January 2012

Texas’s Child Protective Services (CPS), which the state supreme court ruled acted illegally in seizing more than 400 children, repeatedly abused children, according to mental health workers that CPS itself invited to observe the children.  For example, “A baby was left in a stroller without food and water for 24 hours and ended up in the hospital.”  “Women were constantly lied to about where their children [were] and when they could see their lawyers and about when they would be reunited with their children.”   “The children arrived healthy and happy and left sick and crying.”  Others have also alleged child abuse by the Texas CPS.

Last week, I discovered a bizarre requirement for a fingerprint registrty in housing legislation that had just passed the Senate Banking Committee. In an OpenMarket post last Friday, I wrote that the provison had “almost escape[d] without notice.”

I am now heartened to write that the database provision has now generated plenty of notice and interest. OpenMarket has gotten over 100,000 hits on this post, and, at last count, 375 concerned readers have posted comments. The post was linked to by the Drudge Report and by Reason magazine’s popular blog, “Hit & Run.” Also, over at CNET News, savvy tech writer Declan McCullagh dug up some interesting new info on the fingerprint provison in his own story.

The article struck a chord about lost privacy and lost liberties. The legislative origins of the fingerprint provision remain somewhat of a mystery, though McCullagh’s CNET story traced much of the language back to an earlier stand-alone bill co-sponsored by 11 Senate Democrats and two Republicans. I have still not been able to find any debate or justification for it, but it seems now that fingerprint requirements are a simplistic way for polticians to argue that they are getting tough about a particular problem, even if it’s questionable how much fingerprinting will contibute to solving the problem.

Some commenters were right to note that this is an issue concerning federalism as well as privacy. Through the CNET story, comments on the blog, and e-mails I have received, I learned about other state fingerprint registries of questionable justification for various professions. According to CNET, four states require “mortgage brokers” to be fingerprinted.

But as the article notes, this is a much narrower category than that of the Senate legislation, which applies to any “loan origninator” — a category that is broadly defined (in CNET’s paraphrasing) as “someone who accepts a residential mortgage application, negotiates terms on a mortgage, advises on loan terms, prepares loan packages, or collects information on behalf of the consumer.” This definition is so broad it could cover many part-time and seasonal employees who have a tangential connection to loan origination. And a state database by its nature is more limited than one that is backed by the federal government.

This gets to the famous “slippery slope.” Many commenters predicted that mortgage originators were only the first step. Next would be be fingerprint requirements for borrowers. Actually, it’s not that much of a stretch that borrowers could be next to be fingerprinted. Borrowers were the source of fraud in a significant number of mortgages gone bad. Some lied about their income. Other so-called “predatory borrowers” got a lower interest rate that mispriced the risk involved because they claimed the home they were obtaining was a “principal residence,” rather than an object for speculation and flipping. It wouldn’t be so difficult to turn the lender or broker rationale, thin as it is, into one that would fingerprint virtually all homeowners.

Yet another reason for legislators not to make a headlong rush into a questionable bailout and regulatory package just to fulfill their need to “do something.”

Contrary to popular belief, regulators tend to be very clever people. They know the rules of the game, and they know to how to use them to their advantage.

The latest example of bureaucratic perfidy is a recent decision by EU officials to raise tariffs on some high-tech goods from the United States. This doesn’t seem like a smart policy at first glance. It will make goods more expensive for European consumers. The tariffs might also be a violation of the Information Technology Agreement. The U.S. is not pleased, and is launching a WTO case.

There are two ingenious ways that revenue-hungry EU regulators are gaming the system.

One is taking advantage of how bureaucratized the WTO is. The current dispute is only in the first step right now, which is a formal consultation between the WTO and the EU. I believe the next step involves a strongly worded letter.

The EU regulators who imposed the tariffs know that the case will take years to decide. Their tariffs — and revenues — will stand untouched until then. They know they can violate free trade agreements almost at will, and years will pass before they’ll have to answer for it. Very clever.

The second spark of regulatory intelligence is a creative interpretation of the Information Technology Agreement (ITA). Under the agreement, computer monitors are duty-free, but televisions are not. So the EU is arguing that people are using larger computer monitors primarily as televisions, and not as computer monitors. That way they can be taxed.

Of course, only the people actually buying and using large computer monitors can say what they’re using them for. But the regulators have made a good enough argument to stall the WTO.

These are some very smart people. What a shame then, that they are using their talent to hinder trade instead of to free it.

The Greenlining Institute, which is funded by money diverted from class-action lawsuits brought in the name of consumers, is now lobbying the California legislature to enact an intrusive law that would force charities to report on the race, sex, and sexual orientation of their board members, staffs, and suppliers in the name of “diversity.”  Thanks to the far-left ideology of California’s legislature, the bill, which has already passed the California Assembly on a party-line vote, will likely become law unless Governor Arnold Schwarzenegger vetoes it. 

I earlier wrote in the Washington Post about how class-action lawsuit “settlements intended to benefit consumers get paid instead to groups that lobby for affirmative action, hate-crimes laws,” illegal aliens, “and public funding for abortions.”  Some of these same groups are slated to receive taxpayer money under earmarks in federal housing and mortgage-bailout legislation.

The Texas Supreme Court has just affirmed an appeals court ruling that Texas’s Child Protective Services (CPS) illegally seized more than 400 children whose parents belong to a strange religious sect.   CPS cared poorly for the children it seized.  Three children of one couple became ill and had to be hospitalized, while another couple’s 2-year-old daughter apparently suffered from “severe dehydration and malnutrition” after being seized.   As Jacob Sullum noted in Reason, “There was never any evidence that their parents abused them, but there’s plenty that the state did.”  Unwarranted CPS seizures of children are on the rise nationally.  Such seizures often cause children great harm.

Ethanol subsidies are contributing to worldwide hunger.  Islamic extremist groups are exploiting that hunger by tying food aid to anti-Western political indoctrination.  (Ethanol mandates drive up skyrocketing food prices that result in starvation, riots, and unrest across the Third World, as well as environmental devastation.)

The Supreme Court made up some new laws on Tuesday because it thought they were a good idea, as the Washington Post’s editorial today notes.

Some civil rights laws not only ban discrimination, but also retaliation against those who complain about what they perceive to be discrimination.  Others just ban discrimination, and say nothing about retaliation.

In two cases it decided on Tuesday, the Supreme Court ruled that civil-rights laws don’t even need to mention retaliation to ban it, since retaliation is a kind of discrimination.  That’s factually untrue — for example, an employer doesn’t have to be a racist to resent an employee who erroneously accuses her of racial discrimination — and the court’s ruling begs the question of why some civil rights laws expressly ban retaliation, not just discrimination.  Why did the legislators who wrote those laws bother to separately ban both retaliation and discrimination if retaliation is just a kind of discrimination?

Congress knows how to ban retaliation when it wants to.  Title VII of the Civil Rights Act of 1964, which covers employers with more than 15 employees, expressly bans both discrimination and retaliation.  But other laws, such as 42 U.S.C. 1981, which bans racial discrimination and anti-alien discrimination by even the smallest employers or service providers (including your kid’s lemonade stand), have language that only bans discrimination, not retaliation.

The Supreme Court said Tuesday said that that didn’t matter, and ignored the textual differences between the various laws, in its rulings in CBOCS West, Inc. v. Humphries, which judicially rewrote 42 U.S.C. 1981, and Gomez-Perez v. Potter, Postmaster General, which judicially rewrote the provisions of the Age Discrimination in Employment Act (ADEA) covering federal employees (civil-service laws already expressly give federal employees protection from many forms of retaliation, but their remedies are not as broad or generous as the ADEA’s).

Ironically, in a past decision, the Supreme Court has claimed that retaliation and discrimination are inherently different, in ruling that limits on discrimination claims contained in laws that ban both discrimination and retaliation shouldn’t be applied to retaliation claims.  The inconsistency between that past case (which I criticized on other grounds) and Tuesday’s decisions is right out of Alice in Wonderland.

I’m not surprised by the rulings, though.  It may seem ironic, but once upon a time, I used to bring retaliation claims under the (textually non-existent) ban on retaliation contained in 42 U.S.C. 1981.  The life of a lawyer often involves suing over non-existent legal rules.  Many lawyers’ livelihoods depend on it.  (Indeed, anticipating just such judicial activism, I have counseled public employees disciplined for criticizing unlawful racial quotas to sue for retaliation under 42 U.S.C. 1981, in addition to suing under the First Amendment).

Carter Wood of the National Association of Manufacturers gives his take on the Court’s rulings here.  The National Federation of Independent Business reacts here, pointing out that the rulings open the door to stale retaliation claims (federal laws expressly banning retaliation have short deadlines, while 42 U.S.C. 1981, which the Supreme Court judicially rewrote to include a ban on retaliation, has a long four-year deadline).

State Child Protective Services (CPS) are increasingly seizing children from their parents for trivial reasons or over baseless, anonymous allegations, as the Washington Examiner describes today in several related articles.  One article discusses how Washington, D.C. continues to treat the Caplans as child-abusers even though “five doctors confirmed that an injury sustained by one of their twin daughters was not caused by abuse,” and how an Arlington couple permanently lost custody of their child even though they “had been exonerated by of all neglect charges nine months earlier.”  Another notes that ”California’s 2003 Little Hoover Commission Report said up to 70 percent of children in foster care should never have been removed from their homes.”  Yet another notes that “States receive a $4,000 cash bonus from the federal government for each child adopted, multiplied by the percentage that the state exceeds its adoption goal.”  (We earlier discussed the calamitous effect such adoption bonuses have had in England.  Yesterday, we discussed the illegal seizure of over 400 children in Texas).

Texas Child Protective Services (CPS) illegally seized 465 children from parents in a religious sect based on an anonymous, fabricated allegation by a woman outside the sect pretending to be a member.  The state appeals court recently ruled against the seizure of many of those children.

As Jacob Sullum notes, while CPS justified its actions by citing the sect’s ”pervasive belief system” (which favors early marriage and approves of polygamy), it seized even the children of adult, monogamous married couples, and even some adults mistakenly branded as minors.  Even by “the state’s current count, underage mothers represent no more than 3 percent of the children it seized.”

Many children suffered while in CPS custody:

“The first parents to be reunited with their children after the appeals court’s ruling, which CPS has asked the Texas Supreme Court to reverse, were Joseph and Lori Jessop, both EMTs in their 20s. The monogamous couple’s children—two boys and a girl, ages 1, 2, and 4—became ill during their state-imposed separation and had to be hospitalized.  When they were released, CPS caseworkers forcibly pulled the two older children from their mother. Until a judge intervened, CPS threatened to take the youngest child as well, saying nursing babies older than 12 months were not allowed to remain with their mothers.  Not surprisingly, the Jessops’ older children are anxious these days, waking up repeatedly during the night and displaying regressive behavior. There was never any evidence that their parents abused them, but there’s plenty that the state did.” 

In a case in another State (Doe v. Lebbos), Judge Andrew Kleinfeld described what happened to a little girl after she was seized by CPS from her father after false abuse allegations:

“After being bounced around in the agency and foster parent bureaucracy for over a year, Lacey . . . was ‘diagnosed with Post-Traumatic Stress Disorder, hearing voices, and suicidal ideation.’ She was put on anti-psychotic medication. She had taken to smearing feces and to other abnormal and highly disruptive behavior. . . what the county did to her to “protect’ her apparently destroyed her. Something in this experience, perhaps being ripped away from her father for whom she consistently expressed love during the whole miserable period, perhaps having strangers strip her and search her heretofore private parts, perhaps being put with caretakers instead of her father, amounted to a trauma that was too much for her.”

In England, social workers seize children who have admittedly never been abused, based on mere speculation that they may be abused in the future — and are rewarded for doing so by receiving adoption bonuses.  In the U.S., temporary seizures can sometimes become permanent even when the abuse allegation used to justify the seizure turns out to be false.

Earlier, I and others explained how the Texas seizures violated constitutional principles barring seizures prior to a full, contested judicial hearing absent a showing of imminent harm.

Cato’s Timothy Lynch wrote about this travesty in National Review.