Wednesday, November 23, 2011

The Republican party on Illegal Immigration: where has its heart gone?

The Republican obsession with illegal immigration continues.  The latest salvo came last night, as GOP presidential candidates debated national security.  It came from Newt Gingrich, an unlikely source who, according to recent polls, has recently taken the lead in the GOP race.  Here is what he said:
"If you've been here 25 years and you got three kids and two grandkids, you've been paying taxes and obeying the law, you belong to a local church, I don't think we're going to separate you from your family, uproot you forcefully and kick you out."
 This is a perfectly reasonable, sensible -- dare one say it, humane -- response.  But we know that such an approach has already derailed the candidacy of Governor Perry, who led the field at one point yet now sits at 6% according to Quinnipiac's latest poll.  

The question everybody is asking this morning is whether this stance will cost Gingrich in the race.  History suggests that it will.  I have a slightly different question.   What must happen within a political culture for a person who has lived in a place for 25 years, with three children and two grandchildren, who pays taxes and obeys the law, goes to church to be removed from his family, uprooted, and forcefully kicked out?  How is such a consideration even on the table?

Rick Perry got it right the first time: such a culture has "no heart."  The question we must ask ourselves is how such a thing happened in the first place.

Tuesday, November 22, 2011

The health care litigation comes to the Court . . . whether the Court wants it or not . . .

Last week, the Supreme Court announced its decision to grant certiorari on the various challenges to the health care law. Since then, the coverage has been relentless, and promises to continue (these include calls for recusal and televising of the oral argument, as well as the usual substantive legal commentary on the law itself and what the justices must do -- according to Randy Barnett, for example, “It is high time for the high court to strike down this unconstitutional, unworkable and unpopular law.”)

The basic legal argument is as follows, courtesy of Jamal Greene:

The administration has made a Necessary and Proper Clause argument in the Obamacare litigation, but commentators have been too fixated on vegetables to focus on it. The goal of the health insurance mandate is to prevent insurance companies from discriminating against people because of pre-existing health conditions. 
No one in these cases disputes that Congress has the power, again based on its authority over interstate commerce, to forbid this kind of discrimination. But doing no more than making it illegal for insurers to discriminate would not be effective, because making insurers cover high-risk individuals would require them to raise premiums so much that no one could afford to buy insurance. 
Congress could have responded to this challenge by raising everyone’s taxes and using the revenue to provide single-payer government health insurance. Instead, it chose to require that Americans purchase health insurance but gave them the freedom to choose their own private plans. Doing so expands the pool of insured people enough to enable insurance companies to cover high-risk individuals without breaking the bank. 
Anyone can argue that the individual mandate is a bad idea, but no one can argue that it isn’t rationally related, indeed intimately related, to Congress’s legitimate objectives.
Persuasive as this argument appears to be, I just don't think the case hinges on whether the justices will find it similarly persuasive.  This is not really a case about law, the limit-setting function of the justices and the rote application of precedent. This is not a case, in other words, about the power of Congress to force people to eat broccoli.  

Does anybody really believe that the justices will decide this case in accordance to their best reading of the commerce clause power? Or else, that established precedent offers clear answers to the questions presented?

In other words, does anybody truly believe that the Court is about to just call "balls and strikes" and do little else?

Sunday, November 20, 2011

Legal Education hits the big time, Again . . . and its connection to the affirmative action debate

I am starting to wonder about the New York Times' fascination with legal education.  Today's edition, right smack in the center of the first page, finds an article about "law schools that teach little about legal practice."  The punch line?  Law schools teach little about legal practice.

This is a great debate, even a debate worth having.  But to me, the most interesting aspect of the Times' fascination is in how it reflects on the larger debate over affirmative action.  Here is why.  The argument, stated simply, is that justice demands that colleges, including law schools, must only look at grades and test scores when making admissions decisions, and only those students with the highest scores deserve admission to elite institutions.  When pushed, critics concede that institutions may consider other factors.  But the one factor that schools may not consider is race.  As soon as you find one student of color who got in with lesser metrics than a white student, a constitutional violation is born.  The argument is really that basic, and cares little for what happens next, or for what the purposes of higher education may be, or even what the particular profession at issue demands.

This is not only short-sighted, but if pressed, one might even choose to call it racist.

Start with the law in question.  The colorblind argument should strike anyone familiar with the history of the 14th Amendment as odd and misplaced.    It is particularly embarrassing for originalist justices to take a colorblind view of equal protection.  One need not be a historian to know that the Reconstruction Congress intended no such thing.  Consistency is indeed a virtue.

The beginning argument -- on the original meaning of the 14th Amendment -- is dead wrong, and the conservatives don't even try to pretend otherwise.  They simply ignore it.  And so all that remains is a debate over the wisdom of the use of race in public life.  To be sure, this is a debate worth having, but we should not for one moment pretend that this is a debate about law.  It is not.  It is a debate about Justice Kennedy's vision of a good society, and the best way to get there.  

Here is where the Times' story comes in.  It is one thing to argue that law schools may not consider race because the law demands it.  Once this argument goes away, all we have left is an argument that law schools may not consider race because it is bad for the legal profession, that is, because in so doing law graduates will not be properly prepared to handle the rigors of the profession.

But then, note what the real problem is, according to the Times
“The fundamental issue is that law schools are producing people who are not capable of being counselors,” says Jeffrey W. Carr, the general counsel of FMC Technologies, a Houston company that makes oil drilling equipment. “They are lawyers in the sense that they have law degrees, but they aren’t ready to be a provider of services.”
Here is what a recent graduate of the George Washington University School of Law, had to say: “What they taught us at law school is how to graduate from law school.”

Put all the pieces together and tell me what you see.  Law schools may not use race in admissions not because the law demands it, or because it produces better lawyers, but because . . . why exactly?

I would like to think that racism has nothing to do with it.  But sometimes, I can't help but wonder . . . 

Sunday, November 13, 2011

JoePa, Penn State, and (Dare I Say It) the Need for Moral Legislation

As the events involving the Jerry Sandusky/sexual abuse scandal continue to unfold at Penn State, I am struck by how these victims have been failed by both the adults in this situation and the legal system.  I am troubled by the fact that all Pennsylvania law required of Joe Paterno and the other coaches is to report the abuse to the head of the department and not to the police.  Pennsylvania’s Code § 3490.4 requires teachers and school administrators at public institutions to report child abuse, either to a superior or the authorities.  Joe Paterno was the most powerful man at Penn State so the requirement that he report the abuse to a superior didn't amount to much.  Although many in the media have focused on how these coaches failed in their moral obligation to report the abuse because they didn't go to the authorities, I am more troubled by the fact that there is a credible argument that, consistent with Section 3490.4, they were not required to go to the authorities.  I think Section 3490.4 reflects a larger issue --- the inconsistency with which the law approaches moral issues.  Perhaps the underlying basis of the law is that teachers and school administrators should not be required to go straight to the authorities because they will likely feel morally compelled to do so anyway.  For this reason, it is enough that, by law, they have to report the abuse to someone.  Yet this reporting requirement fell short in this situation, where you have a football program that brings in $70 million dollars a year, a powerful coach, and a group of low income, predominantly minority youth alleging sexual abuse. 

Moreover, the fact that people feel compelled to do the right thing in most circumstances has not stopped the law from mandating behavior that citizens would otherwise feel morally obligated to engage in.  For example, although many people would tell the truth under oath for moral reasons or otherwise, this does not prevent the law from imposing penalties for a failure to do so as a deterrent.  I know that the inconsistency with which the law approaches morality is obvious and should probably be expected given the disagreement that we, as citizens, have over moral issues, but I must admit that I am having a difficult time understanding what the “gray” area is in the circumstance of Penn State.   Why didn't Section 3940.4 require individuals to report abuse directly to the police? Was it viewed as needless moral legislation in a situation where individuals will feel compelled to report the abuse anyway?  In my opinion, this is a situation where moral legislation was needed (by saying that the "moral" thing to do is to report the abuse to the police and require it by law), to prevent abusers and their supporters from legally keeping the abuse in-house.  This is not one of those "gray" areas that lead folks to disagree about the extent to which the government can pass moral legislation.   

In other situations, the fact that there is a gray area as to whether moral legislation is appropriate is quite obvious.  I teach constitutional law, and my students and I often have a lively discussion about whether the government should use the law in order to promote a certain view of morality.  Among the cases we discuss are the abortion funding cases (Harris v. McRae and Maher v. Roe), which hold that even though abortion is a fundamental right, the government does not have to make it easier for individuals to obtain an abortion by providing funding.  Notably, the Court held that funding childbirth, as opposed to abortion, does not infringe on this right, even though the government is, in a sense, expressing a moral viewpoint by funding one and not the other. 

In contrast, in Department of Agriculture v. Moreno, the Court held that excluding households containing unrelated individuals from foodstamp assistance in order to prevent “hippies” from taking advantage of the program is not a permissible governmental purpose.  In other words, excluding unrelated individuals because of moral disapproval of a particular lifestyle is not rationally related to the government interest in preventing fraud.  These cases reflect that although the government can promote certain moral views through its legislation, there are certain constraints on its ability to do so.  In the course of discussing these cases, my students and I often disagree about when and if moral legislation is ever appropriate, particularly given the extent of government involvement in our everyday lives (laws forbidding same sex marriage, alcohol sales on Sunday, narcotics and prostitution are just a few examples of moral legislation that citizens have to contend with).  Above all else, I am certain that there is no “right” answer to this question, or if there is, I don’t know what it is.      

But I question the government’s willingness to influence morals through law in virtually every situation but this one --- a situation involving the safety of children and the reporting requirements of adults who are aware of abuse.  While many (including myself) may disagree about the extent to which the state can use its legislative authority to influence moral behavior, I believe that requiring Joe Paterno and others to report this behavior to the police is one situation where few would object to the law promoting a certain view of morality.  I find comments in the media that Joe Paterno and others breached a “moral” obligation to report a massive understatement, particularly in light of the fact that all of this is coming out almost ten years after one of the coaches called his father and told him he saw assistant coach Jerry Sandusky raping a ten year old in the showers.  At the end of the day, I am just appalled at how many people failed these kids, including a legal system that should have required that the adults in the situation call the police.  Not the dean, the department head, the provost, or the campus police – the real police.  Now, instead of holding Joe Paterno responsible for downplaying this incident and reporting it to people who did nothing for almost a decade, we have to have a discussion as to whether or not Paterno was a "person in charge" and therefore was required to report the abuse to the authorities.  I wonder where we would be now if JoePa had to, by law, call the police when he found out about the abuse instead of reporting the information to "superiors" who were considerably less powerful than Paterno in the world of Penn State.  That would be moral legislation I could live with. 

Wednesday, November 2, 2011

“Our whites are so much better than their whites” (or still waiting on my apology from Ann Coulter)

Imagine that it is 1998 and the House has filed articles of impeachment against Bill Clinton for perjury emerging from his affair with Monica Lewinsky.  A political pundit, who happens to be African-American, remarks that Bill Clinton is being persecuted because of his efforts to help minorities in this country, and that efforts to impeach him are consistent with conservative goals to effectively “end” the middle class in this country and relegate minorities to permanent underclass status.  This unnamed pundit ends his comments by observing that the efforts of Bill Clinton to help minorities and his persecution by conservatives is indicative of the fact that “Our whites are so much better than their whites.”  

What would follow these comments is the immediate resignation of this pundit from the network and an apology to all who were offended.  This fact pattern is obviously a spin on Ann Coulter’s recent defense of Herman Cain, who is currently under fire for sexual harassment allegations made against him while he was the head of the National Restaurant Association.  She noted that “there is nothing liberals fear more than a black conservative” and she observes that, ““Our blacks are so much better than their blacks” because “you have fought against probably your family, probably your neighbors... that’s why we have very impressive blacks.”

Despite the controversial nature of these comments,  I suspect that there will be no apology or resignation, but here is why there needs to be an apology for a couple of reasons.  First, I think Ann Coulter is continuing a theme that Herman Cain himself started – that African-Americans who support the Democratic party have been brainwashed into doing so.  This view of African Americans as passive participants in politics, reinforced by a cowherd mentality, is a statement that in and of itself suggests a hierarchy within the race that is reinforced by Coulter’s remarks.  In other words, “the talented tenth” vote Republican and are rich because they “choose” not to be poor.  This is not a theme that the Republican Party, who has already been accused of being anti-gay and pro-death, wants to run with going into 2012.      

Second, Coulter’s statements bring to mind many of the divisions that were present during the Antebellum period – notably, the division between house slaves and field slaves as a result of the fact that house slaves were treated better and therefore more loyal to the master than field slaves.  That is why her statement, which claims possession over African-American conservatives and references the dissension caused in African-American families when an individual family member decides to vote Republican, is so troubling.  In fact, the reason I started this post with “Our whites are so much better than their whites” is because I want readers to get a sense of how ludicrous it sounds when a minority claims ownership over a group of white people and how this would be discrediting to the speaker, but how troubling and disturbing it sounds when a white person claims ownership over a group of minorities because it harkens back to a historical truth.  Coulter paints African-American conservatives as the “house negros” who are brave and loyal because they dare to stand up to the “field negros” who would betray the master.  This makes her comments dangerous in a way that demands a response, either from Fox News, the so-called “liberal” media, bloggers, Bill Maher, Herman Cain --- someone needs to remind Ann Coulter that this is 2011, not 1811.