Topic: Law and Civil Liberties

Another Fishy Regulation

All across the globe, people see the United States as a land of opportunity and dream of making their way here to work hard and enjoy the prosperity that our system of laws helps provide. Cindy Vong made that dream a reality by emigrating from Vietnam, becoming a U.S. citizen, and starting her own nail salon in Gilbert, Arizona. Thanks to a state occupational-licensing scheme, however, Ms. Vong may no longer be free to pursue her vision of happiness.

The Arizona Board of Cosmetology—yes, that’s an actual entity—got wind that Ms. Vong’s spa offered a treatment that uses small fish to exfoliate dead skin from the feet. This is a perfectly safe practice popular in East Asia and the Middle East. Learning that the Board intended to apply its exfoliation-instrument sterilization standards to her fish—how does one sterilize a fish?—Ms. Vong volunteered her spa as a test project until the Board was able to revise its existing rules to address this increasingly popular treatment. Without so much as bothering to evaluate whether the fish treatment is unsafe—there is no such evidence anywhere—the Board ignored her request and, summarily concluding the treatment unsafe, shut down Ms. Vong’s business. So much for “Land of the Free.”

The Court’s Consequential Concerns: King v. Burwell

Among the countless analyses now going on of today’s 84 minutes of oral argument before the Supreme Court in King v. Burwell, perhaps none is more perceptive than that offered by SCOTUSblog’s Lyle Denniston, the dean of Supreme Court reporters. As many of us feared, however, it appears that the focus of several of the justices, perhaps a majority, was less on the law than on the “dire consequences” that would follow if the Court decided that the law was clear and that, accordingly, the government should lose. (See here for background on the case.)

Here’s Denniston:

From the time that the Supreme Court agreed in November to hear the challenge to subsidies on the thirty-four insurance exchanges set up by the federal government instead of by the states, the Obama administration and its supporters have talked darkly about the collapse of the entire ACA if that challenge succeeded. … The uncertain thing, as the hearing approached, was whether that message would get through to the nine members of the Court who would be the deciders.  If there was one dominant theme at the actual hearing, aside from how to read a complex federal statute, it was that a victory for the challengers would come at perhaps a serious loss—perhaps a constitutional loss, but at least a human and social loss in the end of the most ambitious (and audacious) health care plan ever enacted in America.

The point should not be missed. For “the Obama administration and its supporters,” the question was not whether the challengers should succeed on the law—but what will happen if they do. In a court of law, no less, the Obama team wants policy to trump law.

Denniston reports that it looks like the government has the Court’s more liberal members in its pocket, while Justices Scalia, Thomas, and Alito are likely with the challengers. Chief Justice Roberts said relatively little. That leaves Justice Kennedy, not surprisingly, who “sort of leaned toward the idea that the language of the ACA” was clear and thus the government should lose. “But in a broader sense,” Denniston continues, Kennedy was concerned with “a difficult constitutional question”: “that Congress should ordinarily not be allowed to coerce the states into doing something that Congress wants,” which arguably it did when it told the states to create exchanges or their citizens would be ineligible for federal tax credits for their health insurance, which would “send the insurance market into a death spiral.”

But what follows from that “difficult constitutional question,” sounding in federalism? Scalia put his finger on it, asking rhetorically, Denniston writes, “whether, if a correct reading of a law creates a constitutional problem, the Court has the authority to rewrite it.” In other words, is the Court simply one more legislative branch, to which the government turns when Congress has botched its job (“We need to pass the law to find out what’s in it,” the lady said.”)? Or is it a court of law, charged with saying what the law is, even when Congress has made a mess of things and should, by rights, face the music of the people for having done so? If consequences are indeed our concern, let’s focus on the most fundamental of them, starting with those that follow from abandoning the rule of law.

Obamacare’s Fate Turns on Whether Roberts and Kennedy Think State and Federal Exchanges Are the Same

It all depends on what the meaning of “by” is.

The four liberal justices clearly believe that an exchange established “for” or “in” a state by the federal government is the same as an exchange “established by the state,” to quote the relevant statute. Justices Scalia and Alito (and presumably the silent Thomas) equally firmly believe that words mean what they say.

So this case, as expected, turns on the views of Chief Justice Roberts and Justice Kennedy, who gave very little away at oral argument. If the government wins here, then not only will Obamacare continue to be rewritten by the IRS, but any executive agency – and any future president – will be able to rewrite any law. Accordingly, for the sake of the rule of law, I fervently hope that Roberts and Kennedy decide to enforce the Affordable Care Act as written and let Congress clean up its own mess.

New Hampshire Ends Brief Flirtation with National ID Compliance

When the REAL ID Act passed in 2005, Senator Joe Lieberman (D-CT), no civil libertarian, called the national ID law “unworkable” for good reason. It seeks to herd all Americans into a national ID system by coercing states into issuing drivers licenses (and sharing information about their drivers) according to complex federal standards.

The hook REAL ID uses in seeking to dragoon states into compliance is the threat that TSA agents will refuse IDs from non-complying states at our nation’s airports. The threat is an empty one. Consistently over years, every time a DHS-created compliance deadline has come around, state leaders with spines have backed the Department of Homeland Security down. I detailed the years-long saga of pushed-back deadlines last year in the Cato Policy Analysis, “REAL ID: A State-by-State Update.”

DHS has stopped publishing deadline changes in the Federal Register–perhaps the endless retreats were getting embarrassing–and now it has simply said on its website that TSA enforcement will begin sometime in 2016. But it’s evidently back-channeling threats to state officials. Those folks–unaware that REAL ID doesn’t work, and disinterested in the allocation of state and federal power–are lobbying their state legislatures to get on board with the national ID program.

Obama Police Task Force Report Includes Worrying Recommendation

Yesterday, President Obama met with the Task Force on 21st Century Policing, which on the same day released an interim report outlining dozens of recommendations related to how policing can be improved. The report was released the day after police in Los Angeles shot and killed a man during an altercation in which, according to the LAPD, he and officers “struggled over one of the officer’s handguns.”

What makes the shooting notable is that at least one of the officers involved in the shooting was wearing a body camera. According to LAPD commander Andrew Smith, the officers who were at the scene were assigned to the LAPD’s Central Division and Safer Cities Initiative, which is outfitting officers with body cameras as part of the LAPD’s body camera pilot program. Smith has said that footage from the body camera will be used in the investigation along with footage of the shooting captured by a member of the public. 

President Obama’s Task Force interim report directly addresses police body cameras without explicitly recommending that they be required. Among the recommendations in the report is that the Department of Justice (DOJ) “develop best practices that can be adopted by state legislative bodies to govern the acquisition, use, retention, and dissemination of auditory, visual, and biometric data by law enforcement.”

The report also makes a worrying recommendation; that the DOJ’s Office of Community Oriented Policing Services (COPS Office) consider offering law enforcement agencies a financial incentive to adopt the national benchmarks and best practices they may propose. It is unclear that the COPS Office — the same office whose grants were sometimes used to fund the increased militarization of police — needs to take a lead in developing national benchmarks for police reform. As in most other policy areas, when it comes to police reform a decentralized approach is better than a centralized one.  

U.S. Aid Empowering Organized Crime in Mexico

Two weeks ago I had an article in The National Interest where I made the case against the Obama administration’s proposal to deliver hundreds of millions of dollars in aid to Central American governments to help them fight organized crime, promote security and foster economic development. In my piece, I wrote that “…giving $1 billion to governments with dubious records on transparency and human rights will empower corrupt officials to the detriment of ordinary Central Americans.”

Last week, Jesse Franzblau had a revealing exposé in The Nation that proves how counterproductive this sort of aid can be. In his article, Franzblau publishes unclassified documents that show how U.S. authorities continued to deliver millions of dollars in aid to Mexican security agencies despite knowing that those same forces were infiltrated by drug cartels. This money came under the auspices of the Plan Mérida, a $2.6 billion program aimed at helping Mexico fight drug cartels. In some instances, the documents seem to show efforts by U.S. officials to cover up or downplay serious human rights abuses committed by Mexican security forces so it wouldn’t affect the continuity of Plan Mérida.

As Franzblau points out:

While US laws explicitly prohibit the delivery of aid to foreign individuals and units implicated in systematic human rights violations, internal reporting on the implementation of Mérida programs reveals that institutional connections to organized crime are consistently overlooked, ignored or kept hidden from public scrutiny as counter-drug money continues to flow.

This is serious stuff. Instead of helping the fight against drug cartels, U.S. aid might be empowering them. As I mentioned in my article, there is well-documented evidence about how the security agencies and judicial systems of Central American countries have been infiltrated by powerful criminal organizations, from drug cartels to youth gangs.

Franzblau’s article also shows a well-documented phenomenon regarding aid: once it starts flowing, the bureaucracy in charge of delivering it has an incentive to disregard the evidence of whether it is accomplishing its goals or being counterproductive since discontinuing the aid would compromise the bureaucracy’s own existence. In this particular case, Franzblau mentions that “US officials were well aware of the effect that reports of abuse could have on Mérida assistance.”

There is no reason to believe that the Obama administration’s massive aid plan for Central American governments won’t suffer from the same flaws that Jesse Franzblau exposes in his article.

17 Errors & Omissions in Vox’s Otherwise Excellent History of King v. Burwell

This week, the Supreme Court will hear oral arguments in King v. Burwell, one of four legal challenges to an IRS regulation that purports to implement the Patient Protection and Affordable Care Act, but in fact vastly expands the IRS’s powers beyond the limits imposed by the Act. Just in time for oral arguments before the Court, Vox’s Sarah Kliff has produced what I think may be the best history of King v. Burwell and related cases I’ve seen. Still, there are a few important errors and omissions, listed here in rough order of importance.