court shall order the appropriate agencies to permanently revoke all licenses that are held by the employer and that are necessary to operate the employer's business at the employer's specific to the business location where the unauthorized alien performed work.” [3] The act also made it mandatory for employers to consult the E-Verify system,[4] which is a work authorization record system created by Congress in the Illegal Immigrant Reform and Immigrant Responsibility Act[5]. The “Legal Arizona Workers Act” therefore is essentially regulating the licenses of businesses within Arizona, not illegal aliens themselves. Both the District Court and the Ninth Circuit found that the Arizona law was merely a law dealing with its licensing procedures and was thus valid.

The main argument of the Chamber of Commerce is that the Arizona law is not a licensing law since it deals only with the revocation or suspension of licenses and not the granting of licenses. Justice Roberts dismisses this argument as “contrary to the definition that Congress itself has codified…. It is also contrary to common sense. There is no basis in law, fact, or logic for deeming a law that grants licenses a licensing law, but a law that suspends or revokes those very licenses something else altogether.”[6]

The Chamber of Commerce also argued that the IRCA does not authorize each state to engage in prohibiting employers from employing illegal aliens. Justice Roberts points them clearly back to the IRCA which clearly allows states to regulate “licensing and similar laws.” [7]

He cites the Arizona law as following the language of the IRCA in everything from definitions to processes; the Arizona law was very carefully crafted to not exceed its authority or to use definitions other than those provided by Congress.

The Chamber of Commerce also takes issue with Arizona’s requiring the use of the E-Verify program to determine a worker’s eligibility for employment. Congress did not make the program mandatory, but Arizona has for licensing purposes. Justice Roberts points out the legislation establishing the E-Verify program puts restraints only on the Department of Homeland Security, not on the states. Using President Obama’s own words against him from an Executive Order issued in 2008, “[T]he State of Arizona has required all public and private employers in that State to use E-Verify . . . . This is permissible because the State of Arizona is not the Secretary of Homeland Security.” Additionally, the only penalty for not using the E-Verify program is a loss of favorable presumptions should the employer be taken to court. Because the state of Arizona’s law is within the limits set by Congress and because of its reliance on federal definitions, Arizona’s law is clearly constitutional.

The dissenting opinions’ concerns range from Arizona’s definition of licenses to the fact that Arizona has not enacted any antidiscrimination penalties. The IRCA in addition to enacting punishments for employing unauthorized workers also punishes employment discrimination on a racial/ethnic basis. To assume, however, that this forces Arizona to do the same is without basis in fact or law. It may be a genuine concern that Arizona’s law will lead to discrimination, but that concern itself cannot make the law unconstitutional. Arizona’s license definition, as Justice Roberts points out, is not problematic and is very similar to the federal definition laid out in the Administrative Procedure Act. The dissent also takes issue Arizona’s making use of the E-Verify program mandatory, but fails to see that it is only mandatory in regards to receiving favorable presumption should an alleged violation occur.

Congress’ restraint in not using the IRCA to usurp stat licensing power is commendable; the dissents’ narrow interpretation of this licensing power is not. The legislature of Arizona carefully crafted a law in keeping with the intent and definitions of the IRCA in order to keep jobs within the state of Arizona to prevent unauthorized workers. This is clearly within their power under the savings clause of the IRCA. The attempted usurpation of state power suggested by the U.S. Chamber of Commerce and supported by the Obama administration was so ridiculous as to be unable to receive the support even of the liberal leaning Ninth Circuit Court.

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Brown v. Plata

The problems found in Brown v. Plata, the recent Supreme Court decision regarding California’s prisons, result both from California’s financial problems and from the Supreme Court’s longstanding misinterpretation of the eighth amendment. Had California maintained financial responsibility, this problem might not have arisen. This inability of California to pay for means of decreasing prison overcrowding other than mass releases was noted by the court. There is no doubt that the California prison system is overcrowded; whether such overcrowding is “cruel and unusual” is another question.

As Justice Scalia notes in his dissent, the main problem with the majority’s decision is the court’s reliance on “evolving standards of decency.” In Trop v. Dulles, a 1958 case regarding loss of citizenship, the Supreme Court held that the eighth amendment gets its meaning from “the evolving standards of decency that mark the progress of a maturing society.” Since this interpretation has become standard, the definition of what punishments are cruel and unusual has become more and more restrictive. The death penalty can never be applied for rape – even in a case of child rape (Kennedy v. Louisiana); nor can it be applied to a seventeen year old for violent, premeditated murder (Roper v. Simmons). An added problem with this interpretation is its heavy reliance on international law (Roper v. Simmons) as a standard of “cruel and unusual.” This “evolving standards of decency” method is made worse in that it never “evolves” to stricter punishments – any time a state or group of states attempts to raise punishment levels in response to societal problems, they are told to back down by the zealous Supreme Court.

Also problematic is the court’s decision to include all the California inmates as a class of individuals whose eighth amendment rights have been violated. These rights cannot be violated merely by the potential of their not receiving medical care; they can only be violated by an individual’s not receiving adequate care. These individuals could have their claims brought together as a class action lawsuit, but, as Justice Scalia points out, to attempt to do so with all the inmates of California prisons regardless of abuse is absurd. The Prison Litigation Reform Act of 1995, the legislation empowering the courts to order reductions in prison populations, noted this as it gives the courts the power to correct

“the violation of the Federal right of a particular plaintiff or plaintiffs.” As Justice Scalia wryly notes, the majority of the individuals released under the court’s decision will not have suffered the supposed eighth amendment rights abuses.

Justice Scalia continues his dissent arguing that the structural injunction issued by the court exceeds its constitutional authority. Normally, when a court issues an injunction it orders an action, such as the fulfillment of a contract, that requires a minimum of oversight and has a finite length. In the current case, the court has assumed for itself administrative roles over the California prison system that properly belongs to the executive. Justice Scalia argues that this authority belongs not only constitutionally, but also logically to the executive as a court simply cannot consider all the evidence necessary to make good judgments in this area. As Turner v. Safley (1987) states, “[C]ourts are ill equipped to deal with the increasingly urgent problems of prison administration and re-form. . . . [T]he problems of prisons in America are complex and intractable, and, more to the point, theyare not readily susceptible of resolution by decree. . . . Where a state penal system is involved, federal courts have . . . additional reason to accord deference to the appropriate prison authorities.” The court ignored these inherent problems and decided to order the release of 46,000 prisoners regardless of the affect on the good citizens of California. This release may not indeed remedy the supposed eighth amendment violations as there is no guarantee that the affected prisoners will be the one’s released – most likely the opposite will be true.

In Justice Alito’s dissent, he addresses problems arising from such an attempt by the judicial branch to make policy. One problem is in the fact finding. The type of relief granted by the Prison Litigation Reform Act is aimed at addressing ongoing violations. In the lower court trials, which the Supreme Court relied on for evidence, California was not allowed to bring evidence of current conditions within its prisons. The courts were thus force to rely on evidence from “old findings…including a finding made 14 years earlier… and on conditions at a facility that has since been replaced.” Thus the courts were forced to rule on past conditions and were unable to grant relief to actual parties affected, as noted above.

This broad remedy is specifically prohibited by the Prison Litigation Reform Act which demands that the remedy be narrowly tailored to address the violation of a constitutional right. By ordering a broad release of 46,000 prisoners, regardless of whether they have experience a constitutional violation, the court acts outside of those specified bounds. Justice Alito points out the cited failures of the California prison systems medical facilities which consisted solely of poor quality physicians, facilities in disrepair, lack of equipment, and unclean facilities. These problems will not be remedied by a release of 46,000 prisoners. The state of California proposed solutions to these areas, but the lower courts ignored them in favor of the prisoner release.

Given that the court’s solution does not actually address the problems in the California prison system, the court’s assessment of the potential public harm resulting from the release should also be examined. The Prison Litigation Reform Act demands that the courts give substantial weight to such potential harm. The lower courts, upon which the Supreme Court relied for evidence, merely listened to expert testimony and chose the opinion they liked best. There was disagreement between the experts, and Californian officials strongly argued that the effects on the public would be adverse.

This case represents a blatant attempt to legislate from the bench. The decision is made even worse by the fact that it is based off misinformation stemming from the poorly conducted lower court trials. The court has exceeded its constitutional powers and the powers granted to it by the Prison Litigation Reform Act and has ruled in a manner contrary to that legislation. One can only hope that the price the people of California will have to pay for this judicial tyranny will be minimal.

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Presidential Wartime Powers

In granting powers to the new office of president of the United States, the founding fathers were extremely cautious. They had less than a decade earlier been engaged in a war with the British Empire, a war brought on, according to the Declaration of Independence, by dozens of abuses perpetrated by Britain’s chief executive, King George III. Of these abuses, eight deal directly with military abuses ranging from the quartering of troops to the using of mercenaries to attack the colonies. Another specific abuse mentioned, “He [George III] has affected to render the Military independent of and superior to the Civil power.”[1] Looking even further back into British history, the founders could have seen Charles I use the military to support his absolutist rule going so far as to ride into Parliament with his cavalry to arrest members who opposed him. He also used his army during the English Civil War to fight against the Parliamentary forces. The founding fathers were very cognizant of the dangers posed by placing the military solely in the power of the executive and so put strong limitations on the president’s control and use of the military.

These limitations are clearly laid out in the description of the powers of the presidency found in Federalist Paper 69, authored by Alexander Hamilton. After listing presidential powers, Hamilton states,

In most of these particulars, the power of the President will resemble equally that of the king of Great Britain and of the governor of New York. The most material points of difference are these: First. The President will have only the occasional command of such part of the militia of the nation as by legislative provision may be called into the actual service of the Union. The king of Great Britain and the governor of New York have at all times the entire command of all the militia within their several jurisdictions…. Second. The President is to be the commander-in-chief of the army and navy of the United States. In this respect, his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more that the supreme command and direction of the military and naval forces, as the first general and admiral of the Confederacy; while that of the British King extends to the declaring of war and to the raising and regulating of fleets and armies – all which, by the Constitution under consideration, would appertain to the legislature. [2]

Clearly, according to one of the chief drafters of the Constitution, the president’s control and use of the military is limited and subject to congressional approval; though the president has greater and more independent powers if the nation is invaded. This explanation clearly states that the president only has control of the army as it is called into action by an act of Congress and that the president’s function as commander-in-chief is merely that of chief general under Congress’ authority. This is not the role the president maintains today.

But warfare has been revolutionized since the late 1700s. Terrorists attack civilians bombing busses and subways and hijacking planes, rouge nations and terrorist organizations threaten nuclear war that could obliterate the nation within seconds, and attacks could occur within hours and days rather than weeks or months. The rapidity with which the nation could be attacked has increased perhaps beyond the imaginations of the founding fathers, one of whom argued “Our detached and distant situation invites and enables us to pursue a different course [than the manifold wars and entangling alliances of Europe].” The U.S. is neither so detached nor so distant today.

Thus, throughout U.S. history, Congress and the Supreme Court have turned blind or approving eyes to acquisitions of control over the military and its actions by the president. These acquisitions were seen as necessary to allow the president to adequately defend the country particularly with the growth and spread of communism. The Korean and Vietnam wars were both engaged in without a Congressional declaration of war and without congressional approval (though that is not to say that Congress disapproved). The extent of these wars led to a large increase in executive power and a substantial decrease in congressional power limiting the president’s actions. These wars were not engaged in to directly defend the U.S. against an invading enemy; there were used as a method of attacking the Soviet Union which was viewed as our enemy both ideologically and politically. Nevertheless, there was no direct action making either Korea or Vietnam direct threats to U.S. security. Congress balked at this abuse of presidential prerogative and in 1973 passed the War Powers Resolution; it was vetoed by President Nixon, but his veto was overturned within two weeks by both houses of Congress.

The War Powers Resolution of 1973, 50 U.S.C. 1541-1548, begins by stating that its purpose is to

fulfill the intent of the framers of the Constitution of the United States and insure that the collective judgment of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, and to the continued use of such forces in hostilities or in such situations.[3]

This act holds to the founding fathers’ intent that president use the military only when war has been declared, when he has been authorized by Congress, or when there is a national emergency such as an attack. Congress further grasps its reigns on the military by declaring that, anytime the president newly introduces troops into hostilities or into foreign territory and even when he merely substantially increases the numbers of troops present in a foreign country, he must notify Congress within 48 hours and continue notifying at least once every six months. Additionally, the president may only engage in such action for 60 days without gaining a declaration of war or congressional approval; the president may also continue should Congress be unable to meet because of an attack on the U.S. Congress also declared that it has the power to order the president to withdraw troops from foreign countries at any time. The act closes once again affirming the founding fathers’ intent by arguing that this act does not change the constitutional standing of either Congress or the president.

President Obama has clearly decided to ignore these constitutional limitations. In a letter to Congress, he claims that there are no ground troops engaged in Libya and, therefore, the War Powers Resolution does not apply. He does admit, however, that “United States forces are conducting a limited and well-defined mission in support of international efforts to protect civilians and prevent a humanitarian disaster. Accordingly, U.S. forces have targeted the Qadhafi regime's air defense systems, command and control structures, and other capabilities of Qadhafi's armed forces used to attack civilians and civilian populated areas.”[4] His reading of the War Powers Resolution is simply incorrect as he is required to gain the consent of Congress anytime the U.S. military is introduced “into the territory, airspace or waters of a foreign nation, while equipped for combat, except for deployments which relate solely to supply, replacement, repair, or training of such forces.”[5] The two descriptions of action, one from the act and the other from the president, do not match. Even more disturbing is President Obama’s consistent citing of U.N. resolutions as justification for his actions; he mentions them six times and also refers to the determination of the international community “that all attacks against civilians had to stop.”[6] The president’s authority to use the military comes from Congress, not the U.N. President Obama would be wise to realize this.

While one can at least be glad that President Obama is not using the military as George III did, such constitutional abuses cannot be allowed to proceed. Congress ought to challenge the President both on his interpretation of the War Powers Resolution and on his misinterpretation of his constitutional authority over the use of the military. Perhaps, rather than a resolution, a constitutional amendment is needed to clarify the founding fathers meaning, restrain the president’s abuse of his powers as commander-in-chief, and prevent the Supreme Court from turning a further blind eye to these unconstitutional actions.

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