“Whenever I write about police abuse and use-of-force issues, I often hear from the “back the badge” crowd to defend whatever it is the police officer did in a given situation. They’re not always wrong, of course, but one recurring theme always sticks in my craw, especially given that these writers typically describe themselves as “conservatives.”
Police defenders instinctively view most situations—and expect the rest of us to do so—from the perspective of the officer. “Well, sure that African American teen was holding a cellphone rather than a gun, but how was the officer to know before he shot him?” “Sure, the SWAT team broke down the door to the wrong apartment, but mistakes happen (note the passive voice).”
One of the stated principles of conservatism is fealty to the constitution, which protects the rights of individuals against the abuses of government. Police are the face of that government. They enforce the rules that lawmakers pass. Having the right to detain or even kill you, officers literally hold all of your “rights” within their grasp.
Therefore, I spend less time worrying about the genuinely difficult challenges of officers than about my fellow citizens’ right to life and liberty. As Charlton Heston says in a Touch of Evil, “Only in a police state is the job of a policeman easy.” Likewise, I worry less about the frustrations of IRS agents than I do about the rights of taxpayers. Tax collectors have a legitimate job, but a true freedom-lover is primarily concerned about protecting individuals from the state.
Let’s look at a recent example. On Dec. 23, Los Angeles police shot to death Valentina Orellana-Peralta. who was shopping for quinceañera dresses in a Burlington store dressing room in North Hollywood. Officers were responding to reports of an assault with a deadly weapon and opened fire. A bullet penetrated the dressing-room wall, where Valentina and her mom were hiding from the ruckus. The girl died in her mother’s arms.
Those who scream (rightly) about government encroachment on our liberties when, say, legislators pass a new gun-control measure, tax hike or business regulation need to acknowledge that the government’s killing of a young girl who is out enjoying her day is a rights-destroying offense of a much higher order. It doesn’t matter that the girl was not the intended target.
The Los Angeles Police Department released a bland statement saying that officers didn’t know the girl was in the dressing room. The union argued the officer followed active-shooter protocols after getting 911 calls. It appears there was no active shooter. Police killed the suspect, who was a danger, but the weapon was a bike lock and cable.”
“Underlying that split is the question of whether and when COVID-19 counts as a workplace hazard, justifying regulation by the Occupational Safety and Health Administration (OSHA), as opposed to a general risk that Americans face throughout the day, which goes beyond that agency’s statutory mission. All of the justices agreed that OSHA does not have a general license to protect public health, and all of them agreed that the agency does have the power to address COVID-19 in the workplace. But while the dissenters were willing to let OSHA define that problem in general terms, justifying a broad solution covering 84 million employees, the majority thought the agency was obliged to be more specific and discriminating.”
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“OSHA has previously issued regulations that addressed communicable diseases. In 1990, it issued a nonemergency standard dealing with bloodborne pathogens, and last June it published a COVID-19 ETS for the health care industry. But both of those rules aimed to protect employees who faced special hazards because of the nature of their work (handling blood samples and treating COVID-19 patients, respectively), and neither of them encouraged or required employers to make vaccination mandatory. That is something OSHA, which has existed for more than half a century, has never done before—a point that the justices emphasized during oral arguments last week and again in yesterday’s decision.
“OSHA has never before imposed such a mandate,” the Court notes. “Nor has Congress. Indeed, although Congress has enacted significant legislation addressing the COVID–19 pandemic, it has declined to enact any measure similar to what OSHA has promulgated here….The most noteworthy action concerning the vaccine mandate by either House of Congress has been a majority vote of the Senate disapproving the regulation on December 8, 2021.”
In a joint dissent, Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan argue that OSHA’s unprecedented rule is justified by the unprecedented threat that COVID-19 poses”
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“Even as Breyer et al. emphasize the society-wide threat posed by COVID-19, they suggest the risk is especially acute in the workplace, where employees typically gather inside for eight hours a day. That basic fact, the dissenters argue, justifies OSHA’s broad approach, because the coronavirus “spreads mostly without regard to differences in occupation or industry.””
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“More generally, the majority says, OSHA has failed to draw appropriate distinctions between different work situations that pose widely varying risks of virus transmission. “Although COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most,” the Court says. “COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases. Permitting OSHA to regulate the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA’s regulatory authority without clear congressional authorization.””
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“The majority nevertheless concedes that OSHA has the authority to address COVID-19 in certain contexts:
“Where the virus poses a special danger because of the particular features of
an employee’s job or workplace, targeted regulations are plainly permissible. We do not doubt, for example, that OSHA could regulate researchers who work with the COVID–19 virus. So too could OSHA regulate risks associated with working in particularly crowded or cramped environments. But the danger present in such workplaces differs in both degree and kind from the everyday risk of contracting COVID–19 that all face. OSHA’s indiscriminate approach fails to account for this crucial distinction—between occupational risk and risk more generally—and accordingly the mandate takes on the character of a general public health measure, rather than an “occupational safety or health standard.”””
“roughly 80 homeless people who live in the upstate community, and who have few options for escaping the dangerously frigid weather.
About half of those people could be housed on the second floor of a building owned by the city’s Free Methodist Church, where 40 empty beds sit ready to welcome people in from the cold.
Stopping that from happening are Gloversville’s zoning officials, who say that the commercial zoning of the church’s property and its downtown location prohibit it from hosting a cold weather shelter. Those empty beds will have to stay that way.
“The situation is dire up here and the city just refuses to let us open,” says Richard Wilkinson, the pastor of Gloversville’s Free Methodist Church. “It’s heartbreaking knowing there’s people out there.””
“Today’s liberal critics of judicial review make two principal claims, both of which Learned Hand made too. First, they say that judicial review is repugnant to democracy. To allow unelected judges to void the actions of democratically elected legislators, presidents, or governors, the argument goes, is to allow the judiciary to subvert the will of the majority. Second, these critics say, judicial review “wasn’t enumerated in the Constitution and isn’t inherent in the court as an institution,” as Bouie put it. Thus, the act of abolishing judicial review does not raise any constitutional concerns.
These liberal critics are right on the first count and wrong on the second. The judiciary is undoubtedly the least democratic branch of government. But that is by design. The role of the federal courts, as James Madison once put it, is to stand as “an impenetrable bulwark against every assumption of power in the legislative or executive.” Lawmakers and presidents sometimes assume powers that they should not, and popular majorities sometimes support those power grabs. The judiciary is meant to stand in the way even if judicial review thwarts the will of such majorities. Indeed, the judiciary is meant to act as a check against the tyranny of such majorities.
What is more, contra Bouie, this authority is firmly located in the Constitution and fully inherent in the judicial branch. According to Article III, Section 1, “the judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” The Framers and ratifiers of the Constitution understood the phrase “the judicial power” to include the power of federal judges to nullify legislative and executive acts that violate the Constitution, which is the power that we call judicial review.”
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“An examination of American legal history reveals the solid constitutional foundations of judicial review. Take the 1787 Constitutional Convention in Philadelphia, where the document was drafted. Speaking on July 21, Luther Martin gave voice to the consensus view. “As to the constitutionality of laws,” Martin observed to his fellow delegates, “that point will come before the judges in their proper official character. In this character they will have a negative on the laws.” George Mason made the same point on the same day. Under the Constitution, he said, judges “could declare an unconstitutional law void.” Nobody at the convention disagreed with any of that.
This same understanding of “the judicial power” is also evident in the Framers’ debates about a proposal that did not make it into the final document. James Madison was foremost among those at the convention who thought that Congress should have the constitutional power to veto state laws. Madison had watched as various states, under the Articles of Confederation, erected tariffs and other costly impediments to interstate commerce (among other barriers to the economic and political harmony of the new nation). Madison wanted to see a congressional check put in place against such state actions.
The states “can pass laws which will accomplish their injurious objects before they can be…set aside by the national tribunals,” Madison told the convention on July 17. In other words, Madison worried that judicial review by the federal courts might take too long in such cases and therefore wanted Congress to be able to move even more quickly against especially dangerous state laws.
Gouverneur Morris spoke for the opposition to that proposal. “A law that ought to be negatived,” Morris replied, “will be set aside in the judiciary department.” Morris did not favor a congressional veto over state legislation because he thought the veto power of the federal courts—judicial review—would do the trick.
Morris beat Madison in that particular debate. The Constitution would not contain a congressional “negative” over state laws. But both sides in the debate did think—indeed, both sides simply took it for granted—that the federal courts would have the constitutional power to “set aside” unconstitutional laws. They all agreed that the federal courts would have the power of judicial review.”
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“That same understanding of “the judicial power” is evident when you examine the records of the state ratifying conventions.”
https://reason.com/2022/01/18/two-years-into-the-pandemic-the-u-s-is-still-struggling-to-issue-visas/
“On his first day in the presidency, Biden began to tackle some of the harsh immigration measures imposed by Trump. He lifted Trump’s so-called Muslim ban, which prevented citizens of seven predominantly Muslim countries from coming to the U.S. He signed an executive order halting construction of a wall at the U.S.-Mexico border. And he sent the U.S. Citizenship Act of 2021 to Congress. Among other things, that bill set out to create a path to citizenship for undocumented people, clear backlogs in the family-based immigration system, and improve immigration courts.
However, many of those early wins—and supposed reversals of Trump’s policies—came with asterisks. Biden was right to rescind Trump’s “Muslim ban,” but nearly all families affected by the policy remained separated because of visa application backlogs. He was right to halt construction of the border wall (which was never going to work), but his administration failed to stop Trump’s land grab lawsuits and the federal government continued to seize private property along the U.S.-Mexico border through eminent domain. That ambitious immigration bill has gone nowhere.
Since taking office, Biden has cherry-picked which of Trump’s most controversial policies he’ll keep and which he’ll discard. The ones he’s kept are cruel, counterproductive, and are failing to please either side of the political aisle.
Key among them is Title 42, which critics say violates longstanding U.S. asylum law. The policy was first imposed by the Trump administration and allows Customs and Border Patrol (CBP) to expel migrants on public health grounds. Deprived of the opportunity to present their cases for asylum, migrants are very often returned to dangerous communities and countries. Biden has kept Title 42 in place, even though it was the brainchild of notoriously anti-immigration Trump adviser Stephen Miller. Centers for Disease Control and Prevention officials have questioned its efficacy as a COVID-19 mitigation measure from the very beginning.
CBP expelled over 1 million people under Title 42 in 2021, with over 7,000 migrants getting kidnapped and attacked by cartels and Mexican authorities post-expulsion since Inauguration Day. The Biden administration has also used Title 42 to deport thousands of Haitians to Haiti, even though many of the deportees hadn’t lived in Haiti for years and were actually coming from South America. Some Biden appointees have suggested that the president’s continuation of Title 42 “is largely based on optics—that it’s staying in place because of concerns that ending it will fuel perceptions of a chaotic border.”
But Biden’s critics falsely claim that the Southern border is open. It’s true that CBP reported a 21-year high of 1.66 million migrant encounters at the border in fiscal year 2021. The majority—61 percent—of those apprehensions resulted in Title 42 expulsions, and the figure fails to account for repeat crossings. “Perversely, continuing this Trump policy has also given ammunition to the hard-right nativists, because it has the unintended consequence of inflating the count of U.S. border crossings,” writes The Washington Post’s Catherine Rampell. Over one-quarter of encountered individuals were apprehended multiple times by CBP, Rampell notes—”nearly quadruple the share in 2019.”
All the while, inefficiency has plagued day-to-day aspects of the U.S. immigration system. Two years into the pandemic, 60 percent of U.S. embassies and consulates are still partially or completely closed for visa processing. Nearly 440,000 immigrant visa applicants whose cases are “documentarily complete” are still waiting for visa appointments (the State Department scheduled just 26,605 appointments for this month). The nation’s refugee intake hit a record low in fiscal year 2021 and our numbers aren’t on pace to be any better in 2022. Legal immigration collapsed under Trump; it hasn’t rebounded under Biden.
All that said, it would be unfair to say that Biden’s immigration policy has been a complete failure. The administration evacuated a staggering number of Afghans after their country fell to the Taliban in August. Visa processing has been imperfect and many vulnerable people are still trapped in Afghanistan, but the Biden administration smartly introduced a private refugee sponsorship program that allows U.S. citizens to help support and resettle evacuated Afghans. Biden has rescinded some Trump-era rules that needlessly slowed down visa and work permit processing, and recently added 20,000 visas to this fiscal year’s cap for the nonimmigrant nonagricultural worker H-2B visa. The administration restarted the Central American Minors program, which allows at-risk children from El Salvador, Guatemala, and Honduras to come to the U.S. as refugees.”
“The FBI has arrested more than 700 Donald Trump supporters who unlawfully entered the Capitol grounds or the Capitol itself that day, many of whom incriminated themselves by recording and/or livestreaming their activities. On the anniversary of the riot, The New York Times reported that “a little over 300” had been charged with petty crimes such as trespassing and disorderly conduct, while “more than 225 people” were “accused of attacking or interfering with the police” and “about 275” were charged with obstructing the congressional certification of President Joe Biden’s election.
Against this backdrop, last week’s indictment of 11 Oath Keepers stands out. It was the first time that any of the rioters had been charged with sedition—specifically, using force to “prevent, hinder, or delay the execution of any law of the United States.” The conspiracy described in the indictment is notably different from the spontaneous, heat-of-the-moment crimes committed by most of the people who stormed the Capitol. Unlike the riot as a whole, which looked more like a temper tantrum than an incipient coup, the “operation” mounted by the Oath Keepers was planned well in advance. Although it is the closest thing we have seen so far to an “insurrection” (the label that Democrats routinely apply to the riot), it was still half-baked and pitifully ineffectual.”
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” The preparations for January 6 allegedly included gathering Oath Keepers from around the country; paramilitary training; “reconnaissance” of the Capitol area; multiple purchases of guns, ammunition, and firearm accessories; a stash of weapons at a hotel in Arlington; and a “quick reaction force” (QRF) that waited at the hotel, ready to act “if SHTF.” The indictment says “the QRF teams were prepared to rapidly transport firearms and other weapons into Washington, D.C., in support of operations aimed at using force to stop the lawful transfer of presidential power.””
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“The Oath Keepers who went to the Capitol on January 6 evidently did not bring any firearms, although they did have “hard-knuckle tactical gloves, tactical vests, ballistic goggles, radios, chemical sprays, a paracord attachment, fatigues, goggles, scissors, a large stick,” and a German Shepherd named Warrior.”
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“According to the indictment, however, Rhodes and other Oath Keepers celebrated the riot and talked about following it up with further acts of resistance. “Thousands of ticked off patriots spontaneously marched on the Capitol,” Rhodes said that night in a Signal group chat. “You ain’t seen nothing yet.” Between January 10 and January 14, the indictment says, Rhodes spent about $18,000 on firearm parts, accessories, and ammunition. But apparently nothing came of whatever Rhodes might have been planning. He was not arrested until.. a year after the spending spree described in the indictment.”
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“On Election Day, Rhodes publicly advised Oath Keepers to “stock up on ammo” and prepare for a “full-on war in the streets” if Biden were declared the winner. A week later, Rhodes posted a “call to action” under the headline “WHAT WE THE PEOPLE MUST DO.” It described elements of the revolt against Milosevic, which included not only “peaceful protests” and “complete civil disobedience” but also “swarm[ing] the streets,” “confronting the opponents,” “storm[ing] the Parliament,” and “burn[ing] down fake state Television.”
In a December 23, 2020, message on the Oath Keepers website, Rhodes said “tens of thousands of patriot Americans, both veterans and non-veterans, will already be in Washington D.C., and many of us will have our mission-critical gear stowed nearby just outside D.C.” He warned that he and likeminded patriots might have to “take to arms in defense of our God given liberty.”
So much for staying below the radar. Rhodes’ lack of discretion was not his only problem. It remains unclear exactly how he hoped to keep Trump in power.”
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“The plan, evidently, was to “scare the shit” out of Congress with a show of force that would persuade legislators to reject electoral votes for Biden. But in the end, the Oath Keepers merely joined a riot that was already in progress, and the riot itself accomplished nothing but an interruption that delayed ratification of Biden’s victory until that night.”
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“The sedition charges do not require that the defendants had any realistic hope of success. Assuming the allegations are true, Rhodes et al. did indeed conspire to use force to “prevent, hinder, or delay” the execution of Congress’ constitutional and statutory obligations to certify the election results. And in addition to the sedition counts, which are punishable by up to 20 years in prison, the defendants face various other charges, including conspiracy to obstruct an official proceeding, assault, destruction of government property, interference with law enforcement, and tampering with evidence (mainly by erasing incriminating data on their cellphones).
The Justice Department estimates that as many as 2,500 people may ultimately face charges in connection with the Capitol riot. Most of them will be more like Gonzalez, the “Capitol Doobie Smoker,” than Rhodes and his followers, who had ambitious but inept plans that ultimately amounted to little more than a sideshow in a much broader spasm of vandalism and violence that was itself utterly futile.”