Author Archives: Michael Froomkin

Fidel and Miami

Following the announcement that Fidel Castro had ceded power (temporarily?) to his brother Raul, they were dancing in the streets of Miami last night, just on the chance that Fidel might be dead. It seems ghoulish to me, to dance on the grave (or would-be grave) of anyone, even a dictator who, however just some of the grievances that propelled his revolution, has since strangled his people and condemned them to needless economic, political, and cultural poverty (while improving health care and repelling a US invasion). But I am not an exile, or the (grand)child of an exile, cut off a stone’s throw from the ancestral land.

When I moved to Miami, one of the nightmare scenarios for civic authorities was that Fidel Castro would die and a couple of million Cubans would take a boat ride in order to resettle in Miami. The city had an entire master plan, with heavy police presence, near-martial law, a big command post, lots of shiny cop toys. In light of the number of people willing to come during the brief period that Castro had opened the gates, the scenario seemed plausible, even if the reaction seemed somewhat militaristic. Meanwhile, an important revanchist segment of the local Cuban exile power structure dreamed of returning to Cuba to take up the reigns of power that they or their fathers (always fathers) had been forced to surrender when Batista fell. I think they expected to be greeted with flowers, to reclaim their expropriated property, and to be acclaimed — or perhaps instantly elected — rulers. It all seemed rather Bourbon and unrealistic to me. Cuba might be stuck in an economic time warp, but socially and politically it had moved on since 1959. Plus the view from the more recent exiles — frequently drawn from the bottom of the economic and social ladder — sounded somewhat different than the view from the top. I foresaw disappointment at best, and more likely strife. These were, after all, the sons and brothers of Brigade 2506, and assorted other paramilitary groups that were still active up through at least the early 1990s.

But Fidel proved to be a tough old bird, and a decade and a half makes a difference. The exile generation is now mostly too old to dream of ruling, much less fighting, although not too old to seek back family property and dream of economic development … with a whiff of economic domination … a dream that seems congenial to the next, and entrepreneurial, generation. The US is home to many second and third generation exiles, and for many their quest in post-communist Cuba will be for investments, for second homes, for nannies and au pairs.

It’s unclear, though, whether the old fear of a mass exodus of Cubans to Miami, a ‘Mariel boatlift on steroids,’ still remains valid. Today’s papers don’t say much on the subject, other than to say that the county government has activated its Emergency Operations Center. The Herald reports that the feds are just standing by for now,

The U.S. Coast Guard, U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement are on standby until they receive official word to go on alert for their Cuba Plans.

”It’s a little too early,” said Zachary Mann, a spokesman for U.S. Customs and Border Protection.

I’m sure we’ll be hearing more about this in the next day or two.

Posted in Miami | 1 Comment

Florida Progressive Coalition Blog

Say hello to the new Florida Progressive Coalition Blog. Florida is the ultimate 50/50 state, so it’s always nice to see progressive activists at work. Oh yes, they’ve got a Progressive Coalition Wiki too.

[Update: Read more about the plan behind the effort at Daily Kos.]

Posted in Florida | Comments Off on Florida Progressive Coalition Blog

An Excellent Explanation of Why Bush’s Policy on ‘Signing Statements’ is So Rotten

Seven former OLC members, including Walter Dellinger and Marty Lederman have jointly authored, Untangling the Debate on Signing Statements. It’s a great explanation of the issues and why the Bush position on them is so troubling, and I’m in very substantial agreement with it.

Like the authors, I don’t for a second dispute the right, indeed duty, of the President to instruct the members of the executive branch in how to do their jobs — absent contrary congressional commands anyway. And Presidents have the right to say whatever they want when signing legislation. Like the authors, I don’t think this has much relevance to what a court should do if asked to decide the constitutionality of the statute. It’s certainly not on a par with legislative history — really nothing more than an argument in a brief. But there’s no harm in that.

And I accept that modern practice has for many years accepted that Presidents can sign a bill that they believe contains an unconstitutional provision then seek to have that part severed from the bill via court action — although the purist in me would prefer that the President veto the whole thing on constitutional grounds: Judicial severing of parts of legislation is not a particularly principled process and seems to be one that, for all its pragmatic short-run virtues, in the long run we might well be better-off without.

It’s no small matter when a President fails to execute or observe a statute — although constitutional grounds and subsequent court approval have in rare cases justified this stance. And the problem is more than doubled when — as is the case with the current administration — a President fails to observe the law in a manner which is designed to hide the ball, rather than make clear to the public and the courts that the President believes there’s a serious constitutional problem. It’s not ironic but deadly serious that this administration considers the statute requiring it to report when it fails to observe a law to be one of the many laws it doesn’t actually have to follow.

The other problem, of course, is that this administration has abused the ‘constitutional objection’ card beyond all credibility. Claiming that there are hundreds of bills that require executive correction betrays a worldview which says the President is a king, with fully and plenary powers not subject to legislative constraint and indeed has more-than-royal power to rewrite legislation at will.

A healthy democracy would have antibodies to this sort of thing. Ours seem very slow to swing into action. A big chunk of the blame lies in Congress, which has taken so much of this lying down for so long. And to be fair, part of it lies with the American people who voted this crew back into office in 2004. I hope 2006 will be a different story.

Posted in Law: Constitutional Law | 1 Comment

Notes from the Sharp End

I don’t know enough immigration/4th Amendment law to know if customs agents demanding to read the contents of your laptop when you come into the country, as described in this account of a search experience on “border”, is constitutional — but it should not be.

I do, however, think I know enough about the law regarding privacy in public places to say that if this story is accurate (and I know nothing about the original source) then this student busted for photographing an arrest was either wrongly arrested or the underlying law/ordinance (if it exists) is unconstitutional.

Posted in Civil Liberties | 4 Comments

TSA Airport Detention Authority Questioned by Travel Expert

Edward Hasbrouck, aka “The Practical Nomad” is both a noted travel writer and a civil liberties activist. He got stopped at Dulles Airport, and has been trying to find out under what authority ever since. The latest is the rather limited but still interesting fruits of his FOIA request: TSA report on what happened to me at Dulles Airport.

Ed’s earlier reports in this series

Posted in Law: Right to Travel | Comments Off on TSA Airport Detention Authority Questioned by Travel Expert

Andrew Chin Is/Is Not “Voiceless”

University of North Carolina School of Law Prof. Andrew Chin has a new blog, ironically entitled voiceless. Prof. Chin modestly suggests he is “blogging from the long tail” although in fact he’s writing about “the legal and technological structures that keep almost all of us voiceless”.

“Blogging from long tail” almost reminds me of the “On fringes of the public sphere”, so that has to be good. Although I should note that someone one asked me, fairly enough, how a sphere could have a fringe, and I’m still working on a good answer.

Posted in Blogs | 4 Comments