Detailed Abstractions

As ABC News reports, parts of Arizona’s recently enacted immigration statutes have been suspended by a federal judge (whole thing here):

Arizona’s tough new immigration law was just hours away from taking effect when a federal judge issued an injunction today blocking key portions of the law from being enforced.

Among the provisions U.S. District Judge Susan Bolton put on hold are the “reasonable suspicion” section that would allow police to arrest and detain suspected illegal immigrants without a warrant and a provision making it illegal for undocumented day laborers to solicit or perform work.

Bolton also stayed part of the Arizona law requiring immigrants to carry federal immigration documents.

Based upon the likelihood that these provisions could be used by officers to wrongly detain legal residents.

Next steps? Arizona will likely appeal and lose that appeal at the 9th Circuit Court.  The final arbiter of course being SCOTUS if they decide to take the case upon any further appeals.

Legally speaking, it’s an interesting question.  Basically, one of the powers the federal government holds is over immigration status and therefore it can be legally argued that Arizona has overstepped its authority (regardless of whether legal citizens will be wrongly detained).  However, does this mean a state has no resource against illegal aliens if the federal government is doing a poor job at the very responsibility they are stating they have absolute authority over.

More interesting I think will be the upcoming round of debates on a continuing question:  What is judicial activism and who is and isn’t exactly against it?

& the question isn’t an easy one.   Two fairly recent decisions can illustrate the complexity.  For most of recent memory, conservatives have been leading the charge against judicial activism.  But take a case like Kelo v New London where conservative outrage notwithstanding, the court followed the restraint pattern by enforcing prior precedence.

Move forward to McDonald v the City of Chicago and whether conservatives think so or not, a federal decision has invalidated a law the citizens of Chicago seemed to agree (based upon the fact they have recourse through voting)…. this would be judicial activism.

In most people’s minds it seems judicial activism is only wrong when a law your side has passed met its end through the legal system, otherwise it’s always wise restraint or cautious interference.

But let’s call it what it is:  judicial activism is when the court system invalidates the will of the voters.  This is true whether they invalidate gun laws, marriage statutes or amendments, immigration laws, sodomy laws, marijuana laws, and on and on and on.

Let’s further assume no one is really against all judicial activism.  I think most reasonable people can agree that say if judges were to invalidate the intermittent of Japanese-Americans during WWII, it would’ve been both activist and morally correct.  Even if most people couldn’t agree on that, we can all envision unjust laws which should not stand.

If we can allow for that definition, the maybe we can change the question as well.  Instead of – are you for or against judicial activism – to – how and when should judges be activist; we might begin to move towards a more reasoned debate.

So let’s call this one what it is – judicial activism and ask, should it have been used?  Why/why not?

I for one want to see judicial activism to always err on the side of individual rights and freedoms, not collections, groups, NOGs, nor government agencies.  This case gives me pause either as I am supporting of Arizona’s rights, the freedom of those individual voters to enact the laws they wish, but also am against current immigration policy.  For now, the voters spoke and I would err on the side of those individuals.

Others of course will draw the line in different places.

What’s important however is that we understand the line exists, instead of continuing to pretend it moves based upon our wishes.

more here on the debate: Reason’s July Cover Story Conservatives v. Libertarians

This morning, news outlets everywhere carried recent news out of the Treasury Department.  The Pay Czar, who is certainly living up to the moniker Czar, announced today (WallStreetJournal):

The U.S. pay czar will cut in half the average compensation for 175 employees at firms receiving large sums of government aid, with the vast majority of salaries coming in under $500,000, according to people familiar with the government’s plans.

As expected, the biggest cut will be to salaries, which will drop by 90% on average. Kenneth Feinberg, the Treasury Department’s special master for compensation, also intends to demand a host of corporate governance changes at those firms….

Even without bothering with the fact that the government is not in any position to understand what kind of compensation any single employee should have, this is still a radical and arbitrary move that if continued can work to destabilize the economy.

Beyond that, this decision is an anathema to a free society breaking not only the contract rights of ordinary citizens, but also violating all individuals by pushing a blatant ex  post facto punishment.

In a free society, within reason, individuals should be able to contract for any reason they want.  In this case, you have employees who have privately contracted with their employers for certain remuneration based upon their perceived worth to the company.

I say perceived work, because obviously not all hiring decisions work out for the company even if the employee does very well at their job.  Personality conflicts, culture conflicts, and even performance problems are some of the reasons why a new hire might not work out as expected.  Unless specifically stated in the employment contract, even in these cases the employer’s general resource is firing, not taking back pay.

Adding to this is the simple, real, true fact that this is by its very nature an ex post facto punishment for perceived mismanagement.  It has been a legal tradition for centuries, a that passing laws, which retroactively punish people, is against a free in democratic society.

In fact it’s in the US Constitution and universally recognized by a number of treaties including Universal Declaration of Human Rights and American Declaration of the Rights and Duties of Man (from Wiki):

…no person be held guilty of any criminal law that did not exist at the time of offence nor suffer any penalty heavier than what existed at the time of offense. It does however permit application of either domestic or international law….

To be fair, there are some uses for ex post facto laws which have been recognized by our supreme court including allowing for Congress to grant administrative agencies the ability to do just this thing.  So legally speaking, this might be ok, however to anyone who proposes to value freedom, it should be obvious that even allowing administrative agencies this power was a massive failure of all branches of the government.  They are supposed to protect our freedoms, not remove them one at a time.

Either way – it’s intuitive that both contract rights & ex post facto laws are required for a free society.  If the government can interfere at will in private contracts and retroactively punish you for perceived wrongdoings, you have no ability to make relevant decisions for your life as you have no ability to be secure that those decisions will continue to hold true.

This insecurity is what creates instability in most third world countries today.  This lack of basic economic & legal foundation is what continues to plague most of the planet and yet we seem to be moving on the same path.

A week ago or so, a Democratic non-profit held a focus group of GOP members & Independents (here).  Among other interesting things they found, they noted how the GOP members opposed the President because they felt he was attempting to fundamentally move away from our founding principles.

They went further to note how this differed from Independents “underscoring the extreme disconnect of the conservative Republican base voters”.

I will say this move is absolute proof that the GOP members have it right.  If the administration allows this travesty, it is without a doubt a complete move away from not only our founding principles, but away from freedom in general.

Unintended consequences.  An often used phrase for almost every piece of legislation pushed our politicians.  Whether it’s McCain-Feingold’s chilling effect on free political speech or whether bailing out banks which are “too big to fail” has actually decreased our long term viability instead of supporting it; the term seems to connote any consequence which wasn’t expressly mentioned by proponents of the bill.

Technically, that’s correct.  The definition of unintended consequences does not require the consequences to be unforeseen, though in common language we generally use the base meaning of “intention”.   Therefore the phrase has come to mean those consequences which were neither  intended nor unforeseen.

I submit however, that we should start changing our language and call known consequences intended consequences, because like the citizens in the face of the law our politicians should be held to the same standard: ignorance is not a defense.

Regardless of the human failing that pushes people to believe they, or their elected leaders, can ultimately control behavior which is already constrained by the marketplace, acting as if the results weren’t readily understood is disingenuous.

Looking more closely @ McCain-Feingold effects, we see the chilling of free-speech (here), where citizens can’t create a documentary on their beliefs about Hillary Clinton without it being subject to regulation:

…The case before the court, Citizens United v. Federal Election Commission, originated over whether a 2008 feature-length movie critical of then-presidential candidate Hillary Rodham Clinton could be classified as an “electioneering communication” subject to regulation.

The FEC contended it was, and that its sponsor, a conservative advocacy group called Citizens United, was barred from promoting the film. While nonprofits can be exempt from campaign-finance regulations if they limit their fund-raising to donations from individuals, Citizens United fell under McCain-Feingold because it accepts business contributions….

Now.  I haven’t seen the movie nor do I care to, but when individuals get together to use their own money, their own resources, to produce their own political speech, the government has absolutely no right to be involved.  In the marketplace of political ideas, that whole “congress shall make no law” thingy, seemed pretty straight forward.

Regardless of your reading of the 1st Amendment, some will contend this is an unintended consequence.  I contend it was a known consequence and therefore must have been intended.

I will even go further and say this was like a consequence well enough known by politicians who voted for the bill, that they had incentive to pass restrictions on others as this would help them secure the current balance of power.

Using banks too big to fail (here):

…Increased concentration is vexing for regulators. Because systemically important firms can borrow more cheaply thanks to implicit state backing, small and medium-sized banks struggle to compete. A recent Fed study put big banks’ funding advantage at more than 30 basis points. That leads to another possible problem: indiscipline. Private firms with a low cost of funds and the taxpayer behind them are prone to recklessness: just look at Fannie Mae and Freddie Mac. America’s leading banks were too big to fail before the crisis. Now they are bigger still….

This was not only easy to foresee, but libertarians, conservatives, small business groups, think tanks, economists, literally, tens of thousands of people wrote and discussed that this is exactly what would happen.

Once you’ve effectively told the market that they will not be responsible for their failures, you’ve written them a blank check to become much more reckless than they would have otherwise.

Not only this, but that action, more reckless businesses, will have it’s own well understood consequence.  The banks will continue to make stupid decisions due to a perceived lack of risk.  As long as people allow it, the government will continue to bail them out until it becomes just too expensive.  Then during that emergency, we will see much greater regulation and control of the financial industry which might include a government takeover.

As Hayek stated and history has shown:

‘Emergencies’ have always been the pretext on which the safeguards of individual liberty have been eroded.

Maybe it’s time to start holding our politicians & leaders accountable for the known consequences & not just the stated ones.