Steve Stockman, states' rights and marijuana

In the wake of a recent poll showing the majority of Texans and half of Republicans favor marijuana legalization, Texas GOP Congressman Steve Stockman signed on as a sponsor of bipartisan federal legislation requiring the feds to respect state-level marijuana laws, including those allowing medical marijuana use and flat-out legalization regimens in Washington and Colorado. Grits fails to see how any Republican on the states' rights bandwagon could oppose the idea. We'll see where it goes.

Last session, the Republican dominated Texas House Criminal Jurisprudence Committee approved legislation to reduce the offense level by one penalty category for low-level marijuana possession, but House leadership wouldn't let it get to the floor for a vote. By Grits' headcount, the bill would have sufficient votes to pass in the lower chamber if Speaker Joe Straus and the House Calendars Committee would ever let the members vote on it.

One hopes Stockman's sign-on signals the emergence of a new, bipartisan spirit on drug-policy reform. If the feds were to adopt a strong states' rights stance on pot policy, Grits thinks many states, including Texas, might be willing to take them up on the offer.

MORE: From Paul Kennedy.

On immigration, mass incarceration, revanchism, and the wet dreams of private prison executives

That's right, you're not from Texas. But Texas wants you anyway.

- Lyle Lovett

Supreme Court commentators speculate that Arizona may get clearance to round up and incarcerate illegal immigrants en masse under a law making state criminals of people with federal immigration violations. If that happens, though, other, more rational states can and almost certainly will make different choices for their own economic well being, as was their wont until relatively late in the nation's history.

From a constitutional and historical perspective, states including Texas regulated immigration instead of the feds until after the Civil War. For example, when leftist Germans rebelled in 1848-9 and were subjected to mass exile, New York wouldn't let the radicals in (according to Ernest Fischer), so they sailed down the coast and around the Gulf to Galveston, which as a result became the entry point throughout the 1850s for so much of Central Texas' German population in the earliest years of Texas statehood.

As late as 1869, Texas still had a state immigration officer. It wasn't until the late 1870s, when California wanted to stop the entrance of Chinese "coolies" while the federal government needed them to build railroads, that Congress declared immigration decisions exclusively under federal purview. And with states rights at their low ebb during Reconstruction, they found few if any jurists with the ideological predisposition to stand in their path.

So perhaps we shouldn't be surprised if, in a lurching feat of revanchism, the 21st century Supreme Court sides with Arizona and begins to re-empower states on immigration. If that happens, Grits expects or at least hopes Rick Perry and Co. will take a much different approach from that of AZ Governor Jan Brewer, who mused about the prospects for "mass incarceration" after oral arguments, according to NPR:

Outside after the argument, Arizona's governor was asked if, in fact, the state does have plans for a mass incarceration of the estimated 400,000 illegal immigrants in her state.

[Gov. Jan] Brewer paused for quite a long while and then replied: "If they're breaking the law, there's that possibility, I would assume."

One rarely hears it admitted publicly, but there it is. This is why maximum immigration enforcement is the private prison industry's wet dream, perhaps the only potential market on the horizon that could replace lost demand for prison beds if the drug war were ever to end (a possibility disclosed to investors in corporate filings as a serious risk to their long-term financial health). "Mass incarceration" is exactly what happens from criminalizing immigration status.

Texas locks up fewer than 160,000 inmates in state prisons, but according to census data, the number of "unauthorized" immigrants runs to ten times that number - more than 1.6 million people. To actually accomplish such a goal would require upheaval rivaled in history only by Soviet transmigration policies under Stalin, rounding up and incarcerating millions for the crime of finding a job, working, and raising a family on the wrong side of the border.

Of course, other common words for immigrants, unauthorized or not, are "customers," "employees," even "small business owners," and for the most part the Texas business community, at least, believes we need more of all of those. Imagine the economic impact if tomorrow all the nativists' fantasies were fulfilled and Texas suddenly had 1.6 million fewer consumers.

America is a nation of immigrants and the striving mentality they bring with them to their new home has defined this country's values since its inception. Let states call the shots to a greater degree, and some will cut off their noses to spite their face, as Arizona has done. But not all of them, and I believe Texas may still be a prominent exception: A lot of these billionaire Texas political donors are happy to spend money "swift boating" John Kerry or bankrolling presidential attack ads, but aren't necessarily on board with the whole round-up-my-employees thing.  Nor is much of law enforcement, for that matter. San Antonio Police Chief William McManus recently criticized proposals like Arizona's, declaring, “It would ruin the fragile relationship we've worked so hard to try to build in the community.”

Certainly there are plenty of Texas Republican primary voters slavish to such round-em-up demagoguery, but that segment of the party's base is split off from the GOP's biggest money-men on the issue. You saw the disconnect between Texan attitudes on immigration and the national GOP base when Rick Perry was blasted in the presidential campaign for signing Texas' DREAM Act. Most Texans are practical, particularly when it comes to business, and as a practical matter turning productive workers into prisoners whose room, board, and healthcare taxpayers must finance amounts to a fool's errand.

Grits supports comprehensive immigration reform and a path to citizenship for two simple reasons: I oppose mass incarceration and support expanded immigration to boost the long-term stability of the economy. Further, it's smarter to choose to expand legal immigration thoughtfully than to live in some denial fantasy and pretend US labor demands haven't been the driving factor behind illegal immigration trends.

So let Arizona chase away their businesses' customers and their schoolchildren's playmates. As Lyle Lovett crooned, "Texas wants you anyway."

Federalism arguments favor border wall opponents

Yesterday I argued that the states rights baby shouldn't be tossed out with the bathwater of segregationism, and here's another example where the revitalized concept would come in handy. Reports Forrest Wilder at the Texas Observer blog:

With a stroke of his pen last month the Homeland Security chief suspended nineteen laws in Arizona that stood in the way of a two-mile section of border fence slated for the San Pedro Riparian National Conservation Area.

He’s threatening to do South Texas the same way, unless environmentalists win a recently filed lawsuit.

[Michael] Chertoff is using a tool granted to him by Congress in 2005 as part of the Real ID Act. In Section 102 of that act, Congress offered Homeland Security the power to waive laws conflicting with border militarization security. Congress also stripped the courts of judicial review except for Constitutional claims.

What an outrageous abuse! Here's a situation that, to me, cries out for strident claims of state sovereignty. I've said before a wall on the Texas-Mexico border amounts to the most imbecilic public policy I've ever heard seriously proposed. If it happens, we will be the first nation state in history of the planet to build a wall along a major river, and leave the river on the other side!

Overturning state and local laws with a stroke of a pen in Washington is an affront to federalism and the concept of local control, snubbing people on the front lines who have firsthand stakes in the border and border security. By all rights, opponents of a border wall should be waving banners with the Tenth Amendment to the Constitution stenciled on them. But since those arguments have been all but banished from polite society - after all, Bob Herbert might call you a racist - opponents find themselves falling back on weaker arguments. E.g., the Observer reports that:

residents on both sides of the border as well as environmentalists and birders are enraged over the fence.

The latest map released by the government shows segments of the wall slicing through critical habitat in Texas. The Sabal Palm Audubon Center in Brownsville will be completely walled off, leaving this rare, species-rich palm grove in a sort-of no-man’s-land. Many Texans probably do not know that the Lower Valley is the most biologically diverse region in the nation. Yet it has a global reputation. I’ve met people from as far away as South Africa who have never set foot in Texas but know about the Valley because of its fame as a birding and wildlife paradise.

Chertoff’s response to all this? “I have to say to myself, ‘Yes, I don’t want to disturb the habitat of a lizard, but am I prepared to pay human lives to do that?’,” he told the AP.

Chertoff's response is as clever as it is disingenuous (arguably building a wall will cost more lives by pushing migrants further out into the boondocks): If the debate is defense against Al Qaeda against bird habitat, I think the wall builders probably win. But if the debate is about federalist ideals laid out in nation's founding document, I think arguments against the wall gain more traction.

It's not that birds and lizards don't matter, it's that the environmental issues appeal to a fairly narrow and more liberal segment of the public, while even those without a personal or ideological stake in environmentalism can find reasons to dislike a fence that restricts Texans' access to a major river and was imposed by Washington against the wishes of the locals.

There are many good arguments for opposing a border wall, there's really no reason to limit yourself.

Grits to Bob Herbert: You still don't understand white southerners

If readers will excuse a slightly off-topic post, over at Talk Left a Bob Herbert column in the New York Times is billed as a must read that frankly punched some of my buttons, and not in a good way. So, having this forum, I thought I'd respond.

Reacting to navel gazing articles by two other New York Times columnists on the meaning of an obscure appearance by Ronald Reagan when he ran for president, Herbert argues that the event typified the ex-President's legacy as one of racial indifference. (An aside: Uh ... the "newshook" is 27 years old, and this is a "must read"?) In promoting "states rights," said Herbert, Reagan:

was tapping out the code. It was understood that when politicians started chirping about “states’ rights” to white people in places like Neshoba County they were saying that when it comes down to you and the blacks, we’re with you.

I think it's time to bust apart apart this stale, outdated meme that "states rights" is merely "code" for racism. There's some historical truth to it, but it's a truth that obscures many equally important ones, IMO damaging honest political discussion more than clarifying it.

My family were Reagan Democrats during that 1980 presidential campaign, and since my grandfather was an LBJ ally and county judge for 29 years in the Panhandle, our home was fairly politically minded. As I near 41 later this month, I've spent my whole adult life working in politics on issues related to civil rights, including performing a lot of the lobby legwork at the Texas capitol after the Tulia case Mr. Herbert wrote so much about (we met once in Tulia, though I doubt he'd remember).

Given that familial and personal history, I feel fairly qualified to speak about the ideology Herbert is criticizing. I believe in "states rights" today as strongly as I did when I cheered at a (different) Reagan rally in 1980 and volunteered for his re-election campaign in 1984 as a 17 year old.

It may be just "code" to you, Mr. Herbert, but to me it's an important part of the Constitution that's been defenestrated thanks to liberal smears that claim anyone who argues for state authority under the Tenth Amendment is a racist. To this day the Tenth Amendment (and the even more downtrodden Ninth) still animate many of my core beliefs:

I'm horrified by the abuse of the Interstate Commerce Clause to justify federal regulation in areas where it has no business, transforming what was intended to be a limited federal government into a nearly all-powerful one.

I consider the federal War on Drugs and the expansion of federal prisons, law enforcement and immigration detention a direct spite to the separation of federal and state powers articulated in the Constitution.

It infuriates me when the feds threaten to withhold highway funds or use other forms of coercion to make states do things like implement a national ID through the REAL ID Act, along with many other examples.

I'm mindful that regulating immigration before the Civil War was a states' right, another power seized by a newly all-powerful federal government during Reconstruction. (The first US immigration law, naturally, was racist in nature, restricting entry of "coolies" from China.) Thus all of today's immigration feuds, talk of a "fence," etc., to my way of thinking, directly result from stripping away states' power.

If states rights were only about slavery and Jim Crow - and Herbert's 100% correct those arguments were primary justifications by supporters for both - then I'd agree the phrase could be dismissed as mere "code" for racism and cast aside in polite company and official venues. But the idea that most governing rights should be reserved to the states had a much broader meaning both in antebellum America and in 1980, one that tapped into legitimate ideological streams of thought dating back to Thomas Jefferson, in addition to the racist ones Mr. Herbert highlights.

Speaking of Jefferson, in the Kentucky Resolution, the great man wrote that the Constitution, "delegated to that government certain definite powers, reserving each State to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force."

White southerners like my family believed that Jeffersonian creed to their core. It was Reconstruction, we understood, that shattered that founding constitutional principle through martial law and authoritarian decrees, launching a creeping expansion of federal power and domestic militarism, according to this view, that continues to this day.

Herbert's derision for states rights stems from his belief that it is purely a racially charged, rhetorical gimmick, a belief confirmed en toto, he thinks, by "the acknowledgment by the Republican strategist Lee Atwater that the use of code words like 'states’ rights' in place of blatantly bigoted rhetoric was crucial to the success of the G.O.P.’s Southern strategy."

States rights isn't only a mask for racism, it's part of an ideology of small government, limiting (and separating) state power, and above all, local control. Confusing those ideas, as does Bob Herbert's "must read" column, leads to misunderstanding people's motives and dumbing down the debate.

UPDATE: Jeralyn at TalkLeft agrees liberals shouldn't view states rights as a dirty word. Alex, at the Drug Law Blog, thinks I want to have my cake and eat it too, while Pete at Drug War Rant adds his two cents.