Archive for the ‘Law and Civil Liberties’ Category
Chris Christie Allows New Jerseyans to Quaff Better Wine
While perhaps more identified with eating than drinking, New Jersey Governor Chris Christie — who headlined Cato’s recent Milton Friedman Prize Dinner — signed a law in January that allowed out-of-state winemakers to sell directly to in-state consumers and retailers. This wasn’t a spontaneous bit of New Year’s bonhomie — the U.S. Court of Appeals for the Third Circuit had ruled in Freeman v. Corzine that the previous rules benefiting in-state wineries was unconstitutional (that pesky Commerce Clause again) — but still it was a positive sign: even Wine Spectator took note.
More importantly, the district judge in charge of the nine-year lawsuit challenging that earlier law recently approved the consent decree whereby New Jersey’s new law remedied the claims brought by the out-of-state wineries. The agreement creates an out-of-state plenary winery license (good luck saying that after having consumed too much of the the vintage) under which “foreign” wine can compete on an equal playing field with good ol’ New Jersey stock. Specifically, the new law grants this license to out-of-state applicants, including those who sell their wares over the internet, who do not produce more than 250,000 gallons of wine per year and are duly licensed in another state.
The upshot is that the new law takes effect as of this month.
This all still seems like a bit too much regulation to me, but at least everyone is now subject to the same rules. I may have to take advantage of this newfound freedom when I travel up to the Garden State for my college reunion in a few weeks.
For my previous writings on booze and the Commerce Clause, read this and listen to this.
Remarks on Fiction and Surveillance from PEN World Voices
Earlier this month, it was my distinct privilege to moderate a panel of renowned authors and activists from around the globe at the PEN World Voices festival, to discuss “Life in the Panopticon.” The folks at PEN have since posted the prepared version of my opening remarks, which try to get at the special relevance of literature to our understanding of these issues:
When we talk about surveillance and privacy—perhaps more than any other political question—we speak a language borrowed from fiction. When we’re worried about the civil liberties implications of the Patriot Act or wiretapping by the National Security Agency, we may say they are “Orwellian,” or raise the specter of “Big Brother” government. As we slip off our shoes, separate our mini-shampoo bottles, and raise our arms for the friendly agent of the Transportation Security Administration, the word “Kafkaesque” may leap to mind unbidden.
And then, of course, we have the Panopticon. In 1787, when the philosopher Jeremy Bentham first imagined a prison on the model of an “inspection house,” architected to enable total surveillance of its inmates (or patients, or students), he believed himself to be writing non-fiction—a proposal for a real structure. But the modern reader is far more likely to have encountered the Panopticon by way of Michel Foucault, whose seminal Discipline and Punish invoked it as a kind of fable or metaphor to illustrate the principle of control through observation. Though prisons on Bentham’s model were eventually constructed—long after his death—for us it is, above all, a useful fiction.
It is a fiction with increasing relevance, as technology tears down the walls of Bentham’s prison, and embeds panoptic architectures in the camera networks trained on our public streets, the computers in our homes, and the phones in our pockets. If we insist on giving it a physical address, the modern panopticon might be the massive data storage facility being constructed in Salt Lake City Utah by the National Security Agency, which will allow the complete storage of all Internet communications—or the facilities where Chinese censors aided by powerful algorithms strictly enforce the parameters of acceptable online discussion.
As the Slovenian philosopher Miran Bozovic has observed, the Panopticon is actually a fiction within a fiction: it is not the warden’s real monitoring that makes the Panopticon’s discipline effective, but the idea of the observer, hidden from view by the panoptic architecture, that forces the prisoners to always act as though they could be under surveillance. In the most efficient prison, the tower can be empty—the observer a complete fiction—so long as the inmates believe in his presence. If you want to deprive online dissidents of the advantages of Internet communications, the fiction of omniscience may be better than the real thing: the story, unlike the real policeman, can build its outpost in the citizen’s mind.
If the purpose is to gather intelligence rather than exert discipline, of course, the opposite fiction is needed—the fiction of privacy that induces the target to lower his guard and disclose his secrets. When the courts belatedly began to impose limits on the warrantless wiretapping program inaugurated by President Bush, administration officials loudly declared that the intelligence agencies had been struck blind, which we now know was almost certainly another fiction.
For both purposes—intelligence and deterrence—as far as the government is concerned, the less the public knows about the detailed structure and capabilities of the Panopticon, the better. This secrecy is the source of the familiar tension between the imperatives of intelligence and those of liberal democracy under accountable government. It may also be why we so often turn to fiction to understand surveillance—to shine a spotlight on the invisible observer, and hear the dissident voice that, in reality, falls silent under the panoptic gaze.
Our ability to understand the realities and dangers of surveillance, then, depends crucially on the stories we tell. The dystopia of Nineteen-Eighty Four is not that of Brave New World—even if our reality contains the seeds of both. The legal scholar Daniel Solove, in his important book The Digital Person, argues that modern threats to privacy are better understood through the lens of Kafka than Orwell—and that by relying too heavily on Big Brother metaphors, we misunderstand where the most pressing threats lie. If the Panopticon is made of stories, so is the gate that might lead us out of it.
Classification Follies
An amusing anecdote about the absurd excesses of our system for classifying “sensitive” documents comes by way of the Federation of American Scientists’ Project on Government Secrecy. It seems a researcher had been trying to get access to a 1993 article published in a classified NSA journal, discussing the “SIGINT” (or signals intelligence) surrounding the Soviet downing of U.S. reconnaissance aircraft. The agency had already released a heavily redacted version of the article, and was in the process of considering a request to release a more complete version when—oops!—they seem to have mistakenly published a completely unredacted version, in which sections that were supposed to be excised had been highlighted rather than obscured. This version was quickly removed—but only after FAS researchers (and presumably others) had downloaded a copy.
This seemed to put the agency in an awkward position, since the NSA’s claim that any of the article remained properly classified required it to maintain that its disclosure threatened “serious damage” to the security of the United States. Would they admit to having made such a grave error in posting the unredacted document? Or would they acknowledge—as the FAS researchers concluded from their review of the document—that there had been no real grounds after all for continuing to keep the article secret two decades later?
The NSA seems to have picked an ingenious third option:They invoked an obscure provision of a 2009 executive order permitting the declassification and release of material that would otherwise be properly classified in “exceptional cases” where the national security interest in protecting the information was “outweighed by the public interest in disclosure of the information.” So what, exactly, was so exceptional about “Maybe You Had to Be There: The SIGINT on Thirteen Soviet Shootdowns of U.S. Reconnaissance Aircraft“? Readers are welcome to scan the article and draw their own conclusions, but it’s hard to disagree with the FAS analysts’ suspicion that the agency simply decided it wasn’t in the “public interest” to admit how much information the government unnecessarily hides from the citizens who fund it.
Massad Ayoob on Stand Your Ground, Police Chiefs, and Trayvon Martin
Massad Ayoob is a well known authority on firearms, police work, and the rules pertaining to the use of deadly force. He recently spoke at a Cato policy forum on the Stand Your Ground controversy. In this podcast interview, I ask Ayoob about a range of subjects–myths surrounding guns and self-defense, why the police lobby against Stand Your Ground laws, and the Trayvon Martin shooting. Ayoob has trained thousands of police officers and civilians in the use of firearms and is one of the most sought after expert witnesses in criminal and civil trials that involve firearms and self-defense. Good stuff.
Other recent developments on the Stand Your Gound controversy include this John Lott article and interview. And this Reuters story about George Zimmerman is well worth reading. And finally, did you hear that Benjamin Crump, attorney for the Trayvon Martin family, says Florida’s Stand Your Ground law does not apply to the Martin incident? I wish he’d said that clearly a month ago, but better late than never.
More here.
Big Government Causes Hyper-Partisanship in the Judicial Appointment Process
Earlier this year, the Georgetown Journal of Law & Public Policy hosted a symposium on “Hyper-Partisanship and the Law.” The journal editors graciously invited me to join an august panel on partisanship in the judiciary that included George Mason University Law School’s Todd Zywicki and the U.S. Chamber of Commerce’s Rachel Brand. (Brand ran the DOJ’s Office of Legal Policy, which is responsible for vetting and advising the president on judicial nominees, from 2005 to 2007.)
The symposium video isn’t available online, but the participants were invited to publish their presentations in this summer’s issue of the GJLPP. Zywicki has already blogged about his paper, “The Senate and Hyper-Partisanship: Would the Constitution Look Different if the Framers Had Known that Senators Would Be Elected in Partisan Elections?”
My (short) article is entitled “Big Government Causes Partisanship in Judicial Nominations.” Here’s an excerpt:
In 1962, Byron White’s hearing lasted 15 minutes and consisted of three questions. Can you imagine that happening now? Most district court nominees would take that deal. Is it because of TV and the media and the instant sound bite and the new media with the Internet and social networking and all the rest of it? Is it because the issues have gotten more ideologically divisive? I think the answer isn’t really any of these. It isn’t that there’s been a corruption of the confirmation process, the nomination process, presidential or senatorial rhetoric, or the use of filibusters. It’s a relatively new development but one that’s part and parcel of a much larger problem: constitutional corruption.
As government has grown, so have the laws and regulations over which the Court has power. The Court’s power has grown commensurate with the power of Congress, because all of a sudden it’s declaring what Congress can do with its great powers and what kind of new rights will be recognized. As we have gone down the wrong jurisprudential track since the New Deal, judges all of a sudden have more power behind them and the opportunity to really change the direction of public policy more than they ever did.
Read the whole thing (not yet in the final format). My presentation largely tracked some of the points Roger Pilon made in his seminal (and now decade-old) paper, “How Constitutional Corruption Has Led to Ideological Litmus Tests for Judicial Nominees.” You should read that too.
The Institute for Justice Exposes the Plague of Occupational Licensing
Today, the Institute for Justice released a 200-page, comprehensive study on occupational licensing in the United States. The report details the plague of occupational licensing that has swept the country over the past 60+ years. According to the study, “In the 1950s, only one in 20 U.S. workers needed the government’s permission to pursue their chosen occupation. Today, that figure stands at almost one in three.”
Fifty years ago, in Capitalism and Freedom, Milton Friedman warned against the dangers of professional licensing. At that time, Friedman quoted a previous study on licensure by Walter Gellhorn:
By 1952 more than 80 separate occupations exclusive of ‘owner-businesses,’ like restaurants and taxicab companies, had been licensed by state law; and in addition to the state laws there are municipal ordinances in abundance, not to mention the federal statutes that require the licensing of such diverse occupations as radio operators and stockyard commission agents. As long ago as 1938 a single state,North Carolina, had extended its law to 60 occupations. One may not be surprised to learn that pharmacists, accountants, and dentists have been reached by state law as have sanitarians and psychologists, assayers and architects, veterinarians and librarians. But with what joy of discovery does one learn about the licensing of threshing machine operators and dealers in scrap tobacco? What of egg graders and guide dog trainers, pest controllers and yacht salesmen, tree surgeons and well diggers, tile layers and potato growers? And what of the hypertrichologists who are licensed in Connecticut, where they remove excessive and unsightly hair with the solemnity appropriate to their high sounding title?
The Institute for Justice’s study found that licensing has only become more wide-spread and more absurd. But an increase in licensure is expected when interest groups are allowed to capture government and violate our economic liberties. Public choice theory predicts a growth in licensing if the anti-competitive interests of trades are not checked by constitutional rights. As Friedman observed,
In the absence of any general arrangements to offset the pressure of special interests, producer groups will invariably have a much stronger influence on legislative action and the power that be than will the diverse, widely spread consumer interest. Indeed from this point of view, the puzzle is not why we have so many silly licensure laws, but why we don’t have far more.
There are significant real-world effects to these laws. In a world of nine percent unemployment, barriers to work should be the last thing we want, particularly if those barriers do not make us safer or better off. The study found that the average license forces would-be workers to pay an average of $209 in fees, take one exam, and complete nine months of training. In the four places in which they are licensed (three states and DC), interior designers have the highest barriers to entry, apparently to save us from shag carpeting and misuses of the Pottery Barn. In the face of such requirements, particularly the months of training, it’s easy to see how someone can be discouraged from even looking for a job.
In addition, out-of-control licensing has other, more human costs, such as the monks of Saint Joseph Abbey, who were prohibited from building caskets in their monastery unless they obtained a funeral director license. The Institute for Justice won that case. Here’s hoping the new study gives IJ’s attorneys the data they may need to defeat other unconstitutional licensing regimes.
Below is the video announcing the study:
Police Charged for Beating Kelly Thomas
A security camera records police officers questioning a homeless man, Kelly Thomas. A few minutes later, the police begin to beat and taser Thomas, who later died from his injuries. In the video, Thomas can be heard desperately calling out to his dad for help.
Previous coverage here.
‘People’s Rights Amendment’ Would Knock Out People’s Rights
This blogpost was co-authored by Cato legal associate Kathleen Hunker.
Any prizefighter worth betting on knows that the worst thing you can do in a tough match is succumb to frustration. House Democrats should heed that wisdom. Frustrated by the Constitution’s interference in their efforts to muzzle certain kinds of political speech, Rep. Jim McGovern (D-MA), House Minority Leader Nancy Pelosi (D-CA), and 27 other congressmen have proposed a constitutional amendment that would overturn the Supreme Court’s holding in Citizens United.
Unfortunately, in their haste to deliver a blow against evil corporations, these lawmakers have exposed the Constitution’s flank in a way that would lead to debilitating blows against individual civil rights were this measure ever adopted.
The proposed change, absurdly titled the People’s Rights Amendment, asserts that the Constitution protects only the rights of “natural persons” and that Congress retains the ability to subject “all corporate entities” to any regulation or restriction Congress deems “reasonable.” Its supporters contend that the Amendment is necessary to reduce the role of money in politics and ensure that elections represent the voice of the people. As several commentators have already observed, however, the amendment does far more than subject corporations to new campaign finance regulations.
Although the People’s Rights Amendment says that it shall not be construed “to limit the people’s rights of freedom of speech, freedom of the press, free exercise of religion, freedom of association and all such other rights of the people,” it radically contracts those and other rights entrenched in America’s political tradition.
Did You Read the Federalist Papers in College? Grad School? Law School?
In the Wall Street Journal, Peter Berkowitz says you probably didn’t. And it shows:
It would be difficult to overstate the significance of The Federalist for understanding the principles of American government and the challenges that liberal democracies confront early in the second decade of the 21st century. Yet despite the lip service they pay to liberal education, our leading universities can’t be bothered to require students to study The Federalist—or, worse, they oppose such requirements on moral, political or pedagogical grounds. Small wonder it took so long for progressives to realize that arguments about the constitutionality of ObamaCare are indeed serious.
Explains a lot, really.
Federal Agencies Out of Control: Quick Roundup
Today, a Washington Post editorial asks whether the Environment Protection Agency is out of control because one of its officials spoke of “crucifying” businesspeople who may run afoul of that agency’s regulations. The short answer is Yes, it is out of control. Go here for the longer answer.
The Drug Enforcement Agency is also out of control. Daniel Chong was left in a holding cell for days without food, water, or a toilet. Agents forgot about him. Poor Chong attempted suicide because he was so distressed.
Meanwhile the Secret Service is under scrutiny for the security detail that was partying with prostitutes in advance of President Obama’s trip to South America. The agents involved say they are puzzled by the spotlight since their supervisors were aware of similar conduct in the past and it was no big deal.
Obama Labor Department Won’t Ban Kids’ Farm Chores
Farm families, along with the cause of liberty, won an important battle last week when the Obama administration scrapped plans to prohibit kids from doing a wide range of jobs in agriculture, even on farms belonging to their own family members. The rules would have barred youngsters under 16 from working with animals, storage bins, power-driven equipment, and various other things found on farms; perhaps most significant, they took an exceedingly narrow view of the so-called parental exemption provided by the law, so that (in the rules as proposed last year) kids would have been forbidden to work on an uncle or grandparent’s farm, or any farm less than “wholly” owned by their own parents. The Department of Labor was inundated by upwards of 10,000 comments, overwhelmingly negative, from farmers and ranchers; playing out in press outlets like the Custer County, Neb. Chief, the controversy was mostly ignored by the Eastern press, though NPR did do a report in December.
Commentator Ira Stoll has connected the dots about the Obama administration’s tendency to press ahead on extreme regulatory measures, then back off after a public outcry builds:
Examples include the mandatory automobile back-up camera rule, the ban of all cellphone use, even hands-free, while driving, the ban on 100 watt incandescent light bulbs, the NLRB’s action preventing Boeing from opening a factory in South Carolina, a right-to-work state, and the IRS’s cumbersome Form 1099 requirement as part of Obamacare.
Last fall I noted the same pattern, including retreats on EPA standards on dust, smog, and cross-state air pollution, and a misbegotten rule on lead abatement that could have made it prohibitively expensive to rehabilitate older homes. As I said at the time:
This, then, seems to be the new Obama administration compromise position …: they’ll hold off for now on saddling the economy with at least some potentially ruinous regulations — but they’ll make sure you know they’re not happy about having to take that stand.
More on the Obama administration and regulation here.
Unlawful Presence Waivers Are Not Amnesty
Under current law unauthorized immigrant spouses or children of U.S. citizens can gain lawful permanent residency (LPR) status if they return to their home country to apply at a U.S. consulate or embassy. The Catch-22 is that unauthorized immigrants who have lived here are barred from returning for up to ten years once they leave the U.S. The immigrant has to apply for an unlawful presence waiver to remove the bar, a process that could take up to 28 months, including appeals, separating the immigrant from his U.S. family in the mean time. Consequently, many unauthorized immigrants who could regularize their status do not take this opportunity.
The government is now asking for comments on a proposed rule change that would close part of that administrative Catch-22. Under the proposed rule an unauthorized immigrant could apply for and adjudicate the waiver before departing for interviews in consulates abroad, shortening the separation time between the immigrant and his family. Half of waivers are approved in seven days at the American consulate in Ciudad Juarez, Mexico. The other half can take years.
The waiver removes the bar on returning if the immigrant can show that “being separated from their U.S. citizen spouse or parent would cause that U.S. citizen relative extreme hardship.” Extreme hardship only applies to the migrant’s U.S. citizen spouse or parent, not to the immigrant himself or his U.S.-citizen children. Extreme hardship is determined by USCIS bureaucrats where relevant factors include the intensity of family ties, health, age, financial impact, and country conditions. Financial problems and the normal hardship of familial separations are not, by themselves, sufficient reasons to grant a waiver.
Even with those strict legal requirements, thousands of people could have their immigration status legalized. The proposed rule change doesn’t go far enough. A better legislative change would remove the bar on reentry for unauthorized immigrants who are married to a U.S. citizen, obviating the need for a waiver entirely. Limiting it to spouses would not provide an incentive for unauthorized immigrants to have children in the U.S. to claim future LPR status through their children’s citizenship, not that there is a problem with that but some might object. This change would preserve the spirit and intent of our restrictive immigration laws while allowing many to regularize their status. Ted Alden of the Council on Foreign Relations thinks that up to a million unauthorized immigrants could regularize their immigration status if a rule change along those lines was proposed.
The government’s rule change is not an amnesty as some commentators claim. It would streamline a costly bureaucratic process for people who can already apply for LPR status and diminish the number of unauthorized immigrants without placing additional costs on the government. Sounds like a pretty good deal to me.
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