First Thing We Do, Let's Kill All the Mexicans

We have, sadly, been down this road before.

I'm not talking Sheriff Joe and his minions since even Joe was too smart actually to announce it as policy.  But it was the key campaign platform of Loren Nichols when he ran for city council in Kennewick, Washington.

Execute undocumented immigrants.  Kill them.  Locally.  By city ordinance.

Sure, the plan was unconstitutional (for many reasons), though his chief opponent (who apparently didn't actually oppose the idea, just didn't give it priority over improving the city's fisc) doesn't appear to have pointed that out.  Really, who pays attention to the Supreme Court, anyway?  It's just nine people who dress funny and tell us whatever they think this week.  We all understand that the actual Constitution is the one that says funny looking people should be killed.

Sigh.

In a three way primary race, Nichols came in second which gave him a spot on the November ballot.  Where he lost.  Got hammered, really.  From the Tri-City Herald:

Kennewick City Council, Pos. 7 Ward 3

Read more here: http://www.tri-cityherald.com/2011/11/08/1710330/election-general-election-results.html#storylink=cpy

Steve Young       6476
Loren Nichols    2796

Everyone from Switzerland who was planning to sneak into Kennewick breathed a sigh of relief.  Everyone of Hispanic extraction or surname who lived in or ever passed through Kennewick, regardless of citizenship, breathed two sighs.

The thing is that bad ideas never die.

And so we come to Joe the Plumber.  You know, the guy whose name isn't Joe (it's Sam) and who isn't a plumber but gee, it's catchy.   Sam is running for Congress against Marcy Kaptur, long-time Democratic Congresswoman from Toledo.

Sam's something of a wild-man having made his conservative bones by mouthing off to Obama about how terrible it is to tax business and the rich since it would certainly hurt his business (which, as it happens, he didn't have, just as his name wasn't Joe and he wasn't a plumber) during a Toledo campaign stop in 2008. But he's made his name as a straight shooter who always tells the truth (except about himself) and who never flinches from being ultra-conservative and politically incorrect.

Which, I suppose, is why we have to take him at his word when he speaks.  Which he did Friday night in Prescott, Arizona at a fund-raiser for Arizona state Senator Lori Klein.  Tom Troy in the Toledo Blade.

For years I've said, "Put a damn fence on that border going to Mexico and start shooting … " That's how I feel. I'm not going to hide it just because I'm running for office. I want the borders protected, and I'm very adamant about that.

Doubt that he said it?  Matthew Hendley in the Valley Fever blog of the Phoenix New Times has the video of Sam doubling down. He says,

"Political correctness will kill this country, and I think it's on the way there right now -- that's why we gotta get people up there to really speak their mind and say what they mean," Wurzelbacher said. "Ya know, for example, I'm running for Congress. How many congressman or people who are running for Congress have you ever heard [say], 'Put borders on the troop and start shootin'?'"

Klein said Sam was kidding when he said he was serious.  Marcy called on Sam to retract the suggestion.

Monday Sam was campaigning in Wisconsin.

Which abuts Canada.  With which we have the largest unguarded border in the world?

They can be sneaky up north, too.

What Fourth Amendment is that?

Civics 101:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

That's the Fourth Amendment. It's a basic protection the framers understood was necessary not from abstract analysis but from regular and ongoing experience under British rule. While application is always a difficult question, the fundamental point seems clear enough: No seizing or searching of you or your stuff or your home without good, specific reason.

Government has never much been enamored of the Fourth Amendment since it interferes with the ability to stop and search you at will or to break down your door and paw through your stuff just 'cause. I understand that. If I were the government, I'd probably like to be able to keep tabs on everyone all the time. It'd sure make crime fighting easier. Make it easier to curb dissent, too.

Anyway, here's the basic idea according to the courts. Warrantless searches and seizures are per se unconstitutional except in a few specific and well-delineated circumstances. Those circumstances may vary some from jurisdiction to jurisdiction, but here, as an example, is the complete Ohio list.

• Search incident to a lawful arrest
• Consent
• Stop-and-frisk searches
• Hot pursuit
• Probable cause accompanied by exigent circumstances
• Plain view
• Administrative searches

Got that. Any other search, unless there's a warrant, is unconstitutional. And those exceptions are all found in the language of the Fourth Amendment. (Oh, wait, no they're not.)

I could write at great length about every one of those exceptions and how each is applied by the courts in such a way that the exceptions swallow the rule. Perhaps one of these days I'll start a series of Fourth Amendment posts on just that point. But not today.

Today I want to talk about one of the exceptions that's not on the list and that has no basis in the language of the Fourth Amendment. It exists because the courts say it does, plain and simple. It's the border.

When you enter the United States, when anyone enters the United States, the government can search you and your stuff at will. It can do it for good reason or for no reason. It can do it looking for something particular or it can just do it. The courts say it's fine because the government has a right to decide what enters the country, and they can't control that if they can't figure out what you're bringing in. As the Supreme Court put it in 1925:

Travelers may be so stopped in crossing an international boundary because of national self protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in.

This isn't new. They've been doing it, literally, since the nation was established. The Fourth Amendment seemingly prohibits those searches, but the Fourth Amendment doesn't apply at the border because if it did, those searches wouldn't be allowed, and they are. Got that. Good.

Now you've got the background.

In July 2008, the Department of Homeland Security adopted a formal policy allowing the suspicionless seizure and search of people's laptop computers as they came into the country. They'd hang onto the computers, download the information on them, rifle through it looking for whatever they might find. Oh, and they might keep the computer for, say, ever. Cell phones, too. Any electronic storage device.

Of course, they didn't do it often, but they did it. National security, don't you know. Oh, and if instead of a terrorist plot or a spy ring, they'd turn up evidence of insurance fraud or child pornography, well, them's the breaks. If you'd just kept your computer at home, you'd never have been caught.

Last week, the ACLU filed a lawsuit trying to find out just what the government was taking and why, what the government was doing with it, and what justification the government had for doing what it was doing. (You can read a copy of the complaint here.) The next day, the Department of Homeland Security released new standards. (You can read the press release and find links to the new standards here.)

The new policy is an improvement. It puts time limits on how long they can hold your things without basis to think there's evidence of crime. And it says that they have to return your information unless it shows probable cause of a crime. Still, the fundamental problem remains. The government can take your computer or phone or flash drive or whatever, just 'cause it wants to, and can root through it looking for evidence of whatever it might find. And that's because terrorists can bring computers across the border with all sorts of dangerous information on them. (Of course, they can send that information by e-mail and avoid the risk of search.)

And the Fourth Amendment still seems to prohibit it. At least, I can't find the phrase that says, "except at the border."