Tenth Amendment

Case Study: How Broadcast News and “Experts” Deceive the Public

/ Jack Marshall / 13 Comments

As I have mentioned here before, I usually sample broadcast news by simultaneously watching CNN, Fox News, BBC America and MSNBC on the DirecTV “News Mix” channel, never staying with any of them for more than a few minutes because they all are unethical, biased, and untrustworthy and it drives me CRAZY!

Just now, I saw Wolf Blitzer (has anyone ever parlayed a cool name into such a long, undeserved TV career despite persistent mediocrity?) interview an “expert,” clearly another Trump-hating law professor. She opined that President Trump “might” be violating the Constitution ( “KING! FASCIST!”) by directing ICE to again focus their illegal immigrant raids on restaurants, farms and hotels. It’s a likely violation of the Tenth Amendment, she opined. “The Tenth Amendment reserves the policing power to the states.”

That’s funny, I thought. I don’t recall the Tenth Amendment saying anything about police, and indeed, it doesn’t. What it says is that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Like the Second Amendment, the Tenth was not the Founders’ most shining hour in terms of clear, unambiguous language. The Tenth continues to be a rich and never-ending target for the Supreme Court controversies, but SCOTUS did rule, in McCulloch v. Maryland, that there is a principle of implied powers where the federal government (Congress or the Executive) can exercise powers not explicitly listed in the Constitution if they are necessary and proper for carrying out its enumerated powers. Obviously the ability to enforce federal law would fall under that category, but okay ICE foes, take your best shot and see what SCOTUS says.

However, what the “expert” implied was that the Tenth explicitly included policing as one of the powers reserved to the state. Wolf, either as a deceitful accomplice or as an ignorant boob (I’m guessing the latter to give him the benefit of the doubt) just sat there nodding. Thus any viewer who wasn’t moved to check the Bill of Rights (I’m guessing that’s 99.9% of CNN’s audience) was left with the false impression that President Trump is being a dictator again by directing a Federal Agency.

Let’s see: fake news, misinformation, partisan spin, deceit. Take your pick. No wonder the Axis was able to gull thousands of citizens into wasting time on “No Kings” day.

Here Is Why Baseball Fans, And Almost Everyone Else, Are Ignorant Of How The Law Works…

/ Jack Marshall / 16 Comments

Last night, while I was watching a lousy Red Sox loss to the Oakland A’s, the Boston broadcasters announced their mid-game poll: “Do you agree with the Supreme Court decision on sports betting?” Viewers were supposed to text one number for yes, another for no. It was quite clear that the Sox announcers themselves had no clue what the decision was, however, as Jerry Remy and Dave O’Brien began debating the pros and cons of legalizing sports betting. The debate was edifying, but had nothing to do with the Court’s decision in Murphy v. National Collegiate Athletic Association whatsoever.

They and thousands of Red Sox fans had no clue what the decision was, and their ignorance didn’t stop them from voting on what they thought it was. What they thought it was came from second and third hand social media posts, and misleading headlines (“Supreme Court Strikes Down Anti-Sports Betting Law”) as well as brain-dead reports on the meaning of the majority ruling. (“Today the Supreme Court opened the door to legalized sports betting by declaring the federal law banning it unconstitutional…”). On a local news channel in the D.C. area, a reporter was dispatched to “investigate” if the reporting on the decision was accurate. “We began by reading the decision itself,” he said,

Wow! What a concept! Read the opinion rather than depend on ignorant reporters who don’t know the Constitution from “Hiawatha” to explain it based on what they think they know, which is not remotely like knowing anything!

Quoting again from ScotusBlog, here’s what “the decision on sports betting” was…

The 10th Amendment provides that, if the Constitution does not either give a power to the federal government or take that power away from the states, that power is reserved for the states or the people themselves. The Supreme Court has long interpreted this provision to bar the federal government from “commandeering” the states to enforce federal laws or policies. [The] justices ruled that a federal law that bars states from legalizing sports betting violates the anti-commandeering doctrine…

…In a decision by Justice Samuel Alito, the court began by explaining that the “anticommandeering doctrine may sound arcane, but it is simply the expression of a fundamental structural decision incorporated into the Constitution” – “the decision to withhold from Congress the power to issue orders directly to the States.” And that, the majority continued, is exactly the problem with the provision of PASPA that the state challenged, which bars states from authorizing sports gambling: It “unequivocally dictates what a state legislature may and may not do.” “It is as if,” the majority suggested, “federal officers were installed in state legislative chambers and were armed with the authority to stop legislators from voting on any offending proposals. A more direct affront to state sovereignty,” Alito concluded, “is not easy to imagine.”

Later on, Alito makes it clear that the decision isn’t pro-sports betting or anti-sports betting. The decision is anti-the federal government telling the states that they can’t pass certain kinds of laws, and the subject matter of those laws are irrelevant to that principle. The decision in Murphy v. National Collegiate Athletic Association  no more approves legalized sports betting than it approves speed limits over 90 or letting felons vote in state elections. The decision says that while the federal government can pass its own laws, it can’t order the states not to pass laws.

Never mind! Thousands of Red Sox fans had opinions based on misunderstanding the decision, just as many bloggers and online commenters worked themselves into a frenzy about the evils or benefits of sports betting, aided by journalists who literally, not figuratively, didn’t know what they were writing about, and didn’t have the integrity or common sense to find out.

Good job, everybody!

 

Morning Ethics Warm-Up, 5/15/2018: Alito Gets One Right, Ellison Deceived, And An Ancient, Unethical Tactic Works Once Again…

/ Jack Marshall / 24 Comments

To a glorious morning, Ethics-Lovers!

1. Bad Alito, Good Alito.  As I briefly noted yesterday (and hopefully will do in detail today), Justice Alito authored an unethical and embarrassing dissent defending a lawyer who deliberately betrayed his client by telling the jury that he had killed someone his client denied killing. Bad Alito. However, the arch-conservative jurist also authored the majority opinion in Murphy v. National Collegiate Athletic Association, in which the SCOTUS majority struck down a virtuous but unconstitutional law, and did so clearly and well.

These are, I think, my favorite Supreme Court opinions, where the Court ignores the motives and objectives of a law and simply rules whether the legislature is allowed to behave like that. I don’t know, but I would guess that most of the majority feel the way I do about organized sports gambling: nothing good can come of it, and a lot of harm is inevitable. One they get the green light, I’m sure that as many states will take over sports gambling for its easy revenue as now prey on its poor, desperate and stupid with their state lottery scams. Everyone involved–sports, fans, athletes, states, the public’s ethical compass—is going to be corrupted by letting the sports betting genie out of its bottle: just watch.

Nevertheless, the Professional and Amateur Sports Protection Act, a 1992  law known as PASPA, should have been struck down decades ago; I’d love to know why it took so long. No, it did NOT ban sports betting, though this is what far too many news reports tell you. Congress can ban sports betting directly if it chooses to, as it is interstate commerce. This isn’t in dispute. What it did in 1992, however, was to order states not to pass laws states have a constitutional right to pass. The distinction matters. From SCOTUS Blog, which is usually the best source for analysis of these things:

The 10th Amendment provides that, if the Constitution does not either give a power to the federal government or take that power away from the states, that power is reserved for the states or the people themselves. The Supreme Court has long interpreted this provision to bar the federal government from “commandeering” the states to enforce federal laws or policies. [The] justices ruled that a federal law that bars states from legalizing sports betting violates the anti-commandeering doctrine…

…In a decision by Justice Samuel Alito, the court began by explaining that the “anticommandeering doctrine may sound arcane, but it is simply the expression of a fundamental structural decision incorporated into the Constitution” – “the decision to withhold from Congress the power to issue orders directly to the States.” And that, the majority continued, is exactly the problem with the provision of PASPA that the state challenged, which bars states from authorizing sports gambling: It “unequivocally dictates what a state legislature may and may not do.” “It is as if,” the majority suggested, “federal officers were installed in state legislative chambers and were armed with the authority to stop legislators from voting on any offending proposals. A more direct affront to state sovereignty,” Alito concluded, “is not easy to imagine.”

…The court also rejected the argument, made by the leagues and the federal government, that the PASPA provision barring states from authorizing sports betting does not “commandeer” the states, but instead merely supersedes any state laws that conflict with the provision – a legal doctrine known as pre-emption. Pre-emption, the majority explained, “is based on a federal law that regulates the conduct of private actors,” but here “there is simply no way to understand the provision prohibiting state authorization as anything other than a direct command to the States,” which “is exactly what the anticommandeering rule does not allow.”

Got it.

Good decision. Continue reading →

Comment Of The Day: “What Do You Get When You Add Anti-Gun Bias To Constitutional Ignorance To Anti-Trump Bias To Incompetent Journalism? THIS…”

/ Jack Marshall / 23 Comments

Chris Marschner’s epic Comment of the Day arrived at 11:14 pm last night. My immediate reaction was that it validated all of the toil and time I have put into this blog since it was launched in 2009. I know I have indulged myself more than is professionally admirable of late, complaining about the traffic here, the lack of broader web circulation of essays that I believe are important and objectively superior to commentary elsewhere that routinely gets hundreds of thousands of clicks, likes and shares. In my lore rational moments I also know that, as Hymen Roth once pulled me aside and reminded me, “Jack, you idiot, this is the life you have chosen!” This is ethics. Most people don’t want to read about or think about ethics, and most people are bad at it and don’t want to get better. I make much of my living teaching ethics to lawyers who admit to me that if they didn’t have to get ethics credits to keep their licenses, they would rather be locked in a room with Slim Whitman recordings being blasted at them than sit through an ethics seminar.

Chris’s essay— “essay” doesn’t do it justice; perhaps “opus”–reminded me of what I set out to do here from the beginning, which was to create an online colloquy about applied ethics and ethics analysis, using events, issues, episodes and dilemmas from every aspect of our culture, national experience and daily life. As the 9th full year of Ethics Alarms begins, I can see that we have attracted, beyond the readership, which of course is hard to analyze, a remarkable, diverse, dedicated and passionate group of regular commentators whose output in the discussions and debates following the posts is the best it has ever been and getting better. I could not be more proud of that. I also complain about lost commenters, the many, many once regular and valued participants here who have fallen away, often without explanation. ( Spike Jones: Mary–“Bon soir, John. Prosit. Auf wiedersehen. Au revoir. Adios. Aloha.” John:  How do you like that? She didn’t even say ‘goodbye’! ) But this is the regular cycle of any blog; I know it. I just get attached to the faceless people I interact with daily, and take their exits personally, forgetting that lives and priorities change, and that I, too, am just a distant voice, who could, after all, be a dog.

I read many websites and blogs, and with the possible exception of the original Volokh Conspiracy before it moved to the Washington Post, no site’s comments approach the routine excellence I see here, in content, seriousness, and original thought. So you know just how excellent Chris’s comment is, when I say that it is among the very best that has been posted on Ethics Alarms.

Here is Chris Marschner’s Comment of the Day on the post,  What Do You Get When You Add Anti-Gun Bias To Constitutional Ignorance To Anti-Trump Bias To Incompetent Journalism? THIS…”

I suggest that you keep this link handy as you read it.

I wrote this for anyone willing to listen. Continue reading →