ScotusBlog hosted a discussion of the Court’s environmental decisions this week, in which I participated. If you are interested in more legal analysis of these cases, you can access all of the ScotusBlog posts, pro and con, here. I also summarize my contributions to the discussion in a short podcast here.
Cato at Liberty
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Constitutional Law
224 Days in Jail
After seven and a half months in jail, Josh Wolf is released.
Behind every law, regulation, search warrant, subpoena, summons, and “national security letter,” is the government’s willingness to put people in prison.
Prior coverage here.
Does Gitmo Hurt More than It Helps?
This morning, NPR did a story on media coverage of the British sailor crisis in the Arab world. Ramez Maluf, a journalism professor at American University in Beirut, pointed to this commentary by an Arab blogger on the subject:
Iranians should consider those 15 pirates as enemy combatants, and treat them in the same way as they treat our “detainees” in Gitmo. They should be put in orange jumpsuits, and their eyes, hands, and feet should be binded [sic]. After that, they should be kept rotting in cages there for five years without any legal process. That would be just like the U.S. style of democracy. It would be very fair.
Thank God, it appears that the Brits are about to be released. Apparently, what the British are supposed to do is state that they “regret” the incident, and will endeavor to make sure it doesn’t happen again, without admitting that the British entered Iranian territorial waters. I imagine that both of those statements are true, though I suspect that “making sure it doesn’t happen again” may mean different things to the English than it does to the Iranians. There are different ways to ensure that such an incident doesn’t happen again.
Second Amendment Litigation
For those interested in the legal maneuvering in and around the landmark Second Amendment litigation, check out Instapundit. Bob Levy had several exchanges with Glenn Reynolds yesterday.
Supreme Court to EPA: Hurry Up and Wait?
Lots of news outlets have been describing the Supreme Court’s opinion in Massachusetts v. EPA along the following lines: “Supreme Court says global warming is bad; tells EPA to fix the problem.”
Is that right? Not really.
In fact, if you read between the lines of the majority’s decision, its not clear that it will alter EPA policy one jot or tittle.
“Regulation,” under the Clean Air Act, can take a number of forms: It can take the form of declaring aspirational emission standards. Or it can take more draconian forms, such as looming technology mandates and imminent implementation deadlines, backed by tough civil and criminal penalties.
Even assuming that, after the Court’s decision yesterday, the EPA has to “regulate” in the sense of promulgating some GHG emission standards, the Court’s decision leaves the EPA with ample room to argue that it can defer deciding when and how to implement those standards in light of the potentially high and uncertain costs of implementation.
A Reply to Ornstein and Corrado
The fifth anniversary of the Bipartisan Campaign Reform Act (also known as BCRA or McCain-Feingold) has arrived, and two of its defenders, Norman Ornstein and Anthony Corrado, took to the pages of The Washington Post yesterday to counter “a widespread view that BCRA did not work, that campaign reform has been a failure.”
They argue that McCain-Feingold has led to “the spectacular resurgence of political parties.” But the political parties were not in decline prior to 2002. They had been reviving since at least the mid-1990s, in part because of the resources that came from party soft money. Ornstein and Corrado say many people thought BCRA would hurt the parties. But, they say, that did not happen. Evidence? “In the two elections held before BCRA, the national parties raised a total of $2.1 billion, nearly half of it in unregulated ‘soft money’…In the two elections since, the parties raised exactly the same amount, but all in ‘hard money.’”
Notice the trick here. Ornstein and Corrado are comparing party fundraising in 2006 to party fundraising in 2002. They show that under BCRA in 2006 the parties raised as much hard money as they did soft and hard money in 2002. But that’s not what we want to know! We want to know whether the parties raised as much or more money in 2006 under BCRA as they would have in 2006 without BCRA. If they did, BCRA didn’t have much effect on fundraising.
As it happens, total party soft money fundraising doubled from mid-term election to mid-term election from 1992 onward. In 2006, the parties would have raised an additional $500 million in party soft money if BCRA had not passed. To be sure, some of the soft money that would have been raised turned up as hard money contributions to the parties in 2006 or as contributions to 527 groups. Even taking those into account, I suspect the parties would have raised at least tens of millions of dollars more in 2006 if BCRA had not banned soft money fundraising. So it is not accurate to say that “our parties are richer.”
According to Ornstein and Corrado, BCRA also made the parties “stronger at the grassroots,” citing party building and get-out-the-vote efforts. Yet in 2004 it was 527 groups (whose funding is not covered by BCRA) who supported the organizations that got out the Democratic vote in battleground states. By law, the 527 efforts could not be coordinated with the parties. As a result, the multi-million dollar contributions by George Soros and others did nothing to build up the Democratic party. In fact, many observers think the disjunction between the 527 get-out-the-vote effort and the Democratic party organization hampered Sen. Kerry’s presidential bid. As for party building, Howard Dean, the current head of the Democratic party, wanted to build up his party in 2006 even in states where Democrats had done poorly in the past. Dean’s party building effort came up short for lack of money. Had the Democrats been able to raise soft money, they would have had enough to both fight the 2006 election and build up their party across the board.
Ornstein and Corrado credit BCRA for a purported rise in small donors to the parties. By cutting off soft money, they imply, BCRA forced the parties to find small donors. They ignore two other factors. The Internet cut the cost of finding contributions and of making contributions. Meanwhile, the Iraq war and rising party competition mobilized donors and voters who otherwise might have stayed on the sidelines.
April Fool’s Dud
Over the weekend, I put an April Fool’s Day post up on Tech Liberation Front, indicating a security breach in the NAPHSIS EVVE system. It was almost instantaneously debunked by a commenter. Thank you so much, blogosphere .… The post was intended to illustrate some issues with identification-based security and the REAL ID Act.
The National Association for Public Health Statistics and Information Systems has developed and implemented the Electronic Verification of Vital Events system to allow immediate confirmation of the information on a birth certificate presented by an applicant to a government office anywhere in the nation irrespective of the place or date of issuance.
That sounds neat, but it is being incorporated into the REAL ID national ID system apparently without regard to the security issues involved. If we are going to use driver’s licenses for security purposes, each link in the chain of issuance is then a potential vulnerability.
What if the NAPHSIS EVVE system and others like it were compromised and made to confirm the issuance of birth certificates that didn’t actually exist? We could have untold numbers of licenses issued based on fraud. The system we have now, which provides a modicum of security, could collapse as fraudulently acquired driver’s licenses proliferate.
Two weeks ago, at the meeting of the Department of Homeland Security’s Data Privacy and Integrity Advisory Committee, I asked Stewart Baker, Assistant Secretary for Policy at DHS, what counter-measures might be employed by attackers on the REAL ID national ID system. He said, “We have done some thinking about that …” I’m not sure our confidence should be inspired.
Every weakness in the system should be explored carefully. I summarized some of them in Appendix A of my testimony at the Homeland Security and Governmental Affairs Committee last week.