Are you free to express your opinions? The First Amendment says yes, but 8 US Code § 1324 says no. A case currently before the US Supreme Court, United States v. Sineneng-Smith, will presumably clarify the matter, hopefully in favor of free speech.

Evelyn Sineneng-Smith, an immigration consultant, allegedly cheated her clients by charging them $5,900 to file applications for a permanent residency program she knew they didn’t qualify for.

In 2013, a jury convicted  Sineneng-Smith on three counts of mail fraud and three counts of “encouraging or inducing illegal immigration for private financial gain.”

Under that US Code provision, “Any person who … encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law,” can be sentenced to hard time — five years in prison, ten years if it’s for financial gain, life imprisonment or even execution if someone is injured or put in jeopardy of death by that “encouragement.”

The US Court of Appeals for the Ninth Circuit set aside Sineneng-Smith’s convictions on those “encouragement” counts, ruling  that the law is “unconstitutionally overbroad in violation of the First Amendment.”

Federal prosecutors appealed the Ninth Circuit’s ruling to the Supreme Court because that’s what federal prosecutors do .  Their case seems to be that we obviously can’t just have people out there saying whatever they want to say.

But we CAN, and SHOULD — in fact, according to the Constitution, MUST — have people out there saying whatever they want to say.

I encourage anyone and everyone who wants to come to the United States in search of work and/or safety to do so, and to stay here for as long as they please, whether the US government likes it or not.

I just broke the law.

And I did so partly for purposes of “commercial advantage or private financial gain.” I consider unfettered immigration an economic boon to everyone, myself included.

As the late economist (and apparent scofflaw) Milton Friedman  noted, “Mexican immigration, over the border, is a good thing. It’s a good thing for the illegal immigrants. It’s a good thing for the United States. It’s a good thing for the citizens of the country.”

The Supreme Court should affirm the Ninth Circuit’s ruling.

If it doesn’t, I guess you’ll be waiting ten years or so for my next column.

Thomas L. Knapp (Twitter: @thomaslknapp) is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.

PUBLICATION/CITATION HISTORY

“The Constitution,” Alan Dershowitz claims, “allocates to the president sole authority over foreign policy (short of declaring war or signing a treaty).”

Dershowitz makes that claim by way of defending US president Donald Trump against conviction in the Senate on two articles of impeachment.

More specifically, he disputes the Government Accountability Office’s claim that Trump violated the law when he used pending foreign aid to extort Ukraine’s president into investigating a political opponent.

According to GAO, the Impoundment Control Act “does not permit the president to substitute his own policy priorities for those congress has enacted into law.”

According to Dershowitz, the Act “does not permit Congress to substitute its foreign policy preferences for those of the president.”

Where in the Constitution do we find the “allocation” Dershowitz refers to? He doesn’t say, for good reason: The actual Constitution, unlike the one in Dershowitz’s imagination, agrees with GAO.

The Constitution empowers Congress, not the president, to “regulate commerce with foreign Nations.”

The Constitution empowers Congress, not the president, to “define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations.”

The Constitution empowers Congress, not the president, to “declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.”

The Constitution empowers Congress, not the president, to  “provide for calling forth the Militia to … repel Invasions.”

The Constitution empowers the president to negotiate treaties — but those treaties require Senate ratification.

The Constitution empowers the president to appoint ambassadors and a Secretary of State — if the Senate approves of his choices.

The Constitution makes the president commander in chief of the armed forces, but only when they’re “called into the actual service of the United States” by Congress.

And the Constitution allows the president to spend money only “in Consequence of Appropriations made by Law.” That is, appropriations made by Congress, which the president may sign or may veto but may not “substitute his own policy priorities” for.

In Federalist 69, Alexander Hamilton — arguing for the Constitution’s adoption — cites most of the items above the president from a British-style monarch:

“The one would have a QUALIFIED negative upon the acts of the legislative body; the other has an ABSOLUTE negative. The one would have a right to command the military and naval forces of the nation; the other, in addition to this right, possesses that of DECLARING war, and of RAISING and REGULATING fleets and armies by his own authority. The one would have a concurrent power with a branch of the legislature in the formation of treaties; the other is the SOLE POSSESSOR of the power of making treaties. The one would have a like concurrent authority in appointing to offices; the other is the sole author of all appointments.”

Dershowitz’s “legal argument” (he’s formally joined Trump’s defense team) is that the Constitution means the opposite of what it says and what its framers said they meant, and that Trump is king, not president, of the United States.

Thomas L. Knapp (Twitter: @thomaslknapp) is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.

PUBLICATION/CITATION HISTORY

On August 11, 2014, officers from the Caldwell, Idaho Police Department asked for Shaniz West’s permission to enter and search her home. They were looking for her ex-boyfriend. West authorized the search and handed over her keys.

Instead of entering and searching the home, though, the police brought in a SWAT team, surrounding the building.  “[P]olice repeatedly exceeded the authority Ms. West had given them,” a lawsuit she filed complains, “breaking windows, crashing through ceilings, and riddling the home with holes from shooting canisters of tear gas, destroying most of Ms. West and her children’s personal belongings.”

The “standoff” lasted ten hours. But it wasn’t really a standoff. The only mammal in the home larger than a mouse was West’s dog.

Then the cops went on their merry way, leaving West homeless for two months, with three weeks in a hotel as her only compensation.

She wants more, including the costs of repairing and replacing her ruined personal property, damages for pain, suffering and emotional distress, and punitive damages for the assault on a home she gladly authorized a search of, not an attack on. She deserves all of that.

She isn’t getting it — yet, at least — due to a loophole baked into a vile judicial doctrine called “qualified immunity.”

Qualified immunity protects government employees from liability for things they willfully decide to do while on duty, unless those actions violate “clearly established statutory or constitutional rights of which a reasonable person would have known.”

The loophole is the phrase “clearly established.”

The Ninth Circuit US Court of Appeals ruled that “no Supreme Court or Ninth Circuit case clearly established, as of August 2014, that Defendants exceeded the scope of consent.”

How’s that for circular reasoning? “You can only sue over X if someone else has previously successfully sued for X. ” And no one CAN have successfully sued for X, at least since the loophole was introduced in 1982, because they would have been turned away on the same grounds!

The Institute for Justice wants the US Supreme Court to take up West’s case.

It should do so, and when it rules it should go beyond nixing the “clearly established” loophole and do away with the doctrine of “qualified immunity” entirely.

42 US Code § 1983 provides that “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws” may be sued for damages.

Not just if someone has successfully sued on the same grounds before.

And not just if a “reasonable person” would have known better.

Government employees are supposed to know their jobs, including the limits on their authority. If they don’t, they shouldn’t be given guns and badges, let alone protection from liability when they exceed those limits.

“Qualified immunity” is the opposite of “equality under the law.”

Thomas L. Knapp (Twitter: @thomaslknapp) is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.

PUBLICATION/CITATION HISTORY