Tag: legislation

Hate Crimes Bill Becomes an Amendment

By
David Rittgers

Unsure about prospects on passing the Local Law Enforcement Hate Crimes Prevention Act as a stand-alone bill, proponents intend to attach it as an amendment to the Department of Defense Authorization bill. As I have said previously, this bill is an affront to federalism and counterproductive hater-aid.

Federal Criminal Law Power Grab

This legislation awards grants to jurisdictions for the purpose of combating hate crimes. It also creates a substantive federal crime of violent acts motivated by the “actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person.”

This is a federalization of a huge number of intrastate crimes. It is hard to imagine a rape case where the sex of the victim is not an issue. The same goes for robbery - why grab a wallet from someone who can fight back on equal terms when you can pick a victim who is smaller and weaker than you are?

This would be different if this were a tweak to sentencing factors.

If this were a sentence enhancement on crimes motivated by racial animus - a practice sanctioned by the Supreme Court in Wisconsin v. Mitchell - then it would be less objectionable if there were independent federal jurisdiction.

Thing is, the federal government has already done this, with the exception of gender identity, with the Federal Sentencing Guidelines (scroll to page 334 at the link):

If the finder of fact at trial or, in the case of a plea of guilty or nolo contendere, the court at sentencing determines beyond a reasonable doubt that the defendant intentionally selected any victim or any property as the object of the offense of conviction because of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation of any person, increase by 3 levels.

The contrast between a sentence enhancement and a substantive crime gives us an honest assessment of what Congress is doing - federalizing intrastate acts of violence.

If Congress were to pass a law prohibiting the use of a firearm or any object that has passed in interstate commerce to commit a violent crime, it would clearly be an unconstitutional abuse of the Commerce Clause.

Minus the hate crime window dressing, that is exactly what this law purports to do.

What this really amounts to is a power grab - giving the federal government power to try or re-try violent crimes that are purely intrastate. Just as the Supreme Court invalidated the Gun Free School Zones Act in United States v. Lopez because it asserted a general federal police power, this law should be resisted as a wholesale usurpation of the states’ police powers.

The act also essentially overrules United States v. Morrison, where the Court overruled a federal civil remedy for intrastate gender-motivated violence. Forget a civil remedy; while we’re re-writing the constitution through the Commerce Clause let’s get a criminal penalty on the books.

Trials as Inquisitions

The hate crime bill will also turn trials into inquisitions. The focus of prosecution could be on whether you ever had a disagreement with someone of another “actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability.” Worse yet, it can turn to whether you have any close friends in one of these categories, as demonstrated in the Ohio case State v. Wyant. The defendant denied that he was a racist, which led to the following exchange in cross-examination on the nature of the defendant’s relationship with his black neighbor:

Q. And you lived next door … for nine years and you don’t even know her first name?

A. No.

Q. Never had dinner with her?

A. No.

Q. Never gone out and had a beer with her?

A. No… .

Q. You don’t associate with her, do you?

A. I talk with her when I can, whenever I see her out.

Q. All these black people that you have described that are your friends, I want you to give me one person, just one who was really a good friend of yours.

David Neiwert says that this won’t happen because of a constitutional backstop in the legislation. Unfortunately, the House version of the bill explicitly endorses impeaching a defendant in exactly this manner:

In a prosecution for an offense under this section, evidence of expression or associations of the defendant may not be introduced as substantive evidence at trial, unless the evidence specifically relates to that offense. However, nothing in this section affects the rules of evidence governing impeachment of a witness.

Worse yet, the Senate version of the hate crime bill, the one which will likely become law after conference committee, does not contain this provision. Instead, it explicitly says:

Courts may consider relevant evidence of speech, beliefs, or expressive conduct to the extent that such evidence is offered to prove an element of a charged offense or is otherwise admissible under the Federal Rules of Evidence. Nothing in this Act is intended to affect the existing rules of evidence.

Anyone want to bet that an aggressive prosecutor could find that not having a close enough relationship with your neighbor counts as “expressive conduct” for the purposes of prosecution?

Future Push for More Federal Authority Over Intrastate Crimes

The hate crime bill also pushes a snowball down the mountain toward wholesale federalization of intrastate crime. In a few years this snowball will be an avalanche. By making any gender-motivated crime a hate crime, which will necessarily include nearly all rapes, we will define ordinary street crimes as hate crimes.

With a consistent average of 90,000 rapes a year, this expansion of hate crime definition will come back in a few years where those ignorant of the change in terms will wonder why hate crime is now rampant. “Rampant” only because we have made the relevant definition over-inclusive to the point of being meaningless.

And in a few years, we can revisit this issue with a fierce moral urgency to pass more feel-good legislation that upends state police powers in an effort to do something - anything - to confront this perceived crisis. A perception that Congress is creating in this legislation.

Topics: 
Law and Civil Liberties

Good News: Health Care Express Slows

By
Doug Bandow

Health care “reformers” (meaning those who want to effectively nationalize America’s medical system) have long understood that their best hope in the new political environment is to ram through legislation with the claim that it is an emergency and won’t wait.  The longer the American people think about the increased cost, decreased choice, and other negative impacts of a a government takeover, the less likely they are to support it.

Thankfully, the government health express has slowed noticeably in recent weeks.  Even supporters are coming to doubt that legislation can be approved before Congress goes home in August.  Reports Politico:

Health care reform proponents are growing pessimistic that they can meet President Barack Obama’s August target for passing a bill — saying the next four weeks must fall together perfectly, without a hitch or a hiccup.

The number of weeks that’s happened recently? Zero.

A series of setbacks has made the task of completing floor votes in both chambers virtually insurmountable, given the plodding pace of the Senate. The official line from the White House and the congressional leadership is it’s possible, but privately, there are a dwindling number of aides who would put money on it.

And without a deal by August, the ripple effects could start to endanger the prospect of health care reform this year altogether — chief among them, the closer it gets to the 2010 midterm elections, the harder it will be to get members to make the toughpolitical decisions needed to vote on a bill.

This is good news.  The U.S. health system needs fixing.  But the more rushed they are, the less likely policymakers are to do the right thing.  We need a medical system that is more responsive to consumers and market forces rather than to political forces and government dictates.

Topics: 
Government and Politics, Health Care

Cap ‘n Trade: The Ultimate Pork-Fest

By
Doug Bandow

Some naive people might have been convinced that the U.S. House voted to wreck the American economy by endorsing cap and trade because it was the only way to save the world.  But even many environmentalists had given up on the bill approved last Friday.  It is truly a monstrosity:  it would cost consumers plenty, while doing little to reduce global temperatures.

But the legislation had something far more important for legislators and special interests alike.  It was a pork-fest that wouldn’t quit.

Reports the New York Times:

As the most ambitious energy and climate-change legislation ever introduced in Congress made its way to a floor vote last Friday, it grew fat with compromises, carve-outs, concessions and out-and-out gifts intended to win the votes of wavering lawmakers and the support of powerful industries.

The deal making continued right up until the final minutes, with the bill’s co-author Representative Henry A. Waxman, Democrat of California, doling out billions of dollars in promises on the House floor to secure the final votes needed for passage.

The bill was freighted with hundreds of pages of special-interest favors, even as environmentalists lamented that its greenhouse-gas reduction targets had been whittled down.

Some of the prizes were relatively small, like the $50 million hurricane research center for a freshman lawmaker from Florida.

Others were huge and threatened to undermine the environmental goals of the bill, like a series of compromises reached with rural and farm-state members that would funnel billions of dollars in payments to agriculture and forestry interests.

Automakers, steel companies, natural gas drillers, refiners, universities and real estate agents all got in on the fast-moving action.

The biggest concessions went to utilities, which wanted assurances that they could continue to operate and build coal – burning power plants without shouldering new costs. The utilities received not only tens of billions of dollars worth of free pollution permits, but also billions for work on technology to capture carbon-dioxide emissions from coal combustion to help meet future pollution targets.

That deal, negotiated by Representative Rick Boucher, a conservative Democrat from Virginia’s coal country, won the support of the Edison Electric Institute, the utility industry lobby, and lawmakers from regions dependent on coal for electricity.

Liberal Democrats got a piece, too. Representative Bobby Rush, Democrat of Illinois, withheld his support for the bill until a last-minute accord was struck to provide nearly $1 billion for energy-related jobs and job training for low-income workers and new subsidies for making public housing more energy-efficient.

Representative Joe Barton, a Texas Republican staunchly opposed to the bill, marveled at the deal-cutting on Friday.

“It is unprecedented,” Mr. Barton said, “but at least it’s transparent.”

This shouldn’t surprise anyone who follows Washington.  Still, the degree of special interest dealing was extraordinary.  Anyone want to imagine what a health care “reform” bill is likely to look like when legislators finish with it?

Topics: 
Energy and Environment, Government and Politics, Tax and Budget Policy

Higher Taxes for Health Care, Fewer Jobs

By
Chris Edwards

President Obama broke his pledge not to raise taxes on lower- and middle-income families with his large tobacco tax increase back in February. It appears that the increase is not just hurting tobacco consumers, but also hurting workers in the cigar industry. From Tampa Bay Online:

Tampa will lose part of its cigar heritage in August when Hav-A-Tampa shuts its factory near Seffner and lays off about 495 employees, closing a factory that has been operating since 1902.

Several things conspired to hurt Altadis’ sales, McKenzie said, including the recession and the growth of indoor smoking bans. The bans have especially hurt sales in cold-weather states, where it’s impractical to smoke a cigar outdoors in the winter, he said.

However, the company attributed much of its trouble to the State Children’s Health Insurance Program, or SCHIP, a federal program that provides health insurance to low-income children. It is funded, in part, by a new federal tax on cigars and cigarettes. McKenzie couldn’t say how much sales of Hav-A-Tampa cigars had fallen off, but the numbers have dropped significantly, he said.

Previously, federal excise taxes on cigars were limited to no more than a nickel, said Norman Sharp, president of the Cigar Association of America trade group. The tax increase, which took effect April 1, raises the maximum tax on cigars to about 40 cents, Sharp said.

This health-tobacco legislation raised taxes $65 billion over 10 years. Imagine the damage that would be caused by the giant health bill currently moving through Congress, which will cost $1 trillion or more over 10 years.

Hat Tip: Tad DeHaven

Topics: 
Health Care, Regulatory Studies

Sen. Kennedy’s Budget-Breaking “Reform” Bill

By
Doug Bandow

It appears that the Obama administration has decided to disown the venerable Senator.  No wonder.  The Congressional Budget Office estimated the ten-year cost of Sen. Kennedy’s bill at $1 trillion, but admitted that its analysis was incomplete. 

Now the consulting group HSI Network, LLC comes foward with an estimate of $4 trillion:

The Senate Committee on Health, Education, Labor and Pensions (HELP) have proposed a health reform bill called the Affordable Health Choice Act (AHC) that seeks to reduce the number of uninsured and increase health system efficiency and quality. The draft legislation was introduced on June 9th, 2009. The proposal provided adequate information to suggest what the impact would be of AHC using the ARCOLA™ simulation model. AHC would include an individual mandate as well as a pay or plan provision. In addition, it would include a means-tested subsidy with premium supports available for those up to 500% of the federal poverty level. Public plan options in three tiers: Gold, Silver and Bronze are proposed in a structure similar to that of the Massachusetts Connector, except that it is called The Gateway. These public plan options would contain costs by reimbursing providers up to 10% above current reimbursement rates. There is no mention of removing the tax exclusion associated with employer sponsored health insurance. There is also no mention of changes to Medicare and Medicaid, other than fraud prevention, that could provide cost-savings for the coverage expansion proposed. Below, we summarize the impact of the proposed plan in terms of the reduction on uninsured, the 2010 cost, as well as the ten year cost of the plan in 2010 dollars.

HELP Affordable Health Choices Act

  • Uninsurance is reduced by 99% to cover approximately 47,700,000 people
  • Subsidy - Tax Recovery = Net cost:
    • $279,000,000,000 subsidy to the individual market
    • $180,000,000,000 subsidy to the ESI market with
    • Net cost: $460,500,000,000 (annual)
    • Net cost: $4,098,000,000,000 (10 year)
  • Private sector crowd out: ~79,300,000 lives

HSI figures that a lot more people will take advantage of federal health insurance subsidies, driving costs up far more than indicated by the CBO figure.  (H/t to Phil Klein at the American Spectator online.)

Of course, no one knows what the bill would really cost in operation.  But the history of social insurance and welfare programs is sky-rocketing expense well beyond original projections.  Go back and look at the initial cost estimates for Medicare and Social Security, and you will run from the room simultaneously laughing and crying.

Health care reform would be serious business at any moment of time, but especially when the country faces $10 trillion in new debt over the next decade on top of the existing $11 trillion national debt.  And with the $100 trillion Medicare/Social Security financial bomb lurking in the background, rushing to leap off the financial cliff with this sort of health care legislation would be utterly irresponsible.

Topics: 
Health Care, Tax and Budget Policy

ACLU on the REAL ID Revival Bill

By
Jim Harper

The REAL ID Act should be repealed, not “fixed,” says the American Civil Liberties Union:

While offering some important privacy protections, this legislation could ultimately resurrect the discredited Real ID Act and become the basis for a National ID. “Four years after becoming law, the Real ID Act is essentially dead,” said Chris Calabrese, Counsel of the ACLU Technology and Liberty Program. “Senator Akaka is right in his efforts to eliminate a substantial number of the more problematic aspects of Real ID, including the creation of a national database of driver information and misuse of license information by the private sector. But while these attempts at improvement are commendable, Real ID cannot be ‘fixed,’ and we oppose anything that would revive it.”

The REAL ID revival bill is S. 1261.

Topics: 
Telecom, Internet & Information Policy

The Health Care Battle Begins

By
Michael D. Tanner

Sen. Edward Kennedy (D-Mass.) has begun circulating drafts of his proposed health care reform legislation. Initial reports, including an op-ed in the Boston Globe by Kennedy himself, suggest that the bill will contain every one of the bad ideas that I outlined in my recent Policy Analysis on what to expect from Obamacare.

Among other things, the Kennedy bill will call for:

  • An employer mandate;
  • An individual mandate;
  • A so-called “Public Option,” a Medicare-like plan that will compete with private insurance;
  • The use of comparative-effectiveness/cost-effectiveness research to restrain costs;
  • Subsidies for families earning as much as 500% of the poverty level ($110,250 for a family of four).
  • Insurance regulation, including guaranteed issue and community rating. (He would also establish a Massachusetts-style Connector); and
  • Government-directed health IT.

There’s no indication yet of how much the plan would cost or how Sen. Kennedy plans to pay for it.

The bill will be formally presented to Senator Kennedy’s Committee on Health, Education, Labor & Pensions (HELP) sometime next week. Hearings could be held around June 10, and committee “mark up” could begin on June 17.

Senate Finance Committee chairman Max Baucus (D-Mont.) is expected to introduce his health care bill shortly before the Finance committee begins its scheduled mark up on June 10.

Meanwhile President Obama’s campaign apparatus is planning rallies and demonstrations around the country to build support for health care reform.

The battle over the future of health care in this country has begun.

Topics: 
Health Care

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