Scalia Hints at End for USA PATRIOT Act

During oral arguments over the Voting Rights Act, Justice Scalia indicated that there might be a justification for getting rid of the USA Patriot Act. During Oral arguments at the Supreme Court over the much lauded Voting Rights Act, hints were dropped as to how the wildly unpopular and overreaching anti-terrorist act could be dropped in a face-saving manner.

The Voting Rights Act (VRA) is one of those odd laws that everyone supports, likes to see continued, but really doesn't want to admit that it exists. Mostly it’s because its existence is due to two things no-one likes to admit exists – Racism and Corruption.

But first let’s address the VRA. Scalia doesn't like it, and thinks that it’s a ‘racial entitlement’. Others also questioned if it’s a legitimate issue – Chief Justice Roberts asking if the South is ‘more racist’, to which the answer is yes. Living here in Georgia and having spent a lot of time in places like California has shown me that.

In addition, Justice Alito made an incredibly important point too

But when Congress decided to reauthorize it in 2006, why wasn't it incumbent on Congress under the congruence and proportionality standard to make a new determination of coverage? Maybe the whole country should be covered. Or maybe certain parts of the country should be covered based on a formula that is grounded in up-to-date statistics.

This is very true. In Florida, several Republicans have admitted that voting regulations for the 2012 election were designed to curb democrat and black voters. Florida is NOT a state covered by Section5 of the VRA, although 5 counties (Collier, Hardee, Hendry, Hillsborough, Monroe) are.

The abuse of voting regulations has become more widespread over the past 3 years, often disguised as “voter fraud” initiatives. And it does need to start being applies to more states, or indeed nationwide. When an impartial outsider gets to look at the propositions of a state and see if it’s discriminatory (to tip the balance one way or another) then such partisan measures are less likely to happen - although not eliminated entirely, as seen with Texas redistricting.

This is why the Voting Rights Act is very important. After all, it was only a few months ago that there were states saying they’d kick out, or arrest, independent international election monitors, even if it meant violating their state laws to do so, because scrutiny makes it hard to rig elections.

Yet the biggest question about the VRA, comes from Justice Scalia. When discussing the passage of the VRA renewal in 2006, and it’s 98-0 passage in the Senate, he said: (page 16 line 14)

JUSTICE SCALIA: Indeed, Congress must have found that the situation was even clearer and the violations even more evident than originally, because originally, the vote in the Senate, for example, was something like 79 to 18, and in the 2006 extension, it was 98 to nothing. It must have been even clearer in 2006 that these States were violating the Constitution. Do you think that's true?
JUSTICE KAGAN: Well, that sounds like a good argument to me, Justice Scalia. It was clear to 98 Senators, including every Senator from a covered State, who decided that there was a continuing need for this piece of legislation.
JUSTICE SCALIA: Or decided that perhaps they'd better not vote against it, that there's nothing, that there's no -- none of their interests in voting against it.

He followed it later with the following statement (page 46 line 13)

The problem here, however, is suggested by the comment I made earlier, that the initial enactment of this legislation in a -- in a time when the need for it was so much more abundantly clear was -- in the Senate, there -- it was double-digits against it. And that was only a 5-year term.
Then, it is reenacted 5 years later, again for a 5-year term. Double-digits against it in the Senate. Then it was reenacted for 7 years. Single digits against it. Then enacted for 25 years, 8 Senate votes against it.
And this last enactment, not a single vote in the Senate against it. And the House is pretty much the same. Now, I don't think that's attributable to the fact that it is so much clearer now that we need this. I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It's been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.
I don't think there is anything to be gained by any Senator to vote against continuation of this act. And I am fairly confident it will be reenacted in perpetuity unless -- unless a court can say it does not comport with the Constitution. You have to show, when you are treating different States differently, that there's a good reason for it.
That's the -- that's the concern that those of us who -- who have some questions about this statute have. It's -- it's a concern that this is not the kind of a question you can leave to Congress.

And this is a problem. It’s the problem of POPULIST Legislation over that of GOOD Legislation. While the VRA is an example of Good legislation that is also popular, and makes sense and is relevant and proportional, there are others that aren’t, like the USA PATRIOT Act, an example of Populist legislation.

There are many similarities between the two pieces of Legislation, despite the 37 years between them. They both give the Federal Government powers over areas they previously hadn’t, and do so in an attempt to solve a perceived problem. They also have people that don’t like them, who are mainly those who feel it to be overreaching or who are subject to the act.

They also have their differences. There are ways to get off the preclearance list or “Bail-out” as it’s known; the requirement is a 10 year “clean record”. By contrast, there’s no way to get out from under the Patriot act, and it’s continued surveillance and rules. There’s also been little public evidence that the act has been effective, or proportionate.

They also have very different aims, the VRA aims to promote a positive act – a citizen’s right to vote – in the face of actions that intend to deprive that; the Patriot Act was designed to prevent any more of the rare terrorist attacks on the US.

Yet the biggest similarity to them is how the statements by Scalia about the Voting Rights Act can be applied to the Patriot Act as well.

Yes, no-one’s going to argue against a “voting rights act”, just like no-one’s going to vote against a USA PATRIOT Act. Members of Congress aren’t going to vote no one something with that kind of name (which is mainly the reason they have that sort of name). Indeed, both have passed with huge majorities. As note already, the 06 reauthorization of the VRA passed the Senate 98-0, but it also passed the House 390-33. Likewise, the USA PATRIOT Act passed the House 357-66 and the Senate 98-1.

And likewise, how are we going to get Congress to vote against a bill with such noble aims as ‘protecting people’? Well, we can look at effectiveness. The plaintiff in the VRA case, Shelby County, was described by Justice Sotomayor as (page 4 line 11)

"…a county whose record is the epitome of what caused the passage of this law to start with” and which is unable to bailout of the preclearance because of its actions."

The same is not true of the USA PATRIOT Act. Of the 50+ cases of ‘terrorism’ we’ve had since the enacting of the Patriot Act, the vast majority have been infiltrated, sponsored, coerced, and heavily watched by the FBI. All using powers they had BEFORE the act. Instead what we’ve got from the act is more domestic spying, less oversight, and the type of law that is actually now impossible to challenge in court, according to this SAME Supreme Court.

There could be tens of thousands of words here pointing out the many flaws, and ineffectiveness’ of the Patriot act. Most tellingly though, we can talk of the provisions that are constantly renewed, and never used. In fact, during the last renewal back in December, our own Senator, Saxby Chambliss, said it wasn’t that important, no debated needed, and to just pass it, something we disagreed with

If that doesn’t speak to a law that has no application to today, and which members of Congress are unable to vote against because of the perception of the law, rather than if it’s a good, proportional, or even necessary law, then nothing will.

By contrast, as noted by Justice Sotomayor, the VRA has shown itself to be good, proportional, and necessary. It has oversight, its use is one for the public good, through a limited set of actions that have a definitively proved benefit, and there are ways to escape and show reformation.

So what we’re left with is a Supreme Court that might invalidate a good law, based on its claimed ineffectiveness and lack of relevance today (supposedly) and yet we have a law that is of dubious legality, is strongly against the public good in act and deed, has had no real debate, is ineffective for the job, and the court has no problems with it.

If that doesn’t show how broken, how utterly out of touch with reality some members of the Supreme Court of the United States are, I don’t know what does.

The Robert’s court is already going to go down in history as one of the worst courts in memory, thanks to rulings like Citizens United, Berghuis, Compucredit, Golan, Heller and others. Striking down the VRA? That shows they’re going for the top spot. If only they could use that ambition to be the BEST, maybe the US might be a better country to live in.

This piece was cross-posted with the Pirate Party of Georgia