Topic: Law and Civil Liberties

Judging Kyoto

Next Wednesday, the Supreme Court will hear oral argument in Massachusetts v. EPA, the blockbuster environmental case of the term. The issue: Does the Clean Air Act, a 1970s-vintage anti-smog statute, require the EPA to regulate greenhouse gas (CO2) emissions from new American cars? A number of states and enviro groups say “yes!” The EPA–in an exceedingly rare example of administrative self-restraint–says “no.” The stakes? Big: If the petitioners win, American carmakers may face the equivalent of Kyoto global warming standards, imposed by judicial fiat, despite Congress’s umpteen rejections of the Kyoto regime.

Cato filed an amicus brief on the EPA’s behalf, written by environmental law whiz Jonathan Adler and joined by lawprofs James Huffman and Andrew Morriss. Read it here. We argue that the petitioners lack standing to sue the EPA and also argue, for good measure, that nondelegation principles should counsel against creatively translating the Clean Air Act into a template for federal global warming regulation.

Cato’s intrepid Pat Michaels also filed a brief, joined by a number of other prominent climatologists, which tackles the dubious scientific claims of the environmental petitioners.

For more on the case, and its implications, Professor Adler recently participated in a panel discussion of the case at the American Enterprise Institute, which will be replayed on C-Span 2 tonight at 6 p.m. However, you can watch the archived video anytime here.

Born-Alive

Last week the British Nuffield Council on Bioethics published a report including step-by-step recommendations regarding the proper care of premature infants.  The Council recommended that infants born earlier than 22 weeks of gestation not be resuscitated and that infants between 22 and 23 weeks of gestation only receive intensive care if their parents request such care and the infant’s doctors agree.

There has been a flurry of commentaries in U.S. papers and blogs about the Nuffield Council’s recommendations, but not a single one that I have seen mentions the fact that in the U.S., it would be illegal to follow the Council’s recommendations.   In 2002 President Bush signed into law the federal Born-Alive Infant Protection Act and in 2005 DHHS Secretary Mike Leavitt stated “[w]e aggressively enforce federal laws that protect born-alive infants.  We issued clear guidance that withholding medical care from an infant born alive may constitute a violation of the federal Emergency Medical Treatment and Labor Act and the Medicare Conditions of Participation.”

It is nevertheless worth considering what the Nuffield Council has said to help put the Born-Alive Infant protection Act into perspective.   The Council’s report makes it clear that there is no realistic chance that a baby born under 22 weeks of gestation will survive and that infants born between 22 and 23 weeks have only a 1% chance of survival.  Furthermore, those few that do survive at 22-23 weeks are highly likely to suffer from severe handicaps.  (None of this information is limited to Britain.  U.S. statistics confirm these conclusions).  The Born-Alive Infant Protection Act requires health care professionals to try to save such babies. They must tape them down, stick them with needles and tubes, and resuscitate them – essentially, they are required to torture such babies until they die.  As a mother of four children and a Christian, I would want to hold and rock my little infant as it dies.  I wouldn’t want its precious few hours of life to be filled with pain and fear and never a mother’s warm embrace or soft voice.  It is a very cruel world indeed if the drafters of the Born-Alive Infant Protection Act knew they were going to require health care professionals to torture dying infants and deny parents the only realistic succor they have to offer – the physical affection that would tell such infants that, while their stay on earth is short, they are nevertheless loved.

What Do They Call the Republican Party?

The New York Times reports:

Stan Greenberg, the Democratic pollster, …said that Republicans held 14 seats by a single percentage point and that a small investment by [Howard] Dean [head of the Democratic National Committee] could have put Democrats into a commanding position for the rest of the decade…”There was a missed opportunity here,” he said. “I’ve sat down with Republican pollsters to discuss this race: They believe we left 10 to 20 seats on the table.”

Rahm Emanuel, the architect of the Democratic victory, “More resources brings more seats into play. Full stop.”

The Democrats did not have the resources to fund both an all-out congressional effort and Howard Dean’s party-building work in red states.

In 2002, 90 percent of Democrats in Congress voted to prohibit fundraising of so-called soft money by the parties. Had that ban not been enacted, both parties would have had millions more to spend in 2006.*

I conclude McCain-Feingold cost the Democrats 10 to 20 seats in the House.

* If we simply compare 2006 Democratic party receipts to their 2002 fundraising for the pre-general election period, the sums are nearly identical. However, that is a false comparison. From 1994 to 2002, the sum of party soft money raised by the two parties doubled for each midterm election. Hence, if we compare 2006 Democratic party funding as it is to 2006 Democratic party funding as it would have been without the soft money ban, we can safely conclude the Democratic party would have millions more to spend in 2006 absent McCain-Feingold.

Wisconsin’s “Sensenbrenner Tax”?

WisPolitics.com reports that the Wisconsin Department of Transporation is proposing to hike a number taxes and fees to pay for various transportation related projects.

Among them, “a $10 ‘federal security verification fee’ for state driver’s license and ID cards to cover the $20.7 million cost of implementation of the federal REAL ID Act.”  WisDOT also proposes doubling the fee for issuance or renewal of the state ID card from $9 to $18.

Wisconsin Representative James Sensenbrenner pushed the REAL ID Act through Congress.

A Turn of the Revolving Door

According to the Hill Climbers section of today’s Roll Call,

Brian Zimmer is saying goodbye to Capitol Hill to join the American Association of Motor Vehicle Administrators.  According to a statement, AAMVA is an association that “actively promotes traffic safety and uniformity among North American jurisdictions.” Zimmer starts today as the company’s new senior vice president of identity management.
Before making the jump, Zimmer worked for the past five years as senior policy adviser and investigator for the House Judiciary Committee. There he helped investigate and conduct the committee’s oversight on issues such as fraud prevention, border security and counterterrorism, among others. 

Specifically, Brian was the Judiciary Committee’s lead staffer on the REAL ID Act, our national ID law.  He is a committed and motivated proponent of that cause.

AAMVA is well recognized (by those who care to follow these issues) as a proponent of driver regulation, national IDs, and even internationally uniform ID systems.  Since at least the late 1930’s AAMVA has been pushing regulatory control of drivers and driving.  As I note in my book, Identity Crisis, “Before September 11, 2001, AAMVA promoted a national identification card as a solution to illegal immigration.  After September 11, 2001, it promoted a national identification card as a solution to terrorism.  If national identification cards are a hammer, AAMVA sees every public policy problem as a nail.”

AAMVA collects about $1 per driver per year (roughly $13 million) for its part in administering the Commercial Drivers License Information System.  AAMVA would make much more as the administrator of databases required by the REAL ID Act.

Brian is a nice guy and, as I say, dedicated to his cause.  His new employment provides a window into AAMVA’s role in the national ID debate.

Parents: Teach Your Children Well

On Friday I picked my son up at Union Station.  He came home for the weekend to go see Corteo with the family.  He has only been at college for a few months.  I miss his smile.  I miss his questions.  He and his girlfriend were so polite. They were being the adults while I was being the child.  I just couldn’t help myself.  I told them all about my new job, what I had done that day, what I had done the day before, my plans for the weeks to come.

On the way home in the car, Nathan said, “Hey, Mom.  I’ve written a new poem.”

“Really?” I answered, realizing how selfish I’d been.  “Let’s hear it.”

And I ask you

Speak to me of freedom? You know not what it means
but take its name and shackle those with whom you disagree
You wave a flag of righteousness; you bellow and you scream
That those who are not as you are they never should have been

Speak to me of god and tell me what he thinks
of bigotry and hatred for the love each person makes
A fellowship, a flock for which you try to build a wall
The blackest sheep is slaughtered as an offering to them all

Speak to me of love and tell me what it takes
to make a love and test it true, the arrow to be straight
One path is true one path is tried one path we will allow
Two people bound in heart and mind but cannot give a vow

Speak to me of law and tell me what is just
a chance for those with tyrant tendencies to run amok
A forum for the many to oppress a hapless few
Virginia is for lovers, but there’s no room here for you.

Nathan Revere (Nov. 2006).