Florida’s new anti-immigrant law is very unconstitutional

But what isn’t these days?

Welcome to a Monday night edition of Progress Report.

One of the strangest things about Donald Trump’s first few weeks in office is that while he remains the manifestation of a century of American rot, he’s not even the most actively repulsive and dangerous villain in his own administration. That title, at least thus far, belongs to Elon Musk, who is so annoying and off-putting that he has $400 billion and can still only get teens and college students to hang out with him.

Tonight we’ll briefly touch on Elon’s latest destructive escapades, then move on to our main stories out of the states. With so much chaos happening in DC, keeping focus on what’s happening in state capitols is more important than ever.

Note: This is a fully independent newsletter — no ads, no sponsors, no politicians able to apply pressure or influence what we cover and write. Progress Report relies entirely on readers and supporters willing to fund independent journalism and political thought.

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Imagine if SkyNet, the artificial super-intelligence system that sought to extinguish humanity in the Terminator movies, was actually a schlubby, socially-inept middle-aged man who liked to hang out with teenagers and wasn’t even that intelligent.

A bit elusive, I know, but it’s the best way that I can describe what’s happening in right now Washington, DC, where Elon Musk and a team of neo-Nazi college kids are infiltrating classified computer networks and hacking away in a seemingly unstoppable, metastasizing crime spree designed to collapse the federal government from the inside. I won’t pretend to have a firm grasp on the technical and deep bureaucratic details of the systems they’re prodding and maybe breaking — this is a pretty helpful explanation — but I do know that it is a national emergency.

Musk spent $277 million and turned Twitter into a Nazi bile duct to boost Donald Trump’s campaign, an investment that netted him $200 billion in the month following Trump’s election victory. He has more money than is fathomable or morally conscionable, and now that he’s gotten a taste of power and the world’s biggest favor to cash in, Musk is bent on doing whatever the hell he wants. Trump, who exists to be the star of the show, is evidently getting a bit sick of the guy, but what can he do? What can any of us do?

I don’t know the answer, but I do know that people are starting to fight back. Protestors marched in cities across the country this weekend, and shut down stores and restaurants on Monday, even if it didn’t get much media attention. Indivisible, the grassroots hub that sprung up after Trump’s first election victory, held a massive call with 40,000 people looking for ways to fight back and demand action on Sunday night.

And credit where it’s due: Democrats finally got the message (maybe they read yesterday’s newsletter) and went to the offices of USAID, the foreign aid agency that Musk and Trump have decided to illegally shutter. After being denied entry, they held an actual rally, which allowed them to show that real people are pissed off about what’s happening. Here’s one small snippet of the event:

They’re starting to get the hang of obstruction, too, with Sen. Brian Schatz promising to block all of Trump’s State Department nominees until the the Trump administration stops throttling USAID. Now, leadership is still pretty ineffectual — Hakeem Jeffries and Chuck Schumer have a big plan that includes waiting around for Trump to screw up and filing legislation to stop Elon Musk, which will be just as effective as Dick Durbin asking corrupt Supreme Court justices to impose a binding code of ethics on themselves.

My guess is that the only thing that will stop Elon Musk from his destructive speed-run through the US government is his own boredom. At some point, he’ll have used his ill-gotten access to enrich himself enough and find something else to destroy. (This is me being optimistic.) If and when that happens, whatever is left of this country will be left to reckon with how we let one private individual become so omnipotently wealthy and take the country hostage with so little friction. And that’s a big if.

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Florida’s new anti-immigrant law is blatantly unconstitutional

Provisions of Florida’s new crackdown on undocumented immigrants violate the US Constitution, legal experts say, and could test the limits of the nation’s new xenophobic fervor and conservative judiciary.

Most prominently, the TRUMP Act, passed by the legislature last week, mandates the death penalty for undocumented immigrants convicted of a capital offense. Such a requirement violates the constitution in several different ways, and also conflicts with Florida’s own legal sentencing code, according to a long-time criminal defense attorney in the Sunshine State.

“The fifth, eighth and fourteenth amendments would prohibit a mandatory death sentence,” explained Roger Weeden, who handles capital murder cases in both state and federal court.

Prolific in its unconstitutionality

The jury is out on whether lawmakers in Florida did any research before writing the new law, but there are several Supreme Court precedents that directly contradict the TRUMP Act’s capital punishment requirement.

In 2008’s Kennedy v. Louisiana, the court ruled that the death penalty for a crime other than murder constituted cruel and unusual punishment. The decision, written by Justice Anthony Kennedy, cited the need to follow “evolving standards of decency” in interpreting the eighth amendment.

“When the law pun­ish­es by death,” Kennedy wrote, “it risks its own sud­den descent into bru­tal­i­ty, trans­gress­ing the con­sti­tu­tion­al com­mit­ment to decen­cy and restraint.”

The crime at the center of the legal conflict in Kennedy, the sexual assault of a child, is one of several crimes considered capital offenses in Florida. The list also includes drug trafficking, treason, and hijacking an aircraft.

In Woodson v. North Carolina, a landmark case decided in 1976, the court ruled it unconstitutional for any state to have an automatic death penalty. Ironically, it was Florida that presented the first accepted alternative, which provided for a secondary sentencing process in which the jury considers various additional factors to determine whether a convicted defendant should receive the death penalty.

Florida Republicans recently lowered the number of yes votes required for a jury to sentence a defendant to death, but the basic principle remains. As Weeden notes, a judge in Florida may override a jury's verdict for the death penalty and impose a life sentence, but may not override a jury's verdict of life to impose the death penalty.

Another one of the provisions isn’t unconstitutional, but murky under existing Florida law: If an undocumented immigrant is a gang member and commits a crime, the state is required to give them the maximum penalty allowed for that crime.

Gang affiliation is considered an “aggravator,” or a factor that can contribute to a harsher sentence. It’s also incredibly hard to prove. “They have so call ‘gang’ experts,” Weeden said, “but it would clearly be ‘junk’ evidence without low reliability.”

In Florida, that may be beside the point. Ironically, it could get vetoed by Gov. Ron DeSantis, who called it “grotesque” last week… but not because it expands the state’s power to kill. Instead, he thinks it isn’t strong enough, and is especially mad that it gives some of his authority over the removal of undocumented immigrants to the state agricultural commissioner.

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