Topic: Law and Civil Liberties

RIP Herb Alexander

Herbert Alexander was the founder of the study of campaign finance in political science. Long before mandatory disclosure of contributions, Herb published a review of campaign fundraising and spending after each presidential election year. Those volumes remain an invaluable resource for scholars studying American political history. These books were thorough and thoughtful, genuine scholarship on a topic that generates more than a little bluster. I remember reading Herb’s work and thinking what fine work they were, especially considering the law did not mandate disclosure.

I first met Herb in the late 1980s. He had some sympathy in those days for efforts to regulate campaign finance. Later he was much more skeptical, and I like to think it was a skepticism born from experience. I remember a lunch I had with Herb a few years ago. We were discussing some aspect or the other of McCain-Feingold and suddenly Herb said, “You know, John, there’s such a thing as free speech. These people have rights!” Indeed.

Herb was a fine scholar who did his work with integrity and care. He was also a good friend to those who came to know him. I and many others will miss his scholarship and his company.

Will They Turn Themselves In?

British prime minister Gordon Brown has announced that he supports increasing the penalties for the use of marijuana, reversing the slight liberalization of the law under his predecessor, Tony Blair.

I touched on this topic about nine months ago in my posting “Hash Brownies and Harlots in the Halls of Power.” As the Brown government began a review of the marijuana laws, it was revealed that at least eight members of Brown’s cabinet –including the Home Secretary (or attorney general), who was charged with studying the idea of increased penalties, the police minister, and the Home Office minister in charge of drugs – had themselves used marijuana. They were dubbed the “Hash Brownies,” in honor of their service in Brown’s government. I wrote at the time:

In the United States many leading politicians including Al Gore, Newt Gingrich, Bill Bradley, and Barack Obama have admitted using drugs, while Bush and Bill Clinton tried to avoid answering the question.

In both Britain and the United States, all these politicians support drug prohibition. They support the laws that allow for the arrest and incarceration of people who use drugs. Yet they laugh off their own use as “a youthful indiscretion.”

These people should be asked: Do you think people should be arrested for using drugs? Do you think people should go to jail for using drugs? And if so, do you think you should turn yourself in? Do you think people who by the luck of the draw avoided the legal penalty for using drugs should now be serving in high office and sending off to jail other people who did what you did?

Those are still good questions. I noted at the time that they might also be asked of Sen. David Vitter, a patron of prostitutes who believes that prostitution should be illegal. And of course now they should be asked – if he were to reappear and take questions – of former New York governor Eliot Spitzer, who not only supported the laws he was breaking but aggressively enforced those very laws during the same period in which he was enthusastically violating them.

Hypocrisy may be the tribute that vice pays to virtue in matters of advice. But it’s entirely unbecoming when the coercive force of law is involved.

April Fools for Skilled Workers

Quite appropriately, today exposes another facet of the foolishness that is U.S. immigration policy. April 1st is the day each fiscal year when employers are allowed to begin filing petitions with the US Citizen and Immigration Services for highly skilled workers to be given what are known as H-1B visas. For the second consecutive year, the quota of these visas was reached on this first day of eligibility.

H-1Bs allow employers to hire foreign workers in certain professional occupations. They are good for three years and can be renewed for another three. Though an H-1B cannot lead to a green card, it’s still a pretty good deal.

The problem is that, even in this apparent economic downturn, there aren’t enough visas: Congress limits the number of annual H-1Bs grants, and that magic number has been set at 65,000 for five years now. Before that, and in response to the technology boom of the late ’90s, Congress temporarily raised the H-1B cap to 195,000. But that expansion expired in 2004, and the cap has been reached earlier and earlier each year since.

In 2005, that meant August. In 2006, May 26. Last year, by the afternoon of April 2, 2007 (April 1 was a Sunday), USCIS had received over 150,000 H-1B applications. Officials quickly announced that they would randomly select 65,000 petitions from all those the agency had received in the first two days of eligibility.

Last week, with demand for the prized work permits only increasing, the powers that be decreed that this year’s lottery would accept all entries received in the first five business days. USCIS simultaneously promulgated a rule prohibiting employers from trying to game the lottery by filing multiple petitions for the same employee.

As for the vast majority of employers and employees who will be out of luck, the immigration laws say, like so many “rebuilding” baseball teams this opening week, “wait till next year.” Except, in this case, next year means putting your business or career on hold until October 1, 2009—the day people who secure H-1Bs for fiscal year 2010 can start work.

If only this were all a bad April Fools’ joke.

Read more on this in the article I have up on National Review Online today.

Failed, Self-Contradictory REAL ID Myth-Busting

Today finds another post on the DHS Leadership blog attempting to defend the REAL ID Act. Despite never having made the affirmative case for REAL ID, Assistant Secretary for Policy Stewart Baker is attempting to defeat the arguments against it.

The “myth” he purports to dispell this time is that REAL ID creates a national ID:

REAL ID is simple. The regulation requires that states meet minimum security standards when they issue driver’s licenses and identification cards necessary for “official purposes,” like getting on a plane or entering federal buildings. That’s it. The federal government’s role is to make sure that states meet minimum standards of security, so that banks and airports in one state can count on the quality of licenses issued in another.

Once again, I believe savvy Stewart Baker is playing at the role of ingenue. He’s pretending to lack the common knowledge that government programs grow in size and power.

It’s true that REAL ID allows states to issue driver’s licenses and identification cards that don’t meet the federal standards. They won’t be acceptable for “official purposes,” which are defined as follows in the statute:

The term “official purpose” includes but is not limited to accessing Federal facilities, boarding federally regulated commercial aircraft, entering nuclear power plants, and any other purposes that the Secretary shall determine.

(emphasis added)

Once REAL ID is in place, the secretary of homeland security has the power to require it for any purpose beyond the ones listed in the statute. What might those be? The immigration bill debated in Congress last summer would have required possession of a REAL ID–compliant card in order to work in the United States. If Congress doesn’t do it, perhaps the DHS secretary would do it on his own once REAL ID is at his disposal.

Baker himself recently proposed that REAL ID could be required for buying cold medicine. Wherever the federal government requires the use of identification, it could require possession of a REAL ID. In the very post where he seeks to debunk the fact that REAL ID is a national ID, he mentions the use of REAL ID by banks. The USA-PATRIOT Act extended “know your customer” regulations deep into the financial services sector. The DHS and Treasury could require possession of a REAL ID to access banking.

Strangely, Baker’s post says, “the federal government does not have the authority to regulate how or whether a bank, grocery store, retailer, or school requires REAL ID.” This directly contradicts a premise of his proposal to require REAL ID for cold medicine. It’s unfortunate that the federal government has this power — it shouldn’t — but Baker knows darn well that it does.

It’s technically true that you wouldn’t have to have a REAL ID–compliant national ID card under current law, but refusing one may not be too practical. You’d have to live in a state that gives you that option and then be willing to do without air travel, legal employment, financial services, medicine, and whatever else the Department of Homeland Security decides.

What looks like a duck, walks like a duck, and quacks like a duck, tends to be a duck. REAL ID is a national ID.

Jury Nullification, David Simon, and the Texas Prosecutor

David Simon has done it again. First, he created the best show on television, The Wire.  Then, he and his co-writers wrote a passionate critique of the drug war in Time magazine, urging jurors to vote their conscience in certain cases. That article has, in turn, sparked a debate over at the Defending People blog. A Texas prosecutor started the debate with an anonymous post against jury nullification. The prosecutor went so far as to say that anyone advocating jury nullification could be prosecuted in Texas. David Simon just cheerfully joined the fracas. 

Previous coverage here. Cato co-published the most comprehensive book on this subject, Jury Nullification: The Evolution of a Doctrine by Clay Conrad. For shorter works, go here, here, and here.

“New Hampshire Joins Montana in Real ID Victory”

So reports Wired’s “Threat Level” blog as the Department of Homeland Security capitulates in the face of New Hampshire’s rejection of REAL ID. The same thing happened with Montana.

The key? The renegade states send a nice letter that is not a request for an extension of a looming deadline but touts the security of their driver’s licenses, which the Department of Homeland Security accepts as an official extension request. That lets DHS save face, even as it backs down from repeated threats to punish the citizens of rogue states.

New Hampshire wins.

Passport Snooping Is Just the Beginning

Following up on the story earlier this week that the passport files of all three major presidential candidates had been snooped on, Brian Bennett writes in the April 7 issue of Time about plans to distribute passport information very widely indeed, such as to the Department of Homeland Security, IRS, employers, and foreign governments.

Meanwhile, the State Department has a video interview up on its website about passport privacy. Addressing the issue in a long format on a widely accessible medium is a good thing, so congratulations are due State for addressing the issue.

However, the lead question asked of Under Secretary for Management Patrick Kennedy is a big waste of time: “Does every State Department employee have access to personal data that’s given us for passports or other reasons?” That pitch is so slow it doesn’t even reach the plate. But there is some interesting information about the State Department’s data security practices later in the video.

Unaddressed is Brian Bennett’s reporting on the proposal for wholesale sharing of passport information.