Archives: January, 2007

Attorney General Gonzales and Mail Openings

The New York Daily News is reporting that the Bush administration has asserted the legal authority to search and inspect the mail without having to get search warrants. 

There is an “emergency” exception to the warrant requirement.  For example, if some bank robbers decide to take hostages and start making demands, a SWAT team can move in without a warrant.  When the emergency exception is ordinarily relied upon, the search is done out in the open - so the government’s actions are transparent.  The homeowner or business owner knows fairly quickly that agents conducted a search and can bring any abuse to the attention of the news media, the courts, or the legislature.  Those “checks” on police power are not in place with respect to mail openings.  We just don’t know what may be going on at the post office before we get our mail.

Rep. Jeff Flake (R-AZ) specifically asked Attorney General Alberto Gonzales about mail openings at a 2005 hearing.  Here’s the exchange:

REP. JEFF FLAKE (R-AZ): Thank you, Mr. Chairman. Thank you, General Gonzales.

Let me just try to bring this to the real world for a minute here, the real-world scenario, and see if we’re on the same page here. You may be familiar with one of the Fox News analysts, Andrew Napolitano, who wrote an op-ed a while ago. And let me just read a portion of it and get your response to it.

Quote: “The government can now, for the first time in American history, without obtaining the approval of a court, read a person’s mail and prosecute a person on the basis of what is in the mail.” Is that an accurate reflection of the law?

ATTY GEN. GONZALES: I’m not – I don’t believe it is an accurate reflection of the law. Again, if we’re talking about the exercise of authorities under the Patriot Act, in most cases it does involve the department going to a federal judge and getting permission to use a proposed authority.

REP. FLAKE: I understand in most cases. But is that possible now, for the first time in history, without obtaining the approval of a court, to read a person’s mail and then prosecute the person on the basis of what is in that mail?

ATTY GEN. GONZALES: That sounds to me like it would be a search. And I think that you would need probable cause to do that. You would need a warrant to do that, and you’d have to go to a federal judge in those cases, except, I think, in very rare circumstances, if in the event of an emergency. But even then you’d have to go to a judge after the fact and explain what you’ve done. So I don’t think that what he has said is accurate.

REP. FLAKE: But it would be accurate if you say in certain cases you would have to go to the judge after the fact.

ATTY GEN. GONZALES: But those are very rare and extraordinary circumstances. And so –

REP. FLAKE: How many of those circumstances have we had?

ATTY GEN. GONZALES: I’m not aware of any.

REP. FLAKE: None?

ATTY GEN. GONZALES: I’m not aware of any.

REP. FLAKE: If there are some, could you get back to my office with that information?

ATTY GEN. GONZALES: I can certainly look into it.

Source: Hearing before the House Judiciary Committee, April 6, 2005.

I will be blogging about this some more later, but I expect the Senate and House Judiciary Committees will immediately begin to investigate this matter and call Mr. Gonzales in for questioning.

For background on the constitutional record of the Bush administration, read this.

Maria Montessori

The Washington Post had an interesting article the other day about the popularity and success of Montessori schools.  The ideas of Maria Montessori are not a trade secret and they have been around for quite some time.  So … why has the education establishment been slow to adapt?  University of Virginia psychologist Angeline Stoll Lillard has a stinging observation.

The psychologist Lillard was at first skeptical of Montessori’s ideas when she started her research 20 years ago. But she found that a strong body of evidence in developmental psychology supports Montessori’s major conclusions – among them, that there is a close relationship between movement and cognition, that the best learning is active and that order is beneficial for children. …

[Montessori] looked for what worked rather than what fit a theory. “If schooling were evidence-based,” Lillard wrote, “I think all schools would look a lot more like Montessori schools.”

Unfortunately, instead of letting parents match individual children with a variety of schools, including Montessoris, that are tailored to kids’ unique and infinitely varied needs, politicians like the new mayor of Washington obsess over controlling current, hidebound, one-size-fits-all public school systems.  Such tinkering, however, won’t fix education.  It will only put someone new in charge.

Drug War Update

Last week, the feds released their annual “Monitoring the Future” survey on teenage drug use, and – lo and behold – teenage drug use is down. John Walters, the director of the Office of National Drug Control Policy, hailed the findings as proof that Bush’s drug war was going swell (unlike, ahem, that other war of his). Well, in an excellent op-ed in today’s New York Times, Mike Males of the Center on Juevenile and Criminal Justice demonstrates that the “Drug War” isn’t going any better than the “Iraq War.” Drug arrests are skyrocketing, as is the body count from drug overdoses. Even more striking is the fact that middle age drug use is soaring and that it’s soaring primarily among middle class whites. Ongoing tales about lights at the end of tunnels are no more reliable than similar tales about Iraq.

While it should be obvious to any fair-minded observer that our increasingly brutal war on drugs is a losing proposition on all counts, few of us seem to be fair minded observers. So allow me to pose a question to those of you still clinging to this benighted enterprise: Exactly what would it take to convince you that the drug war was causing more harm than good? Is there any bit of data, any hypothetical fact, or anything at all that would cause you to give up the policy ghost? Because if there is not, then we are in the realm of religious belief – and that’s about all that I can find to support this cruel, costly, and counterproductive jihad.

The Final Version of My Latest Paper is Now on SSRN

The 99.6% final version of my latest law review article, Class Action Lawmaking: An Administrative Law Model, is now posted on SSRN (here). The article is forthcoming in the next edition of the Texas Review of Law and Politics. An early draft was posted some months ago, but it has been significantly revised in response to helpful comments at two faculty workshops. Here is the abstract:

This Article considers how courts should interpret federal statutes when the interpretive question affects the scope or availability of class certification. When faced with such a question, many courts are tempted to interpret the statute in a way that enables class certification, enhancing the chance that the parties will settle.

I argue that the debate over this practice can be conceptualized as a debate about delegation. Those who argue that courts act illegitimately when they “adapt” statutes to “fit” the class device assume Congress has delegated courts a narrow range of discretion to promote certification and settlement under federal statutes. By contrast, those who argue courts have great leeway to certify statutory claims, even at the price of “distorting” the statute, assume courts have been delegated a great degree of such discretion.

The Chevron doctrine of administrative law provides an unexpected solution to this debate, if we treat Chevron as a “starting-point” measure of Congress’s intent to delegate authority to “adapt” federal statutes to new circumstances. This proposal is roughly similar to Nicholas Quinn Rosenkranz’s suggestion that Chevron might be treated as a “constitutional starting-point rule” for defining permissible delegations of “dynamic interpretive power.”

My argument, however, is pragmatic rather than constitutional: in the absence of clear information about Congress’s desires in the class context, and in light of the complex trade-offs implicated by class actions, an off-the-rack approximation of Congress’s intent to delegate dynamic interpretive power to courts in the class context is needed. I suggest that Chevron is the best available “starting point” measure, in this pragmatic sense. In other words, pending further instruction from Congress, we might ask courts in the class context to start by “thinking about statutory interpretation and statutory discretion as they would want an agency to think.”

In the process, I show that the obvious objection to using Chevron in this fashion—that federal courts, unlike agencies, are not democratically accountable—doesn’t withstand close scrutiny. Put bluntly, courts interpreting statutes that affect the scope of their power to certify claims exempt themselves from the restraint they demand of agencies. Asking courts to consciously parallel the restraint they expect of agencies therefore reins in courts’ interpretive discretion—promoting, in the process, more democratic control over class action lawmaking.

Incidentally, I found Nicholas Quinn Rosenkranz’s article, Federal Rules of Statutory Interpretation, very helpful. You can access his paper, which I rely on in this latest draft and reference in the abstract, here.

NYT: Americans Consume Too Much Health Care, and What’s This Obsession with Coverage?

It is customary for friends of liberty to denounce the New York Times for its left-wing bias. But it would be a mistake to write off the Grey Lady completely. In fact, with two recent articles on health care, the Times seems to be building the case that our obsession with expanding health coverage is, well, unhealthy.

1.

Yesterday, the Times ran an essay titled, “What’s Making Us Sick Is an Epidemic of Diagnoses,” by three researchers with the VA Outcomes Group in Vermont: Drs. H. Gilbert Welch, Lisa Schwartz and Steven Woloshin. What the authors call “an epidemic of diagnoses” is another way of saying we consume too much medical care. The authors write:

[T]he real problem with the epidemic of diagnoses is that it leads to an epidemic of treatments. Not all treatments have important benefits, but almost all can have harms.

What is behind this epidemic?

More diagnoses mean more money for drug manufacturers, hospitals, physicians and disease advocacy groups. Researchers, and even the disease-based organization[s] of the National Institutes of Health, secure their stature (and financing) by promoting the detection of “their” disease. Medico-legal concerns also drive the epidemic. While failing to make a diagnosis can result in lawsuits, there are no corresponding penalties for overdiagnosis. Thus, the path of least resistance for clinicians is to diagnose liberally — even when we wonder if doing so really helps our patients.

In other words, providers over-diagnose (and are over-paid) because there is insufficient restraint placed on excessive diagnosis and treatment.

Why is there insufficient restraint in health care but not in other areas? Because government has worked diligently to create tax breaks and subsidies that remove consumers’ natural incentives to curb their consumption. (And yet Republicans and Democrats alike continue to push for even less restraint.)

The authors do offer one mild proposal to address this epidemic:

People need to think hard about the benefits and risks of increased diagnosis…Perhaps someone should start monitoring a new health metric: the proportion of the population not requiring medical care. And the National Institutes of Health could propose a new goal for medical researchers: reduce the need for medical services, not increase it.

The way we usually get people to think about costs and benefits is to let them own the money involved. That’s a prescription for less government.

2.

Today, the invaluable Gina Kolata reports on researchers’ efforts to identify the factors that contribute to a long life. Though there are lots of questions to be answered, Kolata writes:

Year after year, in study after study, says Richard Hodes, director of the National Institute on Aging, education “keeps coming up.” And, health economists say, those factors that are popularly believed to be crucial — money and health insurance, for example, pale in comparison.

Kolata goes on to quote James Smith, a health economist with the RAND Corporation, as saying that health insurance “is vastly overrated in the policy debate.”

So…

Health insurance doesn’t seem to extend longevity. Too much health care can be dangerous. And patients don’t examine the costs and benefits of health care as they should.

It looks like health policy wonks on both the right and the left need to renew their subscriptions to the Times.

A Head-Check on Earmark Reform

Today, President Bush called for reform of budget earmarks, the fiscal baddie de jour. Those are the budget items commonly called “pork projects.” Think of the funding for the World Toilet Summit, for instance, and the obvious jokes about fiscal incontinence.

In this morning’s Rose Garden speech, the president summed up why these projects are bad:

Washington insiders are able to get billions of dollars directed to projects, many of them pork barrel projects that have never been reviewed or voted on by the Congress … Some of the earmarks are not even included in legislation. They are stuffed into committee reports that have never been passed, and are never signed into law. Earmarks often divert precious funds from vital priorities like national defense. And each year they cost the taxpayers billions of dollars.

He closed with what was touted by his press spinners as a grand proposal to curtail earmarks:

Congress needs to adopt real reform that requires full disclosure of the sponsors, the costs, the recipients, and the justifications for every earmark. Congress needs to stop the practice of concealing earmarks in so-called report language. And Congress needs to cut the number and cost of earmarks next year by at least half.

It’s certainly nice to hear this rhetoric coming from the president. And nobody can really object to what he’s proposing. It’s hard to disagree with an attempt to shine some light on what über-lobbyist Jack Abramoff called the “favor factory.” Even Nancy Pelosi has endorsed the goal of “transparency” in earmarking by requiring members of Congress to put their names alongside the projects they sponsor.

These reforms assume that members of Congress will be shamed into stopping these sorts of projects when forced to attach their names to them. But the truth really isn’t that members of Congress don’t want their names affiliated with most of these things. It’s that so many of them do! When earmark sponsors remain anonymous, numerous congressmen could take credit for a single project. There was no way to verify who was telling the truth. Now there is. Think of it as intellectual property protection for government waste. It just might lead to more pressure to multiply the number of earmarks, not less.

Even if “earmarks” as currently defined are monitored and reduced, there are no promises that these silly projects won’t appear in other ways and other places. The congressional budget process is nothing if not a game of reinvention. You can call these spending items Happy Funtime Projects instead and sock them away in another part of the budget. They will still remain the coin of the K Street realm.

Of course, Congress could simply give a bucket of money to an agency, no strings attached. But then it’s also likely a member of the Appropriations committee would write a letter to the department head that reads something like, “Gee, wouldn’t it be nice if Project X got some of this pot of money?” Can you really blame a department head who reads a letter like that – from a member of Congress who has power over their budget and oversight of their agency – and takes it seriously? It would strike anyone in that position as similar to Tony Soprano walking into the corner grocery store you own and saying, “Damn shame if anything were to happen to this nice little place.”

Earmark transparency shouldn’t be seen as the endgame of budget reform. It is merely a beginning. Yet the goal should be to reduce the scope of government overall. As long as a culture of spending persists in Washington – fueled by a budget process that commands Uncle Sam to be all things to all people – earmarking in some form will always be with us no matter who is in power.