Let’s play a game.
You get one swing at destroying the rule of law. We’ve got three contestants. Who wants to go first?
Attorney General Jeff Sessions announced this week that trials are a nuisance and that brown people with cash will be presumed guilty of something something drugs something something. Civil asset forfeiture has been going on for 30 years now, but Sessions thinks we aren’t taking enough property from the unaccused, and is promising an increase in seizures, despite the fact that law enforcement already steals more from people than burglars do.
“No criminal should be allowed to keep the proceeds of their crime,” Sessions said, as if this were a simple matter of good guys and bad guys.
It’s important to recognize that this isn’t a conservative policy. Republicans at the state level have been pushing reform on this issue for more than a decade. Clarence Thomas is right-wing, in the awesome sense of the term, and he has denounced the “egregious and well-chronicled abuses” caused by civil asset forfeiture.
His colleagues on the bench are another matter. The courts might occasionally scrutinize whether the cops had any right to break down the door to your home, as one wit noted, but they’re not going to question their right to just seize the whole house.
You’ve been named — give up everything you own. Augustus would approve.
Next up, we’ve got the D.C. Circuit Court of Appeals, and its new tweetable doctrine:
Broke: Chevron Deference
Woke: Old EPA > GOP EPA
Bespoke: What you need (I got it)
For those of you who don’t geek out on legal issues, Chevron deference is the principle (or the most prominent of several related principles) holding that the courts should just hit the snooze alarm whenever somebody sues the bureaucracy, so long as the bureaucrats have some theoretically plausible justification for what they’ve done. It is the truly bizarre principle by which Antonin Scalia, no less, came to endorse Franklin Delano Roosevelt’s wildest dreams of government authority.
In other words, the whole of American government, from FDR’s Fabian Socialists to our universally beloved hero on the right, is in accord with the principle of telling you to go pound sand when you question Leviathan. We ought to call it Leviathan deference.
There is, however, one party that has no claim to such deference, according to the brand new jurisprudence of the D.C. Circuit — Leviathan itself, at least when it is captained by the wrong political party.
In April, Scott Pruitt, administrator of the Environmental Protection Agency, announced a 90-day stay of implementation of an Obama-era rule on methane gas emissions. Such is the breadth of the courts’ deference to the bureaucrats, usually, that they won’t even entertain a challenge to a regulation until it is a “final agency action,” and even then, they will almost always side with the agency. This is a temporary stay, and on reasonable grounds.
Yet the Circuit Court dares to order Pruitt to proceed to enforce the stayed rule. This is a violation of our very Constitutional order — judges seizing managerial control of an executive agency on grounds that couldn’t be more hypocritical and lawless.
This is the naked exercise of power unconstrained by law.
Third, up in Minneapolis, we’ve got a Somali refugee cop who shot a pretty white lady.
Finally, I understand why certain black friends of mine watch the local evening news like a rooting section… please don’t be us, please don’t be us, please don’t be us… aww, man. The media image shouldn’t matter that much, but it does.
Most of us don’t think in probabilities and abstractions, we think of people and situations. I hope a lot of folks remember this as the moment they first entertained the possibility that a police shooting wasn’t justified.
When pretty white ladies get hurt, folks sometimes pay attention. Kate Steinle was one woman, yet look how much people read into that one tragedy.
I’m not trying to condemn anyone, or call anyone names, but everyone who’s worked in the news business knows that where ratings are concerned, black lives don’t matter all that much. (Remember that time we passed Keisha’s Law, or started with the Aisha Alerts? Me neither.)
That is, they didn’t matter until recently, when the convergence of ubiquitous video and race demagoguery made white cop-kills-black man a staple of the news.
The left is right that this is a problem, and wrong about the reasons why. It’s not that it’s wrong to kill an innocent man because of racism. It’s wrong to kill an innocent man — full stop.
Now, I judge officer-involved shootings on a case-by-case basis, just as the cops themselves do. Michael Brown is to blame for his own death; Philando Castile and Walter Scott aren’t.
But there is a hard-headedness I see far too often, a flat unwillingness among many conservatives to think a cop might be to blame in a shooting, that if we entertain this idea, we are betraying the team somehow, or opening the door to the forces of chaos. This shows up in jury after jury siding with panicked cops over unarmed black men. This is robbing the rule of law of its legitimacy.
Now here, racial issues aside, we have a case where a cop almost certainly should not have been pulling the trigger.
It’s not just a bad idea to discharge your firearm inside your vehicle; it’s against policy in most departments. I learned that from a cop who’d been left half-deaf doing just that during a rolling gunbattle with a suicidal gangster across half of South-Central Los Angeles. (He won the gunfight, but it took months to escape the potential punishment for policy violations.)
So we know Mohamed Noor shot from the passenger’s seat of his squad car at Justine Ruszczyk, we know that no weapon was found at the scene, and we know that Noor isn’t explaining himself.
It looks bad. But for once, the picture isn’t distorted by the left’s clichés. There are two problems that ought to be obvious.
One, police unions in too many jurisdictions have insulated their officers from accountability, even within their own departments. Nobody should get to kill and not answer for it.
Two, the Supreme Court has settled on an unworkable standard — reasonable fear — for when cops can kill. Juries routinely take this to mean that any fear is an excuse.
You won’t hear this from many on the left. Most of them are more interested in convicting America and the police of institutional racism than in solving a legal problem or saving lives. But these are practical problems, both far easier to remedy than whatever bit of vestigial racism might be involved.
You don’t have to agree with Black Lives Matter, and I certainly don’t, to recognize that the law must be impartial to retain its moral gravity, its power to compel. The alternative is rule by men, by coercion.
In other words, if the law becomes so degraded that it no longer protects my life or property, then why would I respect it? If the courts themselves can’t even behave lawfully, then what could they expect from me?