Statement on H.R. 2431 - A Bill to Criminalize Millions of Peaceful People

Statement for the Record of the Cato Institute[1]
Submitted to the House Committee on the Judiciary
Markup on
“H.R 2431 - Michael Davis, Jr. and Danny Oliver in Honor of State and Local Law Enforcement Act”
Thursday, May 18, 2017

The Michael Davis, Jr. and Danny Oliver in Honor of State and Local Law Enforcement Act (H.R. 2431) purports to empower states and localities to take action against serious criminals who have violated immigration law.[2] In reality, the bill is a vehicle for a massive expansion of the federal government and of federal power over states and their citizens.

The legislation imposes new mandates on states and uses federal grants to coerce them into following the bidding of the federal authorities. These requirements undermine the federalist system that the Founders intended. Even where it does grant certain state agencies greater powers, it does so while undermining the authority of the state legislatures. It authorizes state and local law enforcement personnel to enforce immigration laws without any authorization from their state legislature to do so and without any training.

The powers that it authorizes will inevitably lead to violations of the civil liberties and privacy of ordinary Americans. Any state official who suspects someone of violating immigration law can demand that they prove their status in the United States and hold them if they fail to do so – all without so much as a request from the federal agencies. It grants states access to federal surveillance databases that include U.S. citizens, compromising Americans’ privacy.

Its provisions that criminalize illegal presence and ordinary status violations would unnecessarily turn millions of peaceful people into criminals and push America further down the road of overcriminalization. This bill would impose billions of dollars in costs on taxpayers with very little benefit.[3]

Trump of Arabia

Donald Trump will make his first foreign visit this week, eschewing more typical early presidential destinations like Canada in favor of a photo-op heavy swing through Saudi Arabia, Israel, and the Vatican, before attending next week’s NATO summit in Brussels. Of these, perhaps the most interesting will be his time in Riyadh, where he will conduct bilateral meetings and attend two summit gatherings: one a Gulf Cooperation Council (GCC) meeting, and the other a U.S.-Arab Islamic summit.

Despite Trump’s negative comments about Saudi Arabia during the campaign, he has been more supportive since his inauguration, and likely looks forward to a warm reception in Riyadh. For their part, the Saudis have invested heavily in lobbying the new administration, with whom they believe they can work on issues from counterterrorism to Iran. For a president under fire at home, and whom even foreign allies treat with extreme caution, the open embrace of Saudi leaders is undoubtedly welcome.

During the visit, Trump is expected to make two announcements. The first is a massive arms sale worth as much as $300 billion over a decade. The package includes a number of advanced systems, most notably a THAAD missile defense system, and is intended to improve Saudi Arabia’s military capabilities. The second rumored announcement – the creation of an “Arab NATO” – is more unexpected. Though such an idea has been suggested before, regional realities have typically prevented it from advancing past the idea stage.

Indeed, though the U.S. has long sought to build up military cooperation and interoperability between regional states, policy differences and long-running disputes have torpedoed similar initiatives in the past. From military cooperation within the GCC to 2015’s Saudi-led announcement of an “Islamic coalition to fight terrorism“ these efforts have yielded few concrete results. Even at the height of the Cold War, the Baghdad Pact (CENTO) was rendered ineffectual by regional disputes.

In reality, the likelihood of failure may not worry either Trump or the Saudi leadership, both of whom have shown a propensity for policy characterized by big, flashy announcements that are rarely followed through with concrete steps.

Of greater concern are other areas of likely discussion at the summit, particularly the prospect of greater U.S.-Saudi cooperation against Iran. Though Trump has thus far proven unwilling to “rip up” the Iranian nuclear deal, he has initiated new sanctions on Iran, and repeatedly promised a more assertive U.S. policy to deal with Iran’s “destabilizing” regional behaviors.  Unfortunately, this approach carries risks, including the prospect of undermining the nuclear deal or of creating a wider regional conflict.

And while the President and Saudi leaders may agree on many policy issues, the summit does present several areas of potential conflict. For one thing, the hosts have extended an invitation to Sudan’s President Omar al-Bashir, currently under indictment by the ICC for war crimes and genocide, a choice which has upset many in Washington, if not necessarily the President himself. Trump is likely to accidentally provide support to one side in the ongoing influence struggle between Mohammed bin Nayef, the Saudi Crown Prince, and Mohammed bin Salman, the King’s son and second-in-line to the throne.

Trump’s scheduled speech on Islam also promises a variety of opportunities for misunderstanding and misstatements; in addition to the President’s habit of deviating from prepared remarks, the speech itself is reportedly being written by advisor Stephen Miller. Miller is not only the author of the Trump administration’s controversial travel ban on various Muslim countries, but also waged a campaign during his college years to create awareness of the dangers of “Islamofascism.”

In short, though Trump’s trip to Saudi Arabia offers little in the way of policy disagreements – and presents a valuable opportunity for the new administration to distance itself from turmoil at home – it also offers plenty of potential pitfalls for the new President and his staff. And that’s before he even makes it to stop number two. 

About That Private School Disability “Discrimination”

Everyone wants what’s best for children with disabilities. So it is not surprising when private schools—and hence school choice programs—are criticized because they do not have to accept all children with disabilities. We’ve heard the concerns before, and we heard them again in an NPR story yesterday taking the Indiana voucher program to task for private schools turning away kids with disabilities.

How could they be so cruel, we might ask, and choice supporters so callous?

Let’s start with a simple reality: Educating children with disabilities is generally more expensive than educating children without them, and private schools often struggle just to pay for educating the latter group. That should be no surprise: In the 2011–12 academic year—the most recent with public and private data—public schools spent $13,398 per pupil. Private schools, which rely on families paying tuition after they have paid taxes for the “free” public schools, charged on average $11,170, and many private students receive tuition discounts and aid. For Roman Catholic and other religious institutions—the most numerous private schools—tuition was even lower: $7,170 and $9,040, respectively. Private schools do sometimes receive subsidies from parishes, dioceses, and donors, but it is herculean task to overcome public schools’ big funding and pricing advantages.

But in Indiana there is a voucher program, so surely private schools there have no excuse.

Set aside that for most of the life of Hoosier private schools there was no voucher program—it only started in 2011—so they were hard-pressed to compete for non-disabled students, much less establish robust special education programs. Is the funding equitable now?

No. As the NPR story notes, “the poorest students qualify for a voucher that’s worth roughly 90 percent of what the state would have spent in a public school, but now some middle class families actually qualify for a half voucher.” So no one using a voucher gets their full state allotment. And the state is only one funder of public schools; altogether, Indiana public schools spent over $10,000 per student. What’s the biggest average voucher? Only about $5,700.

Obstruction of Justice

President Trump is being accused of “obstruction of justice” because of a conversation that he may have had with former FBI Director James Comey.  According to the news stories, Trump may have asked Comey to lay off his former National Security advisor, Michael Flynn.  In this post I want to briefly examine the legal doctrine of obstruction of justice.

To begin, a basic principle of American criminal law is that the line between what’s lawful and what’s unlawful needs to be clear so we will know, in advance, what conduct might land us in a prison cell.  That’s the gist behind the constitutional prohibition of ex post facto laws.  Laws with vague terms raise the same danger.  When laws are vague, police and prosecutors can abuse their power and trap people.  And that’s the danger with a catch-all doctrine such as “obstruction of justice.”

“Obstruction” has sometimes been defined by the authorities as almost any action that “impedes” an investigation.  Invoking your constitutional right to silence, your right to speak with an attorney, or the attorney-client privilege are sometimes deemed “obstruction.”  Don’t the courts restrain those abuses?  Yes, sometimes they do.  I’m presently editing a book of Judge Alex Kozinski’s legal opinions.  One case, United States v. Caldwell, touches on this subject.  Here is Judge Kozinski:

Under the government’s theory, a husband who asks his wife to buy him a radar detector would be a felon — punishable by up to five years in prison and a fine of $10,000 — because their actions would obstruct the government function of catching speeders. So would a person who witnesses a crime and suggests to another witness (with no hint of threat) that they not tell the police anything unless specifically asked about it.So would the executives of a business that competes with a government-run enterprise and lowers its prices to siphon off the government’s customers. So would co-owners of land who refuse to sell it for use as a military base, forcing the government to go to the extra trouble of condemning it. So would have Elliot Richardson and William Ruckelshaus, had they agreed with each other to quit if asked by President Nixon to fire Archibald Cox. The federal government does lots of things, more and more every year, and many things private parties do can get in the government’s way. It can’t be that each such action is automatically a felony.

I should note that when James Comey served as a prosecutor in New York, he pursued Martha Stewart and went so far as to say that her assertion of innocence was itself a violation of the law!  When Comey worked as assistant attorney general, he also took a dangerously expansive view of what he considered “uncooperative” conduct by business firms.  He expected lawyers for business firms to act as deputies for the federal government, which raised constitutional problems—especially for employees who were unaware of the legal minefield all around them during a purported “internal” investigation.

The Stealth Fusion Center Data Sharing Bill

The attention of most in Congress, the media, and the privacy rights community has been focused this spring on the looming Foreign Intelligence Surveillance Amendments (FAA) Act Section 702 reauthorization fight, generally for good reasons. However, other expansions of domestic surveillance powers and data sharing are getting far less attention—and one such measure before the House today may dramatically expand the kind of information state and local law enforcement agencies can get from the federal government.

Introduced on April 26 by Rep. John Katko (R-NY), the “Improving Fusion Centers’ Access to Information Act” (HR 2169) is designed to plug any “information gaps” in state “fusion centers” by modifying the Homeland Security Act of 2002 to require DHS to

identify Federal databases and datasets, including databases and datasets used, operated, or managed by Department components, the Federal Bureau of Investigation, and the Department of the Treasury, that are appropriate, in accordance with Federal laws and policies, to address any gaps identified pursuant to paragraph (2), for inclusion in the information sharing environment and coordinate with the appropriate Federal agency to deploy or access such databases and datasets;

If the sound of this makes you feel uncomfortable, it should for several reasons—not the least of which is the last-minute decision by the Obama administration to make more raw (and thus potentially unverified or inaccurate) intelligence from the National Security Agency available to the FBI, and thus other law enforcement agencies the FBI decides need the data.

What makes Katko’s bill—which is coming to the House floor under expedited consideration via a legislative procedure known as “suspension of the rules“—even worse is that it ignores the 2012 findings of a Senate Homeland Security Committee report that found that state fusion centers were at best worthless, and at worse Bill of Rights violation factories.

In the press release on the committee report, then chairman Senator Tom Coburn (R-OK) stated, “It’s troubling that the very ‘fusion’ centers that were designed to share information in a post-9/11 world have become part of the problem. Instead of strengthening our counterterrorism efforts, they have too often wasted money and stepped on Americans’ civil liberties.”

Even Lawyers Have the Right to Earn an Honest Living

An Argentine attorney, Maximiliano Gluzman, completed a master’s in law (LL.M.) at Vanderbilt Law School—including a heavy dose of common-law subjects—but was denied an opportunity to sit for the Tennessee bar, even though nobody disputes that he’s an “obviously a very, very qualified” lawyer (as one of the bar examiners conceded) and “one of the very best students” ever to graduate from his school (as its dean put it). In January 2016, however, new bar rules went into effect that essentially prevent foreign students from sitting for the bar by requiring a J.D. from an American law school.

The case is now before the state supreme court. The Beacon Center, Tennessee’s most prominent free-market advocacy group, has filed a brief supporting Mr. Gluzman, which Cato and the Goldwater Institute have joined. Our brief focuses on the right to earn an honest living going back to Magna Carta.

Indeed, Tennessee was founded out of nothing so much as the pursuit of economic opportunity. The state constitution reflects the special importance of the right to earn a living by embedding it in the “Law of the Land” Clause. This provision traces directly to the Magna Carta, a document itself primarily concerned with property rights and the right to earn a living.

While federal courts tend to provide thin protections to this right under the U.S. Constitution, the Tennessee supreme court has long protected it as a “fundamental” right. Importantly, the Tennessee legislature recently reaffirmed that the right was fundamental in the appropriately named “Right to Earn a Living Act.”

Yet the board of bar examiners concluded that Mr. Gluzman’s education in Argentina and at Vanderbilt was not “substantially equivalent” to a J.D.—discounting the right as somehow inapplicable and missing the significance of the Act as a restatement of longstanding Tennessee constitutional doctrine. Under the doctrine of constitutional avoidance, and out of respect for the importance of the underlying right itself, the “substantial equivalency” rule should be read with lenity.

Although Mr. Gluzman’s sterling educational qualifications are beyond reproach, if it is still unclear whether his education satisfies the state bar, the rule should be read to favor the liberty interest and permit his inclusion. Nor is his exclusion demonstrably necessary to protect the public; the tailored way of assessing Mr. Gluzman’s competency would be to simply allow him to take the exam and settle the matter once and for all. That process would at once follow clearly stated legislative priorities and the constitutional principles that gave rise to the Right to Earn a Living Act.

The Tennessee Supreme Court hears Gluzman v. Tennessee Board of Bar Examiners later this spring.

Leaking From the Top

On Monday, the Washington Post dropped a bombshell, reporting that Donald Trump had shared highly classified “codeword” intelligence—provided by an ally on the condition that it not be more widely disseminated—with Russian officials during their meeting last week.  While administration officials initially issued fierce denials, national security advisor H.R. McMaster, who had himself blasted the story as “false” in a carefully-worded statement, effectively confirmed the key elements of the report at a press briefing Tuesday morning. While McMaster repeatedly insisted that Trump’s decision to share information had been “wholly appropriate,” his remarks (perhaps inadvertently) raised several additional grounds for concern.

First, let’s dispense with the obvious: Classification authority in the United States flows from the president, and so a president is legally entitled to declassify or disclose information as he sees fit, for any reason or no reason at all.  This is a case where that infamous Nixonism—”When the president does it, that means it is not illegal”—actually applies.  Nobody, as far as I can tell, is seriously disputing that.  It’s also true that presidents often choose, for strategic or diplomatic reasons, to share particular pieces of intelligence with foreign governments.  Yet this does not appear to have been a “routine” instance of such sharing, as McMaster sought to characterize it—not by a longshot.

Rather, as NYU law professor Ryan Goodman observes at the Just Security blog, any decision to share such sensitive information would normally be subject to a rigorous interagency process, allowing the originators of the intelligence to assess the equities implicated by disclosure and apprise the White House of the potential consequences.  In this case, McMaster confirmed, the decision appears to have been made on the fly during the course of the discussion—and so necessarily uninformed by any serious analysis of the costs and benefits.  Indeed, McMaster even attempted to allay any concerns that Trump might have compromised “sources and methods” by noting that Trump had not been briefed on the source of the intelligence.  Yet as intelligence officials so frequently remind us in other contexts, sources or methods can sometimes be reverse-engineered from the substance of intelligence. If Trump was not aware of the source, his decision to disclose cannot have factored in either that direct risk of exposure, or the related risk of damaging relations with an ally by sharing sensitive information without seeking permission. Even if he had not been briefed on the details, of course, information shared under such conditions should have been clearly marked  “NOFORN” to indicate that it should not be disseminated to foreign nationals, including allies.