March Badness

A GOP state legislator in Michigan, Rep. Matt Maddock, saw a bus with too many brown people near at the airport and jumped to the obvious conclusion: "Happening right now. Three busses just loaded up with illegal invaders at Detroit Metro. Anyone have any idea where they’re headed with their police escort?"

It was Gonzaga's basketball team, headed to the Sweet 16 round. But don't let facts get in the way of some good racism and red-baiting:

Maddock made his false claim in a month during which false and misleading claims about airplane flights involving migrants have proliferated on the political right.

Hundreds of social media users quickly disputed Maddock’s post on Wednesday, but Maddock refused to concede. He replied to one of the many people who pointed out the plane and buses were likely for NCAA basketball teams: “Sure kommie. Good talking point.”

Maddock continued to dig in on Thursday morning. He wrote a new post saying, “We know this is happening” and that hundreds of thousands of illegal immigrants are “pouring into our country.” He added: “Since we can’t trust the #FakeNews to investigate, citizens will. The process of investigating these issues takes time.”

Meanwhile, in Idaho the Utah women's basketball team was essentially chased out of the state after they endured repeated racial abuse at the hotel they were staying at in Coeur d'Alene (they switched to a different hotel in Spokane).

It's nothing novel to say that athletics (and college athletics in particular) represent a prominent arena where young men and women of color are placed in the (nominally positive) spotlight of predominantly White institutions, and there are a lot of White people who really can't handle that.

Are States Allowed to Murder Pregnant Women? Views Differ!

One of the Biden Administration's responses to the Dobbs decision was to issue an interpretation of the Emergency Medical Treatment and Labor Act (EMTALA) that basically says doctors have to provide necessary medical care to pregnant persons in emergency situations -- including abortion care, if that is necessary to protect the mother's life or health. Since EMTALA is a federal law, it would preempt state laws which purport to prohibit abortion care in those circumstances.

Consequently, various red states have sued to vindicate their sovereign entitlement to require by law that hospitalized pregnant patients be left to die even when their life could easily be saved by surgical intervention. Two courts, one in Texas and the other in Idaho, have now opined on the Biden executive order. They've split in their decision -- the former striking down the new guidance, the latter upholding it and preempting Idaho law to the extent it conflicts with the guidance.

The belief that Dobbs would remove the judiciary from the thicket of deciding abortion cases was always a mirage (if it was believed at all). It just changes what courts will have to decide. Right now, they're deciding whether states are allowed to require, under pain of criminal penalty, that pregnant women and girls be maimed or killed when their bodies and lives could be easily saved. And as we're seeing, on that novel legal question, "views differ". Such is the burden of having a uterus in the post-Dobbs world.

Holocaust Trivialization Leads To Holocaust Mockery

A recent news story reports on two Minnesota high school students who released a TikTok video titled "Me and the boys on the way to camp." It was making fun of the Holocaust.

Elsewhere in the country, Republican and conservative leaders have gotten very trigger-happy comparing coronavirus restrictions to the Holocaust. An Idaho state representative insisted that stay-at-home measures were "no different" than Hitler sending Jews to extermination camps. The Colorado House Minority Leader said that Governor Jared Polis' (who is Jewish) efforts reflected a "Gestapo-like mentality".  We all saw the pictures of right-wing protesters in Michigan holding signs saying "Heil Witmer" [sic] with a swastika on them (referring to Michigan Governor Gretchen Whitmer). There are other examples.

These are not the same thing. But they are related. The latter is a form of Holocaust trivialization, where it gets employed in opposition to political moves that fall clearly and obviously short of concentration camps and mass extermination.* The effect of Holocaust trivialization is to make the Holocaust utterly ordinary and mundane; unremarkable save for how it can pack an emotional punch in ordinary and mundane political debates. And once the Holocaust is ordinary and mundane, one can do ordinary, mundane things with. Leverage it in attack ads. Use it as a bit of effective (if perhaps hyperbolic) rhetoric. And, of course, mock it. Ordinary and mundane events in the political sphere are legitimate subjects of parody and mockery. It is the Holocaust's status as something distinct from the ordinary, in a separate class, that justifies keep it insulated from such insults. Take that away, and why shouldn't it get its share of snipes and jabs? There is a direct line from trivializing the Holocaust to mocking it. The kids in Minnesota and the elected officials in the GOP are not doing the same thing -- but there is a familial lineage.

The past few years have seen the GOP talk a very big game about what great friends they are the Jews. They say it every election season, of course, and they always put on such a display of hurt and confusion when that friendship isn't reciprocated. Well, here's part of the reason why. Given the slightest opportunity, they'll cheapen our genocide in service of a destructive, paranoid, and frankly inane political agenda. They won't care in the slightest the damage it does to the Jewish community. Hell, I doubt they even notice it. But we do.

* Here is what I wrote, incidentally, on comparisons of  immigrant detention camps in the U.S. to the Holocaust. I did not and do not like them, though in that case at the very least there is non-frivolous basis for the comparison (though not on the axis of systematic extermination) which made me feel as if litigating the comparison was of subsidiary importance to keeping our eye on opposing the underlying policy. By contrast, there is no remotely plausible basis for comparing stay-at-home protocols aimed at fighting a pandemic to Nazism. It can do nothing but trivialize the Holocaust.

Idaho Eyes a Ban on Transgender Marriage?

A panel of Idaho Republicans want the state to rewrite its marriage laws to hold that it is "a bond between a 'naturally born' man and woman". (Via). Part of me hopes that this does pass, just because I think that it may actually be more vulnerable to challenge than typical laws "merely" prohibiting gay marriage. Because the law at least potentially prevents transgender individuals from marrying anybody -- man or woman -- it doesn't even have the (facially ridiculous) defense that it doesn't exclude anyone from marriage (just their preferred partner). If that's the case, it is tough to see it standing against constitutional challenge. And that, in turn, would be one hell of a precedent.

Then again, maybe I'm being too indulgent in formalist fantasies. Transgender rights are still pretty controversial, and I suspect a reviewing court, particularly in Idaho, will search long and hard for a "neutral" reason for upholding this law too. Best to not push my luck.

Plan B

A good question by Ezra Klein:

What would happen if Larry Craig came out as a gay [or bisexual -- DS] man, apologized for his tortured life in the closet and the unseemly things his personal conflicts made him do, and then said that, nevertheless, he'd always been a good and dedicated senator to the people of Idaho, and he meant to retain his seat and keep fighting for the upward redistribution and failed wars (or whatever) that first turned him onto public service?

It's not a sure-fire strategy--in fact, I suspect he'd lose a primary challenge. But it'd be an interesting race. And the media coverage would immediately shift from blood-hounding to sympathy.

I think Craig is still too caught up in personal denial to do it. But if he can come to terms with his orientation, it might be worth a shot.

The (Im)perfect Crime

I'm irrationally excited that someone actually tried the "perfect crime" argument after committing a felony in the Montana portion of Yellowstone National Park (via Is That Legal).

The Perfect Crime is an article by Brian Kalt published in the Georgetown Law Journal two years ago, that I actually read when it came out. Basically it notes a loophole in jurisdictional law relating to Yellowstone National Park, which is primarily in Wyoming, but has small portions in Montana and Idaho. Federal law places the entire park under the jurisdiction of the district of Wyoming. But the Sixth Amendment of the constitution requires that juries in criminal cases be made up of citizens from the "state and district" where the crime was committed. In other words, if you commit a crime in the Montana portion of Yellowstone, your jurors theoretically must be drawn from people who live in both the state (Montana) and district (District of Wyoming) of the alleged act. In the case of Montana, that's 40 residents. If you hop on over to Idaho, you're in even more luck--the overlapping population there is zero.

Anyway, someone actually committed a crime in the Montana portion of Yellowstone, and seriously made the "perfect crime" argument to try and get his case dismissed--citing to Kalt's article. (Un)fortunately, the judge rejected the claim, calling the article "esoteric" and saying that applying its reasoning would create legal "no-man's land" in the relevant areas (which was the point of the piece--Kalt advocated closing the loophole). The plea agreement meant the argument can't be appealed, but Kalt says that the question is still open and eventually the 10th Circuit will have to answer it.

So, who's up for a killing spree in Idaho to do some constitutional beta-testing?