Justice Anthony Kennedy seems to be carving out his place as the Supreme Court justice who doesn’t “get” identity. Maryland v. King was the case issued today that shows that.

His opener was the 2004 decision in Hiibel v. Sixth Judicial District Court of Nevada, which ratified laws requiring people to disclose their names to police officers on request.

In that case, Deputy Lee Dove of the Humboldt County (NV) Sheriff’s Department had received a report that a man had slugged a woman. He didn’t know the names of the alleged perpetrator or the victim, but Dove found Larry Hiibel standing next to his truck at the side of the road talking to his seventeen-year-old daughter seated inside. Dove didn’t check to see if they were having a dispute, or if anyone had hit anyone. He just started demanding Hiibel’s ID.

“Knowledge of identity may inform an officer that a suspect is wanted for another offense, or has a record of violence or mental disorder,” Justice Kennedy wrote, approving Hiibel’s arrest for refusing to show his papers:

On the other hand, knowing identity may help clear a suspect and allow the police to concentrate their efforts elsewhere. Identity may prove particularly important in [certain cases, such as] where the police are investigating what appears to be a domestic assault. Officers called to investigate domestic disputes need to know whom they are dealing with in order to assess the situation, the threat to their own safety, and possible danger to the potential victim.

Even if he had gotten Larry Hiibel’s ID, that wouldn’t have told Dove any of these things. Dove would have had to stop his battery investigation to investigate Hiibel’s background, which he didn’t do until after he had arrested Hiibel–and after his partner had thrown Hiibel’s distraught daughter to the ground. (There’s your battery.)

In Maryland v. King, Justice Kennedy did it again. He wrote the decision approving DNA identification of arrestees. Like demanding Hiibel’s ID, which had no relation to investigating battery, Maryland’s practice of collecting DNA has no relation to investigating or proving the crime for which King was arrested, and it does nothing to administer his confinement. This Justice Scalia made clear in a scathing dissent.

The Court alludes at several points to the fact that King was an arrestee, and arrestees may be validly searched incident to their arrest. But the Court does not really rest on this principle, and for good reason: The objects of a search incident to arrest must be either (1) weapons or evidence that might easily be destroyed, or (2) evidence relevant to the crime of arrest. Neither is the object of the search at issue here. (citations omitted)

Justice Kennedy appears to think there are certain behaviors around detention and arrest that law enforcement is allowed without regard to the detention or arrest. Here, he has sanctioned the gathering of DNA from arrested people, supposedly presumed innocent until proven guilty, to investigate the possibility of their connection to other, unknown crimes. His logic would allow searching the cell phone of a person arrested for public drunkenness to see if they have participated in an extortion plot.

There is plenty of time to run DNA identification data past cold case files after conviction, and all parties agree that’s what would have happened in King’s case. Given that, the Supreme Court has upheld DNA-based investigation of innocent people for their connections to cold cases because they happen to have been arrested. That’s the strange result of Maryland v. King.

The Supreme Court’s 5–4 decision today in Maryland v. King produced an unusual split. Justice Scalia’s colorful dissent was joined by Justices Ginsburg, Sotomayor, and Kagan; Justice Kennedy wrote for the Court, including for Justice Breyer. But it also brought to the fore some of the difficulties of interpreting and applying the Fourth Amendment’s protections against unreasonable searches and seizures, where the facts of a given case play so large a role. It’s no accident that such cases are so often before the Court.

Here the main facts were fairly straightforward. Alonzo King was arrested in 2009 on an assault charge. At booking he was photographed and fingerprinted. And the police took a cheek swab for DNA testing, pursuant to a Maryland statute aimed at, among other things, law enforcement. Subsequent testing of the DNA sample enabled the police to link King to an unrelated, unsolved 2003 rape, for which he was subsequently tried and convicted. King argued that the police had no probable cause to believe that he had committed that 2003 crime and therefore had no basis for conducting the DNA search that ultimately linked him to it. The Maryland Court of Appeals agreed and threw out the evidence. The Supreme Court reversed that decision, holding that the DNA search was “reasonable” under the Fourth Amendment.

Without going deeply into the competing arguments, Scalia makes a powerful case that the Court’s decisions, as they have evolved under myriad factual circumstances, are on King’s side: In particular, the Court has never allowed suspicionless searches for law enforcement purposes. And his arguments against the majority’s claim that the DNA sample was taken for purposes of identification are devastating. In fact, as he says in a footnote, “Why not just come out and say that any suspicionless search of an arrestee is allowed if it will be useful to solve crimes?” The Court would indeed have been more honest if it had said that.

But Scalia’s argument is weaker when he goes after a point on which the Court relies most heavily, the similarity between the police use of fingerprints and, as here, a DNA swab. The Court has never offered a “ready answer” to the question whether taking a person’s fingerprints is a search, he says. That is done “primarily to identify” the person – “though that process sometimes solves crimes,” he adds. Well, if that’s so, then perhaps, if pressed, he might also find that fingerprints could not be used for “law enforcement purposes.”

These Fourth Amendment cases are often close calls, not least because the jurisprudence surrounding the amendment’s warrant requirement has often been the tail that wags the “unreasonable” dog, which makes for a counterintuitive result in some cases. At the least, however, if the Court is going to revise its ever-evolving precedents, it should say so clearly. Today’s decision does not do that, and Scalia rightly calls the majority on it.

I just learned that Richard Doty, who served as Coin and Currency Curator at the Smithsonian’s National Museum of American History for over a quarter of a century, passed away yesterday, having lost a battle with cancer.

I had the good fortune of getting to know Dick while doing research for Good Money, and his help proved absolutely indispensable in shaping my understanding of the workings of the British token coinage industry and of Matthew Boulton’s Soho Mint in particular. Of course I drew heavily on Dick’s magisterial 1998 book, The Soho Mint and the Industrialization of Money. But I will be forever indebted to him for much more than that crucial resource, for Dick also answered countless questions I posed, and responded very thoughtfully to my own developing thesis, in the course of what ended up being a quite lengthy correspondence. Then, when I finally visited him in Washington, Dick shared with me–no, he gave me–whole thick files of notes and other materials he’d assembled in conducting his own meticulous research at the Boulton and Watt archives in Birmingham. Thanks to his kindness I was able to make much more efficient use of my own scarce time spent buried among Soho’s dusty records.

Dick did all of this, and much more besides, not just unstintingly but with evident pleasure. What’s more his enthusiasm only seemed to heighten as my findings and conclusions began to diverge from those he reported in his own work. So far as he was concerned, what mattered was that I was doing my best to build upon what he had begun, and not whether I did or didn’t do a little demolishing in the process. Would that some other builders whose labors my own encroached upon had been similarly supportive!

And what a pleasure he was to correspond and talk with! Whatever he said or wrote, he said or wrote with great elan, leavened with wit. That he took great joy in his work was abundantly evident; but so too was his seriousness. He was, like most passionate scholars, not one to suffer fools gladly. Yet there was, even in his most caustic remarks, a hint of the jovial and effervescent. A big fellow, he came across, with his sometimes savage humor and generous nature, as a curmudgeonly version of Santa Clause.

A few years ago, when I’d long since moved on from my work on private tokens, I was surprised to get a call from Dick. He was, he told me, planning to step down from his position at the Smithsonian, and looking for a successor. He then encouraged me to apply for the job. Of course I was flabbergasted. “But Dick,” I said, “I’m an economist. The only coins I know anything about are the Birmingham tokens.” “You can learn the rest,” he said (or some such words). Of course, I didn’t end up applying for the job. But I won’t easily forget that invitation: I never had a nicer compliment from anyone.

I don’t know whether, when he called me that day, Dick had already been diagnosed with the cancer that was to kill him. In fact, I did not know that he’d been ill until I learned about his death earlier today. If I had, I would surely have made a point of staying in touch. Fortunately I did keep most of our correspondence, which I’m now planning to go through again, for old time’s sake–and also, I’m sure, for a few good laughs.

George H. Smith is one of the best-read, most insightful libertarians living today. He is the author of most of the Cato University Home Study Course, which you should definitely download. He writes a weekly article for Lib​er​tar​i​an​ism​.org titled “Excursions into the History of Libertarian Thought.” He is the author of Atheism: The Case Against God (1974), Atheism, Ayn Rand, and Other Heresies (1991), and audio series on “Great Political Thinkers,” “The Meaning of the U.S. Constitution,” and “The Ideas of Liberty.” And finally — finally — he has been persuaded to write down much of what he knows about the history of classical liberal thought in a new book from the Cato Institute and the Cambridge University Press, The System of Liberty: Themes in the History of Classical Liberalism.

It’s a great study of classical liberalism and the relations among such liberal ideas as individualism, natural rights, utilitarianism, self-sovereignty, and what Lord Acton called “the polar star of liberty.” Along the way he answers such criticisms of liberalism as “atomistic individualism” and “social Darwinism.” It’s a college course in political philosophy in just 217 very readable pages. Buy it now for the low low price of $24.95.

Today at noon, a group of scholars from several different Washington think tanks will present a joint letter making the case for major reform within the defense establishment. The Wall Street Journal blog leaked some elements of the letter on Thursday, and the full text is now available online here.

The initiative is remarkable both for the names and affiliations of those who signed–from the neoconservative American Enterprise Institute and the Foreign Policy Initiative, to the liberal National Security Network and the Center for American Progress–and for the depth of its analysis. Although I will be unable to attend the meeting on Capitol Hill due to a schedule conflict, I am honored to be a signatory. It is a timely (indeed, long overdue) and important undertaking.

Specifically, the letter calls for closing “excess bases and facilities, [reexamining] the size and structure of the DoD civilian workforce, and [reforming] military compensation.”

The letter continues:

While we do not all agree on the best approach to reform in each case, we agree that if these issues are not addressed, they will gradually consume the defense budget from within. This will leave a smaller share of the budget to pay for the manning, training and equipping of our armed forces that make the U.S. military second to none.

I did not have a hand in drafting the letter, but I endorse it wholeheartedly. I have been concerned with all three of these issues for many years. Reducing the civilian workforce accounted for nearly nine percent ($105 billion) of the $1.2 trillion in savings that Benjamin Friedman and I estimated in our Policy Analysis published in September 2010. Ben and I also called for reducing overhead, including excess base capacity, and for reforming the calculation of military pay and benefits.

Other projects involving experts from a number of different think tanks have also taken aim at some of these issues. The report of the Sustainable Defense Task Force (SDTF), of which I was a member, called for reforming military compensation and health care, and reducing “command, support and infrastructure” commensurate with the other cuts outlined in the report.

Unlike the members of the SDTF, however, the participants in this latest effort do not agree that the Pentagon’s budget should be cut in the first place. The letter explains:

Those of us who have joined together in support of these efforts find ourselves with differing views on many other issues, including the proper level of defense spending and how that money can best be allocated. But we are all in strong agreement on the need to pursue these key reforms for a transforming military.

Here are a few other choice passages:

There is no shortage of useful ideas on how to begin addressing these pressing matters. The challenge has been getting Congress and the administration to admit change is required and take action.

[…]

None of these reforms will be easy, painless, or popular. But they are absolutely essential to maintaining a strong national defense over the long term. These smart and responsible initiatives should be undertaken by Pentagon and Congressional leaders regardless of the level of defense spending. While these reforms are necessary, they are not of themselves sufficient to meet the fiscal and strategic challenges the military currently faces.

As the letter states, it will be difficult to implement these recommendations. It cannot be seen as a partisan exercise; and it is not. Signatories include individuals who have served both Republicans and Democrats. There are liberals and conservatives (in addition to this one libertarian). I hope that this joint letter, and the subsequent events and articles that will flow from it, provides some much needed cover for members of Congress, and other experts within the policy community, to advocate for these sensible and long-overdue reforms.

I’ve complained endlessly about America’s bloated and expensive government bureaucracies. It irks me that people in the productive sector get slammed with ever-higher taxes in part to support a gilded class of paper pushers who have climbed on the gravy train of public sector employment.

It even bothers me that bureaucrats put in fewer hours on the job than private-sector workers, even though I realize the economy probably does better when government employees are lazy (after all, we probably don’t want hard-working OSHA inspectors, Fannie and Freddie regulators, and IRS bureaucrats).

But sometimes it helps to realize that things could be worse. And based on some international data from my “friends” at the OECD, let’s be thankful the United States isn’t Denmark.

That’s because nearly 20 percent of Denmark’s economic output is diverted to pay the salaries and benefits of bureaucrats, compared to “only” about 11 percent of GDP in the United States.

Not only are bureaucrats nearly twice as expensive in Denmark as in the United States, they’re also much more expensive in Denmark than in other Nordic nations.

Speaking of Nordic nations, they tend to get bad scores because a very large share of their populations are feeding at the government employment teat.

Whether we’re looking at the total cost of the bureaucracy or the number of bureaucrats, the United States is a middle-of-the-pack country.

But I am somewhat surprised by some of the other results.

• Germany is significantly better than the United States, whether measured by the cost of the bureaucracy or the size of the bureaucracy.
• Japan also does much better than America, notwithstanding that nation’s other problems.
• In the I’m-not-surprised category, France does poorly and Switzerland does well.
• To see where bureaucrats are most overpaid, look at the nations (particularly Greece, but also Portugal and Spain) where overall pay is a very large burden but bureaucrats are not a big share of the workforce.
• To see where the trends are most worrisome, look at the changes over time. The total cost of bureaucracy, for instance, jumped considerably between 2000 and 2009 in Ireland, Greece, the United Kingdom, Denmark, Spain, and the United States. So much for “austerity.”

P.S. These numbers are only for OECD nations, so it’s quite possible that other jurisdictions are worse. To cite just one example, I was one of the researchers for the Miller-Shaw Commission, which discovered several years ago that fiscal problems in the Cayman Islands are almost entirely a function of too many bureaucrats with too much compensation.

P.P.S. Here’s my video on the cost of bureaucracy in the United States.

P.P.P.S. Denmark has a bloated and costly bureaucracy, but it compensates by having very pro-market policies in areas other than fiscal policy.

P.P.P.P.S. Perhaps the numbers are bad in Denmark because people like Robert Nielson are listed on government payrolls as independent leisure consultants?

Ever since Obamacare became law, I have been counseling states not to establish the law’s health insurance “exchanges,” in part because:

to create an Exchange is to create a taxpayer-funded lobbying group dedicated to fighting repeal. An Exchange’s employees would owe their power and their paychecks to this law. Naturally, they would aid the fight to preserve the law.

California was the first state both to reject my advice and to prove my point.

Officials operating California’s exchange–which the marketing gurus dubbed “Covered California”–recently and deliberately misled the entire nation about the cost of health insurance under Obamacare.

They claimed that health plans offered through Covered California in 2014 will cost the same or less than health insurance costs today. “The rates submitted to Covered California for the 2014 individual market,” they wrote, “ranged from two percent above to 29 percent below the 2013 average premium for small employer plans in California’s most populous regions.”

See? No rate shock. California’s top Obamacare bureaucrat, Peter Lee, declared his agency had hit “a home run for consumers.” Awesome!

Unfortunately, anyone who knows anything about health insurance or Obamacare knew instantly that this claim was bogus, for three reasons.

1. Obamacare or no Obamacare, health insurance premiums rise from year to year, and almost always by more than 2 percent. So right off the bat, the fact that Covered California claimed that premiums would generally fall means they’re hiding something. 
2. Obamacare’s requirement that insurers cover all “essential health benefits” will force most people who purchase coverage on the “individual” market (read: directly from health insurance companies) to purchase more coverage than they purchase today. This will increase premiums for most everyone in that market.
3. Obamacare’s community-rating price controls (also known as its “pre-existing conditions” provisions) will increase premiums for some consumers (i.e., the healthy) and reduce premiums for others (i.e., the sick). So it is misleading for Covered California to focus on averages because averages can hide some pretty drastic premium increases and decreases.

What Covered California should have done was an apples-to-apples comparison, comparing the premiums that Californians are actually paying on the individual market today to the premiums they will have to pay under Obamacare. And even though premiums would come down for the sick, Covered California (and all other observers) should focus on how Obamacare will affect premiums for the healthy. Why? Because healthy consumers are the key to the entire enterprise. They are the ones who are vulnerable to rate shock. If they think the premiums are too high, they will pay the small penalty and wait until they are sick to buy coverage. If that happens, premiums will climb higher, more healthy people will drop out, and Obamacare will cause health insurance markets to collapse. Obamacare supporters are in a near-panic that young, healthy people won’t sign up for coverage, and with good reason. 

When others have tried to make the relevant apples-to-apples comparison, the results are strikingly different from Covered California’s portrayal. The Hoover Institution’s Lanhee Chen estimates that a 25-year-old male living in San Francisco might have to pay “anywhere from 38 percent to 53 percent more than he’ll have to pay this year for comparable coverage.” The Manhattan Institute’s Avik Roy crunched some numbers and found:

[T]he data that Lee released tells a different story: Obamacare, in fact, will increase individual-market premiums in California by as much as 146 percent… For both 25-year-olds and 40-year-olds, then, Californians under Obamacare who buy insurance for themselves will see their insurance premiums double.

That sounds like rate shock to me. And it’s pretty much what Covered California officials said they feared when they confided in federal bureaucrats six months ago.

But when it came time to speak to the public, rather than level with the public by using an apples-to-apples comparison, Covered California compared the Obamacare rates to average premiums for small-employer coverage. Why choose small-employer coverage as their basis for comparison? Precisely because small-employer plans already incorporate some of the costs that Obamacare imposes on consumers in the individual market. Small-employer plans already cover more of the additional benefits that Obamacare mandates (#2) and also incorporate a degree of community rating (#3). There’s no reason consumers on the individual market could not purchase those, ahem, “consumer protections” if they valued them. But they don’t, which tells us they don’t value them. So what Covered California’s bogus apples-to-oranges comparison actually tells consumers is, “See? Obamacare costs no more than this other expensive coverage you don’t want!”

Many in the media uncritically reported Covered California’s deliberate and self-serving misrepresentations. The Washington Post reported, “California Obamacare premiums: No ‘rate shock’ here… Now we have California’s rates, and they appear to be significantly less expensive than what forecasters expected.” At the New York Times, Paul Krugman gushed that “important new evidence—especially from California, the law’s most important test case—suggests that the real Obamacare shock will be one of unexpected success.”

One wishes the media could be a bit more skeptical of official government pronouncements.

All of that supports my thesis: officials at Covered California, like those running all the other Obamacare exchanges, owe their power and their paychecks to Obamacare. They will fight to preserve the law, even if they have to deliberately mislead the public.