Archives: 05/2006

Applying the Law

Some additional thoughts on the Hudson case, which Radley wrote about earlier today …

To quickly recap Hudson, it involves a police search of a man’s home, during which the police found contraband. The law says that before the police can break into a person’s home, they must first “knock and announce” themselves. In this case, all admit the police violated the knock-and-announce rule, but there is a dispute about how to handle this violation.

 A lot can be said about this case, but for this particular post, I think I’ll introduce (or perhaps reacquaint) readers with an axiom of our criminal law: Generally speaking, the government demands strict application of the law to the people, but lenient application of the law to itself.

A few examples: 

Elwyn Lehman found himself under arrest and facing deportation after living in the United States for 15 years. Lehman was a tour bus driver. A few years ago, he was driving gospel singer CeCe Winans to the White House from out-of-town for a special guided tour. The 53-year-old driver did not realize he had a handgun on board his bus until he was at the gates of the White House. He immediately told the Secret Service about his mistake and turned the pistol over to them. Lehman was sent to the downtown jail on three counts of weapons possession.

Daniel Yirkovsky found a single 22-caliber bullet while he was remodeling his home. He placed the bullet in a box in his room and forgot about it. Months later, when police responded to a former girlfriend’s complaint that Yikovsky had kept some of her things, they discovered the bullet. Nothing else—no gun, no stolen property. Federal prosecutors charged him with being a “felon in possession of ammunition.” Yirkovsky is now serving a 15-year sentence.

Edward Hanousek was a railroad roadmaster who was sentenced to prison under the Clean Water Act. A backhoe operator who was working for Hanousek accidently ruptured an oil pipeline while removing rocks from a section of track. Hanousek was off-duty at the time of the accident, but the backhoe operator was working under him. Thus, prosecutors charged Hanousek with “negligent failure to supervise.”

These are just three quick examples of the strict application of the law. The rule of law is important, prosecutors say, and swift and severe punishment will deter violations. 

But on closer inspection, we find that when the prosecutors were speaking of “the law,” they did not mean the Bill of Rights. Yes, the Fourth Amendment is law. Yes, the police violate the law when they fail to knock and announce themselves when they break into people’s homes. But, it is argued, this is not a situation for the strict application of law.  Severe punishment in this context is totally inappropriate. Justice, in these circumstances, requires leniency and non-enforcement, for some reason. 

In the Hudson case, Justice Scalia and Justice Alito know the law was violated, but they seem keenly interested in making sure that the penalty or remedy is “proportionate” to the violation. This is the axiom at work. 

Some people may prefer a strict application of the law, across the board. Some may prefer a lenient application of the law, across the board.  A case can be made for both. I also think a case can be made for strict application of the law as applied to the government, but a lenient application as applied to the people. But the least defensible position, it seems to me, is the one that dominates: Strict justice for the people and leniency for the government.  

The speculation is that there is a 4-4 split on the Court in the Hudson case and that Justice Alito will tip the balance. It is a bad sign that he had no questions at all for the government lawyers who were urging a lenient response to Fourth Amendment knock-and-annonce violations.

Punting on Medicare Reform

I just returned from lunch with Mark McClellan, MD/PhD (economics) and administrator of the Centers for Medicare & Medicaid Servicesa very smart guy. The lunch was hosted by Grace-Marie Turner of the Galen Institute and Merrill Matthews of CAHI. (Thanks for lunch, guys.) 

Dr. McClellan told the group of the success of Medicare Part D, including the fact that it has (so far) cost less than projected. 

When recognized for a question, I made the following points:

  1. Part D has contributed to a rift in the president’s base, as evidenced by an editorial in this morning’s Wall Street Journal.
  2. Though there is disagreement over the significance of Part D’s lower-than-expected spending projections, there is no question that Part D made it more difficult to meet Medicare’s already unsustainable promises. 
  3. One result of Part D is that people who would otherwise be talking about Medicare reform are talking only about whether Part D is a success. 

I asked Dr. McClellan when the president might begin pushing Medicare reform, in particular the kind of reforms discussed by the National Bipartisan Commission on the Future of Medicare in 1999. 

McClellan answered that the president’s budget proposes (a) slowing the growth of Medicare spending on hospital care, (b) requiring wealthier seniors to pay more for their Medicare benefits, and (c) having Congress create another Medicare commission to tackle the problem.

The first two proposals are both potentially helpful and woefully inadequate. The third is a punt. 

Today’s Wall Street Journal also reports that yesterday Alan Greenspan “repeated a warning to lawmakers, saying Medicare spending is unsustainable and could one day drive government debt and interest rates substantially higher.” The president has acknowledged his duty to address those unfunded liabilities. 

An anxious nation waits … and waits … and waits … .

Bold and Bad

At its meeting yesterday, the U.S. secretary of education’s Commission on the Future of Higher Education, which is tasked with creating a renovation strategy for the nation’s ivory tower, illustrated well why government rarely produces rational policies.

Secretary of Education Margaret Spellings kicked off yesterday’s confab by urging the commission to make its final report, which is due in September, “as bold and as concrete” as possible. Setting aside that “bold” almost certainly translates into more big government—the last thing needed by American higher education, which is bloated with taxpayer dollars—it was immediately clear that the commission won’t be able to settle on any meaningful policy proposals, bold or otherwise. Indeed, the commission members couldn’t even agree on the definition of “unaffordable” or proper use of terms like “higher education” and “college.” If they can’t nail those things down, how the heck are they going to agree on any truly “bold and concrete” reforms?

In the end, the only things the commission’s final report will probably “boldly” declare are that (1) there’s a “crisis” in higher education, and (2) government must fix it. The report’s remedies, in contrast, will likely be restricted to nebulous proposals like “improving access” to higher education and imposing greater “accountability” on schools—the kind of lowest-common-denominator stuff that is the best one can hope for from a group that can’t even agree on a definition of “unaffordable.”

Of course, that’s probably what most policymakers want. It will give them a perfect excuse to waste even more money on student and institutional aid, pile new rules and regulations on colleges, and congratulate themselves for attacking the higher education “crisis” head-on.

Global Warming Resolution Bites the Dust

Not that you’d know it from reading the newspapers this morning, but the much-ballyhooed House resolution that would have supposedly put the United States on a firm march to Kyoto-ville died with little more than a whimper yesterday. Apparently, VE (Victory for Earth) Day will have to wait another year.

Reporters love to write about how proposals to do something about global warming are gaining momentum. But they are less wild about stories that suggest trends might be running in the opposite direction. Believe me, had that resolution passed, it would have been on the front pages of most newspapers today. If passage would have been such big news, why not defeat?

I’ve got a theory about this. Having spoken at several conferences of the Society of Environmental Journalists, I can tell you without hesitation that enviro beat reporters are more often than not little more than PR vessels for organized environmental interest groups. Whether the bias is intentional or unintentional is irrelevent—critical thinking and healthy skepticism simply go out the window when your average enviro reporter talks to a credentialled Green lobbyist or activist. 

The environmental lobby has a lot at stake in presenting the appearance of inevitability with regards to greenhouse gas control. That’s because it’s rather clear to everyone that as long as American business is opposed to this stuff, it’s not going anywhere. 

The one thing that might undermine corporate opposition to ”doing something” about global warming is the idea that emissions controls are inevitable. After all, why waste time and money fighting for a hopeless cause? Why not “get a seat at the table” and try to minimize the damage that emissions controls might inflict on your business? Why risk becoming the legal equivalent of a tobacco company? In short, there’s a lot at stake regarding how the politics of this issue is spun.

Although few reporters seem to have figured this out, the environmentalists certainly have. And that’s why you probably didn’t know about yesterday’s events until I told you.

Submitted for your Disapproval: RFID in Government IDs

The Department of Homeland Security’s Data Privacy and Integrity Advisory Committee will be considering a report on the use of RFID in identification documents at its meeting June 7th in San Francisco. A draft of the report has been posted with a request for comments.

The report has already generated a little attention. This Government Computer News story overstates the tone of the report, but it’s good. 

From the DHS Privacy Committee Web site:

The Use of RFID for Human Identification (PDF, 15 pages – 127 KB) The DHS Emerging Applications and Technology Subcommittee of the Privacy Advisory Committee is seeking comments on this draft report. This report will be considered by the full Committee during the June 7, 2006 public Advisory Committee meeting in San Francisco, CA. 

Please provide any comments in writing to privacycommittee [at], by postal mail, or by fax by 12:00 p.m. EST on May 22, 2006. All Comments will be considered on an ongoing basis.

Hudson Reargued

The Washington Post has a write-up of yesterday’s unusual second round of oral arguments in the Hudson v. Michigan case (see my summary of the case and its implications here, Cato’s amicus brief in the case here [pdf]). The case was almost certainly reargued because it ended in a 4-4 tie the first time around, meaning that new justice Samuel Alito is the likely tie-breaking vote. To that end, there’s reason for pessimism:

The case may have a different outcome without retired Justice Sandra Day O’Connor. She seemed ready, when the case was first argued in January, to rule in favor of a Detroit man whose house was searched in 1998.

Alito was confirmed to replace O’Connor before the case was resolved. The new argument was scheduled apparently to give Alito a chance to break a tie vote.

Alito, a former appeals court judge and government lawyer, seemed more sympathetic to police. He asked tough questions of the lawyer for Booker Hudson Jr., who was convicted of cocaine possession based on evidence found in the search. Alito had no questions for government lawyers.

According to the Post, if one were to judge by the oral arguments the first time around, the justices lined up in a neat left-right split, with Scalia, Roberts, Thomas, and Kennedy on the state’s side, and Stevens, Ginsberg, Souter, and Breyer for the defense. The Post suggests Kennedy may be hedging:

Another justice who could be crucial to the outcome is Justice Anthony M. Kennedy, a moderate swing voter. During the January argument, Kennedy called the issue “troublesome,” but seemed most supportive of police. He also appeared conflicted Thursday.

I’d like to think Thomas will continue his libertarian growth on the bench and find for the defense in this case. But the tone of the questioning in the second round of arguments suggests otherwise. What’s clear is that Bush’s nomination of Alito may very likely tip the outcome. O’Connor seemed ready to side with the defense:

During the January argument, O’Connor worried aloud that police officers around the country may start bursting into homes to execute search warrants. She asked: “Is there no policy of protecting the home owner a little bit and the sanctity of the home from this immediate entry?”

The answer, sadly, is “no.”

In the last election, I seem to remember hearing lots of lecturing from conservatives, telling libertarians they should overlook President Bush’s big-government record and support him, if for no other reason than for the Supreme Court justices he’d appoint.

Still waiting for that payoff….