Topic: Law and Civil Liberties

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).

Don’t Panic

John Mueller’s new book is out; it’s called Overblown: How Politicians and the Terrorism Industry Inflate National Security Threats, and Why We Believe Them. In it he expands on the argument he outlined in Cato’s Regulation Magazine two years ago [.pdf], namely that that, while the terrorist threat is real, “it has been systematically and very substantially exaggerated.” (For more, see the recent Mueller-led debate in Cato Unbound.)

This could be a very important book, with important implications for the way we discuss the terrorist threat and the right policies to respond to it. For one thing, if Mueller is right, and I think he is, it’s well past time to repudiate the idea that respecting constitutional limits is going to get us all killed (for example, the hoary soundbite “the Constitution is not a suicide pact”).

Yet, strangely, not everyone appreciates Mueller’s good news. The first Amazon reader review of the book begins, “The problem with this book is its over-reliance on logic….”

This Incumbent Was Protected from the Wave

Last week I wrote about the ways the Bipartisan Campaign Reform Act of 2002 made Christopher Shays’ re-election bid more likely.

Yesterday, Chris Shays bucked the national trend and won re-election despite having trailed in the polls for some time. He won by 3 percentage points of the vote. In 2004, a better year for Republicans, Shays won by 4 points.

Perhaps he should send a thank you note to the sponsors of the law, Senators John McCain and Russell Feingold as well as Rep. Martin Meehan and … Rep. Christopher Shays.

REAL ID and a Sweep for Democrats in New Hampshire

There are many explanations for the strong result Democrats got in the election yesterday. Focusing on New Hampshire, there is a neat correlation between support for the REAL ID Act and defeat at the polls yesterday.

Jeb Bradley was one of “several Washington officials … urging state senators to support Real ID” when the state legislature was considering a bill to reject it. He was defeated by Carol Shea-Porter, a surprise victor who enjoyed little help from national Democrats. Here’s Shea-Porter speaking at an anti-REAL-ID rally.

Representing the Second District, Charlie Bass was an original co-sponsor of the REAL ID Act, and he touted that fact on his Web site. His replacement is Paul Hodes. Hodes is not a full-throated critic of REAL ID, but he did tell AP, “I do not favor creating a new central federal database using the permanent images of these documents… . A piece of paper is not the solution to securing our borders from terrorism. We need to better coordinate our existing law enforcement databases and watch lists.”

The Republican leadership of the state senate gutted and killed New Hampshire’s bill to reject REAL ID earlier this year. In a debate Monday, Republican Senate President Ted Gatsas said “There’s no question REAL ID makes sense.” Ted Gatsas will no longer be Senate President. Democrats took control of the New Hampshire State Senate for only the second time since 1911. Gatsas’ re-election bid was too close to call overnight, but it now appears he narrowly beat back his Democratic opponent.

As to REAL ID opponents, Governor John Lynch was re-elected. Voters gave control of the New Hampshire Executive Council (an additional legislative body that would have to approve the acceptance of federal funds for implementing REAL ID) to Democrats for good measure.

Of course, many things influence the outcome of elections, but REAL ID has been fiercely debated in New Hampshire this year. It’s not a coincidence that the party on the wrong side of the national ID issue was voted out of power.

Get Your Laws off My Body … of Constitutional Rights

One of the underappreciated costs of Roe v. Wade is its potentially radioactive effect on other rights.  Exhibit A:  The debate over the federal Partial Birth Abortion Act, whose constitutionality the Supreme Court will consider tomorrow during oral argument in Gonzales v. Carhart

The Act, passed in 2003, attempts to do what the Supreme Court told the Nebraska legislature it couldn’t do in Stenberg v. Carhart:  ban partial birth abortion without providing any exception for the health of the mother.  Why does Congress think it can tread where Nebraska couldn’t?  Because Congress, unlike the Nebraska legislature, inserted legislative findings in its version of the act, and those findings state that partial birth abortion is never “medically necessary” to a woman’s health.  The Solicitor General, in turn, contends that those findings deserve deference.

Now, I’m no fan of Roe or partial birth abortion.  But the case is about more than abortion:  If the Supreme Court owes Congress blanket deference when it determines facts that affect the scope of a Court-declared constitutional right, then the ever-shrinking power of the Supreme Court to “say what the law is” has shrunk to a disturbingly low ebb.

The costs for other judicially protected rights, if the Court took up the SG’s suggestion, are unnerving.  Imagine, say, that Congress finds that affirmative action in schools of higher education that sponsor ROTC is necessary to promote an effective multicultural military.  Should that trigger a compelling interest exception to strict racial neutrality?  Or imagine that Congress finds that affirmative action in higher education is needed not for another 25 years, as Justice O’Connor hypothesized in Grutter v. Bollinger, but another 30 or 40?  Or that Congress finds that EPA-sanctioned eminent domain in dense urban residential areas constitutes a “public use” under the Takings Clause when exercised in favor of environmentally conscious developers who commit to redevelop the land to create more green space?

If, as many conservatives hope, the Court in Carhart declares that Congress can determine facts that affect the scope of a right, all of those arguments will be far more plausible, as a matter of precedent, than they are today, a point Cato makes in its heterodox amicus brief supporting the pro-choice side in Carhart.

This danger underscores one of the toxic costs of Roe:  When the Court is unable to overturn Roe, but nonetheless holds the case in relatively low esteem, the temptation is strong to give Congress more and more power to nibble at its edges.  Once Congress is granted the power to nibble at one set of rights, all other rights are suddenly less secure.

Here’s one way the Court might avoid this danger, while simultaneously avoiding entrenching Roe in our law:

1.  Reject deference to Congress’s legislative findings because Congress deserves no special deference in an area where states are the primary regulators of medical practice by tradition and constitutional structure. 

2.  Reaffirm that Casey requires intermediate, not strict, scrutiny of infringements on the “fundamental right” to abortion, while reserving the merits of the Roe line for a later case.

3.  Note, finally, that while Congress’s findings are insufficient to overcome women’s liberty interests under the intermediate scrutiny test, state legislation is a different matter.  Were a state to pass a version of the bill passed by Congress, containing similar findings, the Court would be willing to consider granting them the deference denied Congress.  

By underscoring that strict scrutiny doesn’t apply to abortion regulations, this argument would avoid further erosion of the principle that legislatures deserve no deference when they find facts relevant to the scope of rights protected by strict scrutiny.  By giving states, not Congress, deference when they enact partial birth abortion bans accompanied by appropriate findings, the Court would return some modicum of power over abortion regulation to the states, where this power belongs.  (Of course, the Court could go even farther:  by declaring the Act beyond Congress’s enumerated power to regulate commerce–but, given that argument hasn’t been made and Raich gave up the ghost on this set of arguments–that’s simply not on the table.)

The most likely proponent of such an argument, alas, is the ever-unpredictable Justice Kennedy, a Roe fan who dissented in Stenberg based on the proposition that states deserve leeway to manage the medical trade-offs of abortions, short of an outright ban.  Unfortunately, Kennedy is also the author of the Turner I and Turner II cases, which establish that deference is owed, at a minimum, to Congress’s predictive fact-finding in areas that implicate First Amendment rights subject to intermediate scrutiny.  And that, sports fans, makes Carhart the most hair-raising case of this Supreme Court term.