Cato: The Decision Is Whether We Will Reform Health Care with Our Eyes Open

Posted by Michael F. Cannon at http://www.cato-at-liberty.org/the-decision-is-whether-we-will-reform-health-care-with-our-eyes-open/

Donald Berwick may have mastered the science of health care management and delivery. (I for one would jump at the chance to enroll my family in the Berwick Health Plan.) But his recentoped in the Washington Post shows he has yet to absorb the lessons that economics teaches about government planning of the economy, such as through ObamaCare.

Berwick, whom President Obama recess-appointed to be administrator of the Centers for Medicare & Medicaid Services (CMS), sets out to defend ObamaCare from a fairly devastatingcritique by Robert Samuelson a few days earlier. Berwick responds, in essence, nuh-uh:

I saw how this law is helping tens of millions of families and is finally putting our health-care system on the right track…I have seen how improving care can reduce costs dramatically.

Berwick fails to see the world of difference between those two statements. Yes, in his private-sector work, Berwick has helped hospitals save more lives, kill fewer people, and save money in the process. I’m pretty sure he has saved more lives than I ever will.

But all he saw from his perch at Medicare’s helm was people happy to receive checks from the government, and a bunch of well-meaning bureaucrats setting goals. He did not see the costs imposed by those subsidies. As for goal-setting, this one sentence captures it all:

The CMS, for example, has set ambitious goals to reduce complications that, if met, would save 60,000 lives and $35 billion in just three years.

If. Met. A recent Congressional Budget Office review of Medicare pilot programs showed that Medicare bureaucrats set goals all the time. They never achieve them.

Berwick’s claim that ObamaCare “cracks down hard on waste and fraud” because “Last year the government recaptured a record $4 billion” is even more ridiculous. The official (read: low-ball) estimates are that CMS loses $70 billion per year to fraud and improper payments. Thebest evidence suggests that wasteful spending approaches $200 billion per year in Medicare alone. All that money that comes from you, John Q. Taxpayer. Berwick knows all these things. Yet he thinks you should be impressed that recovering a measly $4 billion is the best the government has ever done.

Berwick would never tolerate such willful blindness, shoddy reasoning, and (surprise!) poor results if it were his own money on the line. Which is exactly the point. In a free market, people spend their own money. At Medicare, Berwick spent, and ObamaCare continues to spend, other people’s money.

That is the main reason why markets are smart and government is stupid. And why otherwise smart people like Berwick can afford to keep their eyes shut.

Cato: Correcting a Massive Typo by USA Today

Posted by Daniel J. Mitchell at http://www.cato-at-liberty.org/correcting-a-massive-typo-by-usa-today/

Although this line is attributed to many people, Wikiquote says that Gideon Tucker was the first to warn us that “No man’s life, liberty, or property are safe while the legislature is in session.”

This cartoon about Keynesian economics sort of makes the same point, but not with the same eloquence.

But that’s not the point of this post. Instead, I want to focus on this grossly misleading headline in USA Today: “This Congress could be least productive since 1947.”

I don’t think it’s a case of media bias or inaccuracy, as we saw with the AP story on poverty, the Brian Ross Tea Party slur, or theReuters report on job creation and so-called stimulus.

But it does blindly assume that it is productive to impose more laws. Was it productive to enact Obamacare? What about the faux stimulus? Or the Dodd-Frank bailout bill?

Wouldn’t the headline be more accurate if it read, “This Congress could be least destructive since 1947″?

Here are the relevant parts of the USA Today report.

Congress is on pace to make history with the least productive legislative year in the post World War II era. Just 61 bills have become law to date in 2012 out of 3,914 bills that have been introduced by lawmakers, or less than 2% of all proposed laws, according to a USA TODAY analysis of records since 1947 kept by the U.S. House Clerk’s office. In 2011, after Republicans took control of the U.S. House, Congress passed just 90 bills into law. The only other year in which Congress failed to pass at least 125 laws was 1995. …When Democrats controlled both chambers during the 111th Congress, 258 laws were enacted in 2010 and 125 in 2009, including President Obama’s health care law.

To be sure, not all legislation is bad. Now that the Supreme Court has failed in its job, Congress would have to enact a law to repeal Obamacare. Laws also would need to be changed to reform entitlements, or adopt a flat tax.

And some laws are benign, such as the enactment of Dairy Goat Awareness Week or naming a federal courthouse.

But I’m guessing that the vast majority of substantive laws are bad for freedom and result in less prosperity.

So let’s cross our fingers that future Congresses are even less productive (and therefore less destructive) than the current one.

Cato: Uruguay Aims to Legalize Marijuana: The Good, The Bad and The Ugly

Posted by Juan Carlos Hidalgo at http://www.cato-at-liberty.org/uruguay-aims-to-legalize-marijuana-the-good-the-bad-and-the-ugly/

The good: José Mujica, Uruguay’s president, announced that he will send a bill to Congress to legalize the production and sale of marijuana. Consumption was already decriminalized in the South American nation. If the bill is approved, and it seems to have enough support in Congress to pass, Uruguay would become the first country to fully legalize marijuana.

The bad: The bill stipulates that the government will be in charge of the production and sale of marijuana. Even though having a marijuana state-owned monopoly is better than prohibition, it would be far better to have the private sector run the business under an appropriate tax and regulatory regime. Governments should not be involved in the drug business.

The ugly: Marijuana users who want to legally purchase the drug would have to register with the government. Moreover, they would be limited in the number of cigarettes they can buy per month. However, there are good reasons to believe that not many people will rush to a government agency to register as a marijuana user. And imposing a limit on the amount of joints that a person can buy legally just means that any extra consumption will by provided by illegal sources. Thus, I doubt that in practice the bill will be very effective at achieving its goals of getting rid of the black market and fighting street crime.

Cato: Skinning the Fourth Amendment: The Sixth Circuit’s Awful GPS Tracking Decision

Posted by Julian Sanchez at http://www.cato-at-liberty.org/skinning-the-fourth-amendment-the-sixth-circuits-awful-gps-tracking-decision/

In the summer of 2006, agents of the Drug Enforcement Agency used GPS tracking technology to locate drug courier Melvin Skinner’s prepaid phone, ultimately seizing more than 1,000 pounds of marijuana from Skinner’s mobile home. The judges on the Court of Appeals for the Sixth Circuit then apparently smoked all of it before issuing their ruling in United States v. Skinner this week, because the opinion approving DEA’s use of GPS technology in this case is easily one of the most muddled examples of legal reasoning I’ve ever encountered—a surreal potpourri of factual misunderstandings, inapt analogies, sloppy and selective appeals to precedent, and logical leaps worthy of Nijinsky.

A very brief summary of the case: DEA was already investigating a drug trafficking organization, and through the use of lawful wiretaps learned that a courier code-named “Big Foot” would be driving a large shipment of marijuana from Tucson, Arizona to Mooresburg, Tennessee in his mobile home. “Big Foot” was using a prepaid (or “burner”) mobile phone purchased for him by his co-conspirators, which meant one thing DEA didn’t know was Big Foot’s identity, because the prepaid phone wasn’t registered in his name. (While this makes them appealing to drug dealers, they’re also very popular with ordinary, law-abiding citizens: Prepaid phones now account for 25 percent of mobile phone subscriptions.) Agents then obtained a court order—but not a search warrant based on probable cause—to “ping” the phone’s GPS chip and precisely track its location in realtime. Tracing it to a truck stop near Abilene, Texas, authorities brought drug dogs to sniff the perimeter of the mobile home, and when the dogs alerted to the presence of drugs, performed a search—finding the drugs, and arresting Skinner, now revealed as “Big Foot.”

The Sixth Circuit’s Fourth Amendment analysis is disturbing right from the outset. “If a tool used to transport contraband gives off a signal that can be tracked for location,” the argument begins, “certainly the police can track that signal. The law cannot be that a criminal is entitled to rely on the expected untrackability of his tools.”  This is bizarre and circular: It suggests that criminals categorically lack Fourth Amendment privacy interests in any “tool” they use to conduct criminal activity, in which case no search would violate the Fourth Amendment if it actually turned up evidence of criminal conduct. But the whole point of requiring a warrant is to let a neutral magistrate determine whether there’s probable cause to believe such conduct will be uncovered. The court hastily acknowledges this in a footnote, clarifying that there’s no expectation of privacy for anyone in cell phone GPS data, but beginning in this way suggests the court is reasoning backwards to a desired conclusion, based on Skinner’s now-established guilt.

The court proceeds through a series of lazy and underdeveloped analogies:

Otherwise dogs could not be used to track a fugitive if the fugitive did not know that the dog hounds had his scent. A getaway car could not be identified and followed based on the license plate number if the driver reasonably thought he had gotten away unseen. The recent number of cell phone technology does not change this. If it did, then technology would help criminals but not the police. It follows that Skinner had no expectation of privacy in the context of this case, just as the driver of a getaway car has no expectation of privacy in the particular combination of colors of the car’s paint.

But it does not follow at all. “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection,” the Supreme Court explained in the seminal case of Katz v. United States, “But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” Any member of the public can buy a dog and follow a scent. Any member of the public can view and copy down a license plate number. Any member of the public can view the external paint job of a car. But any member of the public cannot just track the GPS signal of a random cell phone—and if they could, most of us would be extremely wary about carrying cell phones. Unlike all these other examples, GPS tracking as employed here depends crucially on the ability of police to invoke state authority—a seemingly salient distinction the court fails to take any note of.

Finally, the judges move on from these dubious analogies and cite an actual precedent: United States v. Knotts. In Knotts, police had placed a relatively short range tracking “beeper” in a can of chloroform sold to suspected drug manufacturers. Having monitored the sale of the canister, police followed the car in which the suspects had placed it, using the beeper to supplement their visual observation of the car’s public journey, and ultimately relying on it to recover the trail when they lost the suspects. The Supreme Court held that no Fourth Amendment  expectation of privacy had been violated, because the location of the car police had been tailing was information exposed to any observer on the road. Here too, the court reasoned, Skinner’s RV was moving along public roads visible to any member of the public.

Unfortunately, this falls apart as soon as you begin thinking about it for a moment. The information that is exposed to the general public, in all these cases, is that a car with a particular external appearance is at such-and-such location at such-and-such a time. Having already observed their lojacked canister being loaded into the suspect’s car, that was the very information the police needed to maintain their tail.

Skinner presents a very different situation. It’s true that any member of the public could observe that Skinner’s RV was one of probably hundreds traveling on public highways in mid July of 2006. But that was not the information investigators relied upon here: What the GPS tracking here revealed was the non-publicly observable fact that one particular mobile home, which police had never encountered before, contained a particular phone believed to be in close proximity to illegal drugs. These are importantly different facts. The Secret Service even relies on that difference to help protect the life and safety of the president: Anyone can observe dozens of limos or SUVs with tinted windows leaving the White House on public roads each day, but which of these contain the president is not so exposed. Because the salient fact for the purposes of the police investigation was not the location of a particular vehicle on public streets, but rather the location of a particular personal effect in a private mobile home, the relevant precedent isn’t Knotts, but rather United States v. Karo. The government might then argue that the contents of a mobile home aren’t entitled to the same high level of protection as the contents of the residence at issue in Karo, but having incorrectly framed the issue, the Sixth Circuit panel never takes up that question.

The court does at least gesture in the direction of the idea that it might somehow matter that police didn’t initially know the identity of “Big Foot,” and had not previously observed his vehicle. They deem this immaterial with a truly breathtaking bit of hand-waving:

As for not knowing his identity, this is irrelevant because the agents knew the identity of Skinner’s co-conspirators and could have simply monitored their whereabouts to discover Skinner’s identity. Using a more efficient means of discovering this information does not amount to a Fourth Amendment violation.

It is, I think, an open question what police could or could not have discovered in a parallel universe where they employed a completely different set of investigative methods (as opposed to the physical tail actually employed in Knotts and supplemented by a beeper), but it’s not clear why this is really germane. That a postal letter might have been retrieved from the trash of a suspect who never shreds his correspondence does not make it any less an illegal search to intercept the unopened letter. Remarkably, the court does not deign to even mention the 2001 Supreme Court case Kyllo v. United States, which contemplated and rejected a similar argument. Writing for the majority, Justice Scalia explained that the use of thermal imaging to detect marijuana growing lights in a garage was not immunized from Fourth Amendment scrutiny by the fact that other permissible means might have revealed facts about the temperature of a home:

The dissent’s comparison of the thermal imaging to various circumstances in which outside observers might be able to perceive, without technology, the heat of the home–for example, by observing snow melt on the roof [...]–is quite irrelevant. The fact that equivalent information could sometimes be obtained by other means does not make lawful the use of means that violate the Fourth Amendment. The police might, for example, learn how many people are in a particular house by setting up year-round surveillance; but that does not make breaking and entering to find out the same information lawful.

That argument seems to present at least a potential problem for the court’s reasoning here, and seems more generally relevant insofar as it concerns the use of technology to gain information about the contents of a home, but again, Kyllo is not even mentioned.

Since this is a case involving phones, the Sixth Circuit also takes a stab at breezily invokingSmith v. Maryland—the basis for the much-criticized “third party doctrine”—where a suspect was held to lack an expectation of privacy in dialed phone numbers that had been voluntary exposed to the phone company, which routinely retained that information in its ordinary business records for billing purposes. Without much analysis the court asserts that “[s]imilar reasoning compels” a parallel conclusion here.

But on closer examination, the fact that both cases involve phones is about as far as the similarities go. Dialed numbers are information actively and consciously exposed to the phone company by the user, and then retained in billing records as a matter of course, independently of any government investigations. Unfortunately, as both Orin Kerr and Jennifer Granick note, the court seems fuzzy on the very different characteristics of the GPS technology used here. The GPS chip contained in the phone—which apparently the suspects were unaware of—would not normally transmit any information to the phone company at all. Rather, the chip would have calculated its precise location coordinates and transmitted them to the company only in response to a “ping” initiated by law enforcement. To be sure, the company might be physically capable of sending such a ping on its own, just as it would be physically capable of intercepting the contents of a phone call. And if it had built the phone with a secret capability to be remotely activated as a microphone, it would also be physically capable of remotely gathering information about the user’s activities in that way as well. Fortunately, the Fourth Amendment is not limited to pointlessly prohibiting only physically impossible surveillance.  The technological capabilities of the phone company or the government do not determine what has been “knowingly exposed”—and it seems clear here that Skinner did not knowingly expose, to either the general public or the phone company, the precise GPS coordinates of his phone.

The Fourth Amendment status of the kind of GPS tracking employed here is hardly a slam dunk either way: There are strong arguments on both sides, and the issues involved are complex. Alas, this opinion doesn’t even begin to address them adequately.

Cato: Major Victory for Workers’ Rights

Posted by Ilya Shapiro at http://www.cato-at-liberty.org/major-victory-for-workers-rights/

Today’s Supreme Court decision in Knox v. SEIU is a major victory for individual liberties and workers’ right not to be coerced by government or unions. Those workers who choose not to join unions should not be forced to fund the unions’ political activities. The Court’s decision for the worker to opt-in to paycheck deductions for political activities rather than opt-out of these payments restores the proper protection for the individual’s freedom of speech and conscience. Justice Alito wrote for the majority, “Courts do not presume acquiescence in the loss of fundamental rights.”

Cato: Canadian Wheat Board Loses Monopoly Powers

Posted by Walter Olson at http://www.cato-at-liberty.org/canadian-wheat-board-loses-monopoly-powers/

Reform has finally caught up with one of North America’s longest-entrenched socialist institutions, the Canadian Wheat Board. From the 1940s down through the first of this month, farmers in western Canada were legally forbidden to sell their wheat and barley other than through the official board, which by abolishing competition between farmers was supposed to assure fairer and higher prices. (Technically the Board enjoyed a “monopsony,” which is what economists call a monopoly over buying something as distinct from selling it.) Farmers have complained for years that the board not only behaved arbitrarily and was hard to deal with but also that it often paid less for grain than farmers in nearby American states like North Dakota were getting. The board continues to exist, but stripped of its compulsory powers it will need to persuade growers to trade with it voluntarily. Economist David Henderson, who lived in a Manitoba farm community as a kid, has more.

The battle to free the farmers was long and fierce — the left-leaning New Democratic Party (NDP) and National Farmers Union greeted the August 1 decontrol with undisguised bitterness— and no one played a more central role in the victory, or put more political capital on the line, than Canadian Prime Minister Stephen Harper. Per the CBC,

Harper has a long history of supporting the farmers who fought the wheat board. In 2001, he wrote a review of a book on that battle, calling the wheat board an “oppressive monopoly” that used “legal bullying” against farmers.

Harper and Agriculture Minister Gerry Ritz were at the farm to mark the first official day in which prairie wheat and barley farmers can sell their products to whomever they choose.

Harper is also pardoning a group of farmers arrested under the old law. Last fall, I had the chance to meet Saskatchewan Premier Brad Wall, another key backer of the reform, and a couple of his aides at a free- market gathering out West. When he heard I was with the Cato Institute, Wall said he’d long been a warm admirer of the Institute’s work. With good ideas as with other good things: “first the blade, then the ear, then the full grain in the ear.”

Cato: We’re Not Censoring YOU—Just Your Computer!

Posted by Julian Sanchez at http://www.cato-at-liberty.org/were-not-censoring-you-just-your-computer/

Consider an argument for denying First Amendment protection to movies and video games. Human beings, we all agree, have constitutional rights—but mere machines do not. When the computer in your game console or DVD player “decides” to display certain images on a screen, therefore, this is not protected speech, but merely the output of a mechanical process that legislatures may regulate without any special restrictions. All those court rulings that have found these media to be protected forms of expression, therefore, are confused efforts to imbue computers with constitutional rights—surely foreshadowing the ominous rise of Skynet.

Probably nobody finds this argument very convincing, and it hardly takes a legal scholar to see what’s wrong with it: Computers don’t really autonomously “decide” anything: They execute algorithms that embody decisions made by their human programmers. (If, one day, we develop advanced Artificial Intelligences that really are effectively autonomous speakers, their constitutional status will be a fascinating and difficult question). Movies and video games are made by teams of human beings, whose expressive choices are merely executed and transmitted by computers. You can’t somehow “just” regulate the computer without effectively restricting human expression at the same time. Simple, obvious.

Yet writing in The New York Times, legal scholar Tim Wu makes a surprisingly similar argument with respect to search engines and various kinds of data sharing on social networking sites or online marketplaces. Wu is implicitly responding to those like Eugene Volokh, who claim that the First Amendment does indeed constrain legislatures who might seek to regulate these activities for the sake of privacy or informational “fairness.” Is there any way to distinguish Wu’s argument from my imagined, clearly invalid one? Wu hints at one:

The line can be easily drawn: as a general rule, nonhuman or automated choices should not be granted the full protection of the First Amendment, and often should not be considered “speech” at all. (Where a human does make a specific choice about specific content, the question is different.)

This doesn’t seem all that easy to me, however. In many video games, the exact progression of any particular play-through will often be partly (and in some cases substantially) randomized. In performances of “aleatoric music,” perhaps most famously associated with the avant garde composer John Cage, a human artist provides an algorithmic structure that leaves the “specific content” of the piece to be determined by chance—whether provided by a computer or some other pseudorandom mechanism—and therefore varying in each performance. All compositions, for that matter, are essentially “algorithms” whose specific character as a heard expression, will be determined by a performer, whether human or machine. And do we really think a blog that rounded up links and produced summaries of important news stories about privacy or human rights could be unceremoniously shut down if it were assembled and published by a scraping algorithm rather than active human curation? What degree of human intervention in the running of an aggregation algorithm would transform it into protected speech? Would it be enough to manually delete irrelevant links incorrectly harvested by the algorithm, or tweak poorly-worded summaries, before each post went live? Must the programmer be careful not to make her algorithm too good, lest she render such intervention unnecessary and surrender First Amendment protection?

If Wu’s argument seems in any way plausible, it’s because his computer/human distinction is not actually doing any of the heavy lifting in his piece. When he writes that various kinds of information manipulation are “only indirectly related to the purposes of the First Amendment,” the force of the argument depends entirely on how far we agree with that normative judgment about those classes of information processing, not the means by which they’re accomplished. It’s clear that Wu—in contrast to Volokh—believes that the commercial sale of databases of personal information is not “speech” in the sense intended by the First Amendment. Would he really feel any differently if those databases were compiled and transmitted by hand, rather than electronically? Or, turning to the search context, would it really matter if the task of recommending a list of Web sites deemed relevant to a topic (or especially family-friendly, or whatever other feature a company might be advertising) were carried out by humans in a data center in Bangalore, rigorously following a list of criteria developed by some different group of human analysts, and encouraging them to recommend partners and paid advertisers over their competitors whenever possible? Again, of course not. The real argument—everything Wu says that has any persuasive force to it—depends on the character of the activity in question, not its implementation.

So why focus on the computer/human distinction at all? First, because courts are justifiably reluctant to declare whole classes of expressive conduct beyond the bounds of the First Amendment: The whole point of a presumption of free speech is to avoid having to make ad hoc determinations about the “social value” of various kinds of expression. Second, because the character-based arguments on their own, relying on a sharp distinction between commerce and speech that’s hard to draw in a blurry world, are all subject to strong counterarguments, and probably insufficient to overcome the presumption in favor of expression.

As a slogan, “Free speech for humans, not for computers” sounds pithy and appears to provide a bright-line standard that avoids the hard and messy questions involved in an analysis grounded in the nature of the speech (or, more neutrally, “information manipulation”) itself. But again, that distinction does no independent work in the argument. If Wu wants to make the case that certain categories of conduct involving information deserve diminished protection, whether directly executed by humans or indirectly with the aid of computer processors, he should do so. The attempt to shift the focus to a red-herring distinction between human and computer “expression” betrays a recognition that this case, stated clearly on its own terms, is a weak one.

Cato: TSA Profiling, Security Theater, and the Fourth Amendment

Posted by Julian Sanchez at http://www.cato-at-liberty.org/tsa-profiling-security-theater-and-the-fourth-amendment/

This weekend, The New York Times reported that the Transportation Security Administration’s “behavioral detection” program at Logan Airport has devolved into a racial profiling program, according to complaints from 32 federal officers who’ve seen up-close how it works. And yet to my eye, racial profiling isn’t the only constitutionally problematic aspect of the program revealed in the article (emphasis mine below):

In interviews and internal complaints, officers from the Transportation Security Administration’s “behavior detection” program at Logan International Airport in Boston asserted that passengers who fit certain profiles — Hispanics traveling to Miami, for instance, or blacks wearing baseball caps backward — are much more likely to be stopped, searched and questioned for “suspicious” behavior.

“They just pull aside anyone who they don’t like the way they look — if they are black and have expensive clothes or jewelry, or if they are Hispanic,” said one white officer, who along with four others spoke with The New York Times on the condition of anonymity. [...]

At a meeting last month with T.S.A. officials, officers at Logan provided written complaints about profiling from 32 officers, some of whom wrote anonymously. Officers said managers’ demands for high numbers of stops, searches and criminal referrals had led co-workers to target minorities in the belief that those stops were more likely to yield drugs, outstanding arrest warrants or immigration problems. 

Since everyone seems to be in agreement that the alleged profiling at the focus of the story is grossly unacceptable, I want to focus on what appears to have given rise to it: Managerial pressure to use TSA screenings as a means of enforcing drug laws and other ordinary criminal statutes, apparently resulting in a system of de facto quotas for “criminal referrals.” Even if this goal were being pursued without the use of racial profiling, it would be problematic, because the constitutionality of TSA searches is premised on the idea that they are not conducted for ordinary law enforcement purposes. We now seem to take for granted that narcotics interdiction is a legitimate aim of warrantless TSA searches—even on domestic flights not subject to the Fourth Amendment’s “border search” exception—but if we hew closely to the legal rationale for these searches, it’s not at all clear that ought to be the case.

Thanks to the Fourth Amendment, government agents cannot normally demand that we submit to intrusive, suspicionless searches as a condition of exercising our right to travel. In one 2000 case, the Supreme Court held that a police officer  had violated the rights of a bus passenger by merely squeezing the outside of his carry-on bag, never mind conducting one of the “enhanced” pat-downs for which TSA has become infamous. The legal rationale for making an exception for airlines can be traced to a string of cases from the early 1970s, in which courts developed a “special needs” doctrine, largely in response to a string of high-profile plane hijackings in the 60s, creating an exemption from the Fourth Amendment’s warrant requirement under certain circumstances. Once crucial test was that such warrantless “special needs” searches  had to be conducted for the purpose of protecting public safety, not simply for carrying out ordinary criminal investigations or law enforcement functions.

As the 9/11 attacks showed, a hijacked airplane can be transformed into an incredibly destructive weapon. But bulletproof cockpit doors, new training for airline staff, and changed passenger behavior are the most important reasons a 9/11-style hijacking attempt would be extraordinarily unlikely to succeed today. Thus, as a recent House Transportation Committee report noted, “the primary threat is no longer hijacking, but explosives designed to take down an aircraft.” But that’s a problem we had pretty well in hand under the older, less intrusive procedures: No passenger has detonated a smuggled bomb on a U.S.-originating flight since 1962, though given TSA’s consistently lackluster performance in spotting  dummy bombs in tests, it’s not clear how far that should be ascribed to gate searches. TSA does seize quite a few guns, mostly from the bags of people who’d forgotten about a legal firearm—along with pocket knives, corkscrews, and other contraband, much of which is later auctioned off. And of course, they turn up narcotics—though occasionally TSA screeners find it more lucrative not to turn them up.

If we take the Fourth Amendment seriously, we should demand strong justifications for departures from its core requirements, and take care to prevent the exceptions from swallowing the rule. We shouldn’t just ask whether there’s some legitimate safety or security purpose that might justify some form of search, but whether the scope and intrusiveness of the search is calibrated to the rationale for the exception. Police officers can pat-down detained persons for weapons to ensure their own safety—but that doesn’t entitle them to search, say, a locked container out of the suspect’s reach. The question, in other words, should be whether the intrusiveness of the search reasonably serves the claimed security purpose, or whether its practical effect is, in reality, to serve ordinary law enforcement purposes with little marginal security benefit. And, indeed, some courts have held airport searches to be unlawful when they strayed too far from legitimate security purposes.

If these officers’ allegations are accurate, the problem with the program they describe is not just that it employed racial profiling, but that it wasn’t limited to profiling for security threats. Rather, it subjected passengers to additional intrusive searches in for the ordinary law enforcement purpose of detecting narcotics. And these were hardly incidental or exceptional: The officers estimated that 80 percent of stops and follow-up searches “focused on stopping minority members in response to pressure from managers to meet certain threshold numbers for referrals to the State Police, federal immigration officials or other agencies. ” Such a program of searches simply cannot reasonably be said to be properly aimed at the purpose of serving the “special needs” of airport security. This kind of systematic exploitation of the security exception as a loophole for law enforcement searches is, perhaps, too routine now to raise an eyebrow—the Times makes no comment on it—but it should.

Cato: Don’t Let This Happen to You: How I Unwittingly Abetted My Own Droning by the DC Government

Posted by Daniel Ikenson at http://www.cato-at-liberty.org/dont-let-this-happen-to-you-how-i-unwittingly-abetted-my-own-droning-by-the-dc-government/

Now that the pulsating of the veins running through my forehead has subsided and the bile in my throat tastes a little less bitter, I am capable of sharing a story – a cautionary tale – about the brave new world in which we live.  Before this past Saturday, I never gave a second thought to the fact that my minivan is called an “Odyssey,” but the events of that day tell a tale of epic incompetence and infuriating heavy-handedness of the government of the District of Columbia.

Scene 1

The day began with a sense of excitement and anticipation, as I was taking my two sons, nephew, and father-in-law to the Washington Nationals game. We arrived at the stadium early (about 11:00 for a 1:05 start) to catch batting practice and maybe score an autograph or two.

About three blocks from the stadium, there were plenty of legal parking spots along the street and signs indicating how to pay for parking by telephone.  It would cost $1.50 per hour or about $10 total – a steal compared to the $30-$40 being charged in the nearby lots.  The Pay-by-Phone system was simple enough to use: I registered my tag and my credit card number by phone, and was messaged a “Parkmobile” app to use for loading and reloading the meter from my phone.  Sweet and simple!

After 13 innings and the game still locked at 3 runs apiece, it was about 5:30 pm and time to get going. We’d catch the rest of the game on the radio during the ride home.  But that never happened.  It never happened because I couldn’t turn on the radio.  I couldn’t turn on the radio because I couldn’t find my car.  In the spot where I had left it was parked a blue BMW with Virginia tags, presumably belonging to another baseball fan.

My car was either stolen or towed, but I could see no reason for the latter.  I had reloaded the virtual meter a few times from my stadium seat and there were no indications of any prohibitions.  I walked down the street to a no parking zone and dialed a number posted on a nearby “If-Towed-Call-This-Number” sign, which connected me to an answering machine at the Department of Public Works.

Scene 2

After listening to Muzak for 15 minutes, I was connected to a “customer service” representative, who took my information (tag number) and confirmed that my car had been towed.  For what infraction, she did not know.  But she offered that my car had been towed to a lot at 800 New Jersey Avenue, NW.  “How thoughtful of DPW,” I quipped. “It’s not like we’re all the way over here in SE Washington.”  Three sweaty kids, my father-in-law, and I climbed into a taxi and promptly joined the slow procession leaving the stadium area.

Upon arrival at the address on the other side of town, the six of us crammed in the cab gazed in wonderment out the taxi’s windows at the sight of … nothing.  We saw nothing approximating a parking lot.  We saw no lot. We saw no Odyssey.  We were on an odyssey.

Scene 3

From the location to which we had been misdirected, I redialed the DPW and was eventually connected to the same “customer service” representative I had spoken with 30 minutes earlier. “Um, we’ve just taken a taxi to 800 New Jersey Avenue, NW, but there’s no lot here.  What’s the story?” I asked.  “I’m sorry,” she said.  “That location was incorrect.  The correct location is the 800 block of New Jersey Avenue, SE.”  “#$%%#$  #@@$#%# ,” I said.  “That’s almost exactly where we started.”  “You #$%, *&#@ ##@!” 

The kids were learning a whole new vocabulary. 

The taxi driver took us to the new address given, which was literally two blocks from where my car had been parked.  There was a parking lot there, so we got out of the cab and gave the driver his $25.  My car, alas, was not in the lot.

Scene 4

The vocabulary lesson recommenced in earnest.  I redialed DPW and was eventually reconnected with my friend, who elaborated that my car was NOT in a lot, but parked along the street on the 800 block of New Jersey Avenue, SE.  I wasn’t positive that we were precisely standing at the 800 block of New Jersey Avenue because there we no buildings or addresses to indicate.  About 50 yards south of where I stood was I Street, SE, which demarks the 900 block of New Jersey Avenue.  I confirmed that I was at the 900 block of New Jersey Avenue, SE and could see for about a quarter mile down the vacant street, which goes under I-395 and up to the U.S. Capitol, and that there were no cars parked on the street; nothing, in fact, but gently rolling tumbleweed. 

But she insisted that I had to be precisely at 800 New Jersey Avenue, SE to determine whether my car was, in fact, there.  So I walked up New Jersey, under I-395, with kids and father-in-law trailing, until the next cross street, which was E Street, SE – the 500 block of New Jersey.  There may have been an 800 block, but there were no demarcations to speak of between the 900 and 500 block.  Along that stretch, there were no parked cars.  My car was definitely not on the 800 block of New Jersey Avenue, SE.

Scene 5

Calculating that my children and nephew had been treated to enough creative poetry, I asked my father-in-law to take them home (to Bethesda) in a taxi, which he did.  Meanwhile, the “helper,” who remained adamant that my car was at said location because I couldn’t say with 100 percent certainty that I was standing precisely at 800 New Jersey when rendering the “missing” verdict (even though I told her that I walked from the 900 to the 500 block and back with both eyes open and saw no cars), grudgingly agreed to try to locate a “supervisor,” who might be of some assistance.  A supervisor might have been of some assistance, but for the problem that THEY HAD ALL GONE HOME FOR THE DAY – a feat I was laboring to accomplish myself.

Left with no other choices, I called the DC Metropolitan Police and reported my car stolen.  The dispatcher asked me to remain at my location, which I reported as “approximately” 800 New Jersey Avenue, SE.

Scene 6

About 20 minutes later a police cruiser pulled up and an officer began taking my information for a stolen vehicle report.  When I told him the story and the model and year of my car, he put down his pen and said that it was most likely not stolen.  The DPW, he said, has a terrible habit of towing cars but failing to log into the system the locations to which they’ve been towed.  He didn’t need to work very hard to convince me of his theory.

The officer said he had four cruisers scouring the area for potential drop sites and told me to hang tight and that he’d return.  At approximately 8:30pm, the police returned and informed me that my car had been located.  It was impounded at a lot in Northeast Washington, which was closed until Monday.

As the last traces of daylight fell behind the Lincoln Memorial, I was hoofing it from Southeast toward Pennsylvania Avenue, NW, where my wife was going to pick me up.  I still didn’t know why my legally-parked car had been towed in the first place.

Final Scene

On Monday during the lunch hour, my wife drove me to 15th Street, NE to the impound lot, where the pieces of the puzzle came together.  I was given an invoice for the services rendered on my behalf – $100 for towing and $40 for storage.  Additionally, to get my car back, I would have to pay for two photo enforcement speeding tickets I had received in the mail in late April for going 41 in a 30 MPH zone on two consecutive days, which I had not yet paid. The payments were 15 and 16 days overdue, so instead of $125 each, they set me back $250 each.  Fine, the late payment was my fault, but did it have to come to this?  There was no parking violation to pay; there was no other cause for towing my car in the first place.

What had happened was that upon registering my tags to initiate the Pay-by-Phone meter service, a database linked to the computer system of the otherwise incompetent DPW generated a red flag indicating the location of a vehicle associated with unpaid fines.  DPW acted with dispatch and efficiency to steal my car to hold as collateral, and then with incompetence about locating it and indifference about the enormous inconvenience and expense of the process. 

Epilogue

But the broader lesson from this tale reinforces concerns about privacy and information sharing and the proclivity of government to use our personal information for purposes outside the scope of our expectations and possibly threatening our freedoms.  Be skeptical about initiatives like National ID or national databases sold in the name of public safety or health.  Read and listen to the concerns raised by people like Cato’s Jim Harper and Julian Sanchez.  Governments use the personal data you supply for purposes you did not intend, so be judicious about sharing.  

And be careful about the allure of technological convenience; it might just be Big Brother waiting to pounce.

Cato: Paul Ryan Gets Free Markets

Posted by Chris Edwards at http://www.cato-at-liberty.org/paul-ryan-gets-free-markets/

Paul Ryan is an excellent choice as running mate for Mitt Romney. He understands federal spending and tax policies in enormous detail. He has said that he started reading federal budgets when he was in high school. He’s also read Global Tax Revolution, my book with Dan Mitchell about the implications of globalization and tax competition. He knows that the American economy will not thrive with high tax rates, especially on business income and capital. He shares Mitt Romney’s goal of chopping the corporate tax rate to revive investment and job creation.

Ryan is an articulate defender of free enterprise, and he consistently argues not just for the practical advantages of smaller government but also about the moral imperative to cut. America will face giant fiscal and economic emergencies unless we make major reforms to the government. Mitt Romney, of course, has had a rather mixed record regarding free markets and limited government. And Ryan–as a good politician–has compromised many times as well. But if the next administration is Republican, and if it decides it wants to push major reforms, Paul Ryan is uniquely qualified to lead the charge.

Cato: Justice Kennedy’s Mysterious Philosophy

Posted by David Boaz at http://www.cato-at-liberty.org/justice-kennedys-mysterious-philosophy/

Time magazine’s cover story looks at the power and mystery of Justice Anthony Kennedy.

He’s often the pivotal vote on a divided Supreme Court, Massimo Calabresi and David Von Drehle write. Sometimes he sides with the conservatives, sometimes with the liberals. It seems to mystify them:

Over that time, Kennedy cast the pivotal vote in cases dealing with abortion, the death penalty, gay rights, the war on terrorism, campaign finance and school prayer….

Efforts to fit Kennedy’s major opinions into a clear, coherent philosophy have met with little success. He generally sides with the court’s conservatives but is not tethered to any particular constitutional doctrine. “There is no grand unified theory for Justice Kennedy’s jurisprudence,” says Viet Dinh, a leading conservative court watcher….

More and more cases are decided based on his idiosyncratic values.

They do provide a few hints:

Instead of grounding abortion in a “right to privacy,” which is never mentioned in the Constitution, Kennedy declared it to be part of the well-established right to liberty….

[In the Texas sodomy case] Kennedy wrote broadly, “Liberty protects the person from unwarranted government intrusions” and “includes freedom of thought, belief, expression, and certain intimate conduct.”…

Opponents of Obamacare focused their Kennedy briefs on a number of opinions in which he maintained the importance of limiting government intrusions into individual liberty.

Hmmm. Justice Kennedy seems to be very concerned with liberty. He often sides with conservatives on economic issues (which are actually never mentioned by Time) and campaign speech, and with liberals on civil liberties, gay rights, and school prayer. Pretty inconsistent, huh?

Or then again, maybe Justice Kennedy has a basically libertarian view of the world and the Constitution. The word “libertarian” never appears in the article. Perhaps it should.

And it’s not like the idea of Justice Kennedy’s libertarianism is a deep, dark secret. The writers might have consulted Helen Knowles’s book The Tie Goes to Freedom: Justice Anthony M. Kennedy on Liberty. Or Frank Colucci’s book Justice Kennedy’s Jurisprudence: The Full and Necessary Meaning of Liberty. Or Randy Barnett’s Cato Supreme Court Review article on the Texas case, “Justice Kennedy’s Libertarian Revolution.”

I’m not saying that Justice Kennedy is a down-the-line, Nozick-reading, Cato Institute libertarian. He did join the Court’s statist majority in the medical marijuana case Raich v. Gonzales. And he infuriated libertarians by joining the majority in striking down state term limits and upholding state eminent domain. But the books and article cited above, and the Institute for Justice’s 1997 rating of Supreme Court justices, do point to a strong libertarian streak in Kennedy’s jurisprudence.

Time’s inability to point that out reminds me of a column I did in 2010, on another distinguished journalist’s inability to apply the obvious label to Nobel laureate Mario Vargas Llosa’s political views — which are clearly libertarian, or as he would put it, liberal. Are journalists really so stuck in a red/blue, liberal/conservative world that they can’t identify libertarianism even when they describe its elements?

Cato: Citizens United Lives for Another Day

Posted by John Samples at http://www.cato-at-liberty.org/citizens-united-lives-for-another-day/

The Supreme Court has now decided the Montana Supreme Court’s effort to overturn or to constrain Citizens United. As many expected, the Montana Court has been reversed without having a formal briefing and argument.

The five justices who decided Citizens United also decided this case. The four dissenters included Justice Stevens’ replacement, Justice Kagan. The majority found the case to be uncomplicated:

The question presented in this case is whether the holding of Citizens United applies to the Montana state law. There can be no serious doubt that it does. See U. S. Const., Art. VI, cl. 2.

They refer to the Supremacy Clause: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

If judges in every state are bound by the Constitution and thus, the First Amendment, didn’t the Montana judges act contrary to their constitutional obligations?

The dissenters disagree with Citizens United and would have overturned it or allowed Montana to violate the First Amendment.

The party of government has long believed in the supremacy of the Supremacy Clause. For them moral progress is measured by increases in the scope and power of those who reside inside the Beltway. The four dissenters have found an exception to such centralization. No doubt their turnaround depends on new research into the meaning of the Fourteenth Amendment.

This decision should remind everyone that if one justice in the Citizens United majority leaves the Court, and President Obama selects his replacement, Citizens United will almost immediately be overturned.

Cato: Obama Administration Adopts De Facto Dream Act

Posted by Alex Nowrasteh at http://www.cato-at-liberty.org/obama-administration-adopts-de-facto-dream-act/

Two senior Obama administration officials told the Associated Press that the administration will enforce many of the major portions of the Dream Act using the president’s administrative discretion to defer deportation actions.  According to a memo released by the Department of Homeland Security this morning, the plan would apply to unauthorized immigrants who:

• Came to the United States under the age of 16.
• Have continuously resided in the United States for a least five years preceding the date of the memorandum and are present in the United States on the date of the memorandum.
• Are currently in school, have graduated from high school, have obtained a general education development certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States.
• Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise poses a threat to national security or public safety.
• Are not above the age of 30.

If the above plan is implemented fully, between 800,000 and 2.1 million unauthorized immigrants could be legalized for up to two years.  By being legalized they will become more productive, earn higher wages, and more fully assimilate into American society.  But this is only a temporary fix.

Temporary work permits can be issued to unauthorized immigrants who have their deportations deferred but in this situation they would only last 2 years.  It’s a routine administrative procedure that already occurs for unauthorized immigrants who have their deportations deferred.  This is one situation where the complexity of our immigration rules and regulations works to the advantage of immigrants and Americans.

A permanent version of this action in the form of the admittedly imperfect Dream Act would need to be passed to reap the full rewards.

The benefits from passing the Dream Act are enormous.  Evidence from the 1986 amnesty showed that the legalized immigrants experienced a 15.1 percent increase in their earnings by 1992, with roughly 6 to 13 percentage points due to the legalization.

In the Winter 2012 issue of The Cato Journal, Raul Hinojosa-Ojeda estimated that an amnesty similar to 1986 would yield at least an added $1.5 trillion to GDP over a single decade.  If 2.1 million eligible unauthorized immigrants were permanently legalized, that would be at least $250 billion in additional production over the next decade (back of the envelope calculation).

However, before we get too thrilled about the prospects of this sorely needed temporary liberalization, we should remember that hardly anything changed the last time the Obama administration used its prosecutorial discretion to review deportation cases.  His administration promised to wade through backlogged cases and close those where the unauthorized immigrants had strong American family ties and no criminal records.  Since that policy went into effect in November 2011, DHS officials have reviewed more than 411,000 cases and less than 2 percent of them were closed.

If the administration’s proposal temporarily goes as far as the Dream Act would, it will shrink the informal economy, increase economic efficiency, and remove the fear and uncertainty of deportation from potentially millions of otherwise law-abiding people.  It would be a good first step toward reforming immigration and a glimpse at what the Dream Act would do.