Thought Experiments in Profiling

Many of my more liberal friends profess to be outraged by the incipient racism behind the Arizona immigration law.  Setting aside the question of whether the law actually promotes racial profiling (there are many other, better places to find good information on that question), whether such profiling is a public good is a different matter entirely.  I don’t disagree that the idea of making law enforcement decisions solely on the basis of race is fraught with peril, if not outright unconstitutional.  But consider the following scenarios and see how you might react:

• You are a tourist in Costa Rica.  You paid several hundred dollars for a room and bus travel to several exotic locales while in country.  Costa Rica has a lot of illegal immigration from Honduras, due to the high disparity in standards of living, employment, and political freedom between the countries.  Costa Rican police have set up checkpoints all over the countryside, where they inspect the paperwork of those traveling the roads.  When your bus arrives at a checkpoint, you realize you forgot your passport at the hotel.  The policeman, realizing that the resort bus is full of tourist gringos, never gets on board and allows it to pass without checking anyone’s documentation.  Should you, as a fair-minded liberal, be outraged that the driver of the car behind the bus (a Latino woman) was asked for her papers, and you were not arrested for failing to travel with yours?
• Your daughter has been raped.  Based on her statements, a black man with what she believed was an African accent was the perpetrator.  She didn’t see her attacker’s face.  Responding to the APB, a policeman stops a man driving a Toyota with a Kenyan flag bumper sticker because he is driving 10 miles over the speed limit.  During the traffic stop, the policeman realizes the driver has a foreign accent he doesn’t recognize.  He asks for the man’s immigration paperwork, and he cannot produce it, saying he has been in the country for years.  Asked if he is a citizen, the man says no.  Lacking probable cause for a search on the basis of the rape, the policeman arrests the man for failing to carry his green card.  Subsequent investigation of his car and home on the immigration charge lead the police to evidence that prove he committed the rape.  Should you, as a fair-minded liberal, feel uncomfortable that your child’s rapist was detained and investigated on the basis of his immigration status (a question that was only raised because of a sticker on his car and his foreign accent), rather than on any evidence that he raped your daughter?
• There is a bomb in the airport.  Security footage shows that a young woman in a pantsuit placed the bomb behind a trash can.  You have been detained, along with everyone who was on Concourse C at the time the bomb was found.  They are questioning everyone in alphabetical order.  You are an 72-year-old Asian man named Wang with diabetes who needs to check his insulin level.  You are prohibited from accessing your luggage until security has finished questioning everyone.  Your wife, who was walking back from the bathroom on Concourse B at the time of the incident, has been waiting with your test kit outside the interview room for five hours.  You are starting to feel lightheaded.  You’ve asked for medical attention, and they are calling for it now.  But as a fair-minded liberal, are you glad that your government is consistently applying the law by holding you for questioning?
• You just took a new job, and you have been randomly selected for an audit of your I-9 form.  Although you presented a copy of your Social Security Card and birth certificate to your employer during orientation, you are now required to present them — along with five other forms of identification — to a federal agent two weeks after you start your job.  You also have to provide the names of seven references who can vouch for your citizenship.   A week later, you learn that one form of I.D. you presented was found to be inadmissible (the bureaucrat issuing the document spelled your middle name as “Jeffrey,” not “Jeffery,” although you’d never noticed before).  You are expected to present a replacement form of I.D. within 24 hours to the federal agent.  You aren’t sure where you’re going to get that, and it will require you to miss the day of work.  Having been at your job less than 30 days, you don’t have any paid vacation.  Your boss wonders why you’re being investigated by the federal government, but he begrudgingly offers unpaid time off to take care of it.  Two of your friends you used as references call and ask why they were asked if they knew where you had been born (they didn’t know — was that a problem?) by a U.S. Marshal.  You know that your great-grandparents arrived in this country in 1911 on a boat from Finland, and you’ve never left the country but once on a family vacation to Jamaica when you were 12.  You get your backup I.D. to the Federal Building one hour before the office closes, and you return to a pile of extra work from your skeptical boss the next day.  Are you, a fair-minded liberal, edified through this process that the Department of Homeland Security is wisely employing its resources to ensure that illegal immigration in this country is being curbed?

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Obama’s DOJ: In Favor of Al Qaeda Recruiting Tools Before It Was Against Them

If any of the Obama Administration’s stated reasons for closing Gitmo has emerged as its favorite, it has to be that Guantanamo is a recruiting tool for al Qaeda.  This rationalization is particularly useful for the Democrats, because it simultaneously hints at the underlying cause celebre behind closing Guantanamo – that we do unspeakably evil things to those poor people at that bad place – while appearing to be a plus in the Overseas Contingency Operation against Man-Caused Disaster.

Which is the more powerful recruiting tool - this?

But remember that not long ago, this same Administration was moments away from creating a whole new set of al Qaeda “recruiting tools.”  Back in April/May 2009, the Justice Department was ready to forego an appeal of a court order to release dozens of photos of enemy combatants, which presumably depicted them after undergoing harsh interrogation or torture.  Those photos, whose release would have been unlawful under the Geneva Conventions preventing public depictions of prisoners of war, would have invariably reignited similar passions as were unleashed throughout the Middle East and Central Asia in the weeks and months after the Abu Ghraib revelations.  One might recall that things got worse, not better, in Iraq at that point.

Or this?

But here we had the Attorney General recommending that it not appeal to the Supreme Court a judgment by the Second Circuit that would have required the Department of Defense to release these photos.  Even if it would have eventually lost, the government would have delayed disclosure for at least another year.  And it was no slam dunk that it would have lost — the Court has been much more deferential (although not deferential enough) to the executive branch in its prosecution of the war than have the lower courts, particularly the forums chosen by the ACLU for its activist lawsuits.

Only after the intelligence agencies, the military, the public, and ultimately key members of Congress expressed their outrage at such a decision did the Obama Administration first delay, then indefinitely postpone release of the photos.  The matter was ultimately resolved when Congress allowed the Secretary of Defense to order the photos sealed, which he did.  That order was upheld by the Supreme Court.

So, the same Justice Department that is insisting on closure of Guantanamo to avoid inciting terrorist violence was ready to release photos that would surely have incited violence, and would have absent a public uprising against it.  The only common element here?  The ACLU and its liberal allies wanted both to happen, and for reasons utterly unrelated to the violence that may have resulted: they hate George Bush, and they are driven to remind us all of the evil that embraced our land during the dark days of his reign.  Irrational?  Yes.  Explanatory?  Without question.

True, Obama himself signed the law allowing the photos to be protected – in a rather rare reversal of policy.  But Holder and his ilk at DOJ remained unabashedly opposed to the move.  They have zero credibility when they attack Guantanamo as a “recruiting tool.”

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On the Marque, 11/19/2009

Because it’s been too long since the last one.

• As regular readers will know, I’m incredibly passionate about the Orwellian freakishness that is the health insurance mandate in Obamacare.  Unfortunately, it’s so wrong on so many levels, it’s sometimes hard to explain why without being, well, verbose (ahem).  Luckily, there are writers whose clean language, pure logic, and persuasive arguments demand fewer words and more attention.  Read Shikha Dalmia.  (And while you’re at it, read The Black Commenter).
• Michael Gerson is not a raving right-wing ideologue.  He is, however, very scared of where Attorney General Eric Holder is taking us as a country.  You should be, too.
• I mean, the dude said “it depends” when asked if Osama bin Laden would be read his Miranda rights.  Seriously?  You don’t know this?  There isn’t already a 20-page memo on “what you will do if you capture Bin Laden?  We’ll decide when it happens?  Incredible.

• Michael Franc gives us the scorecard on exactly how “moderate” these Democrats are, particularly on fiscal matters.  GOP candidates, start your engines.
• And finally, our good friend Head Muscle shares his worthy insights on the two Koreas.  It’s a moving read, and it subtly explains why we conservatives fight the statist, totalitarian impulse with such vigor.  The world gives us — history gives us —  these irrefutable case studies, yet the theories (and the oppression) persist.

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The Health Insurance Mandate: A Policy in Search of a Power

The federal government has three ways it can obtain a law-abiding American’s property:

1.  It can tax you.  Taxation is the power of the government to force transfers of cash from owners to itself.  It is a broad power, expressly stated in the Constitution:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts, and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States . . . .

Sometimes the government takes your cash on the basis of your income.  Sometimes the government takes your cash because you bought something, like cigarettes or gasoline. Sometimes the government takes your cash when you trade with other nations.   And sometimes the government takes your cash because you die.  But if the government taxes you, it is always the direct recipient of the money – at least for a moment, before it spends it.

2.  It can take your property (and pay you for it). Eminent domain is the power of government to force transfers of property from owners to itself or its designees.  A little-known fact — the power of eminent domain is not in the Constitution itself.  Rather, it was presumed by the Framers to be an inherent power of government, but one that needed to be controlled.  Thus, the Fifth Amendment prohibition on uncompensated takings:

No person shall…be deprived of life, liberty, or property, without due process of law, nor shall private property be taken for public use, without just compensation.

Here, the Framers were striking back at the abuses of the British government, which occasionally took private property for use by the Crown, without compensation.  And when the Fifth Amendment says “property,” it means the tangible stuff — your real estate, your tractor, your great aunt’s buffet, you name it — just not your money.  That only makes sense, because when it comes to the “just compensation,” unless the property owner agrees otherwise, it’s always going to come in the form of cash.

One small change in practice since the days of the Founders has been the designation of some limited private parties with the right of eminent domain.  In these cases, the government usually grants heavily-regulated companies (railroads, power companies, telecoms) with a limited right to exercise eminent domain in furtherance of a public utility.  But even in these cases, the private party must demonstrate that the taking is necessary for a public purpose; it can only take tangible property (not cash); and the taking must be justly compensated with cash.

3.  It can regulate your commerce (and take your cash in the process). Since the advent of the 20th century, Congress has done remarkable things through its Article I power to “regulate Commerce . . . among the several States. . . .”  It has regulated the financial markets, ensured the safety of foods and drugs, prohibited pollution, protected endangered species, and imposed workplace rules.  In each case, it requires a person or corporation performing a certain activity to perform it in a certain manner.  For example, if a mining company chooses to employ workers in mining, it has to properly train them and give them certain equipment necessary to do their jobs safely.  The government does not require anyone to actually mine — that is up to the company — but if it chooses to mine, it has to do it right.  Similarly, if a steel mill wants to operate, it has to get an air pollution permit.  That permit might require the company operating the mill to pay certain fees to the government, but only because it wants to operate.  If instead it shuts down the mill and didn’t doesn’t emit pollution, it doesn’t have to pay the fee.

Does this sound elementary?  Maybe so.  But if President Obama’s health care plan is enacted as described, it will attempt to create a fourth way for the federal government to take your property.  Let me explain why.

Our good friends at American Missive took aim at our President’s latest easy target: his claim that his “excise tax” on those who refuse to buy health care under his plan is not a tax.  Let’s look at his explanation:

Frankly, I agree with the President.  This is not a tax.  A tax requires a property owner to pay cash to the government to pay for public services or debt.  In this case, the only time the government gets cash is when it fines the individual for failing to obtain health insurance.  That’s not a tax — fines are an act of law enforcement.  Even if one gets fined here, he still has to pay a private party for health care.  So, President Obama, you’re right — this is not a tax.

So, one has to ask — which of the other two options is it?  Let’s take the easy one first — it’s definitely not an exercise of eminent domain.  Why is that an easy answer?  Because the transaction doesn’t involve tangible property.  Rather, Obama’s health care plan would require a private citizen to pay cash to a third party for a service (health insurance).  Now, the health insurance mandate does bear one similarity to the eminent domain option.  Only the eminent domain option allows government to invest a non-governmental entity with the ability to act in the public interest — the government can’t give private parties the right to tax or regulate.  But remember why the eminent domain option exists — to allow the government (or its designee) to obtain specific tangible property that it needs for public purposes.  That need isn’t in play here, so eminent domain is off the table.

So we’re left with Congress’ power to regulate interstate commerce.  To be sure, this power has been a carte blanche for Congress for almost 100 years now, so one might be tempted to end the analysis right here.  But even a broad-minded advocate of the Commerce Clause has to acknowledge that the health insurance mandate is entirely new territory.  Why?  Because it regulates a citizen’s existence, not her activity.

If you want to understand the outer limits of the Commerce Clause, it’s best to head to the wilderness.  Consider, for example, whether the proposed regulation would apply to a person who effectively opted out of all commercial activity, pitched his tent in the woods, caught or grew his own food, and did everything in his power to avoid the rest of humanity.  Obviously, such a person is not engaging in interstate commerce — he’s not engaging in commerce at all, in fact.  The closest he comes is when he kills his food (he might be shooting a spotted owl, after all), but that’s a debate for another day.  Regardless, our man in the wilderness is NOT consuming health care and driving up the costs for the rest of us.  But under the Obama plan, he would still be subject to a fine for failing to obtain health coverage.  Our man in the wilderness isn’t undertaking any activity, or availing himself of a privilege — he is surviving, plain and simple.  When Congress has attempted to criminalize activity that is inherently intrastate (as this man’s would be), the Supreme Court has struck down those regulations (U.S. v. Morrison; U.S. v. Lopez).

Consider three scenarios where Obama’s fine would apply.  We’ve already considered the first — the person who never seeks health care or insurance.  It’s impossible to conceive of how that individual might impact interstate commerce, but it’s also difficult to conceive of such an individual in today’s society.  So we move to the second example — the person who always pays cash for health care.  This was the model for health care payment as recently as fifty years ago.  Is it possible that such behavior — which creates no public debts, nor imposes higher costs on the insured — has such an irresistible impact on the health insurance industry that it can be subject to civil enforcement?  The third scenario goes to the individual who has health insurance, but not a plan that meets all the bells and whistles required by an Obama regime.  If a conservative Christian refuses to carry health insurance that covers abortion or contraceptive services for religious reasons, does her conscience-based alternative create consequences for interstate commerce?  She pays her premiums; she covers her co-pays; and yet her business transaction is one worthy of national regulation?

But this all ignores the more fundamental question: Can the federal government require a citizen to pay cash to a private party for services he does not wish to receive, and if he refuses, penalize him? Such an act would be unprecedented for the federal government.  It is so unprecedented that, to my knowledge, it has never been tested in the federal courts.  I would argue it’s never been tested because no prior Administration would ever argue it was possible.  It’s not taxation — the government isn’t getting the money.  It’s not eminent domain, because no tangible property is being exchanged.  And it’s not regulation of commerce, for the burdened citizen is not seeking to engage in the commercial transaction being regulated.  So what is it?

I’ll tell you what it is — it’s unconstitutional.

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