Topic: Law and Civil Liberties

Inquiring Minds Want to Know

The Hill reports on a senator’s curiosity about 527 groups:

“I promised a group of people that we would do some hearings on it,” said Feinstein. “We’ll take a look at the 527, what it is today and where it appears to be going. I’d like to know exactly what 527s are doing. My exposure to them is necessarily limited, as it is for most members. It’s when you have a 527 weighing in against you that you want to know where this money is coming from.” (emphasis added)

Not that Senator Feinstein would do anything to harm the people weighing in against her. She is just curious, eager to learn. 

Who You Gonna Believe, Me or Your Lying Eyes?

Here’s Representative Barbara Cubin’s (R-WY) letter to state legislators regarding the REAL ID Act, as reported in the Casper Star-Tribune:  “The new driver’s licenses will allow state and federal law enforcement to check the authenticity of a license, but will not grant access to state databases of private information.”

Now here’s section 202(d) of the REAL ID Act:

To meet the requirements of this section, a State shall adopt the following practices in the issuance of drivers’ licenses and identification cards: …

(12) Provide electronic access to all other States to information contained in the motor vehicle database of the State. 

(13) Maintain a State motor vehicle database that contains, at a minimum–

(A) all data fields printed on drivers’ licenses and identification cards issued by the State; and

(B) motor vehicle drivers’ histories, including motor vehicle violations, suspensions, and points on licenses.

Who you gonna believe?

Government Identity Programs in Collapse?

Government Computer News has had a number of articles recently about the problems besieging the Transportation Worker Identity Card (or TWIC), one of a number of government identification systems nominally responding to the post-9/11 threat environment.  It should be no surprise to government watchers that a service provider for TWIC, viewed by many as unqualified, happens to be in the district of the former Chairman of the House Appropriations Committee’s Homeland Security Subcommittee.

The REAL ID Act is a bigger government identity control project, by far, which attempts to force states to convert their drivers’ licenses into a national ID card.  Regulations implementing REAL ID are widely expected to be released this week.  

Even while the architects of the surveillance state gather to talk about implementation, the Washington Post has an article out today that is probably best taken as the first post mortem on REAL ID

The headline (“As Bush’s ID Plan Was Delayed, Coalition Formed Against It”) wrongly attributes REAL ID to the Bush Administration, which was not a proponent of REAL ID, though the President did accept it as part of a military spending bill.  The article correctly attributes responsibility to Rep. James Sensenbrenner (R-WI), the former Chairman of the House Judiciary Committee.

Though the Bush Administration has room to distance itself from this colossal unfunded national surveillance mandate, a prominent member of the Administration appears to have consumed the REAL ID Koolaid - in quantity.

“If we don’t get it done now, someone’s going to be sitting around in three or four years explaining to the next 9/11 commission why we didn’t do it,” Homeland Security Secretary Michael Chertoff told the Senate’s Homeland Security Committee on Feb. 13.

Secretary Chertoff’s shameless terror-pandering is matched only by his ignorance of identification’s utility as a security tool.  People who understand identification know that it does not provide security against committed threats.

It’s unfortunate that government works by trial and error, but this trial may soon show that a national ID is error.

A Pox on Unanimity

In Slate, Doug Kmiec criticizes the Court’s decision in Philip Morris v. Williams for its lack of unanimity and argues, echoing the fashionable arguments of Chief Justice Roberts, that unamimity helps promote “clear rules” because judges must “work out their disagreements before they write their opinions.”

I’ve previously suggested (here) that this is backwards. Unanimous decisions are, on balance, likely to be less clear than 5-4 decisions: 

It’s not clear that Roberts’ prediction (that consensus on the Court yields clarity, precision, and narrowness) is right. Consensus-building in Congress, another multi-member voting body, is purchased at the price of legal fuzziness. The more amorphous and open-ended the statute — the more the statute defers tough questions — the more members of Congress agree to add their names to it. 

While consensus building on the Supreme Court is a simpler prospect, there’s no reason to think the same basic dynamic won’t apply here too: Supreme Court justices will purchase broad agreement at the price of clarity, harming the rule of law. 

In a very good post, Ilya Somin makes a similar point, writing in response to Kmiec, here:

Many of the complex balancing tests and complicated exceptions to rules that legal commentators like to make fun of in Supreme Court opinions are the result of the need to “count to five” — corral the five votes needed to create a binding Supreme Court decisons. Counting to nine is usually likely to require more compromise — and thus more complicated balancing tests and exceptions — than counting to five.

The Man Who Would Not Be King

Today is the 275th anniversary of George Washington’s birth, although the federal government has instructed us to observe Washington’s Birthday (not Presidents’ Day) on a convenient Monday sometime before the actual date. There’s a reason that we should celebrate George Washington rather than a panoply of presidents. As I wrote last year:

George Washington was the man who established the American republic. He led the revolutionary army against the British Empire, he served as the first president, and most importantly he stepped down from power….

[Washington] held “republican” values – that is, he believed in a republic of free citizens, with a government based on consent and established to protect the rights of life, liberty, and property.

From his republican values Washington derived his abhorrence of kingship, even for himself. The writer Garry Wills called him “a virtuoso of resignations.” He gave up power not once but twice – at the end of the revolutionary war, when he resigned his military commission and returned to Mount Vernon, and again at the end of his second term as president, when he refused entreaties to seek a third term. In doing so, he set a standard for American presidents that lasted until the presidency of Franklin D. Roosevelt, whose taste for power was stronger than the 150 years of precedent set by Washington.

Give the last word to Washington’s great adversary, King George III. The king asked his American painter, Benjamin West, what Washington would do after winning independence. West replied, “They say he will return to his farm.”

“If he does that,” the incredulous monarch said, “he will be the greatest man in the world.”

And so he was. For more on Washington, check out Monday’s podcast.

Habeas and GITMO

There was an important habeas ruling from the D.C. Court of Appeals yesterday.  The Bush administration likes to deflect questions about its policies with rhetoric like “terrorists shouldn’t be clogging our courts with complaints about bad food at Guantanamo.”  The legal stakes are actually quite serious and will affect not only aliens imprisoned outside the United States but Americans as well.  As the report notes, the legal action will move up to the Supreme Court eventually. 

For Cato work related to the writ of habeas corpus, go here and here (pdf).

Prior coverage of this matter here and here.

Philip Morris v. Williams and Class Actions

Yesterday, the Supreme Court decided–five to four–to strike down a punitive damage judgment against Philip Morris under the Due Process Clause.  (Cato, for the record, filed this brief in the case, written by deterrence theorists Steven Shavell and A. Mitchell Polinsky). For commentary on the case, see here and here.  You can watch me talk about the case on CNBC here.

For my money, the most interesting, and potentially far-reaching, implication of the decision is for class actions seeking punitive damages.  

On page 5 of the slip opinion, the Court says that “the Due Process Clause” prohibits a State from punishing an individual “without first providing that individual with ‘an opportunity to present every available defense.’”

That quoted language (from a non-punitives decision, Lindsey v. Normet) hasn’t appeared in the Supreme Court’s other punitive damage cases.  Its appearance here is significant, because Lindsey’s broad, bright-line language is often invoked by defendants in very large class actions, even those that don’t involve punitive damages.  Their argument goes like this:  When courts ”certify” (authorize) a very large class action, they violate due process if the very scale of the suit prevents defendants from raising individualized defenses that are otherwise available under the statute.  Expect Williams to be cited extensively by class action defendants, particularly in class actions seeking punitive damages.

It’s fairly easy to see why Williams is such a boost for these defendants by looking at the Ninth Circuit’s recent decision in Dukes v. Wal-Mart–which upholds a trial court order certifying 1.5 million gender discrimination claims, seeking $11.5 billion in punitive damages and lost pay. 

As the trial court acknowledged, individualized hearings on employees’ claims—the usual practice in later stages of Title VII cases—were impractical in a class action of the mammoth scale envisioned.  The trial court therefore allowed liability and remedies to be proven based on statistical evidence and formulas, barring defendants from making individualized showings that particular employees weren’t discriminated against in fact.   

Wal-Mart, in turn, argued its due process rights had been violated, because it had been deprived of defenses to which it was entitled.  ”In an individual case,” said Wal-Mart, it could present individualized evidence “to establish a complete defense to liability or preclude the entry of a backpay or punitive damage award.” The Rules Enabling Act guarantees the availability of that kind of defense in a class action to the same extent it is available in an individual case.  Given the punitive damage request, Wal-Mart argued, due process prohibited the court from depriving Wal-Mart of its entitlement to raise such individualized defenses.

Williams gives Wal-Mart much more ammunition than past punitive cases to argue this point on appeal to the Supreme Court.  To be sure, the Court’s aside that “it may be appropriate to consider the reasonableness of a punitive damages award in light of the potential harm the defendant’s conduct could have caused” (emphasis added) throws a possible lifeline to the Dukes plaintiffs.  That allows them to argue that a “rough” statistical measure of the harm that “could have been caused” to individual class members is all the proof necessary to anchor punitive damages in large antidiscrimination classes.  Indeed, the trial court in Dukes envisions exactly such a probabilistic measure at the remedies stage of the trial:  “[O]nly those class members who can make a showing that they were either actually harmed by the discriminatory policy or were at least ‘a potential victim of the proved discrimination’ are eligible to recover [lost pay and, therefore, punitive damages].”

This expansive reading of “potential harm” is, however, inconsistent with the Supreme Court’s careful caveat in BMW v. Gore.  There, the Court said that “potential harm” that can anchor a punitive damages award is confined to additional harm to persons who have actually been injured – for example, added harm that was “likely to result” if a defendant’s wrongful scheme hadn’t been prematurely interrupted.  That’s quite a bit narrower than the expansive concept of “potential harm” used in Dukes, which embraces guesstimates about whether any injury occurred at all.

As a result, Willliams, read in the context of previous cases, scores trouble for large-scale punitive damage classes.