Topic: Law and Civil Liberties

Nationwide E-Verify an Unwelcome Step Towards a National ID

By Matthew Feeney

Senate Judiciary Committee Chairman Chuck Grassley recently reintroduced an E-Verify bill that ought to concern privacy advocates. If enacted, the bill would implement the employment verification scheme nationwide, something President Trump called for during his campaign. Nationwide E-Verify would establish the framework for a national ID system that would undoubtedly come to be used for more than the enforcement of immigration laws.

E-Verify allows employers to check a new hire’s information against government databases to confirm legal status. It is an ineffective system. One reason why E-Verify suffers from inefficiency is because, as things stand, employers taking part in E-Verify use information from documents such as Social Security cards provided by employees. Because the E-Verify system matches employees’ names with a Social Security Number (SSN) it’s possible for an unauthorized worker using a fraudulent SSN to be cleared for employment. A 2009 audit commissioned by the United States Citizenship and Immigration Services estimated that 54 percent of unauthorized workers who submitted documents via E-Verify were erroneously cleared for employment thanks to fraud.

An effective E-Verify system would have to address this glaring loophole. One way of addressing E-Verify’s inadequacy is to include biometric information, such as a facial photograph. Such proposals are worrying.

The E-Verify system currently checks submitted data against Department of Homeland Security (DHS) and Social Security Administration databases. Section 11 of Grassley’s bill would allow the E-Verify system to include the “passport and visa record (including photographs) maintained by the Department of State” as well as driver’s license photos. Seven states voluntarily provide DHS with driver’s license data as part of the Records and Information from DMVs for E-Verify (RIDE) initiative. 

That Grassley’s bill explicitly mentions driver’s license photos is important. Allowing the DHS secretary to deem it necessary for the E-Verify system to confirm identity via driver’s license photos introduces biometric information that proponents believe will make the system more effective.

If the statute purports to require that 43 states provide DMV information that raises constitutional concerns, but as the recent debates surrounding REAL-ID show, the federal government could try to coerce states into compliance. DHS announced last month that residents in nine states will need an identifying document other than a state driver’s license to fly if their licenses are not REAL-ID compliant by January 22, 2018.

Even if the federal government fails to force states to submit DMV data under a nationwide E-Verify scheme, there is still the possibility of nationwide E-Verify leading to a de facto biometric national ID card.

Read the rest of this post »

Topics:
Law and Civil Liberties

China Shuts Down Website of Mao Yushi, Friedman Prize Winner

By Ian Vásquez

Akbar GanjiIn its ongoing crackdown on advocates of free speech, human rights and other liberties, China’s communist party has shut down the website of Milton Friedman Prize winner Mao Yushi’s think tank. Mao has spent a lifetime promoting the values and principles of a free society for which he has often paid a high price, including severe persecution. The Unirule Institute of Economics that he cofounded has educated new and old generations of Chinese on the importance of private property, the rule of law, freedom of choice, voluntary exchange, and other aspects of the market economy, and on how to transition away from central planning.

In recent years, Mao has been warning about a “leftist revival” in China and has called for a critical evaluation of Mao Zedong’s role in Chinese history—an officially taboo subject. His essay “Returning Mao Zedong to Human Form” (upon which this English summary is based) condemned the communist leader’s brutal policies and earned him retribution from the neo-Maoist movement that has been growing with the regime’s encouragement. Repression under President Xi Jinping has intensified as journalists, lawyers, human rights activists, scholars, and members of religious communities have been jailed or otherwise oppressed. The regime has warned against the danger of foreign and western ideas, increased censorship and closed numerous NGOs, accusing them of being foreign agents.

It is in the context of that widening crackdown and disregard for due process or the rule of law that the communist party has closed Mao Yushi’s website. We hope that it does not signal further repression against Mao, his think tank or his colleagues, but we cannot be confident that the law will protect them. Indeed, the head of China’s Supreme Court recently asserted that the Party is above the law and warned against western concepts such as judicial independence.

Read the rest of this post »

Topics:
International Economics, Development & Immigration, Law and Civil Liberties

Trump’s Inaugural Address, and the Words That Were Missing

By Walter Olson

Donald Trump, in his inaugural address today: “The oath I take today is an oath of allegiance to all Americans.” A harmless rhetorical flourish, no doubt, and one that Trump is by no means the first to make. And yet…

Note that the President’s actual oath of office says nothing about allegiance. It instead contains verbs promising two types of action: “faithfully execute the Office” and “preserve, protect and defend the Constitution.” Its exact text reads: “I do solemnly swear that I will faithfully execute the office of President of the United States and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”

If a President does those two things, the American people as a whole will benefit. So no big difference from what Trump said, right? Maybe. 

The words of the actual oath require the President first to uphold legality, even above his vision of what might be good for the people. This element of legal constraint is lost if a President sees his allegiance as being to someone rather than something. As colleague Tim Lynch wrote on Wednesday, “There are many other checks and balances in our system, but the oath of office is supposed to be the first line of defense.”

Now history may look back and see this as an unimportant choice of words. Trump’s actions one way or the other will speak louder than his shades of wording.

Still, I wish the speech had used the word “Constitution,” or “law” in a way beyond the phrase “law enforcement,” or “Framers” or “Founders,” or “Declaration” or “Amendment” or “individual” or perhaps “rights.” The one occurrence of “right” was in a passage about “the right of all nations to put their interests first.”

During his campaign, Trump’s style was noteworthy for how seldom he mentioned the Constitution, the legal limits of government power, or the rights of the individual. Let us hope that these themes emerge in future speeches by the new President.

Topics:
Government and Politics, Law and Civil Liberties

77% Say On-Duty Police Shouldn’t Swear at People

By Emily Ekins

Nearly 20% of Americans report a police officer having used profanity with them. Yet, an overwhelming majority—77%—of Americans say police should be prohibited from using profanity or swearing at citizens while on the job. Twenty-three percent (23%) say police ought to be allowed to swear at citizens while on duty, according to a newly released Cato Institute/YouGov survey.

Find the full public opinion report here.

Opposition to police profanity reaches rare bi-partisan consensus—77% of Democrats and 75% of Republicans agree that police shouldn’t swear at people. Americans of virtually every demographic group identified strongly oppose allowing police use such language, including 77% of whites, 82% of blacks, and 72% of Latinos.

Why might police profanity matter? First, police image matters, and profanity could make police appear unprofessional, undisciplined, or “lacking self-control” as one research subject put it. Research experiments have shown that police using profanity are perceived as less fair and impartial. Further, police using profanity at the same time as using physical force with a person may cause people to view the force as excessive.  Given that personal encounters with police may be the strongest driver of attitudes toward law enforcement, one bad experience with police profanity may significantly harm a person’s willingness to trust and cooperate with police.

Second, some have argued that officers using profanity can “set someone off” and unnecessarily escalate confrontations with people leading to more force being used than was otherwise needed. Third, some contend police using such language can harm officers during court proceedings by appearing less sympathetic in front of the judge and jury.

Read the rest of this post »

Topics:
Cato Publications, Government and Politics, Law and Civil Liberties

Dastardly D.C. Judges Shouldn’t Punish Political Punditry

By Ilya Shapiro and Thomas Berry

Michael Mann is a climate scientist and researcher whose work has been at the center of the global warming debate for decades. After emails came to light concerning Mann’s statistical methods, two of his critics wrote scathing pieces arguing that Mann had “molested and tortured data in the service of politicized science,” and calling for “a fresh, truly independent investigation.” Despite such harsh criticism being par for the course in online commentary, Mann sued both writers (Mark Steyn and Rand Simberg) and their publishers (National Review and the Competitive Enterprise Institute, respectively) for libel.

A three-judge panel of the D.C. Court of Appeals (the District’s highest court) ruled that Mann’s libel claim could succeed in front of a jury, and allowed the case to go forward. The defendants have asked the court to reconsider the implications of its decision, and Cato has filed a brief supporting that request.

Harsh words are common to the discourse of pundits and politicians alike. Op-eds and stump speeches frequently feature terms like “fraud,” “scam,” “misconduct,” and even “treason.” Whether such characterizations are apt or not is for readers and listeners to judge, but until now few imagined that using them could lead to years of litigation and a costly libel verdict.

Similarly, calls for investigation and accusations of whitewashing have a long history dating back to Emile Zola’s J’accuse…! and continuing today with debates over the trials of O.J. Simpson, George Zimmerman, and many others. If Mann’s critics committed actionable libel, then so might everyone who has voiced disagreement with such verdicts, as well as everyone who has called for politicians to be investigated for corruption, fraud, or war crimes.

Finally, the court wrongly held that merely comparing a public figure to a “notorious person” could be libelous. As we know from Godwin’s law, such comparisons are a time-honored tradition of American debate. Opinion writers in recent years have invoked colorful analogies to Timothy McVeigh, Charles Manson, and Jack the Ripper to express their displeasure with the conduct of public figures. Writers and historians concerned with the conduct of politicians have drawn parallels with Stalin, Mussolini, and, of course, the ubiquitous Hitler. Right or wrong, such language is unquestionably speech on subjects of public concern.

The D.C. Court of Appeals should give Mann v. National Review a second look and reverse its earlier decision. It’s no exaggeration to say that the court’s reasoning could put thousands of articles, blogposts, and even tweets under a cloud of potential liability, thereby chilling the speech that is the lifeblood of Washington politics. Cultural and political debates should be litigated in the court of public opinion, not law.

Topics:
Government and Politics, Law and Civil Liberties

Court: Pennsylvania Has No Common Law Asset Forfeiture

By Walter Olson

In a case involving the state’s attempt to confiscate a man’s handgun following his conviction for disorderly conduct, the intermediate appellate Pennsylvania Commonwealth Court has ruled that asset forfeiture is not a part of the state’s common law:

We conclude that common law forfeiture, as that concept originated and developed in England, was never incorporated into or became part of our Commonwealth’s common law tradition. Based upon our research, the Commonwealth’s organic law, namely Article 9, Sections 18 and 19 of the Pennsylvania Constitution of 1790, denounces and effectively abolishes any notion of common law forfeiture and that the predominate, if not unanimous, weight of the authority has determined that common law forfeiture never made it across the seas to America. Therefore, absent a statute that specifically authorizes the forfeiture of property, the Commonwealth and the courts have no authority to seek and order forfeiture of [property not unlawful to own in itself, but used in perpetration of an unlawful act].

And that should bring the Keystone State (finally) in line with the general view of American courts: while most states long ago rejected the traditions of English royal governance and required a statutory basis for forfeitures, Pennsylvania had been an exception, thanks to three decisions by its Superior Court in the 1980s that approved seizures on a so-called common law theory.  No more. 

The practical result is that law enforcement in Pennsylvania — as is the norm in other states — must either point to an authorizing statute or hand a seized item back. 

 

Topics:
Law and Civil Liberties

Protesting Trump’s Inauguration

By Tim Lynch

Massive preparations are underway here in the District of Columbia for Donald Trump’s inauguration. Temporary fencing is going up along with bleachers and roadblocks. In addition to thousands of well-wishers, thousands of protesters are expected. It will doubtless be an unforgettable day. 

It is worth remembering that before Mr. Trump can take any official action whatsoever, he must first take an oath to support and defend the Constitution. There are many other checks and balances in our system, but the oath of office is supposed to be the first line of defense. Mr. Trump can use the bully pulpit (and his Twitter account) to respond to his critics, but he must respect their right “to peaceably assemble, and to petition the Government for a redress of grievances,” as the First Amendment makes clear.

Can you imagine the outcry if Mr. Trump were to threaten to arrest protesters at his inauguration? It would be deafening—and fully justified. And yet, if you can believe it, there have been previous attempts to do just that. We should remember such episodes in our history.

In January 1997, Rev. Patrick Mahoney and a few other anti-abortion protesters planned to demonstrate along the sidewalks adjacent to President Bill Clinton’s inaugural parade route. When word got around about these modest plans, something had to be done. Mahoney and his Christian Defense Coalition received oral and written warnings that they would be arrested if they proceeded with their small protest. Shocked by such threats, Mahoney went to court to seek an emergency injunction to protect his group’s constitutional right to protest on the big day: January 20, 1997.

It soon became apparent that this story was bigger than a low-level bureaucrat trying to intimidate some guy that didn’t have any political connections. Attorneys trained at our best law schools arrived in court to double down. Yes, the local U.S. Attorney admitted, Randall Myers, counsel for the National Park Service, had informed Mahoney that his people wouldn’t be arrested if their signs offered congratulations to Clinton, but they would be arrested for signs containing any criticisms of Clinton. This blatant discrimination between viewpoints could be justified, said the local U.S. Attorney.

The Court of Appeals was pretty flabbergasted by such claims. Here is an excerpt from the unanimous ruling: “[A]ll constitutional authority supports the position we would have thought unremarkable, that a government entity may not exclude from a public forum persons who wish to engage in First Amendment protected activity solely because the government actor fears, dislikes, or disagrees with the opinions of those citizens. None of the authorities offered by the government is to the contrary. Indeed, none is on point.” Ouch! That’s a body slam in legal circles. And a well-deserved one.

Let’s fast-forward to recent news. Since Mr. Trump’s election, the left has been busy with plans to organize a resistance movement. California Assembly Speaker Anthony Rendon has promised to “lead the resistance to any effort that would shred the social fabric of our Constitution.” It was recently announced that California has retained former Attorney General Eric Holder to defend the Constitution from the Trump administration. That was not a wise move. In 1997, Holder was the U.S. Attorney in the District of Columbia. He was the one who tried to justify arresting protesters that were critical of President Clinton. If Holder is the Constitution’s defender, we’re in big trouble.

One of the reasons that our Bill of Rights is in trouble is because there are not many people or organizations that make a principled defense when it is attacked. Let’s resolve to do better going forward.

For related Cato scholarship, go here, here, and here.

Topics:
Government and Politics, Law and Civil Liberties

Pages