Tempered national action

I have not paid too much attention to the latest cause celebre though his racist comments (something of an easy target -- the problem is deeper and those not as offensive share his views) has led to various people to get off his bandwagon. Krugman addresses the matter well:

Start with the narrow issue of land use. For historical reasons, the federal government owns a lot of land in the West; some of that land is open to ranching, mining and so on. Like any landowner, the Bureau of Land Management charges fees for the use of its property. The only difference from private ownership is that by all accounts the government charges too little — that is, it doesn’t collect as much money as it could, and in many cases doesn’t even charge enough to cover the costs that these private activities impose. In effect, the government is using its ownership of land to subsidize ranchers and mining companies at taxpayers’ expense.

It’s true that some of the people profiting from implicit taxpayer subsidies manage, all the same, to convince themselves and others that they are rugged individualists. But they’re actually welfare queens of the purple sage.

And this in turn means that treating Mr. Bundy as some kind of libertarian hero is, not to put too fine a point on it, crazy. Suppose he had been grazing his cattle on land belonging to one of his neighbors, and had refused to pay for the privilege. That would clearly have been theft — and brandishing guns when someone tried to stop the theft would have turned it into armed robbery. The fact that in this case the public owns the land shouldn’t make any difference.

As suggested by the first link, the "the U.S. has no business here" bit has curious implications given the nature of our federal system. The issue of grazing fees has a certain familiar ring to it -- as seen by this 1990s flashback.  Few are pure libertarians and those sometimes labeled as such (e.g., the Ron and Rand Paul) are often selectively so.  And, such ranchers are a mixed bunch -- the West has some "purple" as in swing voters that are wary of federal power but socially liberal. So, again, big picture.

The second case raises a novel issue about how federal law treats fish as an object that cannot be destroyed because it may figure in a criminal prosecution.  At issue in Yates v. U.S. is whether the Sarbanes-Oxley Act’s ban on destroying a “tangible object” includes only materials like documents or other records, or also includes a physical object like a fish.  A fisherman charged with destroying undersized fish that he allegedly caught illegally in the Gulf of Mexico raised the question whether he had fair notice that the law applied to his action.  The Court limited its grant to the first question raised in the petition.

SCOTUSBlog flagged the acceptance of this case and my first thought was that an interesting angle here are the interests of the fish, shades of Douglas perhaps.  Yates side sees this as a case of federal overreaching with wider overcriminalization implications.  Destruction of fish according to one brief was not a criminal offense without this law. Mr. Yates’s alleged first - time violation of the undersized - fish rules would ordinarily warrant a fine of $500-50,000 and permit sanctions of 0-45 days. Also, an amicus noted "collateral consequence, the Petitioner's fishing business has been destroyed and he is sanctioned, either permanently or for a specified term, from 842 different federal and state privileges and rights by virtue of his felon status." 

The governmental opposition brief helps provide some specific context. First, though its argument potentially would mean broad criminal sanctions, the actual punishment here was "30 days of imprisonment, to be followed by three years of supervised release." One of the briefs noted that impeding a search -- which is what happened here -- can get you six months. He got one month. This is not just a matter of tossing fish overboard and not submitting them to inspection. Fish were inspected, stored with instructions from the government agent and specifically disposed of and switched with the intent to fraud the government with allegedly legitimate fish.  Thus, not only is the actual punishment not the specter of years flagged, but the offense significant.

[As shown in this article, the facts are in dispute, but I take it that for purposes of this case, that is somewhat besides the point.  He was convicted of "obstruction" and thirty days does not seem extreme. If the overall concern -- big picture -- is use of criminal means when civil are better, okay, but loss of a license necessary to do your business etc. can a civil response to wrongdoing.  And, that, not the thirty days long since served, is what might be the biggest punishment in the minds of many.]

The government brief (and courts below) also argue that the text of the statute in question applies here. The specific facts are appealing -- the corporate malfeasance involved in the ban in question does not really seem to apply in this specific context. The punishment substantively (including the loss of privileges perhaps specially given the whole nature of the offense) might be offensive. The technical issue of proof (addressed in at least one brief) also is beyond the reach of my remarks and does not even seem to be the question being addressed.

OTOH, the application of the law in this context might be. The overall concern of over-criminalization is legitimate, but it often turns on application.  A law or regulation is broadly phrased for good reason and then it seems to be applied in absurd cases. The technical facts here might affect this question and can influence the justices' reactions -- they are not just automatons narrowly deciding the questions here.  Big picture, it is important to determine if this usage of the regulation at issue is appropriate. The reach of federal law can be appropriate but the concerns of overreaching are often just as well.

This often is a matter of prosecutorial discretion and careful legislative and/or administrative action.  But, it also can be a matter of judicial review as well.  Unless clearly noted in the appropriate degree as correct in the law itself, it can be suitable for courts not to allow possibly literal applications of text that are somewhat absurd.  Some think the Bond case (chemical weapon treaty ban as applied to a domestic incident) will be decided in this fashion.  Tempered national action can help all sides.