From the Houston Chronicle: Constitutional showdown over immigration

- Click here for the article.

If the U.S. Supreme Court hadn’t lurched so far to the right under former President Donald Trump, there’s a good chance the Texas Legislature may have never tried to pass the bill it voted out last night.

It was in 2012 the Supreme Court ruled that states cannot enforce immigration laws just because they don’t think the federal government is doing it well enough. Yet, reporter Jasper Scherer writes that the Texas House voted anyhow to pass legislation that would allow Texas law enforcement to arrest people they suspect to have crossed the border illegally and order them back to Mexico.

Democrats, civil rights groups and even some Republicans have warned the bill flat out conflicts with the U.S. Constitution and that 2012 Supreme Court ruling.

But that may be the point. Since that 2012 ruling, Trump was able to add Amy Coney Barrett, Neal Gorsuch and Brett Kavanaugh to the court. Some Republicans are convinced if they could get the issue to the Supreme Court again, the more conservative justices might just flip the 5 to 3 ruling in 2012, much like what happened last year with the challenge to Roe v Wade.

During a contentious debate on the Texas House floor, state Rep. Victoria Neave Criado, a Dallas Democrat, accused Republicans of engineering the bill for that purpose, a charge state Rep. David Spiller, the North Texas Republican who led the bill, denied.

But when the same bill cleared the Texas Senate last week, state Sen. Charles Perry, R-Lubbock, acknowledged it is “testing and pushing envelopes.”

The ACLU of Texas has already vowed to sue the state over the bill if Gov. Greg Abbott signs the it into law as he has promised to do. And now comes word Mexico opposes the legislation, which raises questions about how Texas would enforce the law if Mexico blocks people from other countries from reentering that nation.

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For more, click here: Texas legislators approve bill allowing police to arrest people who cross the border illegally.

For the bill itself, click here: SB4 (88-4)

Oklahoma votes against creating a constitutional right to farm and ranch

One of the more unusual items on the ballot yesterday was defeated yesterday.

It would have applied strict scrutiny to laws related to farming and agriculture. The laws would have to demonstrate a compelling purpose purpose in order to be sustained.

- Click here for Ballotpedia's detail on the proposal.

Amendment design

State Question 777, which was placed on the ballot by the Oklahoma Legislature, was designed to require courts to rule on any law regulating farming and agriculture passed after December 31, 2014, by employing "strict scrutiny." This means that courts would have to overturn any challenged agricultural or livestock regulations that are not necessary for protecting a “compelling state interest.” This would make any law restricting or regulating the farming industry in the state more vulnerable to lawsuits, which would likely result in fewer government regulations over the industry.

In other words, State Question 777 was designed to require the courts to apply the same standards to lawsuits concerning agriculture and livestock as in cases concerning free speech, gun ownership, and religious freedom.

Arguments of supporters and opponents

Supporters|

Supporters argue that State Question 777 would allow farmers to defend themselves against unjust laws or laws that would harm the industry, make the state more attractive to farmers, and allow consumers to decide best farming practices through free market competition.

Opponents

Opponents argue that State Question 777 would be used to prevent the state and local governments from passing laws to protect small farmers and provide reasonable regulations regarding food and water quality, environmental protections, and animal cruelty. They claim the amendment would give large, corporate farms an advantage over small, local farms.

From PolicyMic: In 33 U.S. Cities, It’s Illegal to Do the One Thing That Helps the Homeless Most

For 2306's look at the role local government - as well as 2305's look at federalism - some analysis of the consequences of local policies related to homelessness.

- Click here for the article.

This is also an example of both agenda setting and interest groups - since it is based on a report by an advocacy group which is attempting to highlight the problems caused by cities banning food-sharing by private organizations for the homeless.

The report argues that such laws - as well as others - "criminalize" homelessness.

That said, this also illustrates the concept of an unintended consequence, as well as criminal justice policy. An increasing number of people are concerned about the tendency of government to deal with social problems by criminalizing them, making them a felony.

Are there more effective - and cheaper ways to deal; with these problems?

Here's a bit from the story:  

The news: In case the United States' problem with homelessness wasn't bad enough, a forthcoming National Coalition for the Homeless (NCH) report says that 33 U.S. cities now ban or are considering banning the practice of sharing food with homeless people. Four municipalities (Raleigh, N.C.; Myrtle Beach, S.C.; Birmingham, Ala.; and Daytona Beach, Fla.) have recently gone as far as to fine, remove or threaten to throw in jail private groups that work to serve food to the needy instead of letting government-run services do the job.

Why it's happening: The bans are officially instituted to prevent government-run anti-homelessness programs from being diluted. But in practice, many of the same places that are banning food-sharing are the same ones that have criminalized homelessness with harsh and punitive measures. Essentially, they're designed to make being homeless within city limits so unpleasant that the downtrodden have no choice but to leave. Tampa, for example,criminalizes sleeping or storing property in public. Columbia, South Carolina, passed a measure that essentially would have empowered police to ship all homeless people out of town. Detroit PD officers have been accused of illegally taking the homeless and driving them out of the city.

Houston's mayor is featured:

Some city officials, like Houston's Mayor Annise Parker, claim that "making it easier for someone to stay on the streets is not humane" and say that uncoordinated charity efforts "keep them on the street longer, which is what happens when you feed them."

From the Hill: Obama’s death penalty review risks backlash from the states

This fits  - in different ways - with both 2305 and 2306.

Here's the first of a handful of stories I'll post which related to the interaction between states and the national government, specifically areas where the national government has established standards that are then imposed on the states - or might possible impose on them if they in fact become policy.

From The Hill: Obama’s death penalty review risks backlash from the states.

The generations-old debate over capital punishment has shifted to Washington, where President Obama’s Justice Department has launched a national review of the death penalty.

Attorney Gen. Eric Holder’s inquiry, initiated last month following a mishandled execution in Oklahoma, is still in its early stages. The effort includes a look at state death penalty protocols, though its scope and ultimate implications are not yet clear.

But by ordering up the review, Obama is raising questions about what role, if any, the federal government should have on an issue that is traditionally the province of the states.

A few things to note in the story. It discusses national intervention in criminal justice policy, which traditionally is a reserved power of the states. It mentions that the reason this is done is because of racial bias in how the death penalty is carried out. The 14th Amendment allows the national government to prevent the states from treating people unequally before the law, but it is not specific about this requirement. Supreme Court cases often focus on determining whether national intervention is in fact justified, but this is after the fact. So this is a great contemporary example of the state of federalism in the United States.

The story mentions that if these recommendations are adopted, they will most likely be done by withholding national funds for state projects. You'll notice that this is referred to in the notes as fiscal federalism in some places. The national government enticing states to comply with certain measures monetarily.

It also points out the push back from some members of Congress on the proposals by the Justice Department. The story does not mention this, but the department's positions is most likely that existing law, in addition to the 14th Amendment, provide the constitutional basis for them to go forward with the recommendations. Congress has little ability to prevent them from doing this now, thought the states opposed to these measures could potentially challenge these in the courts, arguing the Justice Department over stepped its bounds. Consider this an example of checks and balances.

We are reminded us that the Supreme Court recently limited Florida's ability to execute people with low IQ's by overturning how they interpret the results of the test.

It also mentions a couple interest groups that have been involved in raising awareness of issues associated with the death penalty.

One is the Constitution Project, which helped develop the recommendations. This shows us how interest groups can influence public policy. You'll note that it is composed of former attorneys general and judges, which makes it an specially powerful group.

The other is Amnesty International, specifically its Death Penalty Abolition Program.

The groups points out that support for the death penalty in general has been in decline and - possibly as a result - the use of the death penalty in the United States is declining. If so, that strengthens the argument that shifts in public opinion have an impact on public policy, which is a staple of democracy.

I hope clarifies some of the class' content so far.

Note the blog tags below - they'll take you to past stories on each of the topics listed above.

Two presidential takes on Thanksgving

The Volokh Conspiracy highlights the different approaches Washington and Jefferson took to Thanksgiving.

Washington had little problem using his authority to set aside a day of thanksgiving with explicit religious content, but Jefferson saw it as beyond his authority as president to do so.

From The Texas Tribune: Texas House Speaker Promises Water Focus

This builds on theme, Texas' concerns with the future availability of water:


Texas House Speaker Joe Straus promised to work on water issues and protect private property rights at the Texas and Southwestern Cattle Raisers  Association annual meeting Tuesday in Austin.

“When the 83^rd legislature convenes in January, we’re going to have a unique opportunity to address the huge growth Texas is experiencing,” Straus said. “Water will be at the center of the discussion.”

Straus remarked on the vital role of water in Texas’ economy and cited the drought and 2011’s brutal heat as reasons to focus on conservation efforts.  “I don’t want to reach a day where a Texas company announces it’s moving to Florida or Ohio because of water issues,” he said.

Here's a link to info on the interest group he spoke to: the Texas and Southwestern Cattle Raisers Association. Its a very old group - dating to 1877. Here's their website.

The trick will be developing projects which address the general need for water in the state which doe not conflict with the property rights of large scale landowners. Anticipate conflict.

Obama Administration Will not Defend DOMA

From the NYT:

President Obama, in a striking legal and political shift, has determined that the Defense of Marriage Act — the 1996 law that bars federal recognition of same-sex marriages — is unconstitutional, and has directed the Justice Department to stop defending the law in court, the administration said Wednesday.

Attorney General Eric H. Holder Jr. announced the decision in a letter to members of Congress. In it, he said the administration was taking the extraordinary step of refusing to defend the law, despite having done so during Mr. Obama’s first two years in the White House. - Letter from Justice Department.

Commentary:
- Is this an Executive Power Grab?
- Does the President Have a Duty to Defend Laws Passed by Congress?

New Felonies

Texas has 2,383 felonies on record -- things the legislature has decided you can be imprisoned for. Grits for Breakfast tells us the last legislative session created 59 and wonders how many more will be created this tim around.