Editore"s Note
Tilting at Windmills

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February 11, 2005
By: Kevin Drum

TINFOIL HAT TIME....So much to blog on, so little time.....

Here is today's mystery. Regular readers will remember that I've blogged several times before about the infamous Article 3, Section 2 exemption. A3S2 is a section in the constitution that allows Congress to exempt particular areas of law from judicial review, and it's been a wingnut obsession pretty much forever. The basic idea is that you pass a law about, say, gay marriage, and include A3S2 language prohibiting the courts from ruling on marriage issues. That way, they can't rule your shiny new law unconstitutional.

In the end, these things never pass. Cooler heads generally prevail, since doing it once would open up an enormous Pandora's Box of crap as well as the mother of all constitutional crises. But it keeps coming up anyway.

Over at the Stakeholder, Jesse Lee writes about the latest A3S2 wingnuttery, and it's a doozy. The immigration bill working its way through Congress contains a section giving the Secretary of Homeland Security the authority to "waive...all laws" in the critical area of wait for it construction of barriers and fences. And of course the courts are prohibited from interfering.

The really weird part of this is that no one can figure out what's going on. What's the point of this provision? After all, you don't include a tactical nuke like this in a bill over the routine construction of fences. So what are they really up to? Jeffrey Dubner has additional speculation.

And there's more! The bill also contains a provision that creates a national database of driver's licenses. Rep Silvester Reyes (D-TX), worried about his right to keep and bear arms, offered up an amendment to prohibit the database from tracking (among other things) gun ownership. It was voted down. Why? "The best argument Judiciary Chairman Sensenbrenner could come up with was that it would be an unfunded mandate for Congress to tell the states not to create this directory."

So, um, it's OK to force the states to create the database, but it's an unfunded mandate to prohibit them from spending money to put extra information in the database. Are these guys clever or what?

Your Congress at work....

Kevin Drum 12:50 AM Permalink | Trackbacks

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