Topic: Law and Civil Liberties

Reauthorization Of E-Verify In Doubt

Had you asked anyone knowledgeable in the area a year ago, they would have told you that Congress was going to make “E-Verify,” the federal government’s immigration background check system, mandatory for all employers by the end of 2008.

Well, a headline in National Journal’s Congress Daily yesterday tells quite a different story (paylink): “Reauthorization Of E-Verify Immigration Program In Doubt.”

“House lawmakers and aides are locked in an impasse over legislation that would renew a program employers can use to verify the legal status of their workers,” the story says, “mainly over language that some worry might ultimately kill this means of enforcing immigration laws.”

E-Verify has gone from “greased” to “on-the-chopping-block” in just one short year.

Irony of ironies, it’s the bureaucracy that may kill it. The main holdup is a dispute over how the system would be paid for. The Department of Homeland Security has apparently been sticking the Social Security Administration with the bill for operating the system, and Social Security hasn’t got any spare funds.

This brings together threads from a couple recent posts of mine on E-Verify. I wrote in April about the inability of the Social Security Administration to provide the services it is currently called on to perform. New responsibilities placed on SSA wouldn’t just magically get done.

From a representative of a Social Security workers’ union, I had learned the following about what people could expect when they went to straighten out their E-Verify paperwork with SSA:

What would the process be like? Well, try calling your local SSA field office to find out. The SSA worker rep reported that 50% of those calls aren’t answered because field offices are too busy. Calls to the SSA’s national 800-number don’t go through 25% of the time. It’s not just a phone problem. The agency currently has a backlog of 752,000 on disability rulings. That’s three quarters of a million people who aren’t getting an answer from SSA. It takes 530 days – a little under a year and a half – to get a disability ruling out of SSA.

And I speculated the other day that Stewart Baker’s recent rant against the Society for Human Resource Management might be motivated by bureaucratic jealousy. Now we see that there’s plenty of it to go around. E-Verify isn’t important enough to get federal agencies to play well together.

In truth, I don’t think E-Verify will go under because of this dust-up, but I don’t think it’s going to be the mandatory, nationwide program so many thought either. (I described many ills of such a policy in my paper, “Franz Kafka’s Solution to Illegal Immigration.”)

There are lessons here for Republicans (and some conservatives) who dreamed that they would solve illegal immigration with a big, national, background-checking enforcement system: Bureaucrats own the bureaucracy. You do what they let you do; they do not do what you think they should do. You can’t turn big government to your ends. It only works for its own ends.

“Reforming Fourth Amendment Privacy Doctrine”

Frankly, I don’t expect the scholars, lawyers, and judges who have been steeping in traditional Fourth Amendment doctrine their entire careers to get the thesis of my recent American University Law Review article. But you can! And, eventually, if I do enough work, they will.

Here are some highlights from the introduction to “Reforming Fourth Amendment Privacy Doctrine”:

Since 1967, the Supreme Court and lower courts have relied too heavily on an unreliable test that arose from the leading Fourth Amendment case, Katz v. United States. Distracted by Justice Harlan’s concurrence in the case and befuddled by the concept of “privacy,” courts have ignored the simple rule of the actual holding in Katz and conditioned Fourth Amendment rights on surmises about privacy “expectations.”

Privacy is a real thing that need not be a matter of conjecture. The Katz Court held that personal information was protected by the Fourth Amendment because, as a factual matter, the defendant had kept it private. Installing a wiretap to overcome Katz’s use of law and physics to conceal information was unreasonable without a warrant. The Court did not base its holding on open-ended “expectations” or “reasonableness,” as Justice Harlan’s concurrence suggested, but on the affirmative steps Katz took to conceal that information.

If an individual has secured the privacy of particular information, the Fourth Amendment focuses on the reasonableness of the government’s actions in undoing that privacy, not on the reasonableness of the individual’s expectations.

The FBI Turns 100

This weekend the FBI will celebrate its 100th anniversary. As you might expect, the Bureau is trumpeting its record, i.e., the FBI has protected America from gangsters, Nazis, Communists,  mobsters, terrorists, and so forth.  The image has always been super-competent, super-honest agents who hunt down the evil-doers.

But what about the actual record of the FBI? Sen. Charles Grassley (R-Iowa) has long taken a skeptical view of the FBI and I think his remarks from a 1997 oversight hearing are on the mark:

[M]y father’s occupation was farming in Iowa. And in the ’40s and ’50s, when I was growing up, he taught me to respect the FBI. I came to Washington with a great deal of respect for the FBI. I know that my criticism of senior management, in the last year probably, doesn’t show that I was brought up that way. But it’s not easy for me to think of my father’s respect for the FBI, that they could do no wrong, and find some of the things wrong because, in decades of public service, I have never known an agency that right now is in need of more oversight, including congressional oversight, than the FBI. And that’s after a year of digging into issues that the Bureau has been involved with.

We all respect the good things that the FBI does. We know that there are thousands of agents out there in the field that are putting their lives on the line. And most Americans have the image of the FBI as very good, beyond reproach, the untouchables. The FBI has cultivated that image…. But serious problems with the Crime Lab punctured that image, also Ruby Ridge and Waco have. Beyond the veneer is an ugly culture of arrogance that uses disinformation, intimidation, empire building, to get what it wants.

And I’ve got some documentation, if you’re interested in my feeling about intimidation and disinformation. It resists oversight by an independent body. It resists cooperation and information-sharing with state and local law enforcement. Now I want to show some examples of these. I find that the FBI sometimes uses intimidation tactics when it wants to get its own way. When I have made inquiries, sometimes they simply refuse to respond. That’s not what legitimate oversight is about. It suggests that there’s something to hide. And that’s why problems like the FBI Crime Lab are allowed to exist and fester so long without detection — in that case, maybe about eight years.

While Congress has given the FBI more money than can be spent wisely — for instance, we tripled the amount of money, in just five years, for combatting terrorism. It reminds me of how Congress mindlessly pumped up the defense budget during the ’80s, and all that we did was increase the price of what we bought — hammers, pliers and toilet seats. In this case, I think that we need to carefully examine every nook and cranny of the FBI’s budget to make sure we’re getting what was advertised. And I intend to be a part of that effort in the coming months, because what I have found is that senior management within the FBI puts too much focus on its image and budget and not enough on product, and that product should be law enforcement and public safety.

Like Senator Grassley says, we should acknowledge FBI successes. But a proper appraisal of the Bureau’s actual record must take into account both the good and the bad. Two days ago, Cato hosted an event about the FBI’s record. The panel included the FBI’s official historian, Dr. John Fox, and an outside academic expert, Dr. Athan Theoharis. To view the event, go here.

Here are 10 people/events that the FBI would rather not discuss.

  1. Martin Luther King
  2. Richard Jewell
  3. Brandon Mayfield
  4. Joseph Salvoti
  5. Dr. Frederic Whitehurst
  6. Randy Weaver 
  7. Sibel Edmonds
  8. Anthony Hodgson
  9. Steven Hatfill
  10. The Branch Davidians.

For related Cato work, go here, here, and here.

Stewart Baker Crosses a Line - What’s the Strategy?

I’ve been nothing if not dogged about responding to DHS’ advocacy for REAL ID and E-Verify. I’ve had fun responding to post after DHS post on the “Leadership Journal” blog promoting E-Verify. But I let one recent post from DHS Assistant Secretary for Policy Stewart Baker go by. Enough people have pointed me to it and asked me what I thought that I’m finally drawn to comment.

Baker’s post, “Exactly What Do They Want?,” addressed none of the substance of the E-Verify program, but simply attacked a group called the Society for Human Resource Management (SHRM).

 Here’s a taste:

SHRM lobbies for the HR execs who do corporate hiring. It also opposes E-Verify. I suppose corporate hiring is easier if you can hire illegal workers, so perhaps I shouldn’t be surprised that SHRM wants to kill a program that makes it harder to hire illegal workers.

But SHRM has taken Washington arts to a new level. SHRM says it doesn’t want to kill E-Verify. SHRM says it wants to replace E-Verify with a new, better program to prevent illegal hiring. A closer look shows that the SHRM alternative is doomed to fail – and will take years to do so. So for a decade, while the SHRM alternative is failing, no one will have a good tool to actually prevent illegal hires. Which may be precisely what SHRM wants.

Politics can be ugly. And attacking the motives of your opponents is ugly politics. But what matters in the first instance is that it’s politics at all. Stewart Baker is an executive branch official who was appointed to his office, not elected. His role is to administer the laws, not to participate in the political processes that decide what the laws are. He crossed a crucial line by becoming a critic - and a harsh critic at that - of a private association because of its public policy stance.

It’s interesting to speculate about what caused Baker’s fit of pique. A theme in his post is the potential transfer of responsibilities for verification of workers from the Department of Homeland Security to other agencies like SSA and HHS. Job #1 for government ministers is to build their fiefdoms, and the SHRM’s preferred employment verification vehicle, the New Employee Verification Act, would be a DHS bureaucrat’s biggest outrage.

But everyone who knows him knows that Stewart Baker is savvy and cool. It’s not like him to lose his temper - especially not in such a public way. So I expect that this is part of some clever strategy, but I just don’t know what it is. Baker’s vitriol has drawn justified indignation from the folks at SHRM. The comments on Baker’s post have lots of interesting tidbits, including allegations that Baker consistently declined to meet with SHRM. He got written up in Politico for starting this public imbroglio. And the human resources blogosphere is popping with discussion of Baker’s explosion.

So, does Stewart Baker surprise us all and pull a rabbit out of a hat? Or has he really lost his cool? It could be frustrating, as he winds down his stint at DHS, to look down the road behind him at his key issues: the E-Verify program limping along, and the REAL ID Act in full collapse.

Censorship vs. Editorial Discretion

Via Ezra Klein, Tim Fernholz seems to be confused about the nature of censorship:

Conservatives argue (often with comparisons to communist states) that the doctrine, which hasn’t been in effect since 1987, forced the state to mandate speech. It really just provides for reasonable discussion of views, but the Right demagogues the issue to raise money and keep Rush Limbaugh on the air unopposed.

But now that McCain can’t get his stuff in the Times, it’s a terrible moment for American media! The FCC’s regulation wouldn’t affect a print newspaper, obviously, but it’s rank hypocrisy for McCain to complain that he’s not getting a fair shot, especially when he is co-sponsoring legislation to permanently ban the Fairness Doctrine. Apparently, equal time is only a bad idea when liberal views are being silenced.

This really isn’t complicated: The difference between advocates for bringing back the fairness doctrine and conservative critics of the New York Times is that the conservatives are not (as far as I know) advocating that the government force the New York Times to carry John McCain’s op-ed, or even to carry a certain quota of conservative columnists in order to ensure a “reasonable discussion of views.”

Fernholz dances around this issue, asserting that it’s not really censorship because the goal is simply to promote a “reasonable discussion of views.” And it’s true, I guess, that the Fairness Doctrine doesn’t involve giving the White House veto power over which stories get aired on NPR. But imagine if every five years the New York Times had to get its printing license renewed, and the Federal Press Commission reviewed the previous five year’s op-ed pages to ensure that they had represented a “reasonable discussion of views.” Fernholz can’t seriously claim that this would have no effect on the Times’s coverage—that it might not decide to scratch a few op-eds critical of the current administration or maybe hire an extra conservative (or liberal, depending on who was in power) columnist to make sure there weren’t any “reasonableness” problems during the license renewal process.

No, conservatives and liberals agree that the publishers of newspapers have a right to print whoever they please on their op-ed pages, “reasonable” or otherwise. The same principle applies to broadcast media, and for the same reasons.

Terrorist Attacks on Aviation - 11 Per Day!

… or so you would infer from a statistic reported on the Threat Level blog.

Threat Level reports on a new policy that has the Transportation Security Administration doing deep dives into people’s public-record dossiers when they arrive at airports without government-issued ID: “The new rules went into effect June 21, and in the first five days, 1705 people out of 10 million attempted to fly without identification and 59 of those were denied access to the plane.”

Fifty-nine refuseniks in five days works out to more than 11 terrorist attacks thwarted per day.

Of course, these weren’t actually terrorists. These were people whose papers weren’t in order. When this happens, TSA employees at its operations center in Virginia dig into public records databases and relay questions to screeners at the airports. If a traveler passes the test, he or she can fly. If the database information is wrong, or if the traveler is forgetful, he or she is stranded.

We were already quite a long way from getting any actual security benefit out of these programs, but as Threat Level suggests, all one need do to impersonate another is memorize the information about them in public records. I think this will happen most often among siblings and family members, who already know such info. But we’re talking about public records. They are collected, packaged, and sold by services like Lexis-Nexis. Sophisticated criminals and terrorists could get them just like anyone else.

Or they could present government-issued ID, having adopted the “clean-skin terrorist” technique that was recently reported to Capitol Hill by DHS Secretary Michael Chertoff.