Friday, October 23, 2009

How Do Hate Crimes Affect Interstate Commerce?

And is there anything left that does not affect interstate commerce?

The question arises because the U.S. Constitution did not give Congress the power to legislate generally, over any subject, but only over the subjects listed in the Constitution, one of which is the regulation of interstate commerce.

And so, in S. 909, the "Matthew Shepard and and James Byrd Jr. Hate Crimes Prevention Act," which yesterday became part of the 2010 defense appropriate act (S. 1390), Congress dutifully found that violence motivated by bias "affects interstate commerce."


When the Constitution was first proposed and then ratified in the late 1700s, interstate commerce was relatively limited. Most food was grown within a few miles of where it was eaten, and most goods were manufactured locally, and by hand. The industrial revolution was just beginning, and the only means of transporting goods long distances was by horse-drawn wagon or by sea.

As our economy has grown larger and more complicated, the importance of interstate commerce has also grown. Today, it's difficult to find anything in any store that was not either grown or manufactured in a different state or includes materials from a different state. And as interstate commerce grew, the power of Congress grew, so that Congress began regulating not just railroads and the interstate movement of goods, but also agriculture, manufacturing, working conditions, and product safety.

When it involves interstate commerce, Congress can legislate against discrimination and bias. The Civil Rights Act of 1965, which made it illegal for hotels, restaurants, and other public accommodations to discriminate based on race was based on the power of Congress to regulate interstate commerce, because there is no power in Congress to legislate against discrimination generally. (The 14th Amendment prohibits states from denying equal protection and does not prohibit private discrimination.) Later legislation has prohibited discrimination in housing and employment, and has extended to not just racial discrimination but also discrimination based on gender, ethnicity, religion, and disabilities.

I agree with all of this. We have a national economy, and we should have national laws regulating that economy. But do two homophobes beating up a gay man outside of a bar really affect the national economy?

According to Congress, it does. Section 2 of S. 909 states (in part) that violence motivated by bias:

substantially affects interstate commerce in many ways, including the following:

(A) The movement of members of targeted groups is impeded, and members of such groups are forced to move across State lines to escape the incidence or risk of such violence.

(B) Members of targeted groups are prevented from purchasing goods and services, obtaining or sustaining employment, or participating in other commercial activity.

(C) Perpetrators cross State lines to commit such violence.

(D) Channels, facilities, and instrumentalities of interstate commerce are used to facilitate the commission of such violence.

(E) Such violence is committed using articles that have traveled in interstate commerce.

The statute itself limits the crimes relating to gender, religious, gender identity, and other biases to those occurring "during the course of, or as the result of, the travel of the defendant or the victim--(I) across a State line or national border; or (II) using a channel, facility, or instrumentality of interstate or foreign commerce," those committed using a "channel, facility, or instrumentality of interstate or foreign commerce" or using a "firearm, dangerous weapon, explosive or incendiary device, or other weapon that has traveled in interstate or foreign commerce," and those that "interferes with commercial or other economic activity in which the victim is engaged at the time of the conduct" or "otherwise affects interstate or foreign commerce."

It's difficult to imagine any crime of violence, anywhere, that wouldn't fall under one of those categories. For example, it's pretty safe to say that guns, knives, and even baseball bats are manufactured and sold in interstate commerce, so any crime, committed with any gun, knife, or baseball bat that ever crossed any state line, can now be a federal crime.

And my hypothetical about two homophobes beating up a gay man outside of a bar is a crime falling within the new statute if the fight arose after the victim bought a beer in the bar (which is interstate commerce) or caused the victim to miss a day of work (which affects interstate commerce).

United States v. Lopez, 514 U.S. 549 (1995), is often cited as limiting Congressional power, because in that case the Supreme Court ruled unconstitutional a law that made it a crime to carry a gun within a "school zone," rejecting arguments raised by the government that violence near schools will affect interstate commerce. However, the statute in question did not include any specific requirement that the crime be found to be "in interstate commerce" or "affect interstate commerce," and there were no findings by Congress about how the presence of guns near schools would affect interstate commerce, so the decision could be distinguished from S. 909 and it is not clear how the Supreme Court will react to "findings" and statutory "limits" like those found in S. 909.

One would think that there is a limit to congressional power, and that Congress cannot extend its power merely because the crime is carried out using some weapon that once crossed a state line, or because of some relatively minor and unintended economic consequence of the crime. But maybe not.

Friday, August 14, 2009

Health Care Dichotomy

Conservatives seem to be expressing two fears about health care reform:

1. The government will intrude into the patient-doctor relationship, interfering with things like end-of-life decisions.

2. The government will NOT intrude into the patient-doctor relationship, allowing things like legal abortions.

The first fear is especially peculiar, because it was conservatives who wanted the federal government to intrude into the end-of-life decisions of the Schiavo family.

The lesson I draw from this is that conservatives don't want the government intruding into your decisions as long as you make the decisions that conservatives approve of. If you make any other decision, well then the government will have to step in.

In which case, it's your own fault for not being more moral and sensible.

Monday, July 27, 2009

Palin the Usurper

While watching a Sarah Palin retrospective tonight, following her resignation as governor of Alaska, a question occurred to me:

Was the election of Barack Obama, a former president of Harvard Law Review and Senator from Illinois, as the first African-American President of the United States, almost upstaged/eclipsed (or was it upstaged/eclipsed?) by a former beauty pagent contestant who was an unsuccessful candidate for Vice-President of the United States?

On "This Week with George Stephanapolous" on 7/26, conservative commentator George Will complained about the continuing over-exposure given to the pronouncements of Barack Obama on every subject. But hasn't Obama at least been elected to a national office? How do we explain the continuing attention given to the utterances of Sarah Palin?

Tuesday, June 16, 2009

Yoo, Torture Memos, and "Reasonable Officials"

On June 12, a federal judge has issued a stinging rebuke to John Yoo for the opinions he wrote for the Bush administration supporting indefinite detentions and "harsh interrogations." The judge ruled that Yoo's opinions were not merely wrong, but were unreasonably wrong when applied to an American citizen classified as an "enemy combatant."

This should be the first of many judicial opinions that forcefully and unequivocably reject the reasoning of Yoo's "torture memos."

The ruling was in a civil action filed by Jose Padilla against John Yoo in which Padilla has claimed that Yoo's legal opinions, written by Yoo while he was serving in the Department of Justice, caused Padilla to be deprived of civil rights. The complaint alleges unconstitutional detention without due process of law and mental and physical abuse. In rejecting Yoo's claim of immunity from personal liability for acts he performed while an official of the federal government, the judge held that Yoo's legal opinions were unreasonably wrong because Padilla's constitutional rights were "clearly established."

Some background: Jose Padilla is a citizen of the United States who was arrested at Chicago's O'Hare airport, initially charged with conspiracy to construct a "dirty" (i.e., radioactive) bomb, but then turned over to the military who held him in near-solitary confinement for almost four years before he was finally returned to the civilian courts where he pled guilty to crimes less serious than the ones he was initially charged with. (He could not have been convicted of the crimes for which he was originally charged because the original charges were dismissed "with prejudice" when the Bush administration insisted he be surrendered to military custody, and so the dismissal barred any future prosecution for the same crimes due to the constitutional prohibition of double jeopardy for the same offense.)

John Yoo was an official of the White House, and then the Office of Legal Counsel in the Department of Justice, and his legal opinions formed the basis for the Bush adminstrations claims of the powers of the President to order detentions and "harsh interrogations" notwithstanding constitutional guarantees of due process and statutory prohibitions against torture.

In 2008, and after his conviction, Padilla and his mother filed suit against Yoo, claiming that as a result of Yoo's legal opinions Padilla had been detained without charge and without access to legal counsel and had been subjected to severe and prolonged isolation, sleep deprivation, extreme temperatures, painful stress positions, threats of death, and other forms of physical and mental abuse. Padilla and his mother asked for a judgment that those conditions were unlawful and unconstitional, for $1 (one dollar) in damages, and for other relief. Padilla v. Yoo, No. 3:08-cv-00035-JSW (U.S.D.C. N.D. Cal. 1/4/2008).

After some procedural sparring, Yoo moved to dismiss the complaint for failure to state a proper cause of action. In deciding this motion, the court did not decide whether what Padilla claimed was true, but merely whether Padilla could win the lawsuit against Yoo if it turned out that everything that Padilla had alleged was actually true. In deciding this motion, the court addressed two major issues:

1. Whether there is a cause of action and legal remedy in court for these kinds of allegations; and, if there is a cause of action

2. Whether the action is foreclosed by the usual immunity of government officials from any personal financial liability for their actions performed in the course of their duties.

On the first issue, the court ruled that the decision of the Supreme Court in Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), which held that a lawsuit could exist for violations of the constitution, required the court to find a civil remedy for Padilla even though neither the Constitution nor any federal statute expressly stated that Padilla could sue Yoo. (This is an issue that will almost certainly be contested on appeal.)

On the second and at present more interesting issue, the court pointed out that the immunity of government officials for personal liability is a "qualified" immunity, which means that the official is immune unless their conduct violates "any clearly established statutory or constitutional rights of which a resonable person would have known." The court then stated that, in determining whether a government official should be held personally liable for questioned conduct, the issue was "whether, under that clearly established law, a reasonable official could have believed that the conduct was lawful." Applying that standard to the allegations made by Padilla against Yoo, the court then reached the following conclusions:

1. Yoo could be held responsible for deprivations of constitutional rights consistent with his legal opinions because "government lawyers are responsible for the foreseeable consequences of their conduct" and Padilla alleged circumstances that made his mistreatment reasonably foreseeable by Yoo.

2. Padilla sufficiently alleged that his constitutional rights were violated by denial of access to courts in violation of the 5th Amendment and cruel and unusual treatments that would be violations of the 8th Amendment.

3. Padilla's constitutional rights were "clearly established." In reaching this conclusion, the court rejected Yoo's arguments that the presidential designation of Padilla as an "enemy combatant" created any uncertainty about Padilla's constitutional rights.

The necessary, if not explicit, implication of the court's holdings is that Yoo's legal conclusions were not just wrong, but were not the conclusions of a "reasonable" federal officer. Padilla v. Yoo, No. 3:08-cv-00035-JSW (U.S.D.C. N.D. Cal. 6/12/2009).

Still to come is the report of the Department of Justice's Office of Legal Counsel on whether the opinions of John Yoo and Jay Bybee departed from professional standards to such an extent that they should be disciplined for failing to adhere to the rules of professional conduct.

Ozzie Myers in Iran

Reading about the "election" results in Iran, I can't help but marvel at the inexperience (or incompetence) of whoever was put in charge of fixing the results. Facing what was believed to be a close election, you don't report a 64-35 landslide, and certainly not before the ballots could have been counted.

A better role model would have been Mayor Richard Daley of Chicago, who in 1960 waited until the rest of Illinois had reported its results before announcing the votes from Cook County, which gave John F. Kennedy a margin of victory large enough to carry the state and the Electoral College. That shows a certain amount of subtlety.

The results from Iran remind me of south Philadelphia (and Democratic) politician Michael "Ozzie" Myers who, early in his career and before he was allowed to be elected to Congress (where he got ensnared in the "Abscam" sting and was sent to prison), was entrusted with the job of getting signatures on a nominating petition for a Democratic candidate. When the petition was challenged, it was learned that one of the "signatures" on the petition belonged to a voter who had no fingers.

Maybe after a few more years of democracy, Iran will learn how to fix an election the right way.

Sunday, March 15, 2009

Spring Begins (Obviously and Yet Unofficially)

Last weekend, it was about 70 degrees today in the Philadelphia area, so the snows from the previous week were melting, snowdrops and crocuses were blooming, and dogwoods were budding. Unmistakable signs of spring.

The weather since then has been cooler, but daffodils and tulips are sprouting, and spring has undeniably arrived.

And yet somewhere in TV-land, some weatherman solemnly pronounced that spring does not “officially” begin for another week or two. And everyone will nod and agree, because everyone “knows” that spring begins with the vernal equinox on March 21.

These kinds of pronouncements about the “official” start of spring (or summer, or fall, or winter) always annoy me. Who declared that March 21 is the “official” start of spring? What legislature, executive or judicial officer, or authority made that decision?

If we go to an actual official source for weather and climate information, the National Weather Service of the National Oceanic and Atmospheric Administration (which is part of the United States Department of Commerce), we find that “spring” is defined as:

“The season of the year comprising the transition period from winter to summer occurring when the sun is approaching the summer solstice. In the Northern Hemisphere, spring customarily includes the months of March, April and May.”

There are similar definitions of summer (June, July, and August), autumn (September, October, and November), and winter (December, January, and February).

The National Weather Service applies these definitions in its operations, because it keeps seasonal statistics based on a spring that begins on March 1 and ends on May 31. When you read about the coldest (or warmest or wettest or driest) “spring on record,” you are reading about a “spring” that begins on March 1 and ends on May 31.

So in the most “official” source of weather information in the United States, we find that spring began on March 1.

But let’s forget for the moment about what is or is not “official” and look at what would be the most sensible or logical way to define the start of spring.

Let’s start with the assumption that each of the four seasons is of equal length, so each season will be about three months, or about 91 days. Spring is a transition from winter to summer, so let’s look at when winter ends and when summer begins. There are two or three different ways we might define winter (and summer):

1. Winter might be defined as the three months (or 91 days) with the least sunlight. Summer would be the 91 days with the most sunlight.

2. Winter might be defined as the coldest three months (or 91 days). Summer would be the 91 warmest days.

3. Seasons might also be defined by agriculture. Spring is the planting season, summer is the growing season, autumn is the harvest season, and winter is the season when you try not to freeze or starve until spring arrives.

As for the first possible definition, the shortest day of the year is the winter solstice on December 21, so that would be the middle of winter (and not the beginning of winter). Similarly, the summer solstice (June 21) would be the middle of summer. And indeed, until the invention of TV weathermen, December 21 was known as “midwinter,” and June 21 was known as “midsummer.” Going forwards 45 days from December 21, and backwards 45 days from June 21, we find that spring begins on February 4 and ends on May 7. This is also consistent with the celebration of May Day (on the first of May) as the beginning of summer.

Another of the possible definitions of “winter” and “summer” relate to 91 day period with the coldest (or warmest) weather. By that definition, winter would begin in early December and end in early March, while summer would begin in early June and end in early September. For example, a chart of a 30-year average of high and low daily temperatures for Philadelphia shows that the coldest 90 days of the year (with average daily high temperatures of no more than 47 degrees) begin on December 5 and end on March 5, while the 92 warmest days (with average daily high temperatures of 79 or above) begin on June 7 and end on September 7. So, looking at the transition from winter temperatures to summer temperatures, spring would begin on March 5 and end on June 7.

As far as the agricultural calendar is concerned, most crops are planted in March and April, and the harvesting of most crops begins in August. (In fact, the word "harvest" is from the old English word hærfest, which meant "autumn.") This suggests (once again), that summer begins in May and ends in August. This is also consistent with the celebration of May Day, on the first of May, as the beginning of summer, which puts the beginning of spring in early February.

All of these different approaches to defining spring would put the beginning of spring somewhere between the beginning of February and the first week of March, which makes the choice of March 1 by the National Weather Service eminently sensible and the choice of March 21 by TV weathermen and the publishers of calendars as decidely strange.

So how did we come to believe that spring “officially” began on March 21? Blame the astronomers.

The stars and constellations that are visible at night change during the year, and so astronomers like to refer to the appearance of the night sky during each season. Being astronomers (and not meteorologists), they want an astronomic event to divide the seasons, and so they somewhat naturally chose the equinoxes and solstices. And they wanted those events to mark the boundaries of the seasons and not the middles, so they made the vernal equinox the beginning of astronomic spring instead of the middle. (I have to admit that exactly how and when astronomers decided to move the summer solstice from the middle of summer to the beginning of summer is not yet clear to me.)

The National Weather Service explicitly recognizes the difference between meteorological seasons and astronomic seasons in its definition of autumn:

“Autumn: The season of the year that is the transition period from summer to winter, occurring as the sun approaches the winter solstice. Meteorological autumn (different from standard/astronomical autumn) begins September 1 and ends November 30.”

I referred to declarations of the “official” start of seasons as “annoying,” and I find them so for several reasons:

As I’ve explained above, it is factually incorrect, because no official or other authority has ever declared that spring begins on March 21.

It also results in TV weathermen producing commentary that is borderline gibberish, such as describing a warm day in early June as something unusual because “summer has not yet officially arrived.” News flash: It gets warm in June. For a weatherman to insist on a meaning for “summer” that does not include the warmest days of the year is idiotic and an insult to the intelligence of the listener (me).

Finally, defining an “official” start of seasons in a way that is out of touch with reality is disturbingly unnatural and in a way inhuman. It signifies to me that I am living in a society so out of touch with the natural world, and nature itself, that it would fix artificial dates and times to the change of the seasons and ignore the gradual and beautiful changes actually going on around us.