More Reaction to Boumediene Ruling

Jonathan Turley: What citizens need to understand is that it is meaningless how many rights are contained in a Constitution, if the government can deny you access to the courts to vindicate those rights.

Richard Epstein: Boumediene v. Bush is not a license to allow hardened terrorists to go free. It is a rejection of the alarmist view that our fragile geopolitical position requires abandoning our commitment to preventing Star Chamber proceedings that result in arbitrary incarceration.

Robyn Blumner: Upholding the Constitution doesn’t make us less safe, only more careful with the lives of other people. Affording timely due process to those we suspect is an honorable endeavor engendering goodwill and worldwide respect, and serving, ultimately, as great a protective shield against attack.

Steve Chapman: It’s also a small price to say that if the executive branch wants to capture someone, treat him as an enemy combatant and hold him for the rest of his life, it should have to justify that decision to someone other than itself. Critics of this decision are terrified that the courts will have the power to free innocent men. But really, the alternative is a lot scarier.

Glenn Greenwald: Our political and media elite were more than willing – they were eager – to relinquish that [habeas] right to the President in the name of keeping us Safe from Terrorists. Today, the U.S. Supreme Court, in what will be one of the most celebrated landmark rulings of this generation, re-instated that basic right, and in so doing, restored one of the most critical safeguards against the very tyranny this country was founded to prevent.

Harvey Silverglate: This past week, the Supreme Court rejected the Bush administration’s astonishing claim that it had the power to detain suspected “enemy combatants” at Guantánamo Bay — potentially for life — without fair proceedings or meaningful access to the federal courts. This moving reaffirmation of the so-called Great Writ of habeas corpus was probably the high court’s most important civil-liberties decision in my lifetime (and I was born in 1942).

Previous coverage here and here.

Happy Kelo Day

As our friends at the Institute for Justice will tell you, today is the third anniversary of Kelo v. New London, the property rights case that made my colleague Bob Levy’s list of the “Dirty Dozen” worst cases in modern Supreme Court history.  This was the case where the Fifth Amendment’s “public use” requirement was found to impose essentially no restriction on the government’s eminent domain power.  In some senses this was a lost battle leading to great progress in the war to preserve property rights, with legislatures in numerous states enacting anti-Kelo legislation in the wake of concerted grassroots activism against the decision.

This morning the Supreme Court found a curious way of winking at Kelo Day.  As I was scrolling down the orders list – a many-paged list of administrative actions, mostly cert denials – I happened upon the following notation:

07-1247 GOLDSTEIN, DANIEL, ET AL. V. PATAKI, FORMER GOV. OF NY

The petition for a writ of certiorari is denied. Justice Alito would grant the petition for a writ of certiorari.

Now, it’s exceedingly rare for individual justices to have the clerk record how they voted on a cert petition, but here Justice Alito did just that, and in a case that rang a bell in my mind I couldn’t place.  Then I realized that Goldstein v. Pataki was the appeal by a group of home- and business-owners who are likely to lose their property to a development that is to provide a new home to the the New Jersey Nets plus 16 high-rise office and apartment towers and a hotel.  Thus, not only is Justice Alito as friendly a vote on this issue as was his predecessor Justice O’Connor (who wrote an impassioned Kelo dissent) but he is apparently an emphatic one.  See a bit more here.  This is not necessarily a surprise – and it still leaves us one vote short – but, again, the notation on the order list is a neon light to Supreme Court watchers.

Congress Confuses on Iran

Over at TPMCafe, M. J. Rosenberg points our attention to two pieces of legislation winging their way through the House and the Senate The matching pieces of legislation declare the sense of the House and the Senate that “preventing the Government of Iran from acquiring a nuclear weapons capability, through all appropriate economic, political, and diplomatic means, is a matter of the highest importance to the national security of the United States and must be dealt with urgently” and call for President Bush to

initiate an international effort to immediately and dramatically increase the economic, political, and diplomatic pressure on Iran to verifiably suspend its nuclear enrichment activities by, inter alia, prohibiting the export to Iran of all refined petroleum products; imposing stringent inspection requirements on all persons, vehicles, ships, planes, trains, and cargo entering or departing Iran; and prohibiting the international movement of all Iranian officials not involved in negotiating the suspension of Iran’s nuclear program

Now, as Rosenberg reasonably concludes from reading the legislation, this sounds an awful lot like a blockade, which I’m pretty sure (I’m not a lawyer) qualifies as an act of war under international law. The American Israel Public Affairs Committee, which reportedly has been pushing the legislation through the House and Senate, replies to Rosenberg by asserting that

AIPAC supports sanctions on Iran and favors a voluntary international effort lead by the United States to stop selling Iran refined petroleum, not a blockade. Iran is highly vulnerable to such pressure. Sactions are the best way to persuade Iran to stop it’s pursuit of nuclear weapons capability. To suggest that AIPAC supports anything but tough economic sanctions on Iran is totally false…

I’m confused. The legislation calls for “prohibiting the export to Iran of all refined petroleum products; imposing stringent inspection requirements on all persons, vehicles, ships, planes, trains, and cargo entering or departing Iran.” Now, what sort of mechanism would police such a “prohibition?” If the shipment of refined petroleum products to Iran has been “prohibited,” and a tanker sails toward it anyway, what happens? Who will be enforcing the “stringent inspection requirements on all person, vehicles, ships, planes, trains, and cargo entering or departing Iran?”

More on REAL ID Grants - DHS’ REAL ID Fervor Is Fading …

I wrote here last week about the limping DHS grant-making process for the REAL ID Act. (Summary: Good money after bad.)

Unsurprisingly, ID card maker Digimarc is touting the spending going to “its” states in a press release. I wrote about the plans of biometric technology company L-1 to acquire Digimarc’s ID card business in a recent TechKnowledge entitled “L-1: The Technology Company in Your Pocket.” (Digimarc recently received a higher offer for its ID card business from a French conglomerate. The appetite for national ID systems is certainly higher in old Europe and elsewhere around the globe than in the United States.)

Late Friday, DHS Assistant Secretary for Policy Stewart Baker posted on DHS’ “Leadership Journal” blog about the grants. Late Friday is the time of the week when releases are least likely to get uptake - are DHS web staff trying to suppress Baker? You’d expect to see something like this on Friday morning, or the night before grants are announced.

Anyway, in his blog post, Baker tries to inflate the money available for REAL ID, claiming that this $80 million is really more like $511 million. It’s not. And if it were, it still would be only 3% of the $17 billion cost of implementing REAL ID.

Of course, Baker claims that the costs of implementing REAL ID are lower now, but that’s only because DHS assumed away much participation in the program. I suppose France could have defeated Germany buy building only 27% of the Maginot line, but it’s doubtful. That’s what a national ID card is - a Maginot line that’s easy to avoid. Baker wants us to believe that a bad security system which is also incomplete is therefore … somehow … good.

Baker’s post, like the rest of DHS’ recent efforts, is a tired effort to prop up REAL ID. He tries to skip past the issues, saying “The arguments for having secure identification speak for themselves.” They don’t, and Baker hasn’t spoken for them either.

DHS’ institutional support for REAL ID grows more and more anemic with each passing day. Witness the thoroughly lame effort of the Department to revive it by banning “willful” refusal to show ID at airports. I now find myself in the position of trying to draw attention to the corpse of REAL ID - I do so because government programs like this have to be really dead before they’re truly dead.

Giving away grants that nobody wants. Defending what can’t be defended. I would be tired too. Congress can make everyone’s life better by rescinding these grants and repealing the REAL ID Act.

No News Is No News

The Court did not issue Heller today, which means it will do so Wednesday (or Thursday if, as expected, it does not get through its 7 remaining opinions on Wednesday).  The encouraging news from today is that Heller is the only opinion outstanding from the cases argued in March, and Justice Scalia is the only justice who has not yet written a majority opinion from that sitting.  That’s no guarantee, but the smart money is he will be the author.

The discouraging news from today is that the Court denied cert in Baylor v. United States, a federalism case in which Cato filed an amicus brief.  Briefly, we supported a pizza-shop robber who was prosecuted not in state court for, say, robbery, but in federal court for ”interfering with interstate commerce” and therefore violating the ”Hobbs Act” (a 1946 anti-racketeering law).  The Sixth Circuit held that the Commerce Clause permitted this prosecution because the pizzeria got its flour, sauce, and cheese from various states outside Ohio.  We argued that prosecuting robberies that have such an attenuated effect on interstate commerce destroys the line between the states’ power to punish violent crime and Congress’s power to regulate interstate markets.

Also not decided today were Davis v. FEC, the “millionaires’ amendment” campaign finance case in which we also filed a brief, and Exxon v. Baker, where $1.5 billion in punitive damages is at stake over a super-technical application of maritime law.

Another Entrepreneur Escapes French Tax System

One almost feels sorry for the French. Several years ago, supermodel Laetitia Casta escaped to London because of France’s onerous tax regime. This was a a particularly painful blow to French pride since she was selected in 1999 to be Marianne, a symbol of the nation. To add insult to injury, one of France’s most prominent chefs has now escaped to Monaco. The UK-based Times has the details:

France has just lost one of its greatest chefs. Alain Ducasse, the holder of 14 Michelin stars and a worlwide restaurant and hotel empire, has given up his French citizenship for the privilege of becoming a Monegasque, we hear today. Ducasse, 51, whose interests turn over about 160 million million euros a year, has gone into tax exile. He could have chosen Switzerland and kept his citizenship but Ducasse, a southerner by birth, has ties to Monaco, where he owns the three-star Louix XV. Monaco imposes no income or wealth tax on its residents – provided they are not French. …So, the wheeze for French would-be exiles is to become a Monaco citizen – a privilege accorded very sparingly. Prince Albert II has just granted this “sovereign order” to Ducasse.  There are only 8,000 Monaco citizens and there is a long waiting list for French candidates. …Because of the wealth tax plus steep income and social security taxes, many high earners and very well off people moved over the past two decades to London, Brussels and other capitals as well as the traditional haven Switzerland. They are not returning in noticeable numbers, mainly because the wealth tax remains and they do not trust their country to reverse policy at the drop of a hat. Sarko has maintained the Impôt sur la Fortune (ISF) as the 26-year-old annual tax is known (the exiles call it Incitation à Sortir de France). The tax gathers relatively little income and drives capital abroad but the public supports soaking the rich, so scrapping it is politically unacceptable.

But Americans should not be overly amused by this story. At least French taxpayers have the freedom to choose another nation’s tax system. The United States imposes an exit tax (a policy almost always associated with despicable regimes such as the Soviet Union and Nazi Germany), making it very difficult for people to dump the internal revenue code.

The Unmanageability of Managed Trade

Last week the U.S. International Trade Committee gave the green light to impose countervailing (anti-subsidy) and antidumping duties on imports of circular welded carbon steel pipe from China. The decision was noteworthy because it represents the first affirmative finding of injurious subsidization against China since the Bush administration lifted the informal 22-year old moratorium on using the CVD law against China. (The coated paper case last year was the first CVD case against China initiated post-moratorium, but ultimately the ITC did not find the domestic industry to be injured in that case, and thus no duties were imposed).

But the steel pipe case is noteworthy for another reason. It perfectly exemplifies the absurdity of our trade remedy laws. Under the antidumping and countervailing duty laws, consumers of the subject merchandise have no formal standing in the process. Under the statutes, the ITC is not permitted to consider the impact of prospective duties on these interests, nor is it required to even hear arguments from consuming interests.

Now, let’s juxtapose economic and business reality on this trade remedy law setup.

In 2001, the United States imposed antidumping duties on imports from several countries (including China) of hot-rolled carbon steel. (Despite record revenues, profits, and the unprecedented market power of U.S. steel producers, the ITC voted to continue those 2001 antidumping orders for another five years in 2007.)

Hot-rolled steel is a commodity product from which many different kinds of steel products are made, including circular welded carbon steel pipe. Before the 2001 order was imposed, Chinese producers could sell hot-rolled steel to Chinese and American producers of downstream steel products. After the antidumping order was imposed in 2001, the supply of hot-rolled steel for Chinese producers of downstream products – like circular welded carbon steel pipe – increased, and the price declined. Meanwhile, the supply of hot-rolled available to U.S. pipe producers, declined, and the price increased. What to make of all this?

Well for one thing, it’s not only plausible, but probable, that the reason U.S. pipe producers may be struggling is that access to their most important material input is stunted relative to their Chinese competitors’. The price of hot-rolled steel in the United States has been at record highs over the past couple years. And the antidumping order against hot-rolled is a tax on U.S. pipe producers and a subsidy to Chinese pipe producers.

If the antidumping law included a consumer interest provision (see “Mandate a Public Interest Test” on page 33), where the impact of prospective antidumping measures on downstream users and, indeed, on the economy as a whole was considered, there would be less demand for protectionist measures to compensate for the effects of protectionist measures.