Time to Get to Work

With the pomp-and-circumstance over, I’m eager to start working. Committees have been announced, but assignments have not been made yet. I will hopefully bring you that news next week.

While waiting for that announcement, I’ve been busy filing bills. So far, I’ve filed 12 bills and one resolution. The resolution rejects the proposed salary increases for elected officials. Those bills fall into three categories: ethics, health care, and criminal justice. I’ve written previously about the ethics proposals and the salary rejection resolution, so this week I’ll focus on the other two.

Health Care

I have proposed three “small ball” Medicaid reform bills. These bills don’t move Medicaid into the optimal market-based space;  but they make incremental improvements that will yield better outcomes and savings for taxpayers.

House Bill 319 expands the list of providers eligible to provide Medicaid services through telehealth, or the use of new electronic communications technologies. The most common, and probably oldest, example of telehealth, is radiology. A radiologist can review x-rays, MRI, and other records without being in the same room, or even the same country, as the patient. A technician takes the scan and forwards the necessary medical information to the doctor.

As technology has improved, telehealth services are available in other areas as well. For example, a dermatologist in Columbia could help diagnose an unusual rash or skin lesion using a high-resolution digital photograph taken by a family practice physician in Eldon. House Bill 319 would facilitate the expansion of telehealth services where medically appropriate.

House Bill 320 is similar to a bill I filed last year and would require the Department of Social Services to develop incentives programs to encourage health care providers to open health clinics in or near high poverty schools. In 2009, then Texas Gov. Rick Perry signed legislation creating a similar program in Texas and research has shown that these clinics both improve health outcomes for children in poverty and save taxpayer money by reducing unnecessary emergency room visits.

Because this bill’s opponents have engaged in deception, it’s important to point out that (1) consent of a child’s parent or guardian would be required before a student received any services, (2) no school-based clinic could perform or refer for abortion or contraceptives, (3) the student’s medical records would not become a part of their education records, (4) schools would not be turned into medical providers and no health care provider could collocate without permission of the school, and (5) there’s no new Medicaid eligibility in the bill.

The bill is simple. We have children currently on Medicaid who are emergency room frequent flyers and/or who don’t always receive timely medical care. We know where these kids are during the school day. HB 320 creates incentives to make health care more convenient for these children which, in turn, helps keep them out of the emergency room and saves taxpayer money.

House Bill 386 creates incentives for primary care physicians to serve Medicaid patients outside of normal business hours. Like House Bill 320, it would push Medicaid recipients to receiving health care services in a more appropriate and less expensive setting than the emergency room.

Criminal Justice

House Bill 332 would tighten the “Mack’s Creek Law” to limit local government to collecting ten percent (down from 30 percent their annual general operating revenues from fines and court costs for traffic violations. This bill is identical to a bill sponsored by Sen. Eric Schmitt (R – St. Louis County). I expect that a similar or identical may also be filed by Rep. Paul Curtman (R – Union).  A municipality that subsists only by extracting heavy fines for traffic violations from its own citizens, or those unfortunate enough to pass through, should be forced to close its troll gates. St. Louis County is littered with such municipalities. (By comparison, Jefferson City collects less than 4 percent of its revenue from fines.)

Local governments will, of course, oppose this bill. Vigorously. Those facing those loss of power naturally oppose the change.  One criticism I’ve already heard is that we’re limiting the power of government. To that I plead guilty as charged. (An aside: I thought about filing a bill like this last year but decided against it because I thought it would be too difficult to take on all of the local government lobbyists. Events over the summer obviously made success more likely.)

House Bill 334 would require prosecutors and law enforcement agencies to have a written policy directing investigations of officer-involved shootings to outside agencies and prosecutors. They could appoint a prosecutor in a neighboring jurisdiction or a person designated by the Missouri Office of Prosecution Services, an entity within state government which helps elected prosecutors throughout the state. This is already a common practice. A recent local example (though not involving a shooting) was the death of Brandon Ellingson at the Lake, where the local prosecutor appropriately recused himself and appointed a special prosecutor.

As I wrote previously, prosecutors should not bring charges because of political pressure, public spectacle or general calls for justice disconnected from the actual facts. I respect and, indeed, agree with the grand jury’s decision, and I depart from those who impugn St. Louis County Prosecutor Bob McCulloch. This bill is about general confidence in the criminal justice system. It would not increase the power of the Attorney General or Governor because I have less confidence in the ability of persons in those positions (past, present, and future) to make judgments free from political pressure and bias than other local elected prosecutors or an attorney designated by MoOPS. And it would not re-open the Michael Brown file. It states that it would only apply to situations occurring after August 28, 2015. It would, however, increase confidence in our criminal justice system.

Prosecutors are biased in favor of law enforcement. That’s their role in our adversarial system. Remember the last campaign ad you noticed for a prosecutor who promisednot to side with law enforcement? Of course not. We don’t want prosecutors to be “impartial” regarding law enforcement officers within their own jurisdiction. We want them to work closely with law enforcement officers to put bad people in jail. While the prosecutor’s position requires  sufficient independence and fairness to exercise prosecutorial discretion, they still play for the same team.  In the rare example where the situation is flipped – where a law enforcement officer may have broken the law, House Bill 334 would take the common and best practice and make it law.

Should Gov. Nixon Go to Cuba?

The Buckley-Harvard Corollary

William F. Buckley, Jr. must be smiling. In his elegant  defense of conservatism, Buckley confessed that he would rather “live in a society governed by the first two thousand names in the Boston telephone directory than in a society governed by the two thousand faculty members of Harvard University.”

On Tuesday, the New York Times reported that Harvard faculty voted overwhelmingly to reject changes to their health insurance required by Obamacare. “For years, Harvard’s experts on health economics and policy have advised presidents and Congress on how to provide health benefits to the nation at a reasonable cost,” the Times reports. “But those remedies will now be applied to the Harvard faculty, and the professors are in an uproar.”

Turns out it wasn’t just average Americans who were bamboozled – a trick Obamacare architect Jon Gruber infamously chalked up to “the stupidity of the American voter.” But what could the Ivory Tower professors have actually expected? When President Obama promised, “If you like your plan, you can keep it,” did Harvard professors examine Obamacare’s incentive structure? Or did they just take the president at his word? Because a glance at Harvard’s prior plan coupled with  Obamacare’s new penalties, mandates, and taxes reveals that theirs’ was a  Cadillac plan that would be taxed out of existence.

The backlash is all the more remarkable because Harvard is merely applying common features of health care plans to their elite faculty.  For example, employees must now pay deductibles of $250 per individual and $750 per family. The deductible for a doctor’s office visit is $20. They must also pay co-insurance of 10 percent of the cost for hospitalization, surgery, or tests up to $1,500 per individual and $4,500 per family.

Besides increasing co-pays and co-insurance, employers and insurers have also been narrowing the networks of providers from which Americans can seek treatment. Harvard, however, had to reject this choice because the best and most expensive providers in the Boston area are affiliated with Harvard Medical School. Thus, to narrow its network, Harvard would have had to exclude its own providers. It would have been entertaining to hear Harvard explain to the most highly-educated workforce in the world why they couldn’t receive medical treatment from their co-workers and affiliates.

There’s nothing inherently wrong with an employer deciding on its own to shift some health care costs to employees – especially if the shift is accompanied by salary increases in place of the health insurance benefits. It’s the employer’s money. If an employer chooses to provide fewer benefits, it risks losing good employees. But that’s not Obamacare. This isn’t a choice. Under Obamacare, the shift is not voluntary but is instead forced upon employers through mandates, penalties, and Cadillac-plan taxes.

In Obamacare, the excise tax on Cadillac plans is 40 percent of the value of a plan above the Cadillac threshold – a rate that exceeds the top income tax bracket. The Cadillac-tax is set at a high level so that no sensible employer would ever sponsor a plan that triggers its penalties. Doing so would reduce both the company and the employee’s bottom line because each would pay a lower tax rate if the money spent on health insurance were simply provided as income.

The Cadillac tax is aimed at ameliorating the effect caused by a tax code that favors additional employer sponsored health insurance coverage over ordinary income or individual insurance coverage. Since World War II, if your employer buys your health insurance, it’s purchased with pre-tax dollars. But, if you buy it on your own? Sorry, taxes have to be taken out first.

It doesn’t make much sense to remove the ultimate consumer of a product from the most important decisions to be made about its purchase. Yet that’s exactly what the American tax code has incentivized since the 1940s. The simplest way to attack tax code discrimination against the individual purchase of health insurance would be to give individuals the same benefits that companies enjoy – allow them to purchase individual health insurance with pre-tax dollars. Of course, that’s not the Obamacare solution. Instead of offering a carrot, Obamacare brandishes a stick.

It took five years for the learned professors at Harvard to realize they would be on the business end of Obamacare’s stick. Now that the switch has hit, they aren’t mincing words. Prof. Richard Thomas told the Times the changes are “deplorable” and “deeply regressive.” Prof. Mary Lewis says the increased costs are just like a pay cut “timed to come at precisely the moment when you are sick, stressed, or facing the challenges of being a new parent.” Perhaps it’s time for a Buckley Corollary – maybe the Harvard faculty would be okay, so long as they know they have to live by the same rules they’d impose on everyone else. 

Session Preview

The General Assembly will convene its 98th session this Wednesday, January 7. I anticipate much blather by a bi-partisan cast – myself included – about this, that, and the other priorities, and what’s different this time. Legislative leaders will renew commitments to improving our state. Gov. Nixon will do the same – and will likely prepare a State-of-the-State address littered with alluring alliterations, his preferred literary device.

Like Christmas, the start of the legislative process is the same story every year. The speakers may change but the underlying themes remain. Unlike Christmas, the early January legislative service lacks a deeper meaning – and it certainly won’t help save your soul. And yet, the legislative pomp-and-circumstance is more than just going through the motions. It’s the symbolic act  that triggers the process of governance in our one-fiftieth space of our representative Republic.

Because it’s a new legislature this year, the process will begin more slowly. We need operating rules, so that will be our first order of business. I expect there will be several positive changes to the House rules relating to ethics.

After establishing the rules, committees must be formed. Those too will likely be announced in the first week. Incoming Speaker John Diehl is re-vamping the presently sprawling House committee process from one that is disparate and sometimes leads to conflicting policies to one that is better organized and flows through subcommittees.

The “old” committee structure featured 59 standing committees with a single Rules committee. Bills had to work their way through a standing committee and were then referred to Rules, which lacked the authority to make any substantive policy changes to a bill. Rules was an unusual committee under the old setup. It’s where many bills went to die unreported deaths by inaction. Yet, if a committee member spotted a problem with a bill that could have been fixed or reconciled with another bill, they could not effectively make any change. Further, as the funnel for 59 different standing committees, the Rules committee  members had difficult time tracking the details of every bill.

Speaker Diehl’s new system eliminates the gate-keeper function of the Rules committee and will disperse its power across eight to twelve committees with jurisdiction over broad subject areas. For example, Economic Development (where proposed new tax credit giveaways are typically referred) and Ways & Means (tax cut bills) will likely be under the umbrella of a general “Commerce” committee.

Diehl is thus voluntarily relinquishing much of the Speaker’s power. Rather than having to work with only the chair of the Rules committee to kill or move bills after they get out of the original committee, the Speaker has dispersed that power among many more members. Paradoxically, by spreading the powers of the Rules committee around, Speaker Diehl will also facilitate a more consistent policy because the general committees will have greater subject area expertise.

No system yields perfect results. Like Churchill said, democracy is the worst of government, except all those other forms that have been tried from time to time. The minutiae of the democratic process matters a great deal. The old House committee system was disjointed at its start with power centralized at its end. The new system will be organized at its start with power decentralized at its end.

After adopting Rules and creating committees, the legislature will get down to the actual business of legislating. I believe the following areas will receive much work and attention:

Ethics
Ethics reform seems to have real steam this session. Likely topics include: (1) capping gifts to legislators, (2) improving reporting of gifts and out-of-state events, (3) ending the revolving door for legislators to become lobbyists, and (4) improving transparency in campaign advertising.

Tax Credit Reform
I plan on filing legislation in January that ends or reduces dozens of current tax credits and tax exemptions that are targeted to a special few and replace them with a reduction in the overall tax rate for every Missourian. One of the smallest but most obscene examples is the sales tax exemption for legislators for purchases from their state expense account. Rep. Dave Hinson (R-St. Clair) has already proposed House Bill 274, which I believe overlaps in many areas with the bill I am working on. (In case you were wondering, the legislator exemption was passed in 1988.)

Education
The legislature will try, again, to improve failing school districts. Last year, after a series of long nights and difficult negotiations, the House and Senate passed bi-partisan reforms. While we worked, Gov. Nixon did – and said – nearly nothing. He did not, and does not, have a plan of his own. I anticipate the legislature will return to work on the issue this year. As with last year, I will support plans that increase educational options for families, and vigorously oppose proposals designed to trap them in failing schools or school districts.

Should Missouri Raise the Speed Limit to 75 mph?

Ethics Reform

There are two types of political corruption.  The first is fodder for tabloids and Hollywood movies – POLITICIAN TAKES BRIBE! This type of corruption is rare outside of Illinois. But as Auditor Tom Schweich has explained, corruption goes beyond that which is illegal.

The second-type of corruption is more pervasive, and it might be best described as the short-circuiting of the ordinary political process through undue influence. This is the corruption that doesn’t uproot an elected official’s position or unseat any fundamental beliefs, but it may determine an issue’s priority and, when there’s uncertainty, may move them to act in a way they otherwise wouldn’t.

“Short-circuiting” works in different ways – through campaign contributions, gifts, special treatment, false friendship, and access. It causes elected officials to pause before acting against – or just not in lockstep with – their political patrons. “Short-circuiting” can move a legislator from undecided to a yes, from no to undecided (and then eventually to yes), or merely from hell no! to a quiet no. “Short-circuiting” can also move what would otherwise be an afterthought, “oh, if we have some extra time to get it done” legislation, into the “priority” category.

Is it worse in Missouri than other states? Well, we aren’t Illinois. There aren’t any recent prominent examples of prosecutions for Type-1 corruption. But Missouri’s ethics laws are the weakest in the country. We are the only state with unlimited gifts, unlimited campaign contributions, weak campaign finance transparency laws, and no ban on either legislators’ consulting or lobbying during or in the immediate aftermath of public service.

The vast majority of elected officials start (and continue) in public service for the right reasons.  But they are not angels. Madison observed, “If men were angels, government would not be necessary.” If politicians were angels, ethics laws would not be necessary either. Power both corrupts and is a magnet to the already corrupted. Where you find power, you will also find scoundrels and rogues, whose existence crosses parties, regions, and ideology.

Much like I wrote about prosecutor recusals in police shootings, public perception matters even where’s there’s no actual short-circuiting of the political process.  And the public cannot and does not like what it presently sees. That’s why on Monday, I joined Rep. Caleb Rowden (R – Columbia) in filing several bills to add some backbone to Missouri’s ethics laws.

These bills would, among other things, increase transparency by (1) requiring immediate reporting of contributions over $500 received during the legislative session, (2) requiring any entity that spends more than 25 percent of its annual budget on election advertising to file reports listing its donors, (3) requiring all lobbyist expenditures outside the state of Missouri to be reported within 14 days, and (4) requiring individualized reporting of all lobbyist expenditures made outside the capitol.House Bill 228, which I sponsored, will institute a one-year waiting period before a legislator can become a lobbyist.

I anticipate that a bill capping gifts will be filed soon as well. In addition to these measures, I expect that the House will amend its operating rules to put some ethics changes in place immediately. Many similar bills have also been pre-filed in the Missouri Senate. I believe ethics reform has tangible momentum and I am hopeful that several bills will pass in the next legislative session.

Philadelphia, Privacy and Government Ethics

On Thursday, I had the privilege to argue a case in front of the Third Circuit Court of Appeals in Philadelphia. I spent the afternoon visiting the historic sites surrounding the courthouse – Independence Hall and the Liberty Bell – and a museum on the Constitution. It was fitting that our case was argued in the heart of democracy and our Constitution.

The case was about Internet privacy – in particular, the biggest Internet hacking and tracking scheme in history. I was there as part of a group defending your (and every American’s) right to privacy on the Internet, in particular, your right to be free from computer hacking if you choose a web-browser that is specifically designed to block companies like Google from spying on you.

Just this summer, the Supreme Court ruled in a case called Riley v. California that Americans have a Fourth Amendment right to privacy in the data contained on a personal computing device, and went out of its way to explain the importance of keeping Internet search and browsing history private. You also have statutory rights to privacy under the Electronic Communications Privacy Act which, in many cases, are even stronger than your rights under the Constitution.

The Defendants in the case are Google and a handful of other data-tracking companies who hacked their way around the privacy settings of the Apple Safari and Microsoft Internet Explorer web-browsers. Of course they brought a phalanx of lawyers. This too was fitting. It is in America more than anywhere else that citizens enjoy equality before the law. And it is in our courts where this is most true.

Outside that courtroom, the Defendants include one of the most powerful companies in history. Inside the courtroom, the law and the facts are what drive the case. There’s nowhere else in American government where the average American would have an equal voice to defend their rights to privacy against hacking schemes concocted by companies like Google. In the legislative or executive branches, Google would secure meetings with top officials to persuade them to ignore the privacy interests of ordinary Americans. In the judicial branch, Google cannot plead their case without informing the other side of their arguments.

Unequal bargaining power between powerful interests and ordinary Americans is nothing new. Since the beginning of our Republic, the legislative and executive branches of the federal and state governments have been the target of financially and politically powerful groups and companies. These groups aren’t always the wealthy. It seems today that Washington is rigged in favor of both the poor and the powerful, and that it is the middle-class American who is ignored.

While there’s nothing new about this, I believe there’s a general feeling that it’s getting worse – particularly in state government. Also this week, on Monday, I chaired a committee that called on Attorney General Chris Koster to explain his actions in a series of cases detailed in the New York Times where his office either decided to take no action or to take lesser action after some interactions with companies that were the targets of civil investigations. We did not vote, but I believe it’s fair to say the committee agreed that Koster likely made the correct legal decisions. (All but two members of the committee were lawyers.) General Koster admitted that his office made a mistake in one case in not filing a case in time, but that it was not a purposeful error and they later attempted to make up for it the best they could.

The other prominent case involved 5 Hour Energy. A small group of states had started an investigation into the company for allegedly deceptive marketing. An attorney in Missouri’s AG’s office had apparently had some conversations with this group. An attorney for 5 Hour Energy sought General Koster out at a conference of the Democratic Attorney General’s Association at a swank hotel in California. After that conversation, Missouri’s investigation was soon dropped. The lawyer was neither a registered lobbyist in Missouri nor, to my knowledge, a Missouri licensed attorney.

General Koster presented our committee with a courtroom-style blowup of the allegedly deceptive advertising. He argued that it was not the type of matter with which an attorney general’s office should engage because it was not deceptive and very likely would not have even survived a motion to dismiss under Missouri law. I think he was right. But neither I, nor the committee, will endorse the process that led to that decision.

Like grade school math, it’s not always enough to reach the right result. Process matters. In this case, there was a deeply flawed process. Hotels in California after conversations with people who are not registered lobbyists or lawyers licensed in Missouri are not the appropriate places for policy or legal decisions to be made. And where you have a flawed decision-making process, you’ll eventually make bad decisions.

To his credit, General Koster reported to the committee that he has since changed the process for high-profile civil investigations in his office. There’s a team of experienced lawyers who meet before engaging a high-profile case, and before there’s any decision to settle or exit one. That is an improvement.

To be fair to General Koster, he is not alone. Every governor and attorney general in the country is feted and bombarded by special interests at events hosted by groups similar to the DAGA. There’s the Republican and Democratic Governor’s Associations, and there’s a Republican Attorney General’s Association. For big-time corporations, events hosted by these groups are like shooting fish in a barrel. They can make their pitch to leaders in dozens of states in just a few days. And can do so in an upscale atmosphere.

There’s also a legislative equivalent in the American Legislative Exchange Council. ALEC is a little different in that legislators are not “deciders” in the same way that governors or attorney generals are. Depending on the issue, a lobbyist who seeks particular action from a governor or attorney general does not need to rely on anyone other than the governor or AG to make it happen. Legislators must convince a majority of their colleagues to pass the bill (and sometimes a super-majority) which is oft easier said than done.

As the world has become more connected over the past 15 years, these various groups have grown in influence. There is little we can do in Missouri to change that. But I believe there are two things. First, we can pass legislation requiring more immediate reporting of out-of-state travel and perhaps reporting on lobbying at such events. At the very least the public should have a way to determine with whom their elected officials are meeting when they attend out-of-state conferences. Second, we can vote for candidates who best embody our views and who are not likely to have the opinions molded from lobbying in such rarified air.

Paul Revere, Eric Garner, Rosebud, the NAACP, and the First Amendment

When I learned last week that the NAACP was organizing a march to Jefferson City, my first thought was that the organizers must have missed out on those ubiquitous MoDOT highway maps. The route’s about 120 miles, it’s cold, and there aren’t many places to stay along the way. I wondered how many people could make it because I’m in good health and am not sure that I could.

My next thought was that I would not attend the concluding rally. This was for several reasons. Most prominent in my mind was that I disagree with most of the NAACP marchers on what justice in Ferguson means.

In August, I noted there were far more questions than answers and that we should not jump to one side or the other. Instead, justice requires a blind eye to both the status of the accused and the potential consequences of choosing not to bring an indictment. A badge is not an unmitigated license for violence, and officers who abuse their powers must be subject to the same laws as everyone else.

I asked at that time whether there was any history of racial animus or abusive behavior by the officer involved. It turns out there wasn’t. I asked how many witnesses there were and whether any disputed initial reports that Michael Brown had been shot in the back. It turns out there were several witnesses other than Dorian Johnson, and neither the physical evidence nor those other witnesses agreed with those initial reports.

I still do not know what happened that fateful Saturday morning. I was not there. But now I do know that most of the eyewitness testimony tended to corroborate Officer Wilson’s version of events more than Dorian Johnson’s. While a grand jury has a lesser standard, the ultimate burden for conviction in a criminal case is proof beyond a reasonable doubt. Jurors already tend to give police officers the benefit of the doubt. That’s for a good reason. Police officers keep society safe. The majority of police officers are great people who do not abuse their power.

In this case, Dorian Johnson’s testimony would have been on one side and Officer Wilson and several eyewitnesses would have been on the other. Where the weight of the eyewitness testimony lines up on the officer’s side and the star witness on the other side has a history of lying to police and has even slightly changed his story, the officer is going to win in court.

Prosecutors should not bring charges because of political pressure, public spectacle, or general calls for justice unconnected to the physical evidence and testimony. I believe it was the right decision that Officer Wilson not be tried for a crime.

The second reason for my initial decision not to attend is that, while I agree on many points of policy, including prosecutor recusals, municipal court reforms, recruiting minority police officers, revising Missouri’s unconstitutional police use of force statute, and defending Missouri’s strong laws against discrimination, I disagree with the NAACP on many of the causes and cures for continuing inequality in America.

That said, I empathize with the heartbreak, anger, and hopelessness felt by black Americans after the grand jury’s decision. In one of the great lines from To Kill a Mockingbird, Atticus Finch explains, “You never really understand a person until you consider things from his point of view – until you climb into his skin and walk around in it.”

Black Americans watching the grand jury decision may justifiably wonder when the last time someone with their skin color was given the benefit of the doubt by a prosecutor. They are angered with the knowledge that, even with recent fixes, federal and state laws still penalize possession and distribution of crack much harsher than cocaine or even meth. Same crime. Different time. The drug used in black communities gets the heavier sentence. They are likewise angered by disproportionate use of the death penalty in black on white crimes in comparison to black on black or white crimes.

I didn’t think about attending again until Thursday night when I decided to go because of three events that happened this week.

On Wednesday, Democratic Rep. Keith English suggested in a Facebook post that marchers should march right through Jefferson City until they reached Mexico – the country. I guess Rep. English has missed a few history classes in his day. What’s more American than exercising the right to petition government for a redress of grievances – particularly grievances about alleged abuse of governmental power? And I hate to be the one to have to break this to him in a public forum, but NAACP marchers weren’t the problem in Ferguson. Rioters and looters don’t march 120 miles on hilly, rural roads when its 35 degrees outside.

On Thursday morning, the Columbia Missourian reported counter-protestors in Rosebud greeted marchers with fried chicken, a melon, and a 40 ounce bottle of beer. Then they shouted for marchers to go home, displayed a Confederate flag, and yelled racial epithets as the group passed through town. If they wanted to prove the marchers’ larger point about the continued existence of racism in America, I’m not sure what else the counter-protestors could have done short of violence.   

Third, on Wednesday, a grand jury in New York chose not to indict an officer in the stranglehold death of the late Eric Garner. Unlike Ferguson, Garner’s deadly encounter with police was videotaped. Garner was unarmed. He resisted arrest by telling an officer “don’t touch me” and by moving his hands when the officer tried to cuff him. He was then immediately placed in a chokehold and taken to the ground as he was swarmed by five police officers. When he’s down on the ground and surrounded, a few of the officers say, “Alright, he’s down, he’s down.” Then Garner starts gasping, “I can’t breathe, I can’t breathe, I can’t breathe.” And still, the officer maintains his chokehold as the four other officers lay on top of him, one on his head. As Garner’s body goes limp, no one attempts to administer CPR. Watch the video for yourself.

Garner’s crime? He allegedly sold a loose cigarette without a permit or paying a tax. Seriously, can you think of a more petty crime? What would Sam Adams or Paul Revere have had to say if a British soldier strangled an American colonist who refused to pay a tax on his tea? What would the reaction have been if federal officers in Nevada had raided Clive Bundy’s ranch and killed him in the process?

After these three events this week, I decided to attend the culminating rally. Not because I agree with everything or even most of what I believed would be said. Nor was it in a quest for racial “tolerance” – a word that is demeaning to both the one doing the tolerating and those allegedly being tolerated. Instead, it was to show respect for fellow Americans who marched 120 miles in the dead of winter to exercise their First Amendment rights to freedom of speech, assembly, and to petition government for a peaceful redress of grievances.  

Ferguson – The Aftermath

Ferguson was – and is – a tragedy and travesty on several levels.

There’s personal tragedy. Michael Brown’s death is tragic – regardless of whose story you believe about what happened in the crucial moments before his death.

There’s public tragedy.

Rampant distrust of the criminal justice system in poor communities is tragic. The mistrust, while oft misplaced, has some valid causes. For example, there are several tiny St. Louis municipalities that more closely resemble organized troll guilds than legitimate government, as its revenues rely on traffic tickets extracted from residents than a stable tax base. These troll cities compound matters by operating municipal courts in the St. Louis area that apparently consider due process an optional inconvenience more appropriate for circuit courts. For examples, read the reports of Radley Balko in the Washington Post.

Mistrust of law enforcement is also a travesty. High crime areas need more law enforcement, not less. To be most effective, law enforcement requires trust and cooperation with the communities they police that is obviously lacking in too many places. But there’s a Catch 22 here. A large part of the mistrust stems from a feeling that minorities are unfairly targeted by police. Increasing police presence in poor communities with high minority populations feeds into that feeling.

Yes, bad cops exist and occasionally officers make terrible mistakes, but the overwhelming majority of officers serve for the right reasons, and act with heroism and bravery to make our communities safer. This seems like such an obvious statement it shouldn’t even have to be said, but after watching some of the coverage of Ferguson this week – it seems this might be a controversial statement for some.

So how do law enforcement officials build trust? Well, for one, the police force should at least partially reflect population demographics. In Ferguson, 67 percent of the population is black but only 7 percent of the police force is. Like it or not, that creates a trust problem.

Second, police should distinguish non-criminals from criminals. Radley Balko’s article in the Washington Post tells the story of Nicole Bolden, who, after a minor traffic accident that was not her fault, was cuffed and arrested in front of her two small children for her failure to appear in municipal court for a traffic ticket. Bolden holds responsibility for her failure to meet her obligations. But, after being caught, she spent weeks in jail – costing the municipality that jailed her more money than they’d ever collect for the traffic ticket fine. The more Nicole Boldens there are, the more distrust festers.

The “protestors” actions towards officers this week were a travesty. A riot is never righteous. As I watched on television, my thoughts were with those officers and the people of Ferguson trapped by criminal elements who were using the event as an opportunity for mayhem. Those officers on the screen this week were trying to save Ferguson – and for their efforts they had bricks thrown, shots fired, and insults hurled at them. The small business owners, many of whom agree with the protestors, are just trying to live their version of the American Dream. Like the officers at work this week, these small business owners are working to make Ferguson a better place to live. And yet, for their efforts, many saw their shops vandalized and looted.

And then there was the classic Greek tragedy of Gov. Nixon response. From his initial no-show in August to his failure to quickly send the National Guard to protect Ferguson businesses, Gov. Nixon consistently failed to rise to the challenge in Ferguson. I recognize, as should everyone, that Gov. Nixon was put in an impossible situation. There is not a single person who could have handled Ferguson perfectly. I’m also shocked Gov. Nixon did not try to stop the grand jury announcement from being made at 8 p.m. and refused to take responsibility for the response. In fact, Gov. Nixon’s now famous and cringe-worthy answer to the simple question of whether the buck would stop at his desk probably best explains his entire response to Ferguson.

Executive Nullification Still Isn’t Part of the Constitution

President Obama’s immigration orders are perfectly constitutional – just ask him. Better yet, ask Saturday Night Live, whose skewering highlighted President Obama’s condescending attitude toward the now old-fashioned idea that the president needs Congress to change the law. “That’s adorable, you still think that’s how government works,” says Obama’s executive order.

In an unusual move, President Obama released a legal memo justifying his actions the same day that he announced them. Though drafted as legal justification by the Office of Legal Counsel (a DOJ office with alumns including Justice Antonin Scalia and the late Chief Justice William Rehnquist), the memo may also contain the seeds of the action’s demise.

President Obama is taking two actions. First, he directed the Department of Homeland Security to prioritize deportations. Those here illegally who have committed crimes or threaten national security are deported first. Those convicted of multiple or significant misdemeanors are second-tier deportation priorities. Finally, the third (and lowest) priority category include those issued a final removal order after January 1, 2014 – unless they “qualify for asylum or another form of relief under our laws.”

So far, so good – so far as the Constitution is concerned. The DOJ memo explains when an executive agency is charged by law with implementing a statute, the agency has broad “discretion to decide whether a particular violation of the law warrants prosecution.” But, even the DOJ acknowledges executive discretion has its limits.

For example, “the Executive cannot, under the guise of exercising enforcement discretion, attempt to effectively rewrite the laws to match its policy preferences.” Nor may it “consciously and expressly adopt a general policy” so sweeping as to “amount to an abdication of its statutory responsibilities.” Finally, prosecutorial discretion is most appropriate when used “on a case-by-case basis.” General policies, by contrast, pose “special risks” that the executive has exceeded his constitutional bounds.

Here’s where Obama’s plan turns unconstitutional. Part II creates a new legal status for more than four million illegal immigrants. For those who are not in a priority deportation category, President Obama will create a deferred action program that the White House describes as “a legal way to earn citizenship.” If they pass background checks, pay taxes and a penalty, and learn English, they can eventually earn their citizenship.

President Obama’s executive action leaves a fig-leaf of discretion to immigration officials. For example, an illegal immigrant who otherwise qualifies for the path to citizenship may still be denied if the official finds some factor that would “in the exercise of discretion” render the path inappropriate. The Department of Homeland Security memo, however, fails to identify any example of such a factor. The Department of Justice memo relies on this “discretion” to argue that Obama’s plan “does not create a categorical entitlement to deferred action.”

But President Obama’s rhetoric suggests otherwise – and so does common sense. Nobody is more sophisticated about immigration law than those in the shadow of the law. If this were no big deal – hey, you can exercise your discretion liberally order — immigration advocates wouldn’t be partying like its 1999. How often will Homeland Security agents actually exercise any deportation discretion for illegal immigrants who are not in the high-priority deportation categories? How often will they reject an application for the path to citizenship?

There is little doubt under the authorities cited by the DOJ memo that a court would strike an across-the-board rule as a violation of the Constitution’s “Take Care” Clause. But what happens if the “discretion” exists in theory but is never or rarely exercised in reality? When does a “guideline” become a rule?

As a matter of policy, there’s a good case to be made for a path to citizenship as part of a comprehensive immigration reform bill. There’s no functional way to find and deport everyone who is here illegally. Just as important, a path to legalization provides both the benefits and the responsibilities of citizenship – paying taxes.

Regardless of your immigration politics, all Americans should be alarmed by the precedent of Obama’s action. Our Constitution grants the president many powers, but executive nullification is not one of them. If we are to remain a nation governed by the rule of law, no single policy win can justify running roughshod over the Constitution.

Like Obamacare, the states will probably wage this legal battle, but the cases will take time to develop. Legal standing requires injury. Before filing suit, a state must incur increased costs associated with the order. These challenges will take years to wind through the courts, and, by the time of a decision, further intrusions may occur. If the president can take this action on immigration law, why not environmental or tax laws? Liberals may eventually rue the day Obama decided to take the law into his own hands.