My friend Constantino Diaz-Duran, an immigrant from Guatemala and now a student at Columbia University, offers his views in the Columbia Spectator on the shameful violent shutdown of the “Minuteman forum” at Columbia, and on the benefits to the nation of immigrants, as well as the dangers of welcoming immigrants into the welfare state, rather than productive work. Constantino has written for Cato’s Spanish-language website, www.elcato.org, and was involved in the production of Cato’s bilingual English-Spanish edition of the American Declaration of Independence and the Constitution of the United States.
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Kaiser Flubs HSAs
A new report on health savings accounts (HSAs), published by the Kaiser Commission on Medicaid and the Uninsured, is wrong or misleading in nearly every particular. In essence, the report claims that HSAs are not good for poor people, when in fact all it shows is that poverty is not good for poor people.
I briefly considered doing a point-by-point response. But then I remembered that I had already done so, in a paper titled “Health Savings Accounts: Do the Critics Have a Point?”, released five months ago.
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WSJ Weighs in Against ‘REAL Bad ID’
This morning’s Wall Street Journal opinion page blasts Republicans for passing the REAL ID Act. [subscription required]
Keyed to a recent report showing the costs of compliance at $11 billion, the piece notes that all Americans will have to reapply for their drivers’ licenses and ID cards if states go along with this unfunded federal surveillance mandate. It also addresses whether a national ID protects against terrorism or provides effective immigration control and finds REAL ID wanting on both counts. My book Identity Crisis shows why.
Sooner rather than later, Congress will recognize its error in passing the REAL ID Act. Most likely it will try to kick the can down the road. Look for a quiet attempt to change the deadline for getting a national ID in everyone’s hands.
But that is not the solution. If Congress wants a national ID, it should have hearings, markup and pass legislation, then fund and implement a national ID itself.
Congress didn’t have a single hearing or up-or-down vote on the REAL ID Act. This much exposure would kill a national ID plan, of course.
Rock Against Intolerance
The Washington Post recently ran an inspiring article, “Rock Star Rattles Radical Islam,” about Ahmad Dhani and the Indonesian popular music group Dewa. Their popular song “Warriors for Love” is a counter to radical political Islamism and a call for peace and social harmony.
Dewa work closely with an outstanding group based in Indonesia, LibForAll. They have published in Bahasa Indonesia a book on Islam, the State, and Civil Society. My colleagues at the Lamp of Liberty are working with LibForAll to produce a full edition in Arabic, thus taking an Islamic message of toleration and freedom from Indonesia to the Arab world.
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Amnesty? What Amnesty?
Here’s an interesting and under-remarked, cert. petition involving separation of powers claims pending before the Court: Stolt-Nielsen S.A. v. USA. Stolt presents a minor key in a major symphony: the ongoing debate over the boundaries of judicial control over the executive branch. Here, the Department of Justice claims courts lack the power to enjoin the Department of Justice from breaching immunity agreements entered with corporate defendants in the cross-hairs of federal antitrust investigators.
A bit of background: The federal government operates an amnesty program, called the Corporate Leniency Program, under which DOJ covenants not to prosecute firms that cooperate with antitrust investigators, so long as a series of conditions are met.
In 2002, Stolt-Nielsen contacted the DOJ Antitrust Division with an offer to cooperate in the investigation of collusive trading practices between Stolt and two competitors. DOJ executed a conditional amnesty agreement, prompting Stolt to turn over a series of incriminating documents to DOJ attorneys, waiving, in the process, attorney-client privilege. Four months after entering the agreement, DOJ notified Stolt it was suspending the government’s obligations under the agreement because Stolt had misrepresented the termination date of its own anticompetitive practices. In 2004, the DOJ announced its intention to indict Stolt. Stolt sued to enjoin, contending it deserved an evidentiary hearing on the DOJ’s claims prior to indictment.
The government argues that its leniency agreements do not offer immunity from indictment. As the Chamber of Commerce’s amicus brief in support of Stolt’s petition points out, that’s rather different from the representations DOJ has used to induce corporate cooperation:
The [DOJ Antitrust] Division defines “leniency” as “not charging such a firm criminally for the activity being reported” … The Antitrust Division’s Grand Jury Practice Manual expressly states that the term of art “lenient treatment” “means not indicting such a firm.” .… Representatives of the Antitrust Division have described the Leniency Policy as “a complete pass from criminal prosecution or total immunity for a company and its cooperating employees,” and have observed that “ … the grant of amnesty is certain and is not subject to the exercise of prosecutorial discretion.”
Even so, Stolt’s case faces a number of barriers: (1) the settled rule that due process does not require a pre-indictment hearing on breaches of plea agreements entered by natural persons, coupled with (2) the fact that courts (wrongly, in my view) have refused to extend Fifth Amendment protection to a corporate entity’s interests against self-incrimination. For more, see this pro-government article on the case.
It’s questionable, though, whether ordinary plea agreements are an exact analogy to indictment of a corporate entity, since indictment can literally destroy companies as a going concern: witness Arthur Andersen, which melted down upon indictment, not conviction. As such, the corporate interests at stake here arguably far greater, from a due process standpoint, than a natural person’s interests at the similar stage of proceedings.
Even so, I hold out little hope for Supreme Court attention: It has already rejected two motions to stay the Third Circuit’s order. Moreover, judicial tolerance for misrepresentation in the context of prosecutorial bargaining is, unfortunately, both wide and deep—and, alas, likely to be wider and deeper in the corporate white collar context. Cf. Donald G. Gifford, Meaningful Reform of Plea Bargaining: The Control of Prosecutorial Discretion, 1983 U. Ill. L. Rev. 37 (In the criminal plea bargain, “[d]efendants assume they are receiving substantial sentence reductions in exchange for their guilty pleas. This benefit is often more illusory than real.… The prosecutor’s recommendations, which appear attractive compared to maximum possible sentences, may in fact only correspond with the court’s typical sentencing practices.… [L]ike parties victimized by unconscionable contracts, [defendants] do not understand the terms of the bargain.”).
Was Lt. Cmdr. Charles Swift Too Zealous?
One of the nagging questions about the use of military tribunals has been the role of military defense counsel. If military lawyers report to Defense Secretary Donald Rumsfeld and President Bush (and they do), how can they zealously defend the legal rights of a person that the President has already declared an “enemy combatant” who must be punished for war crimes? Isn’t that a classic conflict of interest? The response has been that the defense counsel for these tribunals would not be under any “command influence.”
Lt. Cmdr. Charles Swift was among the first group of military lawyers that were assigned to represent prisoners facing war crimes charges at Guantanamo. As it happened, Swift’s client, Salim Hamdan, was selected to be the first prisoner that would go before the new military tribunals.
Swift promptly challenged the legality of the commission system–and took the case all the way to the Supreme Court and prevailed. Two weeks after his high court victory, the Navy informed Swift that under its “up-or-out” promotion system, he must leave the Navy.
It is a bit peculiar for the Navy not to retain and promote Swift. After all, Swift was recently named by the National Law Journal as among the nation’s top 100 lawyers. When the tribunals were first proposed, the argument was “we have to do this because otherwise Johnnie Cochran will enter the picture and muck everything up.” Now it seems the feds can’t have Charlie Swifts either.
Lt. Cmdr. Swift participated in a debate here at Cato on military tribunals last March. To view that debate, go here. Swift’s co-counsel in the Hamdan case was Georgetown University law professor Neal Katyal. And Prof. Katyal summarized his critique of the tribunal system in this article (pdf) in the Cato Supreme Court Review.
A not-at-all-Disguised Attempt to…
New Jersey officials have filed a motion for dismissal in that state’s school voucher lawsuit. The suit is seeking the creation of a voucher program for children in “failing” schools on the grounds that New Jersey has not delivered the quality education promised in its constitution.
The state attorney general’s office calls this proposed remedy a “thinly disguised attempt to have the court legislate a school voucher system.”
Nonsense. It is a not-at-all-disguised attempt to do that, and it should fail for that reason. A more plausible remedy that plaintiffs could ask for would be financial restitution for the wasted years of “education” to which their children have already been subjected by the state school monopoly.
If a child had been through five years of public schooling and not learned to read proficiently, the family should receive five years worth of the per-pupil cost of that education so that they could obtain effective educational services outside the government sector. The difference between this and the voucher program sought is that 1) it would apply only to the plaintiffs in the case (but there’s no reason they couldn’t seek class action status), and 2) it would not create an on-going program, just a one-time payment.
The plaintiffs’ lawyers might think that’s insufficient because they want to create an ongoing program right away, but their approach violates the separation of powers. It’s also unnecessary. If the plaintiffs win this suit and the remedy is the one described above, the legislature will act quickly — very, very quickly — to create some sort of new educational program to forestall similar suits all over the state.
And what sort of reform might they adopt? Well, the most popular school choice reform by far in New Jersey is the education tax credit — 74% of the public supported such programs in a recent poll.
If NJ created a large-scale version of Arizona’s or Pennsylvania’s schoalrship donation tax credit programs it could easily provide real public and private school choice to every low-income family in the state. While they’re at it, they could add a personal use tax credit for low and middle-income families with tax liabilities, ensuring universal access to schools of choice. And that, incidentally, is the only way the state will have any hope of living up to its constitutional promises on education.