Below is my column in The Hill on the recent bills proposed in Florida and California on immigration and guns. The bills are the latest examples of “gotcha legislation,” though the Florida bill could raise some interesting legal questions if Gov. Ron DeSantis moves forward with his plan on relocating undocumented persons to Delaware.
Here is the column:
California Gov. Gavin Newsom (D) and Florida Gov. Ron DeSantis (R) this week may have achieved the political equivalent to apotheosis, in which mortals achieve God-like stature. Both are legislating soundbites and the voters are loving it. In California, Newsom pledged to re-purpose the Texas “heartbeat law” to limit gun rights. In Florida, DeSantis pledged to use federal COVID funds to send undocumented persons to Delaware, home state of President Joe Biden.
Welcome to the rise of gotcha legislation, where the arguments of the opposing party are used to attack its core issues.
Both proposals face serious legal challenges and likely could not survive as codified soundbites.
Newsom’s gun ‘heartbeat’ law
Newsom tapped into the liberal rage after the Supreme Court refused to enjoin the Texas law that allows people to sue anyone who “aids or abets” an abortion performed after about six weeks. Newsom said that if states can now shield their laws from review by the federal courts by parceling enforcement out to private lawsuits, then “California will use that authority to protect people’s lives, where Texas used it to put women in harm’s way.”
If written as Newsom described, the law would be dead-on-arrival.
First, Newsom limited the law to gun manufacturers, distributors, and sellers — to the exclusion of a wider array of purchasers, or “aiders and abetters.” The Texas law exposed a wide array of people to potential lawsuit; Newsom is targeting companies that will not be as easily intimidated. Second, the Second Amendment expressly protects the individual right to bear arms.
The Texas “heartbeat” law was pushing the long-standing question of limits within the pre-viability period of a pregnancy.
A district court previously struck down a California law barring AR-15s, an order that was later stayed; the issue is currently on appeal.
Before you allow citizen enforcement of prohibitions, you have to establish that the prohibitions themselves are constitutional, as in Texas.
Finally, in the Texas case, eight out of nine Supreme Court justices just voted to allow pre-enforcement challenges. The same would likely be true for the California law. Newsom would force even the liberal justices to vote against California or embrace the same hypocrisy as the governor. Once declared unconstitutional, the California law would return to little more than a soundbite (to quote Macbeth) full of “sound and fury, signifying nothing.”
Nevertheless, some legal experts are applauding Newsom for his cleverness and chutzpah. Jessica Levinson, a law professor at Loyola Law School in Los Angeles, admitted to The Chronicle that Newsom is “one step ahead of where he can go legally,” then added: “He is proposing to use a mechanism that he and many others have vilified. But I think it’s quite smart, right? I think it’s a big ‘F–k you’ to the Supreme Court.”
That is what constitutes “smart law” in the age of rage.
Of course, the justices may not be quite as enamored with the message — or the messenger — as is Professor Levinson.
DeSantis’s ‘tongue in cheek’ immigration relocation law
If Newsom’s bill is a middle finger to the Supreme Court, DeSantis’ bill is the same to the Biden administration. DeSantis’s bill to relocate undocumented persons to Delaware also began as a soundbite: “It’s somewhat tongue in cheek, but it is true,” DeSantis said, “if you sent them to Delaware or Martha’s Vineyard or some of these places, that border would be secure the next day.”
DeSantis wants $8 million to create a new program that would allow Florida to contract with private companies to transport “unauthorized aliens” out of the state.
Here’s the gotcha: DeSantis wants to use the interest accrued from federal funds, including pandemic relief funds.
It is clever, given that Congress handed over hundreds of billions with few limitations.
DeSantis has also pushed legislation to bar state officials from assisting in the federal relocation of undocumented persons into the state — flipping the script on liberal states and cities that barred assistance to ICE in apprehending individuals. The Biden administration has been moving thousands of immigrants around the country by plane and bus. A Florida TV station reported 78 flights have landed in the Jacksonville airport alone between April and October. Most of these immigrants are told to report to an immigration office, and many are not given court dates. They are free to go anywhere in the United States. In that status, they can go to Delaware — and can also be induced to go to Delaware voluntarily by cash payments.
However, the proposed law would likely violate immigration laws and the Constitution if Florida forced immigrants into another state. A federal court could enjoin the program before most immigrants were buckled into their seats.
The most interesting question is whether Delaware could secure an injunction if the law were written as a voluntary relocation program. Since these individuals are free to travel in a non-custodial status, Florida could act by inducement rather than compulsion by offering financial payments to relocate. Delaware or Martha’s Vinyard would then have to argue that such immigrants are equivalent to interstate “dumping” cases or somehow violate federal authority. These would be deeply insulting to invoke in an immigration context. It would be the inverse of Chemical Waste Management, Inc. v. Hunt, in which the Court struck down an Alabama law imposing a fee on all interstate waste coming into the state under the Dormant Commerce Clause. The Court ruled that “no state may attempt to isolate itself from a problem common to the several States by raising barriers to the free flow of interstate trade.”
Florida might not be imposing a fee, but rather offering a benefit for the movement of undocumented persons to Delaware. Those people are not forms of pollution, but rather people free to move around the United States under federal law. That could trigger a tit-for-tat of such state laws, but a court could view that as a political question.
In the end, however, it is distinctly possible that these gotcha laws will not move a single person or gun out of their respective states.
They will, however, thrill supporters and throttle opponents in the blood sport of American politics.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates on Twitter @JonathanTurley.
192 thoughts on “The Rise of Gotcha Legislation: Newsom and DeSantis are Legislating Soundbites and Voters are Loving it.”
There’s no comparison between Newsom and DeSantis. Newsom is a lying, worthless piece of rubbish. DeSantis is a first-rate governor who tells the truth and has a long string of accomplishments that benefit his state and the nation as a whole. But nice try at false equivalency, counsellor.
Svelaz and Anonymous the Stupid stand up and try to gaslight the blog about CRT. ATS knows better but is a liar. I’m not sure if Svelaz knows better because he is intellectually impaired.
On June 30, members of the National Education Association, the nation’s largest teachers’ union, voted to approve a plan to promote critical race theory in all 50 states. Union delegates representing 3 million public school employees approved funding for three separate items related to “increasing the implementation” of “critical race theory” in K-12 curricula; promoting critical race theory in 14,000 local school districts; and attacking opponents of critical race theory, including parent organizations and conservative research centers.
The public vote represents a significant strategic pivot. For the past month, many liberal pundits and activists have insisted that critical race theory is not taught in K-12 schools. This was always a bad-faith claim; the ideology has made inroads in public schools for more than a decade. But the NEA’s official endorsement puts the final nail in the coffin of this rhetorical dodge.”
The recent complaint filed by the Alliance Defending Freedom on behalf of a group of diverse parents against the Albermarle School District in Virginia shows clearly that the cluster of ideas I outlined earlier, sometimes referred to as “CRT”, is being taught in schools. The complaint can be found on the Alliance’s website and in news stories about it. Those who support this kind of teaching should defend it on its merits, and stop denying that it is happening.
Thanks. Daniel, I read about that school’s district as well. The left is dishonest and corrupt. This blog represents both sides of the picture, but the left cannot defend their point of view, so as you say, they don’t defend CRT. Instead, they play word games, lie, and deceive. That is the way the left acts typically. Look at ATS. He can’t handle debate because he does all these things. He can’t defend his comments, so he changes icons and aliases along with using more than one at a time. Is that any different than the politicians of the left? No. We see them changing positions continuously without shame.
Thanks, S Meyer. The articles about it don’t really do justice to the complaint, which has a wealth of detail. Much of what is being taught is identical, using virtually the same language and diagrams, to the teacher training materials being used in my school district that I have reviewed.
Daniel, I posted some copies of original documents. The evidence is overwhelming and is being compiled. A book on the subject might have gathered a lot of the evidence, but I forget its name. If you read it, perhaps you can let me know the book’s name and what it covers.
Don’t know of the book. What I have seen comes mainly from Rufo and from pestering my school district to show me what they are doing.
Phil Hartman probably could have done a good Larry Kudlow impersonation if he was still alive.
More precisely, his *inaction* speaks for itself.
As I have indicated before, Turley may not be at liberty to discuss this defamation lawsuit against Fox on account of his obvious conflict of interest because he might be deposed in the case. He may have to provide information to the plaintiffs as to what he had told the Fox producers about what he thought about Fox’s claims against Dominion. Turley may have counseled against broadcasting these false narratives, or he may have remained silent as they were broadcast recklessly or indifferently. Who knows.
One thing is for certain- Turley’s role as a contributor to Fox News is something of which he will not be proud when he looks back years from now. Consider John Eastman. Turley, of course, was NOT proactive like Eastman in facilitating the events of 1/6, but has Turley made a single comment condemning Eastman’s bogus legal memo to Pence? Not a solitary word.
There was a time, not long ago, when Turley did not reserve judgement on Eastman’s legal handiwork when Eastman wrote a Newsweek article doubting Harris’ eligibility to become Vice-President. Turley stated:
“I do not believe that there is a credible question of Harris’ eligibility. However, I am concerned with the attacks on Newsweek and the author from a free speech standpoint. This issue has been raised for decades and the Supreme Court cases are few and are not dispositive on all aspects of the question.”
One can’t help but wonder why Turley would not again take issue with Eastman’s Pence memo while defending him against those attacking him from a free speech standpoint. It must be that he positively rejects Eastman’s legal theory (as do the vast majority of legal scholars) and believes that his public discrediting and shaming is warranted given his Trumpist views.
Thankfully, Turley is not a lying Trumpist. His actions speak louder than his words!
When will the real, communist (liberal, progressive, socialist, democrat, RINO) and communist-funded Jan. 6 conspirators be revealed and prosecuted?
Ray Epps is an FBI-paid and sponsored agent provocateur who was once on the FBI’s “Most Wanted List.” However, after an extensive DOJ investigation determined that he had served very effectively as an FBI-paid and sponsored agent provocateur, Epps was moved to the FBI’s “Least Wanted List” and given a bonus.
Why do you think Turley never asks such a question?
Jeff, speaking of Eastman.
Yes, I saw this too. I will predict that Turley will ignore this development. If he has not come to Eastman’s defense by now, he won’t start. You may recall that Turley once wrote an article questioning the temporary suspension of Giuliani’s law license, but he indicated that it would likely be revoked once he stood before the ethics committee. Turley has since ceased defending ANY Trumpist lawyers for getting sanctioned by Judges for perpetuating frauds in court by alleging baseless election claims.
I suspect that Turley agrees with these lawyers being sanctioned and having their law licenses threatened; otherwise, we would expect that he would object. On the other hand, Turley may not wish to defend them lest his name become intertwined with their election lies. In other words, he wants to keep his distance from them- no guilt by association- which is odious, of course, but prevalent in the Trumpist mindset, e.g., Liz Cheney is regarded as a RINO for agreeing with Democrats about Trump.
Given Turley’s attacks on CNN, MSNBC and his blackout of any criticism of Fox, Newsmax and OAN, it’s abundantly clear that Turley has no future with the Left. He has resigned himself to work on behalf of the Right. There is no middle ground in the “age of rage.” You must pick a side and be loyal to it. Once you break from your tribe, you are never welcomed back (as a warning to others to remain loyal to the home team).
It’s painfully obvious in his writings that Turley has some old scores he wants to settle with some on the Left: Schiff and Rubin come to mind. It’s petty.
Still, I hate to think that Turley will long remain employed by Fox. If he does, I doubt he will stay at GW law. I think he will feel more welcome at a conservative leaning law school. All his many articles objecting to professors being subjected to negative reactions and consequences for their “bad speech” could reflect his own predicament at his liberal law school. He may emphasize with these professors being held accountable for their speech.
When Trump’s trials- civil and perhaps criminal- get tried in court, there will be pressure placed on Turley to either defend them as “prosecutions” or condemn them as “persecutions.” He won’t be able to remain on the sidelines and keep silent as he has up to now about all the disclosures in the 1/6 investigation and Trump’s civil losses in the appeals courts.
Turley will have come out of the closest so to speak.
Let’s go Brandon!
Straka, that is…
Kyle Cheney: “NEWS: Trump ally Brandon STRAKA has provided info that prosecutors say may be significant. Straka, who spoke at a “Stop the Steal” rally on Jan. 5, is one of the only figures of interest to both DOJ and congressional investigators.
Prosecutors revealed the exchange of information in a filing seeking to delay Straka’s sentencing. He pleaded guilty in October and was facing sentencing next week. But DOJ wants a 30-day delay to evaluate the new info”
CRT comes to Medicare reimbursements.
It makes the deniers of CRT look like morons.
Biden Administration Offers Bonuses to Doctors Who Implement ‘Anti-Racism Plans’
New Medicare rules also reward ‘trauma-informed care’
In a particularly Orwellian touch, these bonuses are being given under a merit-based payment program.
Medicare is unconstitutional.
Congress has the power to tax only for “…general Welfare…” not individual welfare, specific welfare, redistribution of wealth or charity.
The American thesis is: Freedom and Self-Reliance.
The Communist thesis is: From each according to his ability, to each according to his needs.
Justices of the Supreme Court swear an oath to support the Constitution, not a variation on the theme.
The singular American failure has been and continues to be the judicial branch, with emphasis on the Supreme Court.
Impeachment is the only control on the Supreme Court, the Justices of which do not stand for election and are not voted in by the people.
“Medicare is unconstitutional.“
George, it probably is. At the time it was passed there was another program being promoted which would have reduced the negative incentives and limited its scope.
I don’t know if you know Hayek or like him. He is one of my heroes, in particular The Road to Serfdom. You might want to read that, and though he is of libertarian thought he talks about things like healthcare placing it into a light that is understandable. He is not one to agree with Medicare either, but he recognizes that we all wish to make the best of our lives.
I will destroy the insanity and stupidity of political correctness, once I have power.
Let me be benevolent dictator, with the military under my control, and I will make things how they ought to be 🙂
OT (but interesting): Millions Of Refugees Aren’t Getting Vaccines Because Drugmakers, NGOs Fear Lawsuits — ZeroHedge
A global program designed to offer vaccines to tens of millions of migrants has been holding back on jabs because major manufacturers and the NGOs fear lawsuits over harmful side effects, according to Reuters, citing internal documents from Gavi – the charity operating the program.
The legal concerns are an additional hurdle for public health officials tackling the coronavirus – even as officials say unvaccinated people offer an ideal environment for it to mutate into new variants that threaten hard-won immunity around the world. Many COVID-19 vaccine manufacturers have required that countries indemnify them for any adverse events suffered by individuals as a result of the vaccines, the United Nations says. Where governments are not in control, that is not possible. — Reuters
As a result, less than two million doses have been provided from a ‘Humanitarian Buffer’ created by a global rogram [sic] known as COVAX, as the buffer has no mechanism to offer compensation.
According to Gavi, which operates COVAX in partnership with the World Health Organization (WHO), organizations actually administering the doses – primarily NGOs – can’t bear legal risks, and say that deliveries from the buffer can only be made if vaccine manufacturers accept liability.
And this interview, censored by YouTube, is long but well worth the time…
The Joe Rogan Experience #1747 – Dr. Peter A. McCullough
“High school’s racially segregated field trip draws harsh criticism: How is this legal?
“An Illinois high school’s idea to plan a racially segregated field trip has drawn attention as the nation continues to be dragged backward by a “woke” agenda that has categorically rejected a colorblind society, a principle that not long ago was widely accepted in America.
A flyer from Downer’s Grove South High School which is located in the suburbs of Chicago announced the trip as an opportunity for students who may have aspirations of pursuing a career in teaching to visit Thomas Jefferson Junior High School in Woodridge, while not explicitly stating that white people need not bother with signing up.”
Can we get rid of unconstitutional matriculation affirmative action, grade inflation affirmative action, employment affirmative action, quotas, forced busing, food stamps, public housing, “Fair Housing” laws, “Non-Discrimination” laws, WIC, SNAP, TANF, TARP, HAMP, HARP, HUD, HHS, etc., now?
Can we get rid of the several and superior citizenship status of unconstitutional “civil rights.”
The slaves said they wanted freedom; what they really wanted was “free stuff” – oh, and “fundamentally transforming” the entire United States into the possession of freed slaves.
Yep, that sounds like a really, really good deal for Americans.
“GOVERNMENT BANS HAPPINESS”
– North Korean totalitarian communist dictatorship issues mandate banning happiness.
– “Goofy Gavin” Newsom pledged to limit gun rights by re-purposing the Texas “heartbeat law.”
– “DeSantis pledged to use federal COVID funds to send undocumented persons to Delaware.”
– Joke Biden issues vaccine mandate through OSHA “workaround.”
“Big Brother Is Watching: North Korea Bans Happiness for 10th Anniversary of Kim Jong-il’s Death”
The communist regime of North Korea is not joking. It has banned its citizens from displays of happiness for 11 days in order to honor the 10-year anniversary of the death of brutal dictator Kim Jong-il. An explicit ban on laughter and alcohol consumption tops the list of government decrees mandated during the 11-day period of mourning. On Friday’s exact anniversary of Kim Jong-il’s death, North Koreans will even be banned from going grocery shopping as they are expected to applaud the brutal rule of their former leader. “During the mourning period, we must not drink alcohol, laugh or engage in leisure activities,” a North Korean from the northeastern border city of Sinuiju told Radio Free Asia (RFA). “Even if your family member dies during the mourning period, you are not allowed to cry out loud and the body must be taken out after it’s over. People cannot even celebrate their own birthdays if they fall within the mourning period.”
– Simon Kent
“LET’S GO, BRANDON!”
Watch: MSNBC Declares DeSantis’ Anti-CRT Legislation Is “New Effort To Codify White Supremacy” — ZeroHedge
After Florida governor Ron DeSantis introduced legislation Wednesday in an effort to crack down on the teaching of Critical Race Theory and other ‘woke’ ideology in schools and places of employment, MSNBC race baiters declared it to be a “new effort to codify white supremacy for political gain”.
DeSantis announced his Stop Wrongs to Our Kids and Employees Act (Stop W.O.K.E Act) this week, urging that his state will not tolerate the “elite-driven phenomenon” of “cultural Marxism”.
DeSantis further emphasised [sic] that proponents of CRT “want to tear at the fabric of our society and our culture, really things we’ve taken for granted, like the ability of parents to direct the upbringing of their kids,” displacing it with a “militant form of leftism”.
Labelling CRT as “state-sanctioned racism,” and “indoctrination,” the governor proclaimed “No taxpayer dollars should be used to teach our kids to hate our country.”
All of this was more fodder for the race obsessed MSNBC crowd to scream ‘white supremacy’.
A simple cost benefit analysis is being applied in Florida. Take the cost of an illegal immigrant to the state of Florida for one year add on the cost of a bus ticket to a blue state and give this amount to the illegal. By doing so you avoid the cost of the immigrant to the state for the next ten years. From a management standpoint it’s the only responsible thing to do. It’s only right that the blue states should be held responsible and should bear the costs. Can you hear the wailing now?
“Newsom and DeSantis are Legislating Soundbites and Voters are Loving it.”
– Professor Turley
A SOCIETY OF LAWS?
And Joe Biden is “legislating” vaccine and mask mandates which he has no power, authority or legal basis to do (“implied powers” constitute unconstitutional amendment by its purveyors).
All of this “executive overreach” and illicit “legislative-by-executive” occurs only in, and because of, the absence of the control and discipline of the Constitution, the imposition of which is the charge and duty of the Chief Justice and Supreme Court – the Supreme Court must impose the juridical solution, and shall not be a party to and, therefore, complicit in high crime by omission.
The Chief Justice and Supreme Court must act immediately to impose the full force and effect of law, fundamental law, and the Constitution, and definitively preclude and proscribe unconstitutional actions by “…officers of the United States…” and officers of States.
Chief Justice Roger B. Taney immediately communicated to “overreaching” President Abraham Lincoln, verbally and in written form, that his actions were unconstitutional, illegal, and high criminal, that he, President Lincoln, had no authority to suspend habeas corpus, and, effectively, that Lincoln must cease and desist forthwith.
CHIEF JUSTICE ROGER B. TANEY PROSCRIBES THE “EXECUTIVE OVERREACH” OF ABRAHAM LINCOLN
On May 28, Taney issued an oral opinion, which was followed by a written opinion a few days later. He stated that the Constitution clearly intended for Congress, and not the President, to have to power to suspend the writ during emergencies.
“The clause in the Constitution which authorizes the suspension of the privilege of the writ of habeas corpus is in the ninth section of the first article. This article is devoted to the Legislative Department of the United States, and has not the slightest reference to the Executive Department,” Taney argued. “I can see no ground whatever for supposing that the President in any emergency or in any state of things can authorize the suspension of the privilege of the writ of habeas corpus, or arrest a citizen except in aid of the judicial power,” Taney concluded.
However, Taney noted that he didn’t have the physical power to enforce the writ in this case because of the nature of the conflict at hand. “I have exercised all the power which the Constitution and laws confer on me, but that power has been resisted by a force too strong for me to overcome,” he said. But Taney did order that a copy of his opinion be sent directly to President Lincoln.
Lincoln didn’t respond directly or immediately to the Ex Parte Merryman decision. Instead, he waited until a July 4th address to confront Taney at a special session of Congress.
– National Constitution Center
No penalties for wrongdoing suffered by anyone to the left of Lenin.
Are you surprised? Lawyers siding with Trump are being mangled by the DC Bar.
Lawyers siding with Trump are getting burned by perpetrating his lies in court. Many stopped taking his cases because they faced sanctions for introducing false testimony or filing claims without evidence.
Said the American Hatin Commie/Nazi Scum Cult members.
BTW: How are your Pedo Friends over at CNN handling the stress after another head guy was Busted?
That is a bunch of BS from Anonymous the Stupid. If they broke any law they would end up disbarred in DC for life and end up in jail. The Democrat who lied to FISA etc. is getting his license back. He should have been put away in jail for many years. That is not rule by law. That is Democrat totalitarianism.
When Democrats get power, the first thing they do is to pass laws and enact policies that
grant them more power. It’s like wishing for more wishes.
Republicans do that even more than Democrats do.
ATS, that is not true. Who wanted to cut regulations that conglomerate power in the bureaucracy?
The Republican administration.
Who is increasing regulation on American citizens?
The Biden administration.
Your lies are easily seen. Why is it that you and Svelaz can’t get anything straight. Is there a dumb gene involved?
Democrats systematically oppose one Constitutional expressly stated right after another.
2nd Amendment right to bear arms
1st Amendment right to free speech and freedom of religion, not freedom from religion
Article II Section 1 – Electoral College
Article I Section 4 – States govern elections
5th Amendment – due process – in regards to sexual assault allegations on campuses and against conservative justices, depriving people the right to bear arms without a hearing
Civil Rights Act – blue states like CA seek to racially discriminate against whites and Asians
Vote responsibly. If you don’t like the crime and murder that resulted from defunding police, the riots, schools teaching young children that gender is not biological, behavioral, or anything concretely defined, that biological men can compete against biological women, relegating them to second place…then don’t vote Democrat.
The dims like federal laws.
“Vote responsibly. If you don’t like the crime and murder that resulted from defunding police, the riots, schools teaching young children that gender is not biological, behavioral, or anything concretely defined, that biological men can compete against biological women, relegating them to second place…then don’t vote Democrat.”
Republicans oppose Constitutional rights as much às Democrats do.
Do you accept that George, a Republican who comments here daily, wants women to lose their voting rights?
I really hate Twitter.
From the little I’ve seen of it, there do seem to be many twits on Twitter.
Twitter has been the platform for school challenges, from destroying bathrooms, to saying today there will be school shootings.
Schools in our district and those across the country suffered a lot of damage from a Twitter challenge for students to destroy or steal items in school bathrooms. Rocks down toilet pipes, soap dispensers ripped off…it got so bad that some schools had to close their bathrooms.
There were shooting threats for today.
I. Really. Hate. Twitter.
Meanwhile, CA keeps resisting securing schools. There should be metal detectors, drug dogs, and a police or military posted every day at schools in the US. Israel secures its schools to protects its most precious treasure…children. Yet our district told parents who requested a police officer get assigned to our schools, that it would be “a liability to have someone with a gun on campus.” Even if that person is an on duty police officer.
You can’t reason with the irrational.
Schools should be even more protected than airports and politicians.
Karen, are you sure it’s Twitter?
I think you’re confusing tik tok with Twitter. On Tik tok it’s where a lot of challenges are created.
Why do you hate Twitter, a platform that hosts both beneficial and harmful speech, instead of focusing your concern on the people (not the platform) writing the harmful speech?
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