Rethinking 84 Lumber's Super Bowl ad

If you've been alive over the last few days, you've undoubtedly heard about 84 Lumber's Super Bowl ad. The original ad was nixed by Fox for being too controversial. A lot of debate has surrounded around the politicization of Super Bowl ads; and this ad in particular has been discussed as anti-Trump. The conventional wisdom is that conservatives and Trump supporters would think poorly of this ad; and progressives and liberals would see the ad positively in opposition to the President's immigration policies (and specifically the wall).

 But let's dig a little deeper.

First, if you haven't seen the full ad, you owe it to yourself to watch it now:

The first part of ad, without the ending, seemed to glorify illegal immigration as a noble, if difficult journey. Absent from the ad are the reality of such journeys, including violence, drug trafficking, and human trafficking.

Yet as I watched the full ad, I have to admit: it was clever (undoubtedly, this was the ad-maker's intent in not explicitly showing what the workers were building). The workers were not building the wall, but a large door in the wall. And as 84 Lumber has said itself, the ad was about a symbolic journey. Interesting.

More (and this is where the ad really helps to come into focus): Maggie Hardy Magerko, 84 Lumber’s president and owner, voted for Trump; and the imagery of the door in the wall came explicitly from Trump himself:

In this light, it's difficult to see 84 Lumber's ad as anti-Trump. If anything, it's entirely consistent with Trump's campaign rhetoric, right down to a visual representation of the door in the wall as symbolic of legal, not illegal immigration. According to Steve Radick (a former colleague of mine at Booz Allen), vice president and director of public relations at Brunner, the agency that created the ad and provides support to 84 Lumber. “It was meant to be topical – it was not meant to take any political side.”


To be clear, what I am looking at here are the politics of the ad. Whether it is a good ad or not is an entirely different question. Sometimes ads are too clever for their own good. I think that is where this one may go.

Perhaps it's too late to prevent people from digging in to the convention wisdom about how one should see this ad. But if it's not, maybe this ad is instructive to us about meeting our rivals somewhere in the middle and having a real conversation, instead of sniping for political gain.

Law in Plain English: Mellouili v. Holder

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblog: Mellouli v. Lynch

Argument: Jan 14 2015 (Aud.)

Background: Moones Mellouli, a citizen of Tunisia and a lawful permanent resident of the United States, pleaded guilty in July 2010 to violating a Kansas misdemeanor drug paraphernalia statute. Mellouli had been stopped for DUI and police found four Aderrall pills in his sock; the sock was the "drug paraphernalia." The Board of Immigration Appeals (BIA) found that he was removable because his conviction was a conviction “relating to a controlled substance” within the meaning of 8 U.S.C. § 1227(a)(2)(B)(i). Mellouli argued that he was not removable because the state court record of conviction did not identify the controlled substance underlying his state paraphernalia conviction, and therefore the government failed to prove that the conviction related to a federal controlled substance, as § 1227(a)(2)(B)(i) requires. The Eighth Circuit denied his petition, finding that there was a nearly complete overlap between the definition of controlled substance in 21 U.S.C. § 802 and in the statutes of States such as Kansas that adopted the Uniform Controlled Substances Act. It was therefore reasonable for the BIA to conclude that any drug paraphernalia conviction in these States was, categorically, a violation of a law “relating to a controlled substance” within the meaning of 8 U.S.C. § 1227(a)(2)(B)(i).

Issue: The question before the Court is whether, to trigger deportability under 8 U.S.C. § 1227(a)(2)(B)(i), which provides that a noncitizen may be removed if he has been convicted of violating “any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21) . . . ,” the government must prove the connection between a drug paraphernalia conviction and a substance listed in section 802 of the Controlled Substances Act.

Holding: In a 7-2 decision, the Supreme Court ruled that Mellouli’s Kansas conviction for concealing unnamed pills in his sock did not trigger removal under §1227(a)(2)(B)(i). The categorical approach historically taken in determining whether a state conviction renders an alien removable looks to the statutory definition of the offense of conviction, not to the particulars of the alien’s conduct. The state conviction triggers removal only if, by definition, the underlying crime falls within a category of removable offenses defined by federal law. The BIA has long applied the categorical approach to assess whether a state drug conviction triggers removal under successive versions of what is now §1227(a)(2)(B)(i). The BIA announced and applied a different approach that, in this case, finds no home in §1227(a)(2)(B)(i)’s text and leads to consequences Congress could not have intended. 

Law in Plain English: United States v. Wong

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblog: United States v. Wong

Argument: Dec 10 2014 (Aud.)

Background: Hong Kong citizen Kwai Fun Wong, a leader of the Wu Wei Tien Tao religious group, was detained and deported for unlawful entry into the United States. On May 18, 2001, Wong filed a negligence claim with the (then) Immigration and Naturalization Service (INS),  alleging that she had been mistreated by that agency while she was detained. After the INS denied her claim on December 3, 2001, Wong filed a claim on August 13, 2002, under the Federal Tort Claims Act (FTCA), alleging the same conduct. The FTCA has a statute of limitations that “[a] tort claim against the United States shall be forever barred...unless action is begun within six months after the...final denial of the claim by the agency to which it was presented.” The district court dismissed Wong's FTCA claim because it was not filed within six months. An en banc panel of the Ninth Circuit reversed, finding that the statute of limitations was subject to equitable tolling. Wong's claim was filed late "due solely to the delay inherent in the Magistrate Judge system," and not through any fault of Wong's. As a result, Wong's claim could proceed.

Issue: The question before the Court is whether the six-month time bar for filing suit in federal court under the Federal Tort Claims Act, 28 U.S.C. § 2401(b), is subject to equitable tolling.

Holding: In a 5-4 decision, the Supreme Court ruled that Section 2401(b)’s time limits are subject to equitable tolling. Section 2401(b)’s time limits are subject to equitable tolling because the Court previously adopted a “rebuttable presumption” that such time bars maybe equitably tolled. As a result, the Court concluded, Congress thus must do something special to tag a statute of limitations as jurisdictional and so prohibit a court from tolling it. Congress did no such thing in enacting §2401(b).

Law in Plain English: Moncrieffe v. Holder

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

Moncrieffe v. Holder

Moncrieffe, a Jamaican native and legal permanent resident in the United States, pled guilty to possession of marijuana with intent to distribute under Georgia law. The Department of Homeland Security (DHS) sought to have Moncrieffe removed under a federal law that requires removal (deportation) for controlled substances offenses; and "as an aggravated felon" because the conviction was for a drug trafficking crime. Moncrieffe alleged that the punishment for his crime was equivalent to a misdemeanor, and as a result he shouldn't be subject to removal. The question before the Court was whether Moncrieffe's conviction under Georgia's law constituted an aggravated felony for the purposes of removal. In a 7-2 decision, the Supreme Court ruled that Moncrieffe’s conviction for a marijuana distribution offense faild to establish that the offense involved either remuneration or more than a small amount of marijuana. Therefore, it was not an aggravated felony. As a result, Moncrieffe's conviction will not subject him to automatic deportation. The practical impact of this decision (and two others like it in recent years) is that low-level drug offenses, absent remuneration or a sufficient quantity of drugs so to be considered trafficking, will not be subject to automatic deportation.

Maryland's ballot questions in November

Here are the four ballot questions on November's General Election ballot that apply statewide (questions #1-3 are constitutional amendments that only effect certain jurisdictions). The text in the heading is a short summary, while the next that follows it is the actual ballot question text:

#4 - Give in-state college tuition benefits to illegal aliens:

Establishes that individuals, including undocumented immigrants, are eligible to pay in-state tuition rates at community colleges in Maryland, provided the student meets certain conditions relating to attendance and graduation from a Maryland high school, filing of income taxes, intent to apply for permanent residency, and registration with the selective service system (if required); makes such students eligible to pay in-state tuition rates at a four-year public college or university if the student has first completed 60 credit hours or graduated from a community college in Maryland; provides that students qualifying for in-state tuition rates by this method will not be counted as in-state students for purposes of counting undergraduate enrollment; and extends the time in which honorably discharged veterans may qualify for in-state tuition rates.

#5 - Keep Maryland's gerrymandered congressional districting plan:

Establishes the boundaries for the State’s eight United States Congressional Districts based on recent census figures, as required by the United States Constitution.

#6 - Redefine marriage in Maryland to include same-sex couples:

Establishes that Maryland’s civil marriage laws allow gay and lesbian couples to obtain a civil marriage license, provided they are not otherwise prohibited from marrying; protects clergy from having to perform any particular marriage ceremony in violation of their religious beliefs; affirms that each religious faith has exclusive control over its own theological doctrine regarding who may marry within that faith; and provides that religious organizations and certain related entities are not required to provide goods, services, or benefits to an individual related to the celebration or promotion of marriage in violation of their religious beliefs.

#7 – Expand gambling in Maryland:

Do you favor the expansion of commercial gaming in the State of Maryland for the primary purpose of raising revenue for education to authorize video lottery operation licensees to operate “table games” as defined by law; to increase from 15,000 to 16,500 the maximum number of video lottery terminals that may be operated in the State; and to increase from 5 to 6 the maximum number of video lottery operation licenses that may be awarded in the State and allow a video lottery facility to operate in Prince George’s County?

Senator wants in-state tuition for illegal immigrants

A new state senator apparently wants to send Maryland down the same path to bankruptcy as California. According to the Baltimore Sun's Maryland Politics blog:

An incoming state senator said Tuesday that he plans to introduce legislation to give in-state college tuition to illegal immigrants who have attended state high schools.

“After we have invested in their education, it makes sense to treat them equally when it comes to college tuition,” said Victor Ramirez, a Prince George’s County Democrat. He said colleges should focus on residency requirements rather than immigration status.

Annual tuition and mandatory fees at the University of Maryland are $8,416 for state residents and $24,831 for non-residents, according to the school’s website.

Ramirez, who was a delegate for eight years before winning a Senate seat this fall, said his legislation would be similar to a 2007 plan that passed the House of Delegates but faltered in the Senate. Both chambers approved an in-state tuition bill in 2003, but it was vetoed by then-Gov. Robert L. Ehrlich Jr., a Republican.

Gov. Martin O’Malley, a Democrat who has referred to illegal immigrants as “new Americans,” has said he would sign an in-state tuition bill.

Anne Arundel County enacts program that targets illegal immigrants charged in crimes

If there is one nice thing about Anne Arundel County, is it not a sanctuary for illegal aliens (see: Baltimore City). According to the Baltimore Sun:

Anne Arundel County joined a federal program this week that is aimed at helping identify illegal immigrants who have been arrested and accused of other crimes.

The program employs fingerprint identification using federal databases, and officials say it will be implemented nationwide by 2013.

The program, called Secure Communities, was started under the George W. Bush administration but has become a priority in the Obama administration's enforcement efforts for illegal immigration. With the help of local law enforcement authorities and jails, the ability to quickly identify illegal immigrants who have committed crimes or are accused of committing them is improved under the program, supporters say.