Topic: Law and Civil Liberties

Upcoming Event: See South Carolina Governor Mark Sanford Make Sense of the REAL ID Act

Last week, Minnesota Governor Tim Pawlenty (R) vetoed a transportation bill that included a provision objecting to the federal REAL ID Act. The bill would have required the federal government to pay 95 percent of the cost of issuing national IDs before Minnesota would participate. Claiming political machinations were afoot, Pawlenty said that he preferred “something more reasonable like 50 or 60 percent.” One wonders what principle of federalism, liberty, or privacy could possibly support his willingness to accept a 50% unfunded surveillance mandate.

A much clearer vision will be on display next week when Governor Mark Sanford (R-SC) joins Senator Jon Tester (D-MT) here at the Cato Institute to discuss the REAL ID Act. South Carolina has barred itself from participating in the national ID system created by the Act, and Governor Sanford defiantly refused to ask the Department of Homeland Security for an extension of the compliance deadline earlier this year.

Senator Tester represents a state that has been similarly defiant. He is an original cosponsor of legislation that would repeal the REAL ID Act and restore the identification security provisions of the Intelligence Reform and Terrorism Protection Act, which REAL ID repealed.

The event is called The REAL ID Rebellion: Whither the National ID Law?, next Wednesday, May 7th, at noon, and it will be Webcast.

AZ-Verify

Arizona’s law requiring employers to use the federal government’s “E-Verify” system to check workers’ immigration status has employers there “confused by the law’s requirements and ‘terrified’ at the prospect of losing their business licenses if they run afoul of its provisions,” according to a local chamber of commerce official.

My recent paper on electronic employment verification calls it “Franz Kafka’s solution to illegal immigration.”

The 998th Cut - and the 999th?

Here’s a new bill in Congress that strikes me as a peculiar encroachment on freedom. H.R. 5912 would amend the U.S. code to make cigarettes and certain other tobacco products nonmailable. Undoubtedly, this would make it a teensy bit harder for some people to smoke and chew tobacco.

More importantly, I think, it would deepen the role of the Postal Service in surveillance and enshrine the USPS a part of our niggling nanny state.

Does this bill affect you directly? Chances are it doesn’t, as few people send or receive cigarettes in the mail. But what happens tomorrow when you’re part of a disfavored group?

The bill’s sponsor is Rep. John McHugh (R-NY) who today features on his homepage House passage of a bill to establish a thing called the Hudson-Fulton-Champlain Commemoration Commission.

The EU Sides with the Thugs in Bolivia

This Sunday, the department of Santa Cruz, the richest region of Bolivia, will hold a referendum on regional autonomy. Other departments in the eastern half of the country will likely follow suit in the upcoming months. The central government in La Paz opposes the project and calls it “separatist.” Despite that, polls show that an overwhelming majority of “cruceños” will vote in favor of autonomy.

As a consequence, the ruling party has threatened to use violence against the citizens of Santa Cruz who show up to vote on Sunday. It wouldn’t be the first time. Last December, the government forced the approval of a new constitution in a Constituent Assembly while a pro-government mob outside the building prevented opposition assemblymen from attending the session. This year, something similar happened when the national Congress declared these referenda on regional autonomy illegal in a rigged session while mobs outside Parliament prevented opposition Congressmen from entering the building.

This time around, the party of president, Evo Morales, has warned about the possibility of taking thousands of its supporters to Santa Cruz to prevent the vote from taking place. The only way to accomplish this is by force.

So it’s kind of surprising that the European Union is taking sides with those who, over and over again, have used violence to suppress democratic institutions. The French ambassador in Bolivia and representative of the EU in that country has stated that the leaders of Santa Cruz who are pushing for autonomy will have to “assume the consequences” if violence erupts on Sunday. That is, the EU will blame the victims if they get beaten up by government thugs for exercising their democratic rights.

Shame on the EU.

Shiny, Happy SSA Employees

I recently had the opportunity to conduct a pair of briefings for congressional staff regarding electronic employment eligibility verification. A pair of bills are vying for the attention of Congress these days. I suggested in my recent paper, “Electronic Employment Eligibility Verification: Franz Kafka’s Solution to Illegal Immigration,” that Congress should ignore both. Indeed, it should eliminate “internal enforcement” of immigration law entirely.

One of my co-briefers provided staffers with some interesting information pertaining to the idea of building a regulatory contraption for automatic nationwide verification of workers’ identity and immigration status. He was a representative of SSA workers from the American Federation of Government Employees, National Council of SSA Field Operations Locals.

The programs slated to go national under these proposals would compare data about new workers (and in some cases, existing workers) with databases at the Social Security Administration and the Department of Homeland Security. When the data didn’t match, workers would receive what is called a “tentative nonconformation.” With the 4.1% error rate in SSA files (as found by its Inspector General), that’s a lot of tentative nonconfirmations going even to law-abiding American citizens. A higher percentage of the time, naturalized citizens would get them, too, as government data about them is even more error-prone. Bad government data is just one source of error.

Anyway, when a tentative nonconfirmation is issued, employers are supposed to communicate this to the employee (not all do) and the worker is supposed to report to a Social Security Administration office or the Department of Homeland Security to clear the problem up. This is where the interesting new information comes in.

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.

In my paper, I wrote about the experience American workers would get at the Social Security offices when they went to clear up their tentative nonconfirmations:

Disputes of tentative nonconfirmations would not happen in lushly carpeted offices with marble columns, hot coffee, and friendly, attentive staff. The experience of American workers when they sought permission to work would be much more like their trips to the nation’s departments of motor vehicles, post offices, and dentists—long lines, unfriendly service, and painful procedures.

The SSA union rep assures me that SSA workers are friendly. Any perception of unfriendliness is due to overwork. Fair enough; I may have been slapdash in my writing about SSA employees. But a national electronic employment eligibility verification system would result in 3.6 million new visits to these folks, overworking them and eroding their courtesy even more. These visits, and administering tentative nonconfirmations at SSA, would cost $1 billion, according to the union rep.

Of course, an SSA employee union rep would happily take the money and add workforce to do whatever Congress wants. My preference is to save the money. Enforcement of our abnormally restrictive immigration law causes us to spend taxpayer money on undermining the productive economy. That shouldn’t make sense to anyone.

Signs of Free Speech

George Will has another great column on threats to political speech in modern America. He reports the story of some people in Parker North, Colo., who didn’t want to be annexed to the larger town of Parker. When some residents proposed annexation, others

began trying to persuade the rest to oppose annexation. They printed lawn signs and fliers, started an online discussion group and canvassed neighbors, little knowing that they were provoking Colorado’s speech police.

One proponent of annexation sued them. This tactic – wielding campaign finance regulations to suppress opponents’ speech – is common in the America of the McCain-Feingold campaign finance law. The complaint did not just threaten the Parker Six for any “illegal activities.” It also said that anyone who had contacted them or received a lawn sign might be subjected to “investigation, scrutinization and sanctions for campaign finance violations.”

Quite a chilling effect on the speech of a few local residents. Fortunately, Will notes, the Parker Six (why not the Parker North Six? After all, Parker is what they don’t want to be part of. But who am I to question George Will?) are represented in their defense of their First Amendment rights by the Institute for Justice.

Meanwhile, in another section of the same Washington Post, a similar story is playing out in Virginia. A Democratic candidate for the U.S. House of Representatives began placing campaign signs in supporters’ yards a full year before the election. Botetourt County officials reminded people of a longstanding ordinance about how long political signs can be displayed. In this case it’s the ACLU of Virginia threatening to sue. But Botetourt (pronounced BAHT-uh-tott) officials are not deterred in their determination to protect law, order, and the Botetourt way:

“If we don’t have some semblance of order, we’d just have a libertarian society where anything goes,” said Jim Crosby, a longtime resident and former chairman of the Botetourt Republican Party.

Yep. First political signs in someone’s yard, then a bunch of competing churches, school choice, deregulation, women working outside the home, and pretty soon you’d have a libertarian society where anything goes.

Voter ID Case Decided

The Supreme Court has rendered its decision in Crawford v. Marion County Election Board. This is the case challenging Indiana’s voter ID requirement.

Briefly, the plaintiffs in the case did not establish sufficient proof of the burden on voting that the ID requirement would have. This was a facial challenge to the statute, and there was no plaintiff who had actually been dissuaded or prevented from voting. Sayeth the court:

[O]n the basis of the record that has been made in this litigation, we cannot conclude that the statute imposes “excessively burdensome requirements” on any class of voters.

There was also no evidence that Indiana has ever been victimized by impersonation at the polling place, which a voter ID requirement would help thwart, but in a facial challenge to a law like this, courts will defer to the state’s interests in deterring and detecting voter fraud, and in safeguarding voter confidence.

Advocates of voter ID will interpret this as a ringing endorsement, but it’s an unsurprising result. Hopefully, they won’t pursue a national voter identification requirement. In a recent TechKnowledge column inspired by the case, “Voter ID: A Tempest in a Teapot that Could Burn Us All,” I wrote:

A national registration system for voting would quickly be repurposed and used for many other kinds of regulatory control. There is no shortage of proposals for national registration and control of citizens. Should the voter ID tempest in a teapot boil over, the tiny specter of voter fraud could thrust a mandatory national ID into the hands of law-abiding citizens.

The Constitution gives Congress power to regulate the elections that select its members and, to a lesser degree, the president. But Congress does not have to use that power to its fullest extent. States recognize their own interests in fair elections, and they should experiment among themselves with ways to secure elections while making sure the vote is available to all qualified people.