Being & Nothingness on the High Court, Part Deux

I was a little disappointed yesterday that the Supreme Court did not take seriously the existential arguments of the Southern lower federal courts which had found the Commerce Clause inapplicable to the "act of not buying health insurance."  A typical, classic American, a 280-lb. behemoth just back from buying a half-ton of Pringles at the local Wal-Mart, sprawled in his Barcalounger there in the tract house in East Texas, waiting anxiously with a cold bottle of Lone Star in his chubby hand for the kickoff of the Cowboys-Redskins game - if this man is not buying health insurance, as Obamacare will soon compel him to do on pain of imposing a tax for which no enforcement method is provided - is this man, at this moment of contentment and disheveled repose, engaged in Interstate Commerce within the meaning of the hallowed clause?

We may never know now.  The Supreme Court instead chose to base an almost incomprehensibly fragmented decision on dismayingly clunky arguments, upholding the "individual mandate" to buy insurance (from Aetna, from Anthem, from a bunch of other private, for-profit insurance companies with a captive clientele ushered to their door by the federal government) or suffer the completely undefined consequences. 

It could have been so elegant, so....French.  Now we will have another huge federal bureaucracy with inadequate funding to add to a budget that is currently only about 60% funded with anything other than hallucinated money.  In despair one might seek refuge in some tropical paradise, one that is still above sea level at high tide, to follow the course of Paul Gaugin or Robert Louis Stevenson and simply drop out of the rat race, to exit the noise and tumult of our soul-crushing modern civilization.  To get away from it all, perhaps even in Hawaii, that lovely fleet of islands anchored in the mid-Pacific.  Not one of the over-developed islands, of course, like Oahu or Maui, but a quiet refuge like Kauai, Molokai or Ellison.

The Supremes & the AZ Immigration Law

I will be as interested as the next blogger when the Supreme Court delivers its decision on Obamacare tomorrow.  The court certainly has developed a keen sense of drama, waiting till the last day of the current session to drop the Big One.  The decision on the Arizona immigration law was clearly intended as a teaser, a preview of coming events.

While the liberal commentators have spun the immigration decision as a stunning victory for Obama, it was in reality nothing of the sort.  Those parts of the law which were overturned were clearly "preemptive" of federal law on the same issues (penalties for working in the United States while an illegal immigrant), and that is a normal basis for finding state overreach.  Immigration is supposed to be a federal issue, after all, although in modern times it is simply a political football at the federal level.  Conservatives favor loose immigration laws because they like the effects of cheap labor on production, both directly and on the cost of American labor.  Liberals like loose immigration laws because it feels generally good to be "humane" and compassionate and because courting the Hispanic vote tends to give the Democrats a competitive edge over the heartless Republicans.

I suspect the motivation of the Arizona legislature was more basic, and not really governed by either of these federal electoral considerations (everything at the federal level is simply game-playing at this late, decadent point in our country's history).   Namely, I think Arizona's motivation (and that of the other "Red" states which have passed similar laws) is territorial, in the atavistic, reptilian sense.  They're invading us! The part of the law that survived is the only part that mattered - the duty of the local constabulary to ascertain whether a person lawfully stopped for an offense unrelated to immigration status (coasting through a stop sign, for example) is or is not an American citizen where "reasonable grounds" exist to suspect the person is not in the country legally. 

How might those "reasonable grounds" manifest themselves?  It is on this point that "Godwin's Law" ("As an online discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches 1.") usually raises its ugly, Death Skull head.  Asking "for papers" is what the Gestapo used to do, or what the French gendarmes did in the opening scenes of "Casablanca" when they rounded up the usual suspects.  Well, think about it: the police always ask "for papers" when they stop you for a traffic offense: license, registration and proof of insurance.  Like duh.  Suppose you don't have a license, or your car is registered in Matamoros if at all, or the license doesn't match the registration, or the registration is five years out of date.  Or the stopped driver is unable to describe with any convincing particularity where he lives.  And so forth.  One question leads to another and it is ultimately determined that in addition to coasting through a stop sign, the driver is in the country illegally.  By the same token, a driver who coasts through stop sign might have alcohol on his breath, and the next thing you know, he's trying to walk a straight line while juggling three tennis balls and reciting the alphabet backwards.  Or why the cops can ask whether that's oregano in that plastic baggie you were too stoned to remember you left lying on the back seat.  That's why the Supreme Court voted unanimously (liberals and conservatives alike) to uphold this part of the Arizona law.  It's "black letter" law. The police can follow up "reasonable suspicions" that arise after the traffic stop (or any other crime).  The only controversial thing about the Arizona law is that the legislature did it, whereas a state with entrenched liberal politics, such as California, would never dream of such a thing.

The truth of the matter is that the "privacy" or "equal protection" arguments are all red herrings at this point.  There is no privacy in American life; we all know that.  If we had actually cared about privacy, we would have paid attention to the massive illegal wiretapping begun under the Bush Adminstration and continued enthusiastically by Obama.  The Fourth Amendment is dead and buried, the result of the extreme passivity of the citizenry and the hopeless complexity of American political life in general (as in, who has the luxury of time to think about stuff like civil liberties?  Is that something I should be worried about?).  By training a temporary, laser focus on an issue like the "stop and ask" law in Arizona, the law can be given an outsized, disproportionate importance it does not really merit.  The Arizona immigration law is not going to transform the United States into a "police state."  The United States is already well on its way.  The President has the power, which no one is apparently worried about, to have an American citizen assassinated based on secret, subjective criteria.  Yet we're supposed to get all worked up if Alberto has to prove that he's in the United States legally?

The legal reality is that there is nothing unconstitutional about determining whether someone is in the United States legally.  The "parade of horribles" used to deny this truth (the tendency toward proving Godwin's Law, in other words) is simply electoral politics, the meta-reality that now determines all matters of national policy, to the exclusion of all considerations legal, constitutional or environmental (such as the right of a given polity to control its population and rationally plan its use of resources and tax revenues).  All such rationality was long ago lost in the electronic cacophony of our daily discourse.

The Conservative Supremes wanted to zing Obama, and they did.  That's all that will come of this.  Th net effect of the AZ law is that civil rights lawsuits by illegal immigrants will be somewhat curtailed in federal court in Phoenix - that is, the cops had the right to ask, so next case, please.  The next zinger will come with tomorrow's decision on the "individual mandate," which might actually have an effect on the Commerce Clause, that Legal Swiss Army Knife which has caused so much loss of local autonomy in America.  Although the Supreme Court, a federal institution, might think twice about decentralizing power and surprise even this attentive blogger.