Unsure about prospects on passing the Local Law Enforcement Hate Crimes Prevention Act as a stand-alone bill, proponents intend to attach it as an amendment to the Department of Defense Authorization bill. As I have said previously, this bill is an affront to federalism and counterproductive hater-aid.
Federal Criminal Law Power Grab
This legislation awards grants to jurisdictions for the purpose of combating hate crimes. It also creates a substantive federal crime of violent acts motivated by the "actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person."
This is a federalization of a huge number of intrastate crimes. It is hard to imagine a rape case where the sex of the victim is not an issue. The same goes for robbery - why grab a wallet from someone who can fight back on equal terms when you can pick a victim who is smaller and weaker than you are?
This would be different if this were a tweak to sentencing factors.
If this were a sentence enhancement on crimes motivated by racial animus - a practice sanctioned by the Supreme Court in Wisconsin v. Mitchell - then it would be less objectionable if there were independent federal jurisdiction.
Thing is, the federal government has already done this, with the exception of gender identity, with the Federal Sentencing Guidelines (scroll to page 334 at the link):
If the finder of fact at trial or, in the case of a plea of guilty or nolo contendere, the court at sentencing determines beyond a reasonable doubt that the defendant intentionally selected any victim or any property as the object of the offense of conviction because of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation of any person, increase by 3 levels.
The contrast between a sentence enhancement and a substantive crime gives us an honest assessment of what Congress is doing - federalizing intrastate acts of violence.
If Congress were to pass a law prohibiting the use of a firearm or any object that has passed in interstate commerce to commit a violent crime, it would clearly be an unconstitutional abuse of the Commerce Clause.
Minus the hate crime window dressing, that is exactly what this law purports to do.
What this really amounts to is a power grab - giving the federal government power to try or re-try violent crimes that are purely intrastate. Just as the Supreme Court invalidated the Gun Free School Zones Act in United States v. Lopez because it asserted a general federal police power, this law should be resisted as a wholesale usurpation of the states' police powers.
The act also essentially overrules United States v. Morrison, where the Court overruled a federal civil remedy for intrastate gender-motivated violence. Forget a civil remedy; while we're re-writing the constitution through the Commerce Clause let's get a criminal penalty on the books.
Trials as Inquisitions
The hate crime bill will also turn trials into inquisitions. The focus of prosecution could be on whether you ever had a disagreement with someone of another "actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability." Worse yet, it can turn to whether you have any close friends in one of these categories, as demonstrated in the Ohio case State v. Wyant. The defendant denied that he was a racist, which led to the following exchange in cross-examination on the nature of the defendant's relationship with his black neighbor:
Q. And you lived next door . . . for nine years and you don't even know her first name?
Q. Never had dinner with her?
Q. Never gone out and had a beer with her?
A. No. . . .
Q. You don't associate with her, do you?
A. I talk with her when I can, whenever I see her out.
Q. All these black people that you have described that are your friends, I want you to give me one person, just one who was really a good friend of yours.
David Neiwert says that this won't happen because of a constitutional backstop in the legislation. Unfortunately, the House version of the bill explicitly endorses impeaching a defendant in exactly this manner:
In a prosecution for an offense under this section, evidence of expression or associations of the defendant may not be introduced as substantive evidence at trial, unless the evidence specifically relates to that offense. However, nothing in this section affects the rules of evidence governing impeachment of a witness.
Worse yet, the Senate version of the hate crime bill, the one which will likely become law after conference committee, does not contain this provision. Instead, it explicitly says:
Courts may consider relevant evidence of speech, beliefs, or expressive conduct to the extent that such evidence is offered to prove an element of a charged offense or is otherwise admissible under the Federal Rules of Evidence. Nothing in this Act is intended to affect the existing rules of evidence.
Anyone want to bet that an aggressive prosecutor could find that not having a close enough relationship with your neighbor counts as "expressive conduct" for the purposes of prosecution?
Future Push for More Federal Authority Over Intrastate Crimes
The hate crime bill also pushes a snowball down the mountain toward wholesale federalization of intrastate crime. In a few years this snowball will be an avalanche. By making any gender-motivated crime a hate crime, which will necessarily include nearly all rapes, we will define ordinary street crimes as hate crimes.
With a consistent average of 90,000 rapes a year, this expansion of hate crime definition will come back in a few years where those ignorant of the change in terms will wonder why hate crime is now rampant. "Rampant" only because we have made the relevant definition over-inclusive to the point of being meaningless.
And in a few years, we can revisit this issue with a fierce moral urgency to pass more feel-good legislation that upends state police powers in an effort to do something - anything - to confront this perceived crisis. A perception that Congress is creating in this legislation.
President Obama's new drug czar, Gil Kerlikowske, says he wants to banish the idea of a "war on drugs" because the federal government should not be "at war with the people of this country."
At a Cato policy briefing on Capitol Hill on July 7, former Republican congressman Bob Barr, once a leading drug warrior in the House, explained why carrying out an end to the "war on drugs" will require a bipartisan solution.
Devolved America is a vision faithful both to certain postindustrial realities as well as to the pluralistic heart of the American political tradition—a tradition that has been betrayed by the creeping centralization of power in Washington over the decades but may yet reassert itself as an animating spirit for the future. Consider this proposition: America of the 21st century, propelled by currents of modernity that tend to favor the little over the big, may trace a long circle back to the original small-government ideas of the American experiment. The present-day American Goliath may turn out to be a freak of a waning age of politics and economics as conducted on a super-sized scale—too large to make any rational sense in an emerging age of personal empowerment that harks back to the era of the yeoman farmer of America’s early days. The society may find blessed new life, as paradoxical as this may sound, in a return to a smaller form.
Today’s devolutionists, of all stripes, can trace their pedigree to the “anti-federalists” who opposed the compact that came out of Philadelphia as a bad bargain that gave too much power to the center at the expense of the limbs. Some of America’s most vigorous and learned minds were in the anti-federalist camp; their ranks included Virginia’s Patrick Henry, of “give me liberty or give me death” renown. The sainted Jefferson, who was serving as a diplomat in Paris during the convention, is these days claimed by secessionists as a kindred anti-federal spirit, even if he did go on to serve two terms as president.
The anti-federalists lost their battle, but history, in certain respects, has redeemed their vision, for they anticipated how many Americans have come to feel about their nation’s seat of federal power. “This city, and the government of it, must indubitably take their tone from the character of the men, who from the nature of its situation and institution, must collect there,” the anti-federalist pamphleteer known only as the Federal Farmer wrote. “If we expect it will have any sincere attachments to simple and frugal republicanism, to that liberty and mild government, which is dear to the laborious part of a free people, we most assuredly deceive ourselves.”
Bonus points to Starobin for pointing to the same passage from George Kennan that I've taken to quoting. Kennan worried whether "'bigness' in a body politic is not an evil in itself." As a result, he wondered “how it would be if our country, while retaining certain of the rudiments of a federal government, were to be decentralized into something like a dozen constituent republics, absorbing not only the powers of the existing states but a considerable part of those of the present federal establishment.”
The most obvious objection with which Starobin doesn't deal is that you'd have a hell of a time selling this scheme on Washington, which happens to have--how to put this politely?--the means to ensure it gets what it wants.
A related objection would be the eternal political question "who gets the guns?" What sort of armed forces would a decentralized United States possess? Under whose control would they be? Would we distribute nuclear weapons to each of the States in order to ensure none of them would get too skittish?
People smarter than me have argued that size isn't an obstacle to republican government in the case of the United States. Note, though, the first of the four premises on which the pro-size argument rests:
In the first place it is to be remembered that the general government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects, which concern all the members of the republic, but which are not to be attained by the separate provisions of any...
If the case for centralism rests on premises like these that are artifacts of a long-since-squandered legacy, we probably ought to reconsider the arguments against centralism. At the very least, those of us who want a very small government ought to think hard about the viability of a situation in which a small, weak federal government administers a giant, powerful nation.
As I note in my New York Post op-ed today, Republicans are fond of implying that President Obama is a big-spending socialist. But the House GOP recently offered a spending cut plan that was able to find savings worth less than one percent of Obama's budget.
As Tad DeHaven and Brian Riedl have also pointed out, the GOP spending reform effort is rather pathetic. It proposed specific annual budget cuts of about $14 billion per year.
Consider that the center-left budget wonks at the Brookings Institution put their heads together a few years ago and came up with a "smaller government plan" that proposed about $342 billion in annual spending cuts (by 2014). The Brookings authors note:
These cuts are achieved by reducing government subsidies to commercial activities ($138 billion); by returning responsibility for education, housing, training, environmental, and law enforcement programs to the states ($123 billion) . . . by cutting entitlements such as Medicaid, Social Security, and Medicare ($74 billion); and by eliminating some wasteful spending in these entitlement programs ($7 billion).
Thus, the Brooking's scholars found cuts more than twenty times larger than the House GOP leadership cuts, and Brookings proposed its plan back when the deficit was about one-fifth of the size it is today. (Note that both the Brookings and GOP plans would also put a cap on overall nondefense discretionary spending, in addition to these specific cuts).
My point in the New York Post piece is that the GOP needs to challenge Obama's big spending agenda at a more fundamental level. They need to do some careful research, pick out some big spending targets, and go on the offense. Why not propose to eliminate the Departments of Education and Housing and Urban Development? Why not sell off federal assets, such as the Tennessee Valley Authority, in order to help pay down the federal debt? Why not open up the U.S. Postal Service to competition?
Obama won't agree to these reforms at this point, but they would hopefully open a serious national debate about reforming our massive and sprawling federal government. Ronald Reagan in 1980 and the congressional Republicans in 1994 didn't win by splitting hairs with the Democrats over 1% of spending. They offered a more fundamental critique.
At least, GOP leaders need to offer up spending reforms as bold as those of the Brookings Institution.
Faced with rising opposition to a so-called “public option” in health care reform, some Democrats are floating the idea of establishing health insurance “co-operatives” as an alternative. Opponents of a government takeover of the health care system should not be fooled.
A “co-op” can be defined as a business owned and controlled by its workers and the people who use its services, in this case presumably the people whom it insures. In that sense, government provision of some sort of legal framework or seed money to help establish health insurance co-ops seems relatively harmless but also relatively pointless. The U.S. already has some 1,300 insurance companies. Adding a few more would accomplish…what?
It is suggested that the “co-ops” would be nonprofits, and therefore would offer better service and lower costs. But many insurance companies, including “mutual” insurers and many “Blues,” are already nonprofit companies. Furthermore, states already have the power to charter co-ops, including health insurance co-ops. In fact, health care co-ops already exist. Health Partners, Inc. in Minneapolis has 660,000 members and provides health care, health insurance, and HMO coverage. The Group Health Cooperative in Seattle provides health coverage for 10 percent of Washington State residents.
If the new co-ops operate under the same rules as other nonprofit insurers, why bother?
And there’s the rub. Supporters of government-run health care have no intention of letting the co-ops be independent enterprises. In fact, Sen. Charles Schumer (D-NY) makes it clear, for example, that the co-op’s officers and directors would be appointed by the president and Congress. He insists that there be a single national co-op. And Congress would set the rules under which it operates. As Sen. Max Baucus (D-MT) says, "It’s got to be written in a way that accomplishes the objectives of a public option."
If a “co-op” is run by the federal government under rules imposed by the federal government with funding provided by the federal government, that is government-run health insurance by another name.
From The Wall Street Journal today, an article about the federal freezing or seizing of 27,000 online gambling accounts (including that of one of my colleagues, who shall remain nameless but is $150 short today).
I blogged a few weeks ago about some (admittedly very dim) light on the horizon so far as the freedom to gamble online is concerned, but this is a setback indeed. The Poker Players' Alliance (a lobby group for online poker players) says this is the first time that players' accounts (as opposed to the gambling site operators themselves) have been targeted.
U.S. laws against gambling online, and the way those laws are administered, are an affront to personal freedom and a threat to our trading relationships.
A month ago, President Obama issued a list of proposed spending cuts that I dismissed as "unserious" due to the fact that they were trivial when compared to his proposed spending and debt increases. Today, the House Republican leadership released a list of proposed spending cuts.
I'd love to say I'm impressed, but I can't.
Both proposals indicate that neither side of the aisle grasps the severity of the country's ugly fiscal situation, or at least has the guts to do anything concrete about it.
The GOP proposal claims savings of more than $375 billion over five years, the bulk of which ($317 billion) would come from holding non-defense discretionary spending increases to no more than inflation over the next five years.
First, it should be cut -- period. Second, non-defense discretionary spending only amounts to about 17% of all the money the federal government spends in a year, so singling out this pot of money misses the bigger picture. At least, defense spending, which is almost entirely discretionary, should be included in any cap. But it has become an article of faith in the Republican Party that reining in defense spending is tantamount to putting a white flag in the Statue of Liberty's hand.
The second biggest chunk of savings would come from directing $45 billion in repaid TARP funds to deficit reduction instead of allowing the money to be used for further bailing out. That's a sound idea as far it goes, but I can't help but point out that the signatories to the document, House Republican Leader John Boehner and Minority Whip Eric Cantor, voted for the original $700 billion TARP bailout. Proposing to rescind the Treasury's power to release the remaining funds, about $300 billion I believe, should have been included.
According to the proposal, the rest of the cuts and savings comes out to around $25 billion over five years. Like the specific cuts in the president's proposal, they're all good cuts. But the president detailed $17 billion in cuts for one year and I generously called it "measly." What am I to call the House Republican leadership specifying $5 billion a year in cuts?
Take for example, proposed cuts to the Department of Housing and Urban Development (HUD), which is likely to spend around $65 billion this year. Having recently spent a couple months analyzing HUD's past and present, I can state unequivocally that it's one of the sorriest bureaucracies the world has ever seen. Yet, the House Republican leadership comes up with only one proposed elimination: a $300,000 a year program that gives "$25,000 stipends for 12 students completing their doctoral dissertation on issues related to housing and urban development." The only other proposed cut to HUD would be $1.7 billion over five years to the Community Development Block Grant (CDBG) program. This notoriously wasteful program is projected to spend over $8 billion this year alone. Eliminate it!
The spending cuts the country needs must be substantial, serious, and put forward in the spirit of recognizing that the federal government's role in our lives must be downsized. Half-measures are not enough, and from the Republican House leadership, wholly insufficient for winning back the support of limited-government voters who have come to associate the GOP with runaway spending and debt. For a more substantive guide to cutting federal spending, policymakers should start with Cato's Handbook chapter on the subject.