Apple Slapping, Yglesias Bashing, and Open Thread

"Janie Jones" - The Clash

I pretty much abandoned the internets for the weekend and did old-fashioned things -- I finished reading Wolf Hall, and saw two movies: Moonrise Empire and Your Sister's Sister.  I enjoyed both well enough I guess, although the former is a bit precious and mannered, and the latter perhaps too small for even a small film.  You could certainly do worse though than either of them. 

Now I am anxiously awaiting news on the Affordable Care Act decision -- I must say my sense of dread over it has been rising the closer we get to its issuance.  My faith in this Court to have even a remote sense of the right thing is at a low point.  Let's see, what else is happening?

- What is it about Apple that makes some liberals lose their minds?  There was a large piece in the Sunday New York Times detailing the piss poor wages that Apple pays on average to its retail store employees - on average a little more than $11 per hour.  And right on cue, there is an apologia from Matt Yglesias, basically trying to make the case that this is a pretty decent retail wage and that the world would be a better place if other retailers paid as well as Apple.  To which I say bollocks.  Seriously, Yglesias tries to make $25,000 a year sound like a living wage (well you do get a 401(k) -- the ultimate BFD -- and discounts on Apple products!  Where the fuck do I sign up?)  I have a pretty good sense of where a lot of the Apple stores are and they are generally in some of the most expensive places in the country.  I know that in DC at least $25,000 is not really a living wage.  Hell, it was my starting salary back in 1985 and even then it was a wage fit only for a single person on his/her way up in the world -- a wage suited for group houses and studio apartments.  Christ, I work in a relatively small law firm where my compensation (and that of my partners) is directly attributable to the profits we generate and we still pay our lowest paid employee in excess of $20 an hour, plus fully paid family medical, plus 8% of salary into an individual account pension plan, plus a 401(k) match.  It strikes me that the most profitable company in the world might be able to do a little better than our modest little firm.  Apple should be a pace setter in terms of compensation, not applauded because it keeps its employees above the poverty line.  Jesus Christ.

There is a good sense conveyed in the article of both just how exploitative Apple is and at how successful they are in selling a peculiar brand of false consciousness for the well-educated set:

This is why Apple can do something unique in the annals of retailing: pay a modest hourly wage, and no commission, to employees who typically have college degrees and who at the highest performing levels can move as much as $3 million in goods a year.       

“When you’re working for Apple you feel like you’re working for this greater good,” says a former salesman who asked for anonymity because he didn’t want to draw attention to himself. “That’s why they don’t have a revolution on their hands.”

How in God's name did people ever get the idea that working for Apple was working for the greater good?  It baffles me.

This is another indicia of how much damage the demise of unions does to people in these kinds of jobs.  People who work as clerks and support personnel at unionized supermarkets around here actually made a living wage, one that included an hourly wage that could support a family (very modestly) and a real pension, not this 401(k) bullshit, which requires people to defer from their princely $11 an hour wage.  And supermarkets were always a notoriously low margin industry.  Apple, by contrast, has huge mark ups on all of its goods and faces little in the way of competition given the name brand appeal of what it sells.  Shouldn't we actually expect such a company to do a little more than this?  The people who work at the Apple stores are actually pretty decently skilled folks, especially the ones who staff the so-called "Genius Bars." Is it too much to ask that a genius get paid $20 an hour and the company become just a little less profitable?    

I must say that I generally prefer my exploitation with a little less smug than Apple manages and their enablers, like Yglesias, let them get away with.

What else is going on with you?    

Update:  There will be no health care decision from SCOTUS today.  Stay tuned for Thursday.  Today the Court summarily upheld the Citizen's United case in striking down a Montana statute limiting corporate campaign contributions.  The Court largely affirmed a Ninth Circuit Court of Appeals decision enjoining enforcement of Arizona's infamous S.B. 1070, the "papers please" law.  I have yet to read the full opinion, but it appears to me that the majority of the Court, with Justice Kennedy writing, found the Arizona law to be pre-empted by the federal government's power over immigration.  Scalia dissented in what strikes me as a fairly radical state's rights opinion.  Thomas and Alito also filed separate opinions, dissenting in part.  I have not had the time to read those. Evidently Scalia issued some sort of statement in conjunction with the opinion noting President Obama's recent decision to suspend deportation efforts against those brought to the U.S. illegally when children.  I am guessing that this (I haven't yet seen it) will prove to be another nakedly political statement from the great legal mind of the right.

So Thursday morning should be a big day.  I suspect SCOTUS Blog will be crashing at about 9:59 AM that day.  SCOTUS Blog seems to believe the health care opinion is being written by Roberts, with Kennedy co-authoring part of the majority.  If that is the case, it may be good news -- Kennedy voting in favor of the law and Roberts deciding to control the opinion and its scope by joining in the majority.  (Or that may be entirely wishful thinking.)  

 

Comments

[oddjob]

The Apple store in Boston is less than a block from Copley Square (one of the priciest pieces of real estate in a very pricey city).

[oddjob]

(And at good fine dining restaurants in Boston - if you are excellent at the work and management likes you - as a waiter/server it's not impossible to earn $1,000/wk.)

[Prup (aka Jim Benton)]

Is the Appleolatry an echo of the old Microsoft/Apple contrpversy? There was always a feel in the discussions of "Apple good, Microsoft bad' and a general dislike of Bill Gates which made Jobs look saintly. (I've never understood any of this, and, as someone who is, first of all, a consumer, i found the anti-bundling rules Microsoft has followed after pressure to be no pleasure. And -- iirc --I've never used an Apple product of any kind so I have no feel for why they are supposed to be so much better -- but I know they are usually more expensive.)

As for other things, I spent a day escaping the Net myself, taking a 'vacation' to the Cape Cod of the 30s and the delightful Asey Mayo books. (I knew, when I filled in the set, that I was familiar with some books, but others I hadn't read for 48 years -- they never made it into mass circulation pbs for me to find at thrift stores and used book store, I hadn't seen them since I borrowed the hardbacks from libraries -- and some I'd never read at all. Finding those are the gems, and I just started one, DEATHBLOW HILL.)

Of course, as I chatter, I'm trying to keep an eye on SCOTUSblog, checking Benen/Maddow, and trying to finally finish the piece on the Arizona Senate race.

[oddjob]

If I remember correctly Microsoft Windows didn't even exist until pressure from the easier to use Apple system forced them into abandoning DOS as the only way to do things. Microsoft wasn't very user friendly for any but computer nerds.

[Prup (aka Jim Benton)]

As the two minute warning goes up, there is a statement by SCCOTUSblog -- all comments on the decisions will come from there unless otherwise stated -- that Roberts is writing the health care decision 'by inference.'

Damn, first order, the Montana case is summarily reversed. Likely, of course, but we could hope someone had been convinced by the subsequent events that CU had been an overreach and a 'self-inflicted wound.' My guess is that it will be gone before 2016, but that depends on the vacancies that occur, never predictable.

[Prup (aka Jim Benton)]

No life without parole for juveniles -- opinion by Kagan.

[Prup (aka Jim Benton)]

Montana and the juvenile justice case were both 5-4, the usual groups on Montana, still finding out the vote on juvenile cases, but Alito felt so strongly he's delivering his dissent live.

Fascinating, the dissenters in Montana stated they chose to dissent from the summary dismissal rather than vote to hear the case because they knew there was no way the current court would reverse CU.

[Prup (aka Jim Benton)]

AZ (SB1070) is pre-empted in part, but is open to other challenges as well. Kennedy writing opinion, Scalia would uphold 1070 in toto. Total of 3 dufferent dissents from the right on 1070.

No health care today, waiting for the announcement of final decision day. Also no gay marriage cases are yet slated for next term.

[Prup (aka Jim Benton)]

Apparently it was Roberts who joined with Kennedy, Breyer, Ginsburg and Sotomayor on AZ, since Kagan recused herself. The only thing that remains from the priginal law is the "show your papers' provision, and that has to be construed very narrowly -- and may be subject to another challenge.

[Paula B]

#SCOTUS #ACA opinion will be released Thursday 10am , according to SCOTUS on Twitter

[Prup (aka Jim Benton)]

The final decision day will be Thursday, so that's when the health care decision will come down. And Scalia's dissent on AZ should be worth reading -- take dramamine or other anti-nausea pill first. He even works in Obama's recent suspension of deportations -- not any actual part of the case.

Now I'm going to breathe a little.

[Prup (aka Jim Benton)]

Technically, all that was announced was that the final decision day would be Thursday. The assumption is that they won't 'hold health care over' but do not believe that this was actually stated, and would be extremely unusual.

[Bill H]

I've long been amused by the demonization of health insurance companies who "made $XX billion profit" that actually turns out to be a 7% profit margin, and oil companies "who are doing very well and don't need tax breaks" but are actually making a 6% profit margin, while idolizing and adoring Apple, which makes a 54% profit margin and offshores almost all of its manufacturing jobs.

[kathy a.]

here is the opinion deciding juveniles cannot be sentenced to life w/o parole in homicide cases. the concurring opinion and dissents follow the lead opinion.

the case was handled by bryan stevenson of the equal justice initiative, a fabulous nonprofit law firm in alabama.

[Prup (aka Jim Benton)]

I find it fascinating that the decision calls for an outright prohibition, when it seems possible that it could have been decided on the narrower ground that both cases were cases of 'felony murder' in which the defendant took part in an action -- in one case, only served as a lookout and did not even know until the action was started that one of the others had a gun -- but did not directly cause or plan the deaths that occurred.

I'm working off the summary for the main decision, working my way to the dissents and concurrences.

And I now see that Breyer and Sotomayor specifically covered this -- felony murder -- in their concurrence.

On to the dissents...

[kathy a.]

prup -- at a quick look, a lot of the reasoning in miller v. ala. (the juvenile case) follows the earlier decision in roper v. simmons, which categorically excluded juveniles from the death penalty. the idea is that juveniles are incapable of the kind of reasoning ordinarily expected of adults -- something we all know is true. (especially anyone who has been or has raised a teenager.) 10 years ago, scotus decided in atkins v. virginia that mentally retarded persons are not eligible for the death penalty, for similar reasons.

interesting that you would exclude people convicted of felony murder from life without parole (and presumably the death penalty). this court would not touch that with a ten foot pole, because so many adults convicted of felony murder are serving LWOP sentences (and sentenced to death). the fear of that litigation may be why the "hang 'em high" wing of this court is so agitated in their dissents.

[Paula B]

two great tweets:

Roger Simon ‏@politicoroger
Cop just stopped me and asked to see my "papers." Showed him Washington Post and New York Times.

pourmecoffee ‏@pourmecoffee
Obamacare ruling to come Thursday. This gives everyone more time to learn more common self-surgical procedures

[Prup (aka Jim Benton)]

Gawd, Roberts' is so political I began to wonder if he might be considering leaving the bench to throw his hat into the ring for 2016. Totally ignores the facts in the case, makes a speech not an argument.

The other two dissents at least bring up serious points for consideration. (This does not mean that I agree with them -- at all -- just that I think their points are actual arguments that need refuting.) Thomas continues to argue -- as he has done consistently -- that 'cruel and unusual' refers to the method of punishment and not the type -- and would, if consistently applied, put him on the anti-torture side in cases involving that.

This is stronger than the usual 'original intent' argument. It at least provides a consistent and relatively objective standard, without it, 'cruel and unusual' becomes purely subjective and it would be hard for any legislature to decide how any given collection of judges would interpret the phrase.

I'll wait till later for the Alito dissent, which didn't convince me but did impress me. He may wind up the only one of the foul four that gets some respect from a future Alpheus Thomas Mason. The others will justly be compared to McReynolds' Marauders, but Alito may be seen as closer to the second Harlan or to Lewis Powell. And he's strong on targeting weaknesses in opposition arguments that force you to defend them.

Maybe someone else will start the discussion of his dissent.

[Prup (aka Jim Benton)]

And responding to kathy, no, I didn't say that you couldn't give LWOP for felony murder, i questioned whether you could not argue that juveniles could not be so sentenced, and leave the overall question of LWOP for juveniles for a better case. After all, the decision does NOT say that a judge cannot sentence a juvenile to LWOP, just that it cannot be done as part of a mandatory sentencing procedure.

I really wish you'd read and respond to Alito's dissent. I don't agree with it, but I can't really respond adequately to it as I believe you could. But on first reading his argument that Kennedy v Louisiana ignores the 'evolution in morals' that could be seen to hold that child rape is equally heinous as murder and can be punished by death; and his whole thread based on his comment "(Is it true that our society is inexorably evolving in the direction of greater and greater decency? Who says so, and how did this particular philosophy of history find its way into our fundamental law? And in any event, aren’t elected representatives more likely than unaccountable judges to reflect changing societal standards?)" seems to need response.

Still, I agree with the decision, unlike Knox but I want a better foundation for my position.

[Prup (aka Jim Benton)]

Later, hopefully this afternoon, but today might get busy for me, and we haven't even looked at the AZ case.

[oddjob]

Not that this is a surprise or anything, but:

Romney Demands ‘Leadership’ On Immigration, Fails To Offer Any

[kathy a.]

prup -- thomas is full of shit. go back and look Woodson v. North Carolina, 428 U. S. 280 (1976), invalidating mandatory death sentences -- that's what he's complaining about. see also: Lockett v. Ohio, 438 U. S. 586, 597–608 (1978)(plurality opinion); Eddings v. Oklahoma, 455 U. S. 104, 110–112 (1982); Skipper v. South Carolina, 476 U. S. 1, 4–5 (1986); Johnson v. Texas, 509 U. S. 350, 361–368 (1993), cited in a footnote in the thomas dissent.

thomas seeks to set aside over 35 years of precedent (and extensive litigation) on whether the circumstances of the crime and the criminal should be taken into account when the government is trying to execute someone. he is saying that here because he also does not think it matters if a kid was 14 years old and did not know anybody had a gun -- mandatory life sentences w/o parole are all good to him. he does not care a single bit that "the right people" are never charged in this way and so are not at risk, assuming they have "the right" connections.

you frame this as "objective," when in the context of the real-life processes, it is anything but. whether a kid is this unlucky depends completely on the whims of prosecutors and legislatures, who are known for "making statements" to advance objectives other than rational justice. all good with thomas. it's not his kid, or one he cares about. it's all nice and tidy, when one does not care about actual people or fairness or how to make things better.

[oddjob]

he does not care a single bit that "the right people" are never charged in this way and so are not at risk, assuming they have "the right" connections.

My impression is that the reason he doesn't care is because he can't stand it when white people use such considerations on behalf of black people.

[big bad wolf]

where did they ge that idea about apple? maybe ads? you know, gandhi, einstein, the dalai lama.

[oddjob]

The Perils of Too Many 5-4 Rulings

[oddjob]

Pennsylvania House Majority Leader Mike Turzai (R) said that the voter ID law passed by the legislature would help deliver the state for Mitt Romney in November....

Wingnut is from a suburb northwest of Pittsburgh (& most likely in his early 50's - yet another kid who graduated from college in the early 80's (Notre Dame in '81, JD from Duke in '87)).

[Prup (aka Jim Benton)]

On a topic we've been discussing, Here's the latest report from Joanna Brooks on the groups of Mormons for Marriage Equality that have been marching at gay pride parades throughout the country -- and even in Santiago, Chile.

[Prup (aka Jim Benton)]

Quoted without comment from the AP:

VATICAN CITY — The Vatican has brought in the Fox News correspondent in Rome to help improve its communications strategy as it tries to cope with years of communications blunders and one of its most serious scandals in decades, officials said Saturday.

Greg Burke, 52, will leave Fox to become the senior communications adviser in the Vatican’s secretariat of state, the Vatican and Burke told The Associated Press.
[snip]
Burke, a native of St. Louis, Missouri, is a member of the conservative Opus Dei movement.

[Sir Charles]

oddjob,

It was a wingnutty era -- Jack Abramoff was class of '81 at Brandeis, a year ahead of me.

When I got to law school, in 1982, the Federalist Society was just getting off the ground.

It was a tough time to be a young lefty.

Jim,

Did you read Scalia's dissent? Pretty amazing piece of work, eh?

(Off topic -- you will be pleased to know that my son popped over to see the Mets the other night at Citi Field. He's already made it to Coney Island as well.)

[Bill H]

Montana and Arizona rulings were, to me, neither good nor bad but simply necessary. States cannot pass laws which contradict federal law, otherwise chaos would ensue.

[nancy]

I'm feeling distinctly at a loss without legal training, but wasn't the Montana law deeply settled stuff?

[Prup (aka Jim Benton)]

I do want to get back to the 'cruel and unusual' case, but, until now, I hadn't read Scalia's dissent on the AZ, only reports of it. (And there are plenty of these, and it looks like even the MSM are slating Scalia over this one, but I haven't checked the actual reports. Also, btw, the Jan Brewer story -- apparently the Gov has a bit of a drinking problem -- is an interesting sideshow. In fact, it really is worth reading the various stories on BLOG FOR ARIZONA and the reactions of the AZ crowd.)

But now I've just started the Scalia piece, I can only react by the equivalent of 'live-blogging it' putting my comments down as I read it. there is just no way I could read it through and summarize how delightfully insane this is -- not when he starts with Vatel and sovereignity.

Fergawdsakes, I thought Republicans were nevereverever supposed to quote International Law in decisions. But to start with the idea of sovereignity, and the statement "The United States is an indivisible “Union of sovereign States.” is more than absurd. Insane is more like it. (Does anyone know the decision he quotes, Hinderlider v. La Plata River & Cherry Creek Ditch Co. and the context in which the phrase is used?)

The US may have been formed as a Union of Sovereign States, but in that compact the states surrendered many aspects of sovereignity. Scalia calls 'the right to exclude people' the defining characteristic of sovereignity, yet would not declaring war, imposing tariffs, and all conducting of foreign relations be even more defining. The states do not treat with each other as sovereigns, exchanging ambassadors and negotiating treaties, in fact, agreements they make need, in many if not all cases, approval of the federal government.

For that matter, maybe the ultimate expression of sovereignity is the right to make your own laws concerning your own citizens, the very power that the existence of the Supreme Court denies them. It is almost oxymoronic, the fact that Scalia can speak of a state's sovereignity in a decision of a Supreme Court when the fact that such a decision can be made proves that teh states do not necessarily have the rights of sovereignity.

Furthermore, while the original states may have had the aspects of sovereignity, as did Texas and Hawaii, and arguably one or two more; states like Iowa, the Dakotas, Idaho, or Tennesee never did. They were pure creations of the National Government. And the very question of a state's sovereignity seems to be also settled by a small dispute that took place between 1860 and 1865.

We go on to the next delightful example of high comedy -- did Scalia model the opinion on the famous article by Alan Sokol -- or did he just become addicted to 'what is wrong with this picture' puzzles as a child and enjoy creating one of his own?

He actually uses the very statement 'by authorizing the general government to establish a uniform rule of naturalization throughout the United States' to claim that this did not limit the states, but instead 'vindicates' (Huh?) 'States’ power to exclude those they did not want.'

This is going to take a while. Sometimes you can't verbally describe a Mobius strip, you have to display it. So I'll just quote one passage in its amazing entirety to end this section.

Two other provisions of the Constitution are an acknowledgment of the States’ sovereign interest in protecting their borders. Article I provides that “[n]o State shall, without the Consent of the Congress, lay any Imposts orDuties on Imports or Exports, except what may be absolutely necessary for executing it’s inspection Laws.” This assumed what everyone assumed: that the States could exclude from their territory dangerous or unwholesome goods. A later portion of the same section provides that “[n]o State shall, without the Consent of Congress, . . . engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.” Art. I, §10, cl. 3 (emphasis added). This limits the States’ sovereignty (in a way not relevant here) but leaves intact their inherent power to protect their territory.

Okay, one comment. How beautifully he conflates the right to defend against attack -- without waiting for permission from a Federal Government at the time several days or more away -- which is not an aspect of sovereignity with the right to declare war, which is.

A brief pause for you to pour the drink you undoubtedly need.

[Prup (aka Jim Benton)]

And on we go through the Scalia Legal Fun House and Mirror Room. (I'm at page 34 of the combined PDF, btw.)

Back we go to the Sovereignity game -- Hmm, I haven't read the actual decision, but did it discuss this? I'll check later or tomorrow morning. Anyway, he has found a citation which almost proves his case, that reknowned and world famous decision Mayor of New York v. Miln -- it would have been nice to have a date for it, and i'd love to know if it has ever been cited anywhere else -- anyone have access to the West database. Unfortunately, again the ultimate authority is Vatel, and even the quote refers to New York, which had been sovereign. Arizona never was, and thus never had the right claimed.

But the gem of them all is the wonderful way he argues that the US had the right to regulate immigration not because of the naturalization but because (hear the gentle splatting of condescension) it TOO is sovereign and therefore has as much right as the states to regulate immigration.

Having milked 'sovereignity' for all the laughs he can squeeze out of it, he then attempts to set a new record for sheer audacity.

That is why there was no need to set forth control of immigration as one of the enumerated
powers of Congress, although an acknowledgment of that power (as well as of the States’ similar power, subject to federal abridgment) was contained in Art. I, §9, which provided that...

(Please make sure your seat belts are fastened before proceeding)

"“[t]he Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight . . . ."

This, if you don't recognize it, was, in fact, the compromise made that forbade Congress from regulating the slave trade before that year. As far as I know, no one has ever seen it as anything else, until the Scalian brilliance illuminated it's true meaning. (*ahem* *cough* *cough* "Original intent," haven't I heard that some judges consider this important in understanding a Constitutional provision?)

Then he mentions the state's 'traditional role in regulating immigration' without giving any example. Details? A (superannuated) wunderkind needn't bother with details.

More tomorrow. Scalia's just getting started, but I'm done in, and not quite through for the night.

[oddjob]

Montana's law had been on the books for a century, but I don't know if a federal court had ever ruled upon it before. (Prior to the Citizens United case I'm not sure there was any need to do so.)

[oddjob]

For years, civil rights groups in the Phoenix area have been battling a sheriff who made it his goal to arrest as many people on immigration violations as he could, even as it came at the cost of solving more serious crimes.

Now those same groups are preparing for what they expect will be a flood of new problems as cops throughout the state jump into the fray following Monday’s Supreme Court ruling that gave them a green light to enforce one of the toughest parts of Arizona’s immigration law, SB1070....

[Prup (aka Jim Benton)]

oddjob: When Jan Brewer says something stupid about the decision, we call her on it, but Nick Martin is either saying or reporting something equally stupid. SCOTUS did not 'green light' the 'show your papers' provision. It did not even approve it, despite the number of Republicans claiming so. In fact, it did not even say it was not pre-empted at all, merely that, until it was actually construed by the lower courts and put into practise, it could not be declared pre-empted. The court said -- in the syllabus, precisely that:

(b) This Court finds unpersuasive the argument that, even with those limits, §2(B) must be held preempted at this stage. Pp. 20–24.

(1) The mandatory nature of the status checks does not interfere with the federal immigration scheme. Consultation between federal and state officials is an important feature of the immigration system. In fact, Congress has encouraged the sharing of information about possible immigration violations. See §§1357(g)(10)(A), 1373(c). The federal scheme thus leaves room for a policy requiring state officials to contact ICE as a routine matter. Cf. Whiting, 563 U. S., at ___. Pp. 20–21.

(2) It is not clear at this stage and on this record that §2(B), in practice, will require state officers to delay the release of detainees for no reason other than to verify their immigration status. This would raise constitutional concerns. And it would disrupt the federal framework to put state officers in the position of holding aliens incustody for possible unlawful presence without federal direction and supervision. But §2(B) could be read to avoid these concerns. If the law only requires state officers to conduct a status check during the course of an authorized, lawful detention or after a detainee has been released, the provision would likely survive preemption—at least absent some showing that it has other consequences that are adverse to federal law and its objectives. Without the benefit of a definitive interpretation from the state courts, it would be inappropriate to assume §2(B) will be construed in a way that conflicts with federal law. Cf. Fox v. Washington, 236 U. S. 273, 277. This opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect. Pp. 22–24.

To make it even simpler, we'll give you a chance to come up with some way that is neither unconstitutional or preempted to enforce the law. We don't think you can do it, but we won't rule it out until we see what you can come up with, and then face the inevitable suit.

The reporting on this has been pretty bad, true. To quote AZBlueMeanie:

The first accurate reporting I saw all day was from Judge Napolitano on FAUX News Fraudcasting, the Rachel Maddow Show and Lawrence O'Donnell's Last Word. It took until late in the day before the Court's opinion was reported accurately. That is a sad commentary on the sorry state of our media in this country.

[oddjob]

In which case the Republicans will keep trying until they can find a way to get SCOTUS to tolerate "Papiere, bitte..."

In that sense there's nothing stupid about what he's written.

[Sir Charles]

oddjob and Jim,

I think that Jim's take on this is correct -- that the media has largely gotten wrong the significance of the holding and somehow turned this into some sort of split decision, when it was clearly a loss for Brewer and her allies. I think O'Donnell had the best take on it that I've seen and have been amazed at the amateurish analysis that have been put forth elsewhere.

[Prup (aka Jim Benton)]

Back to the Antonin Assinity -- I hope a couple of you are reading and enjoying this.

Having left our intrepid adventurer (at p.37) resting after he had displayed a textbook knowledge of the concept of sovereignity -- assuming that he buys his text books in job lots from the Acme Corp. (or received them for his help to the defense in Coyote v Acme) -- we now join him as he takes on the concept of the Federal Government's role in International Relations. This time he goes to battle riding one of his many (hobby)horses, his consternation at foreign nations objecting to the simple humanity of the death penalty. He gives the steed a couple of kicks, but, sadly, it fails to carry him to his main target.

Not really a surprise. For 'sovereignity' he had merely to make the existence of territories who were never sovereign disappear and work carefully around that case settled in the Court of War 150 years ago, Union v Confederacy. For this he needs the delicate touch of a surgeon to remove the entire mass blocking the arteries of his argument, the entire history of the relations between nations and even tribes.

The first and still among the most important object of foreign relations is to insure the safety of a country's own nationals in foreign lands. In fact the failure of a country to protect another's nationals resident or visiting there has been a casus belli through the centuries. (I even seem to remember a recent President invading a small caribbean country called Granada for no other reason (stated) but to protect American students studying there. And just before this, our hostages in Iran were seen as full excuse for waging a military strike to free them.)

Even in less stressful situations, in times of total peace, arresting a foreign national can result in a call to the person's consulate and negotiations involving nations, not one nation and one state -- even were such negotiations permitted by the Constitution.

But what the hell, a pleasant sneer, a condescending tone, and the most unpleasant facts can be driven to vanish from the sight. (And he continues to wave the now shredded banner of 'state sovereignity' and treating this mythical concept as superceding the Federal Government's exclusive right over the conduct of foreign relations.)

Nor can federal power over illegal immigration be deemed exclusive because of what the Court’s opinion solicitously calls “foreign countries[’] concern[s] about the status, safety, and security of their nationals in the United States,”... The Constitution gives all those on our shores the protections of the Bill of Rights — but just as those rights are not expanded for foreign nationals because of their countries’ views (some countries, for example, have recently discovered the death penalty to be barbaric), neither are the fundamental sovereign powers of the States abridged to accommodate foreign countries’ views. Even in its international relations, the Federal Government must live with the inconvenient fact that it is a Union of independent States, who have their own sovereign powers. This is not the first time it has found that a nuisance and a bother in the conduct of foreign policy.

(If you doubt him, remember, the cloth he is clothing his ideas in is only visible to the truly smart people. Dumb and insensitive and stubbornly wrong people who need to be paid no attention will actually think the argument is naked, so, as he will explain, if you wish to show yourself so pitiful, you'll dispute the obvious wisdom he is dispensing.)

Needing a rest from the heavy burden he has been bearing, he slides over to the less arduous task of agreeing with the majority that it is impossible to rule on the 'show your papers' section until it is seen how it is enforced in practice -- though of course he can see no possible conflict that could arise. But he doesn't need his usual feats of statutory pretzel-bending, a mere refusal to understand that 'cooperate with' (the AG 'in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States,) does not mean 'go off and do whatever you want if it achieves, or can be claimed to achieve the same goal you can impute to the AG.'

(In most cases, 'cooperating' with a senior official implies 'putting your men at his service if necessary' or 'acting under his direction' but that would be too simple for Justice Scalia's understanding. Which implies that he should have no trouble with a lower court taking one of his opinions, wringing the 'basic intention' of it out no matter how many times they have to twist it to get that last liquid drop, and then 'cooperating' with him on achieving the goal of the decision even if it means going against the specific words he wrote.)

Having caught his breath, he's ready for the next demonstration of his skill. Now we get rapid fire illogicalities, coming so fast that you have to lasso them to hold them in place to see if they are in fact illogical or just incomprehensible.

What a wondrous bunch (translations in italics):

And it is an assault on logic to say that identifying a removable alien and holding him for federal determination of whether he should be removed “violates the principle that the removal process is entrusted to the discretion of the Federal Government,” ante, at
18. The State’s detention does not represent commencement
of the removal process unless the Federal Government
makes it so.

(If the Federal Government decides not to pursue the case, then it wasn't a real exercise of the removal process, and anyway, holding someone and asking the Feds to check on him doesn't start anything, does it?

Arizona is entitled to have “its own immigration policy”—including a more rigorous enforcement policy—so long as that does not conflict with federal law. The Court says, as though the point is utterly dispositive, that “it is not a crime for a removable alien to remain present in the United States,” ante, at 15. It is not a federal crime, to be sure. But there is no reason Arizona cannot make it a state crime for a removable alien (or any illegal alien, for that matter) to remain present in Arizona.

(Making something a state crime that isn't a federal crime in no way represents a conflict with federal law. And, btw, weren't similar questions already settled in some of the Japanese Resettlement Cases, or is 1941-1945 another one of those 'unpleasantnesses' he chooses to avoid.)

statutory limitations upon the actions of federal officers in enforcing the United States’ power toprotect its borders do not on their face apply to the actions of state officers in enforcing the State’s power to protect its borders. There is no more reason to read these provisions as implying that state officials are subject to similar limitations than there is to read them as implying that only federal officials may arrest removable aliens. And in any event neither implication would constitute the sort of clear elimination of the States’ sovereign power that our cases demand.

(Second verse, same as the first. But I wish he'd explain if a state, as sovereign, has the right to exclude the citizens of another one of sovereign members of the Union of the United States. Can Californians keep Nevadans out? Seems like it. In fact, a sovereign state can define for itself -- this is the key to his argument -- who are undesireable aliens. Can they make this decision on racial or religious grounds as well as on the state origin of the 'alien'?)

And a final oration to end this section, with a few interjections:

we have no license to assume, without any support in the record, thatArizona officials would use their arrest authority under §6 to harass anyone.(And I've never even heard the name, Arpaio) And it makes no difference that federal officials might “determine [that some unlawfully present aliens] should not be removed,” ibid. They may well determine not to remove from the United States aliens who have no right to be here; but unless and until these aliens have been given the right to remain, Arizona is entitled to arrest them and at least bring them to federal officials’ attention, which is all that §6 necessarily entails.(and if you remember what i said about conflicts of federal and state law... dpn't. Forget it. At once.) (In my view, the State can go further than this, and punish them for their unlawful entry and presence in Arizona.)
The Government complains that state officials might not heed “federal priorities.” (which is sorta what 'no conflict' means) Indeed they might not, particularly
if those priorities include willful blindness or delib- erate inattention to the presence of removable aliens in Arizona. (which 'blindness' and 'inattention' is to be decided by Arizona in its sole judgment, and if I can get you to swallow that one, I'm home free) The State’s whole complaint—the reason this law was passed and this case has arisen—is that the citizens of Arizona believe federal priorities are too lax. The State has the sovereign power to protect its borders more rigorously if it wishes, absent any valid federal prohibition. The Executive’s policy choice of lax federal enforcement does not constitute such a prohibition.(and neither does the Federal Government telling us we can't do it, which is a prohibition, but not a validone given the fact that the Administration is already too lax in the eyes of the citizens of Sovereign Arizona.

Enough for now, I've been working on this since morning -- which is why I haven't seen any comments that have already told me to shut up.

[Prup (aka Jim Benton)]

I again hope someone is reading the Scalia pieces, but the one thing that amazes me is how much pure unadulterated 'tentherism' and even 'nullification' he includes in it. Again, the only thing lacking is a statement that 'in the case of Grant, Lincoln, Stanton et al v Lee, Davis, Stephens, Davis et al we wish to state our belief that this case was wrongly decided.' It's certainly inherent in everything he's written here.

[Sir Charles]

Jim,

I kept reading that dissent yesterday and thinking, I thought all of this was settled at Appomatox -- but evidently not; the glorious cause still lives on.

[nancy]

Reflecting reality on the ground, about which Scalia appears to know little -- "Plenty of Asparagus, Few Workers to Pick It" .

... crossing the U.S.-Mexico border illegally has rocketed in price, to as much as $6,000 per trip — one-third more than it used to be, workers say. With border violence brought on by warring drug cartels, combined with the depressed U.S. economy, many are deciding the trip isn't worth the cost or risk.

The result is Mexican migration to the United States has slowed to a trickle, and growers are seeing the result.

The comments at the local story running in the Seattle Times brought many Tea Partiers out to point fingers in two directions. At the lazy and indolent unemployed, as well as the 'illegals'. I should have known better than to look.

There isn't a crop in Washington state that can be harvested without this labor force, doing back-breaking work, and every producer, orchardist, and agribusinessman knows it. GOP, one and all.

Jim -- Enjoying your Scalia-in-translation series.

[oddjob]

Not only is the work back breaking but it also does require some expertise and skill. The skills and knowledge can be learned but it's still brutal work. Not everyone's cut out for that.

[Sir Charles]

oddjob,

But Jim can handle it . . . oh, you were talking about harvesting asparagus -- at first I thought you meant translating Scalia.

nancy,

The right wing are notable for their short memories. Their hero George W. virtually opened the borders for the benefit of the GOP's business clientelle.

The country has long been dependent on Mexican agricultural workers. Hell, this dates back to at least the Bracero program under FDR during WWII.

[nancy]

Lip-biting, oh-so-concerned, Dream Act-killing Congresswoman to Boehner's left in today's photo-op -- orchardist's daughter who will inherit the family migrant-labor-dependent operation someday. She's a mind-boggling and truly vacuous hypocrite, yet no one who matters calls her out. She will be re-elected by my congressional district in November.

The Bracero program is what put this family on its footing back in the day.

This obviously makes me crazy. Jim's right. Her Democratic opponent is absent from the Act Blue weblisting. My family keeps telling me -- "you're not going to beat her." And I keep thinking, naively, a seat is a seat is a seat. Shouldn't we try?

[beckya57]

Important distinction needed here, Sir C: the corporate right wing LOVES illegal immigration, since it gives them a pool of easily-exploited, low-cost workers. The base, on the other hand, HATES illegal immigration, due to a combination of employment fears, cultural threat anxiety, and in some cases just plain hate-brown-people bigotry. This is one of the issues the GOP tends to split on, which is why they've never been able to come up with a immigration reform policy. God forgive me for agreeing with Karl Rove, but he was right that the GOP needed to attract Hispanics; however, the Tom Tancredo wing has made that pretty much impossible.

[Prup (aka Jim Benton)]

Okay, so for more Scintillating, Challenging, Amazing Legedemain -- including asininity.

And by the beginning of Part 3 (p 42) he's pretty sure he has us dizzy enough for his next trick, but just to make sure, we get a test. He throws an arguably valid point -- not quite his first, but close -- at us. "It is beyond question that a State may make violation of federal law a violation of state law as well." Okay, sounds good, but then he picks a fascinating cite -- and I'll add the emphasis:

“[T]he State is not inhibited from making the national purposes its own purposes to the extent of exerting its police power to prevent its own citizens from obstructing the accomplishment of such purposes.”

If you weren't disconcerted and discombobulated enough before, trying to figure out why he fired the nail gun at his own argument's metatarsal should finish the job. After that, his next cite almost seems to back up his argument. And you are staggering enough before that he's able to slip the 'state protecting the integrity of its borders' line past -- which, if states are sovereign means against each other as well. Iowa has borders too, and has the right... where did I put the Bushmill's?

So “Despite the exclusive federal control of this Nation’s borders, we cannot conclude that the States are without any power to deter the influx of persons entering the United States against federal law,and whose numbers might have a discernible impact on traditional state concerns.” Plyler v. Doe, 457 U. S. 202, 228, n. 23 (1982). It almost seems as if the double negative supports his whole argument. Of course, it is only a footnote, only half a footnote in fact. But who would actually look it up instead of accepting Antonin the Great's word for it?

Well, me. (Italics are the left out work, bold are my emphases.)

"Although the State has no direct interest in controlling entry into this country, that interest being one reserved by the Constitution to the Federal Government, unchecked unlawful migration might impair the State's economy generally, or the State's ability to provide some important service. Despite the exclusive federal control of this Nation's borders, we cannot conclude that the States are without any power to deter the influx of persons entering the United States against federal law, and whose numbers might have a discernible impact on traditional state concerns."

Hmmm. And what is it a footnote to? Oh, my, what have we here?

First, appellants appear to suggest that the State may seek to protect itself from an influx of illegal immigrants. While a State might have an interest in mitigating the potentially harsh economic effects of sudden shifts in population, [n23] § 21.031 hardly offers an effective method of dealing with an urgent demographic or economic problem. There is no evidence in the record suggesting that illegal entrants impose any significant burden on the State's economy. To the contrary, the available evidence suggests that illegal aliens underutilize public services, while contributing their labor to the local economy and tax money to the state fisc. 458 F.Supp. at 578; 501 F.Supp. at 570-571. The dominant incentive for illegal entry into the State of Texas is the availability of employment; few if any illegal immigrants come to this country, or presumably to the State of Texas, in order to avail themselves of a free education. [n24] Thus, even making the doubtful assumption that the net impact of illegal aliens on the economy of the State is negative, we think it clear that "[c]harging tuition to undocumented children constitutes a ludicrously ineffectual attempt to stem the tide of illegal immigration," at least when compared with the alternative of [p229] prohibiting the employment of illegal aliens.

In fact, the decision he cites is the strongest affirmation of the fact that illegal aliens are as equal to the protections of the 14th Amendment as any other 'inhabitant.' I won't quote it, except for one brief paragraph -- which you should keep in mind -- and you know me, I'll remind you -- when we get to the rant about Obama that so made headlines.:

These arguments do not apply [p220] with the same force to classifications imposing disabilities on the minor children of such illegal entrants. At the least, those who elect to enter our territory by stealth and in violation of our law should be prepared to bear the consequences, including, but not limited to, deportation. But the children of those illegal entrants are not comparably situated. Their "parents have the ability to conform their conduct to societal norms," and presumably the ability to remove themselves from the State's jurisdiction; but the children who are plaintiffs in these cases "can affect neither their parents' conduct nor their own status." Trimble v. Gordon, 430 U.S. 762, 770 (1977). Even if the State found it expedient to control the conduct of adults by acting against their children, legislation directing the onus of a parent's misconduct against his children does not comport with fundamental conceptions of justice.

It's arguable, but I think that just makes the DREAM Act not just Constitutional, but Constitutionally required.

A little long for such little material, but I think its worth it. And watch out, because you should be dizzy enough -- he thinks -- to fall for one of the best examples of the legal 'three walnut shells and a pea' game I've seen. Get yourself ready, the hand -- or the tongue, or the typing fingers -- ain't quicker than the eye, but it takes work on the eye's -- and brain's -- part to win the race.

Hopefully one more section tonight.

[nancy]

Becky -- What you describe is what you'll see in the comments thread at that link if you check. They just can't settle on where they stand, but the schizophrenia is manifest. It's not corporate right-wing as we generally understand it. It's farm-subsidy, land-owning and land-inheriting federally-provided water-rights-loving right wingers at work -- who would all otherwise exist in a desolate and arid, agriculture-free, sagebrush-laden dustbowl.

Those crops in the American West have always relied on a large low-paid migrant labor force to come to market. Wheat farms may have been the exception, where extended family made it happen somehow through machinery.

[Eric Wilde]

My wife works for Apple. I work for Adobe. I have lots and lots to say about Apple... just no time as I'm heads down working in Asia again.

I need a drink.

[Prup (aka Jim Benton)]

Before I get back to the Scalia-thon, which might be tomorrow morning, why hasn't there been a challenge to SB1070 on equal protection grounds. It would be very easy to prove in several ways that the law is enforced almost exclusively against Hispanics, and that no other ethnic group is subject to the same scrutiny -- or, in fact, any special scrutiny at all -- with the possible exception of Arabs and presumed Muslims. Any other accent and the presumption is 'tourist,' usually, or student, or even resident who kept his 'old country' accent. Even if they dp something to draw police scrutiny, they would not be 'asked for their papers.'

You could prove this statistically, or by sending groups of different origins, mixed permanent resident and tourist, but each group including at least one 'illegal immigrant' -- or at least someone who cannot prove his status. The testimony of how they had been treated in various situations, perhaps as compared to similar Hispanic groups, all native-born citizens, wuld clinch the case.

[Crissa]

All I have to say about Apple is...

...Why are they picked out as unique vs their competitors? They don't pay less than other computer retailers. They don't have worse working conditions in their factories. Heck, often they're the same factories, the same parts.

[Prup (aka Jim Benton)]

Oh, and a follow up to one earlier question, the Hinderlider case. Guess what. The one place the term "Union of sovereign States" is used in the decision, it specifically differentiates between them and 'independent sovereign nations.' There is no mention of indivisibility that Scalia makes, and the specific context is the idea of compacts between the states -- and one paragraph below is a joker that trumps his claim -- and remember his entire argument, so far, is based on the idea of states as sovereign entities -- I know I keep repeating it, but so does he.

Watch this one -- emphases mine as usual, cites removed:

The assumption that a judicial or quasi-judicial decision of the controverted claims is essential to the validity of a compact adjusting them, rests upon misconception. It ignores the history and order of development of the two means provided by the Constitution for adjusting interstate controversies. The compact — the legislative means — adapts to our Union of sovereign States the age-old treaty-making power of independent sovereign nations. Adjustment by compact without a judicial or quasi-judicial determination of existing rights had been practiced in the Colonies, was practiced by the States before the adoption of the Constitution, and had been extensively practiced in the United States for nearly half a century before this Court first applied the judicial means in settling the boundary dispute in Rhode Island v. Massachusetts.

The extent of the existing equitable rights of Colorado and of New Mexico in the La Plata River could obviously have been determined by a suit in this Court, as was done in Kansas v. Colorado, supra, in respect to rights in the Arkansas River and in Wyoming v. Colorado, supra, in respect to the Laramie. But resort to the judicial remedy is never essential to the adjustment of interstate controversies, unless the States are unable to agree upon the terms of a compact, or Congress refuses its consent. The difficulties incident to litigation have led States to resort, with frequency, to adjustment of their controversies by compact, even where the matter in dispute was the relatively simple one of a boundary. In two such cases this Court suggested "that the parties endeavor with the consent of Congress to adjust their boundaries."

Thus, since Sovereignty implies the right to contract with other sovereignities freely and without needing the oversight of any higher body -- denies, in this context the possibility of a higher body -- even the paragraph he cites and the following prove that the states are not, even in this respect, sovereign.

He does keep doing that, doesn't he? Is it that he can't read, or hat he presumes no one else will read?

[Sir Charles]

Crissa,

I pick on Apple because they are uniquely profitable in the retail business, they do not operate in a low margin environment where there is significant competition from internet retailers a la Best Buy or from behemoths like Wal-Mart, and their employees help sell a lot of high end products. They could easily afford to pay people more -- as unionized supermarket chains here like Safeway do despite fierce competition -- but simply choose not to.

As was noted in the Times article, comparable retail people at Verizon and AT&T stores get commissions that make them considerably better paid for selling similar items.

And Apple stores, as I noted, are located in extremely high cost areas as a general rule. Their stores here are in Bethesda and Georgetown, two of the most expensive places in the country. They could and should pay their employees more.

Jim,

Scalia's disingenuousness is remarkable.

[oddjob]

Scalia's disingenuousness is remarkable.

As is his public response to his detractors (& I quote):

"Vaffanculo."

[oddjob]

(The source I should have linked to.)

[low-tech cyclist]

He does keep doing that, doesn't he? Is it that he can't read, or hat he presumes no one else will read?

Nobody in the Village will bother to read (because they're a bunch of lazy fucks who don't read, research, or report), and will make sure nobody of importance calls him on it (because their purpose in life is to kiss up to power).

[Prup (aka Jim Benton)]

I'm just getting back to the Scaliathon, and still have the Carmona thing to write. But just a nod to a candidate who understands the necessity of 'showing the flag for sanity' even in hopeless races. Spencer Morgan is -- probably -- running a futile campaign in a District that had previously chosen Trent Franks, but as Blog for Arizona puts it:

Let's face facts: given a 3 to 2 registration disadvantage, Democrats are not likely to win any races in CD 5. Barring the proverbial dead hooker, the winner of the CD 5 GOP primary will likely be taking a seat in Congress.

But in the process, a whole lot of GOP shibboleths will be whispered by candidates Kirk Adams and Matt Salmon. Wouldn't it be great if there were a Democrat there with a mic to challenge their assumptions, debunk their misinformation, and condemn their ideological orthodoxy?

There is. His name is Spencer Morgan.

He's not an ideal candidate. He's barely old enough to qualify for the office. He tends to include his time in student government among his leadership credentials. And he seems to think that a cardigan is sometimes acceptable campaign attire.

But Spencer understands why government is neccessary and beneficial, and how to persuasively and unappologetically stand up for Democratic principles - which is a damn sight more than can be said for some candidates twice his age.

During a recent Chandler Chamber of Commerce debate, he consistently challenged the two Republicans' talking points and presented an alternative view on the issues. This is something that Democrats should always do, even in hopeless districts - just in case a dead hooker turns up, and to ensure that the GOP doesn't have the opportunity to turn a Congressional race into a conservative echo chamber.

We owe a debt of gratitude to Mr. Spencer for providing that service in a deeply red district. He deserves our support and encouragement.

Again, this is the sort of candidate, like the Heitkamps and Gunnarsons, that the pundits will never notice, but that we should, and begin talking up.

[Prup (aka Jim Benton)]

l-tc: But, theoretically, Scalia is not writing for the Village, but for an audience first of lawyers, legal scholars, and legal commenters. And, of course -- again, theoretically -- the most important audience for any Supreme Court decision, concurrence, or dissent is the judges and legislators who have to put the words into practise.

Those are the ones I am stunned that Scalia thinks he can fool -- and I hope he's wrong, about the judges and legal writers, at least.

[Crissa]

I know why you guys do it, I think us out in the weeds should be making noise it's our job. But when major media never bother to even mention in paragraph 15 these basic facts, it pisses me off.

And while some people at other stores make more... But most don't. That's how commissions work. And commissions aren't how you get good customer service, either. That's a huge fallacy - that's how you get good service for the most freely spending customers and bad service for everyone else; with up-selling and cold-dropping.

I don't know where you live, but Apple - aside from some flagship stores - does compete against Best Buy and WalMart out here in the Bay. They're mostly positioned basically across the street from a competitor. Yeah, they've chosen some tony places - which only raises costs. And sure, some of their products are wildly profitable, but their stores aren't where the wild profits come from. The stores are profitable, but only barely. You're asking them to turn it into a loss-leader, which the store often is.

Are wages the only thing? Even the greeter at the door makes that wage. They also get the corporate rate on stuff in the store (and special orders too), plus health benefits sick days, vacation... What commissions based store does any of that?

(I don't even even want to talk about Scalia. That just makes my blood boil.)

[Paula B]

FYI:
on Twitter from ‏@pourmecoffee
NYT launching Chinese language site. Now, they can read Tom Friedman's oversimplified aphorisms alongside Confucius.

[oddjob]

The modern Supreme Court is the most conservative since the 1930's.

(And there's probably a decent argument to be made that this statement probably means today's court is more conservative than was the one with which FDR contended. Back then they were trying to preserve status quo by throwing out the New Deal, but now they're trying to throw out decades of liberal precedent in order to return to something akin to that status quo. Therefore back then SCOTUS decisions were conservative, but now they're reactionary.)

[oddjob]

...“We must must return to our founders’ dream of every state deciding who it could turn away at its border,” Colbert said. “Fifty states, 50 immigration policies. Every state gets its own bird, right? If Georgia can say ‘yes’ to the Brown Thrasher, why can’t South Carolina say ‘no’ to the brown Guatemalan?”

Colbert, being his usual magnificent self.

[nancy]

Could there finally be a groundswell? I never understood why he wasn't removed after the duck hunt.

[Paula B]

Nancy, check out Linda Greenhouse's column in today's NYT. Even she mentions Scalia's "dislike for the president. It's an interesting column on many levels. http://nyti.ms/Qn8Lyl

[Prup (aka Jim Benton)]

Back to the Scalia-thon. And he's almost taunting us with his cites. It isn't just that he cites cases that are directly opposed to his position, but the very paragraphs he cites include arguments that... well, here's an example.

He cites Hines v Davidowitz which is already a key case for the majority, to argue that States are only prohibited from establishing additional regulations for aliens, and that all the state is doing is making the same demands on the alien that federal regulations already require. (Then, shortly after, he argues that the fact that the state does not allow probation or pardon, which the Federal Government allows, does not matter, because Arizona is only choosing the proper punishment for violating a State law, and the Federal Government has no business interfering in that. Watch the hands very closely, the pea keeps slipping from shell to shell.)

In fact this one cite alone could win him the Gold in... what is the Italian for chutzpah and have they made it an Olympic event yet? Anyway, this deserves the attention.

It isn't just that the cite doesn't support his position. In fact, the very sentence which he takes his "enforce additional or auxiliary regulations" from reads, in its entirety:

And where the federal government, in the exercise of its superior authority in this field, has enacted a complete scheme of regulation and has therein provided a standard for the registration of aliens, states cannot, inconsistently with the purpose of Congress, conflict or interfere with, curtail or complement, the federal law, or enforce additional or auxiliary regulations.

But one of the walnut shells is labeled "but we're okay because we're only complementing the federal law.' He doesn't use the word, but he makes the point -- before he switches away from it only to return -- the shell game is really a masterful performance.

By now, though, we are used to this. Let's go on in the same paragraph of Hines:

And in that determination, it is of importance that this legislation is in a field which affects international relations,[Hold That Thought] the one aspect of our government that from the first has been most generally conceded imperatively to demand broad national authority. Any concurrent state power that may exist is restricted to the narrowest of limits; the state's power here is not bottomed on the same broad base as is its power to tax. And it is also of importance that this legislation deals with the rights, liberties, and personal freedoms of human beings, and is in an entirely different category from state tax statutes or state pure food laws regulating the labels on cans.

That one paragraph almost makes the entire case against Scalia, but remember a while back I made a point about how idiotic was his sneer about "neither are the fundamental sovereign powers of the States abridged to accommodate foreign countries’ views." I could have made my point better -- and with SCOTUS behind me, if I had read Hines:

One of the most important and delicate of all international relationships, recognized immemorially as a responsibility of government, has to do with the protection of the just rights of a country's own nationals when those nationals are in another country. Experience has shown that international controversies of the gravest moment, sometimes even leading to war, may arise from real or imagined wrongs to another's subjects inflicted, or permitted, by a government. This country, like other nations, has entered into numerous treaties of amity and commerce since its inception — treaties entered into under express constitutional authority, and binding upon the states as well as the nation. Among those treaties have been many which not only promised and guaranteed broad rights and privileges to aliens sojourning in our own territory, but secured reciprocal promises and guarantees for our own citizens while in other lands. And apart from treaty obligations, there has grown up in the field of international relations a body of customs defining with more or less certainty the duties owing by all nations to alien residents — duties which our State Department has often successfully insisted foreign nations must recognize as to our nationals abroad. In general, both treaties and international practices have been aimed at preventing injurious discriminations against aliens. Concerning such treaties, this Court has said: "While treaties, in safeguarding important rights in the interest of reciprocal beneficial relations, may by their express terms afford a measure of protection to aliens which citizens of one or both of the parties may not be able to demand against their own government, the general purpose of treaties of amity and commerce is to avoid injurious discrimination in either country against the citizens of the other."

That, which is the paragraph immediately preceding the one he cites, is a far cry from our Gallant Quixote's "The Constitution gives all those on our shores the protections of the Bill of Rights—but just as those rights are not expanded for foreign nationals because of their countries’ views (some countries, for example, have recently discovered the death penalty to be barbaric), neither are the fundamental sovereign powers of the States abridged to accommodate foreign countries’ views. Even in its international relations, the Federal Government must live with the inconvenient fact that it is a Union of independent States, who have their own sovereign powers. This is not the first time it has found that a nuisance and a bother in the conduct of foreign policy."

Okay, but that is the paragraph before. You can't expect someone to actually read that, too! But the very paragraph he cites begins with a very interesting quote that seems like it could have just a little relevance to the 'show me your papers' part of SB1070.

Legal imposition of distinct, unusual and extraordinary burdens and obligations upon aliens — such as subjecting them alone, though perfectly law-abiding, to indiscriminate and repeated interception and interrogation by public officials — thus bears an inseparable relationship to the welfare and tranquility of all the states, and not merely to the welfare and tranquillity of one. Laws imposing such burdens are not mere census requirements, and even though they may be immediately associated with the accomplishment of a local purpose, they provoke questions in the field of international affairs.

Can you please explain to me why no one has bothered to say 'well, Prup, you're doing a pretty good job for an amateur, but X at the Schnorkelblawg is doing a ,uch better one. In fact, this dissent strikes me as an ideal test question on a Pre-Law exam, challenging the student to write an essay detailing all the absurdities in the product of someone whose reputation was, once, 'Wrong, but still truly brilliant, an intellectual whose persuasiveness could drag the Court with him.'

Anyway, just a quick glance at the moves in the shell game before i need to take a break and help Em keep the numbers in the DVR down. All these start with his 'additional or auxiliary requirements.' He switches from this to arguing that, despite the fact the statute does not permit parole or pardon, and the Federal Government does, this change doesn't matter because -- now, under this shell -- the state is merely deciding on the penalty for a violation of State Law, which the Federal Government has no say in. A flick of the wrist, and the immediately following paragraph again argues that 'the state has made the Federal Law its own.'

Keep watching, because now it's under 'the state has its own power, and therefore it can "bring criminal charges against individuals for violating a federal law even in circumstances where federal officials in charge of the comprehensive scheme determine that prosecution would frustrate federal policies.”' (*Ahem* see Hines on 'frustrating Federal polices,' and why that is impermissible.) And the pea winds up under the shell reading 'the Federal Government isn't doing a good job so the State could step in when the majority provides no remedy.'

And one last beautiful example of his latest effort in the construction of multi-colored Mobius strips starts his discussion of the law providing criminal penalties against 'illegal aliens' who seek work. Having played the shell game earlier, he sweeps all those shells off the podium. Forget Hines, fporget every limitation they put in that I had to work so hard to squeeze out of. Now we are using new rules. And the one he comes up with is a beaut. Congress deliberately chose, Scalia admits, to impose civil, but not criminal penalties, on 'illegals' seeking work. But this did not mean they prohibited states from using the similar penalties. His proof? (Hats firmly in your grasp?)

Congress specifically preempted the states from imposing any form of penalties on 'those who employ, or recruit or refer for a fee for employment, unauthorized aliens.' Because they prohibited and preempted these specifically, obviously 'common sense suggests' that they deliberately did NOT preempt, and therefore permitted, states to impose criminal penalties.

(By now, you should be at the halfway point -- not in this, I have kept to 'live-blogging' so much that i don't know where this ends -- in your bottle of Bushmill's. Lower the level a bit more, and I hope to see you later -- before tomorrow's heat wave melts my brain again.)

[Sir Charles]

Hey Jim,

Rest up. It's going to be a big day tomorrow.

I assume you will be here at 10:00 for the big announcement. Fortunately, I am in the office all day and will be tuning in obsessively.

Hope we have good news and the chance to laugh at another vitriolic Scalia dissent.