January 2012

Regulation of the Day: The Inter-American Tropical Tuna Commission

by Ryan Young on June 19, 2009

in Deregulate to Stimulate, Regulation, Regulation of the Day

The sixth in an occasional series that shines a bit of light on the regulatory state.

Today’s Regulation of the Day comes to us from the Department of State ($35 billion 2007 budget, 30,266 employees).

The United States is fighting two wars and a recession. A multi-trillion dollar unfunded Medicare/Social Security liability looms over our heads like the sword of Damocles. This year alone will see a budget deficit of at least $1.8 trillion.

In related news, the State Department has renewed its membership in the Inter-American Tropical Tuna Commission for the next two years. This story broke on page 29,013 of the 2009 Federal Register.

The folks at the IATTC are the people behind the dolphin-safe emblems emblazoned on canned tuna. Not sure what else they do, besides costing taxpayers more than $2 million in annual membership dues (see table in Appendix 5).

The Stoning of Soraya M.

by Ivan Osorio on June 18, 2009 · 2 comments

in Culture, Features, International, Personal Liberty, Zeitgeist

The Stoning of Soraya M. is a difficult film to watch, but worth taking the time to do so. The film, which several CEI colleagues and I saw at a preview screening last night, depicts the stoning death of a young Iranian woman falsely accused of adultery. It highlights the outrage that the barbaric practice of stoning continues to occur anywhere, but at times does more than that.

The film illustrates the way in which a closed, illiberal society can close in on an individual, ultimately taking away his or her very life and personhood. As in this instance, death by stoning is often the result of religious fanaticism, but the dehumanization and ultimate destruction of the victim depicted in the film can also take place in totalitarian systems devoted to some other allegedly higher ideal — the workers’ revolution, the Volk — which rulers place above the sanctity of the individual.

It opens June 26. For theaters, see here.

U.S. Civil Rights Commission Opposes Federal Hate Crimes Bill on Double Jeopardy and Civil Liberties Grounds

by Hans Bader on June 18, 2009 · 1 comment

in Legal, Personal Liberty, Politics as Usual, Sanctimony

The U.S. Commission on Civil Rights has decided to oppose the federal hate-crimes bill. The Commission calls the bill a “menace to civil liberties” because “its most important effect will be to allow federal authorities to re-prosecute a broad category of defendants who have already been acquitted by state juries.” Thus, it will erode protections against double jeopardy.

In deciding to oppose the bill, the full Commission agreed with the position earlier taken by four individual Civil Rights Commissioners, who sent a letter to House leaders on April 29 opposing the bill. The House approved the hate-crimes bill on a partisan 249-to-175 vote.

Earlier, the Washington Blade and Christian Science Monitor reported that the Senate would likely approve the hate-crimes bill this week, by attaching it to a totally unrelated bill, the Travel Promotion Act. That was a strange legislative tactic, designed to keep Senators concerned about the broad reach of the hate-crimes bill from even having the opportunity to amend its provisions or fix its flaws.

As civil libertarians have noted, the hate-crimes bill’s supporters want to allow people who have been found not guilty in state court to be reprosecuted all over again in federal court. A recent example is a commentary by the Leadership Conference on Civil Rights on May 5 blog entitled, “Pennsylvania Teenagers Acquitted of Hate Crime; Federal Law Needed.” It approvingly quotes the General Counsel of the Mexican American Legal Defense and Educational Fund arguing that the federal hate-crimes bill is needed based on not-guilty verdicts like the recent acquittal in state court of teenagers accused of a hate crime against an illegal alien from Mexico. MALDEF and the Leadership Conference on Civil Rights are not alone in seeking to reprosecute people found innocent in state court. Many supporters of the hate crimes bill want to allow those found innocent to be reprosecuted in federal court. As one supporter put it, “the federal hate crimes bill serves as a vital safety valve in case a state hate-crimes prosecution fails.” The claim that the justice system has “failed” when a jury returns a not-guilty verdict is truly scary and contrary to the constitutional presumption of innocence and the right to trial by jury.

But it is a view widely shared among supporters of the hate-crimes bill. Syndicated columnist Jacob Sullum pointed out in 1998 that Janet Reno, Clinton’s Attorney General, backed the bill as a way of providing a federal “forum” for prosecution if prosecutors fail to obtain a conviction “in the state court.”

Supporters of the hate crimes bill also see it as a way to prosecute people even in cases where the evidence is so weak that state prosecutors have decided not to prosecute. Attorney General Eric Holder has pushed for the hate crimes bill as a way to prosecute people whom state prosecutors refuse to prosecute because of a lack of evidence. To justify broadening federal hate-crimes law, he cited three examples where state prosecutors refused to prosecute, citing a lack of evidence. In each, a federal jury acquitted the accused, finding them not guilty.

Advocates of a broader federal hate-crimes law have pointed to the Duke lacrosse case as an example of where federal prosecutors should have stepped in and prosecuted the accused players — even though the state prosecution in that case was dropped because the defendants were actually innocent, as North Carolina’s attorney general conceded, and were falsely accused of rape by a woman with a history of violence (including trying to run over someone with her car) and making false accusations.

Given the politically-charged nature of many hate-crimes trials, Kimberly Potter of New York University was probably right when she told Congress back in 1998 that if the federal hate crimes bill is enacted, “the acquittal of defendants in state court will frequently trigger demands for federal prosecution.”

The hate-crimes bill also violates constitutional federalism safeguards, such as the Supreme Court’s decision in United States v. Morrison (2000).

Obama care: The Daily Horoscope of Policy

by Michelle Minton on June 18, 2009 · 1 comment

in Odds & Ends

Since the beginning of his presidential campaign, I noticed something about Obama’s style of oration (and I’m not the only one). He has sweet, flowery, and yes, powerful words, but they are devoid of substance. His locution is very much in the vein of the daily newspaper horoscopes, which are so vague that they can apply to just about any reader–depending on how the reader interprets it. Obama care is everyone’s everything.

He has stated, correctly, that people on all sides of the issue agree that the health care system in this country is in shambles and needs to change. But adding more regulation is no change at all. In fact, moving toward socialized health care is exactly what we’ve been doing for decades.

The problem in the public discourse is that consistent meddling of regulations in America’s system of providing medical care has created such a tangled web of perverse incentives, subsidies, and unintended consequences that most people in this country actually believe that we don’t already have a government run health care system.

In his article Cato scholar Michael F. Cannon argues that despite our reliance on private health care providers, the US health system has the distinguishing features of a socialist economy: that is government controls decisions about what individuals produce, consume, and the terms of exchange.

They are wrong.Things are bad. But more government involvement in medical care will not improve matters. For those who think government will do a better job providing care for patients, I challenge you to walk into the DMV, US passport office, courthouse, or any other government run service provider and then ask yourself, is this how you’d like your doctor’s office to be?

Regulation of the Day: Parole Rules for Federal Prisoners

by Ryan Young on June 18, 2009 · 1 comment

in Regulation, Regulation of the Day

The fifth in an occasional series that shines a bit of light on the regulatory state.

Today’s Regulation of the Day comes to us from the Department of Justice ($26 billion 2009 budget, 112,000 employees).

Parole rules for DC offenders and federal offenders are being harmonized, which means they are being made more similar. For details, see pages 28,602-28,606 of the 2009 Federal Register.

Federal parole rules affect more and more people as time goes by. More than 200,000 people are currently in federal prisons, and the number goes up every year.

This is puzzling since the Constitution lists only three federal crimes — treason, piracy, and counterfeiting. Somewhat fewer than 200,000 people have committed those offenses.

John S. Baker, Jr. found an answer to this conundrum in 2007. He estimated that the number of federal crimes had increased more than a thousand-fold to at least 4,450. Many of them are duplicates of existing state offenses. More than 50 new federal crimes are created every year.

Seems a bit much, does it not?

Clean Water Hoax

by RJ Smith on June 17, 2009 · 3 comments

in Agriculture, Environment

Sen. Barbara Boxer and company are going to bring the Clean Water Restoration Act (CWRA) up for full committee mark-up and vote in their Thursday 18 June business session scheduled for 9:30 a.m. in the EPW Hearing Room, 406 Dirksen. This is Sen Russ Feingold’s S.787 which was introduced on April 2.

With the Democrats having nationalized the financial, banking and automobile industries–bringing a strong layer of socialism to the key portions of the US economy, they are now moving to nationalize the American land and water. Under the Clean Water Act (CWA) the Federal government only had the authority to regulate “navigable waters” and control the discharge of pollutants and dredge and fill activities within those navigable waters.

The so-called Clean Water Restoration Act restores nothing. That is a hoax. Instead it removes the restrictive and limiting terms “navigable” waters and unconstitutionally extends the Federal regulatory authority over ALL waters of the United States. This includes the driest desert areas that may only hold water for a few weeks a year during summer monsoon rains. And it includes completely isolated prairie potholes (small ponds and marshes) with no connection whatsoever to any other waters.

Furthermore, the bill will now prohibit ALL activities affecting all waters of the United States. This means that anything a landowner, a business, a county roads department, a waterfowl conservation program undertakes that could conceivably affect anything that is wet–will be subject to the discretionary jurisdiction of Army Corps or EPA bureaucrats. They will then be able to make the lives of family farmers, ranchers, tree farmers, home builders–almost anyone and everyone–literally impossible. They will have the total power to force every farmer or rancher or ordinary business owner to run a gauntlet of permits, red tape, delays–that will delay projects long enough and cost so much as to essentially shut down or bankrupt even the most necessary and innocuous projects.

There are copious examples of wetlands horror stories over the last 20 years where people have been imprisoned and fined staggering amounts for simply building their own home, cleaning up dumps, or creating habitat for waterfowl. And that occurred under the existing CWA restrictions of “navigable waters” and prohibitions only on discharging pollutants and dredge and fill activities. Once those constraints limiting regulations to “navigable waters” are removed by the CWRA, life will quickly become an even worse bureaucratic nightmare with no exit–particularly so throughout all of rural America. This bill would be much more honestly named The Rural Cleansing Act of 2009.

Before attempting to unconstitutionally extend their reach to include such things as a rancher’s isolated pond in northern Montana, one would think that those concerned with clean water and fishable water would first want to continue work on cleaning up the major navigable waters in the county like, perhaps, the polluted Potomac and Anacostia Rivers that flow past both sides of the U.S. Capitol. Indeed if the Senate Environment and Public Works Committee and the House Transportation and Infrastructure Committee had kept their attention on the goal and if the Federal bureaucrats had not spent so much money and time over the past two decades trying to regulate lands and waters they had no constitutional authority over–maybe we would have far cleaner and healthier waters today.

For more information see here.

Photo by Micah Laaker from Flickr creative commons.

Obama Seeks to Mandate More Risky, Low-Income Loans by Banks, in New Financial Rules

by Hans Bader on June 17, 2009 · 11 comments

in Bailout Watch, Deregulate to Stimulate, Economy, Legal, Politics as Usual, Precaution & Risk, Regulation

The President has just announced proposals for a major overhaul of the financial system. The proposals would force banks to make even MORE risky loans to low-income people. Even liberal newspapers like the Village Voice have admitted that “affordable housing” mandates are a key reason for the housing crisis and the massive number of defaulting borrowers. But Obama will not accept this reality. Instead, he wants to create a new “Consumer Financial Protection Agency” to rigorously enforce regulations pressuring banks to make loans to low-income borrowers, such as the Community Reinvestment Act. (Obama once represented ACORN, which pressures banks to make risky loans).

In explaining why there is supposedly a need for this new agency, when other agencies already enforce the Community Reinvestment Act and fair-lending laws, his regulatory blueprint complains that “State and federal bank supervisory agencies’ primary mission is to ensure that financial institutions act prudently, a mission that, in appearance if not always in practice, often conflicts with their consumer protection responsibilities.” (Pg. 54).

In other words, the power to force banks to make low-income loans should be given to an agency that has no duty to ensure prudent lending or to take into account the effects of such requirements on banks’ stability or viability.

The President also wants to give financial regulators the power to seize key companies to prevent real or imagined “systemic risks” to the financial system. These are the same federal regulators who used the AIG bailout to give billions in unnecessary payments to Goldman Sachs, which neither needed nor expected that much money, and forced Freddie Mac to run up $30 billion in losses to bail out deadbeat mortgage borrowers. This is the same federal government that took over Chrysler and General Motors, and then used them to rip off pension funds and taxpayers and enrich the UAW union.

(There is one good thing in the President’s proposals, though: they get rid of the inept Office of Thrift Supervision, which poorly supervised savings and loans and AIG, and gives most of its responsibilities to the Office of Comptroller of the Currency, which competently supervises national banks.)

Obama’s regulatory blueprint disingenuously claims that the Community Reinvestment Act, which pressures banks to make low-income loans, can’t have contributed to the mortgage crisis, because it existed for years before the crisis began. But it is not the Act’s passage, alone, that economists credit with causing the mortgage crisis, but rather the unrealistic regulations adopted to implement the Act many years after the Act’s passage. Those regulations went into effect not that long before the mortgage bubble began, as historian Clayton Cramer notes. Economists, investment bankers, and historians have long noted the role of the Community Reinvestment Act and its regulations in promoting the risky lending that spawned the financial crisis. Investors Business Daily has chronicled how “the Community Reinvestment Act” pressured lenders to make the risky loans that led to the mortgage meltdown.

The current mortgage crisis came about in large part because of Clinton-era government pressure on lenders to make risky loans in order to “make homeownership more affordable for lower-income Americans and those with a poor credit history,” the DC Examiner notes. “Those steps encouraged riskier mortgage lending by minimizing the role of credit histories in lending decisions, loosening required debt-to-equity ratios to allow borrowers to make small or even no down payments at all, and encouraging lenders the use of floating or adjustable interest-rate mortgages, including those with low ‘teasers.’”

The liberal Village Voice previously chronicled how Clinton Administration housing secretary Andrew Cuomo helped spawn the mortgage crisis through his pressure on lenders to promote affordable housing and diversity. “Andrew Cuomo, the youngest Housing and Urban Development secretary in history, made a series of decisions between 1997 and 2001 that gave birth to the country’s current crisis. He took actions that—in combination with many other factors—helped plunge Fannie and Freddie into the subprime markets without putting in place the means to monitor their increasingly risky investments. He turned the Federal Housing Administration mortgage program into a sweetheart lender with sky-high loan ceilings and no money down . . . Three to four million families are now facing foreclosure, and Cuomo is one of the reasons why.” (See Wayne Barrett, “Andrew Cuomo and Fannie and Freddie: How the Youngest Housing and Urban Development Secretary in History Gave Birth to the Mortgage Crisis,” Village Voice, August 5, 2008).

In drafting his financial regulation proposals, Obama has turned to Barney Frank and Chris Dodd, lawmakers who are among those most culpable in spawning the financial crisis. The New York Times reports that “the plan is largely the product of extensive conversations between senior administration officials and top Democratic lawmakers — primarily Representative Barney Frank of Massachusetts and Senator Christopher J. Dodd of Connecticut.” Frank and Dodd were the lawmakers who defeated reform proposals to rein in the government-sponsored mortgage giants, Fannie Mae and Freddie Mac, which later had to be bailed out for hundreds of billions of dollars. Fannie Mae killed reform proposals by paying off liberal lawmakers and bullying critics. Dodd recently attracted criticism for financial and ethical lapses.

Banks and mortgage companies have long been under pressure from lawmakers and regulators to give loans to people with bad credit, in order to provide “affordable housing” and promote “diversity.” That played a key role in triggering the mortgage crisis, judging from a story last year in the New York Times.

For example, “a high-ranking Democrat telephoned executives and screamed at them to purchase more loans from low-income borrowers, according to a Congressional source.” The executives of government-backed mortgage giants Fannie Mae and Freddie Mac “eventually yielded to those pressures, effectively wagering that if things got too bad, the government would bail them out.” But they realized the risk: “In 2004, Freddie Mac warned regulators that affordable housing goals could force the company to buy riskier loans.” Ultimately, though, Freddie Mac’s CEO, Richard F. Syron, told colleagues that “we couldn’t afford to say no to anyone.”

As a Washington Post story shows, the high-risk loans that led to the mortgage crisis were the product of regulatory pressure, not a lack of regulation. In 2004, even after banking officials “warned that subprime lenders were saddling borrowers with mortgages they could not afford, the U.S. Department of Housing and Urban Development helped fuel more of that risky lending. Eager to put more low-income and minority families into their own homes, the agency required that two government-chartered mortgage finance firms purchase far more ‘affordable’ loans made to these borrowers. HUD stuck with an outdated policy that allowed Freddie Mac and Fannie Mae to count billions of dollars they invested in subprime loans as a public good that would foster affordable housing.”

Lenders also face the risk of being sued for discrimination if they fail to make loans to people with bad credit, which often has a racially-disparate impact (proving that such impact is unintentional is costly and difficult, and not always sufficient to avoid liability under antidiscrimination laws). They also risk possible sanctions under the Community Reinvestment Act.

Banks get sued for discrimination no matter what they do. If they don’t make enough loans in low-income, predominantly minority neighborhoods, they get accused of “redlining,” and are subject to sanctions under politically-correct laws like the Community Reinvestment Act, which contributed to the financial crisis by pressuring lenders to make risky mortgage loans.

But if they do make such loans, they get accused of “reverse redlining,” and get sued by the liberal special-interest groups and municipalities that encouraged them to make such loans during the mortgage bubble. Baltimore and various borrowers have also brought “reverse redlining” lawsuits against banks.

The Washington Post reported that bond-rating agencies like Moody’s and Fitch are now getting sued, too, for “reverse redlining,” under the theory that they encouraged risky loans to low-income minorities (who subsequently regretted taking out those loans) by giving respectable ratings to the mortgage-backed securities produced by packaging those mortgage loans. The plaintiffs include the National Community Reinvestment Coalition, which has been pressuring lenders to make risky loans to low-income minorities for years. They blame the ratings-agencies for allowing lenders to make loans to minorities with “insufficient borrower income levels.”

HHS Secretary: Health Insurance Industry Needs Competition… With Government

by Alex Hankins on June 17, 2009 · 4 comments

in Healthcare, Insurance, Nanny State, Regulation, Trade

In an AP interview on Tuesday, Health and Human Services Secretary Kathleen Sebelius called for competition in the health insurance market. No, not between private insurance providers free to set their own policies, but between the private sector and the federal government. Failing to understand (or acknowledge) that the top and proper priority of any private enterprise that intends to survive is profit, not service to others, she boldly claimed that the private insurance market “has really failed to provide affordable coverage to Americans.”

There can be no real competition in the market if one player makes the rules for the others and cannot run out of money. If (when) the government health care system fails to live up to its stated goals, it will not suffer downsizing or face bankruptcy. It will simply expand its scope of power further and extort or print more money to more vigorously continue to pursue its wrongheaded ends. Furthermore, the private sector and the government are competing for two very different things. The former seeks to earn money by selling something people are willing to buy. The latter, which can get all the funds it wants through confiscation and printing money, competes instead for dependency. In that race, no one else is running.

So what Sebelius really wants  is not competition between trader and trader, but the sad spectacle of a contest between armed mugger and disarmed victim. At least a mugger won’t try to convince his victim that the robbery is for his own benefit.

Wasteful Regulation

by Merin Yu on June 17, 2009 · 2 comments

in Environment, Regulation

The issue of “e-waste” has been receiving a lot of attention recently, mostly from critics concerned about discarded electronics being shipped off to developing countries for disposal (conveniently ignoring the positive business opportunities in surplus materials), yet environmentalists need to look no farther than their own government for contributing to this “problem.”

This past Saturday, June 13, 2009, all television stations in the United States began broadcasting in digital television (DTV), switching from the previous method of analog broadcasting as mandated by the federal government. The reasoning behind this switch, according to the DTV.gov website, was “to offer improved picture and sound quality,” as well as freeing up the airways for public safety communications.

In an attempt to soften the effects of this regulation, the government had the idea of offering $40 coupons to offset the costs of a converter box (which can run up to $80) that would be necessary for older televisions to continue to function. However, as of January 4, 2009, more than five months before the switch, the government had already run out of coupons. Estimates suggest that 1 in 4 households will dispose of a TV, many of them in perfect working condition, due to the switch to DTV.

The common theme here is regulation, regulation, regulation. Environmentalists are pushing for the U.S. to ratify the Basel Convention, a document preventing e-waste transfers to other countries, yet they have federal DTV regulation to add to the amount of used electronics. Glad to see all that legislation is working out for them.

Image source: Utah Dept. of Environmental Quality.

Tourism Bill to Be Combined With Anti-Civil-Liberties Hate Crimes Bill

by Hans Bader on June 16, 2009

in International, Legal, Nanny State, Odds & Ends, Personal Liberty, Politics as Usual, Sanctimony

If you were a tourist, would you like to come to a country where you could be tried twice for the same crime — even if you were found innocent the first time around? Not me. But the Senate will likely attach a bill that promotes such reprosecutions to the Travel Promotion Act, reports the Christian Science Monitor. Liberal Senators plan to amend the Travel Promotion Act, a bill to attract international tourists to the U.S., by combining it with a deeply controversial federal hate-crimes bill. The hate-crimes bill’s supporters want to allow people who have been found not guilty in state court to be reprosecuted all over again in federal court.

By adding the hate-crimes provisions as an amendment to an unrelated bill, they hope to prevent the hate-crimes provisions themselves from being amended by Senators seeking to limit the reach of federal hate-crimes law. The hate-crimes legislation will likely “be amended to the Travel Promotions Act . . . which is scheduled to be voted on this week. The report cites a Democratic source as saying the legislation would be approved by Wednesday.”

On April 29, the House voted 249-to-175 to pass the federal hate crimes bill, which the bill’s supporters explicitly want to use to prosecute people already found innocent in state court all over again in federal court. Such reprosecutions are, sadly, allowed under a Constitutional loophole known as the “dual sovereignty” doctrine, which says that state and federal governments are different sovereigns, and that double jeopardy only applies when you are prosecuted twice by the same sovereign. (This loophole was established in the Supreme Court’s 5-to-4 Bartkus decision, over a stinging dissent by Justice Black).

In the past, the possibility of reprosecutions was viewed as a vice, not a virtue, and civil-rights advocates and lawmakers alike have sometimes cited this risk in opposing bills broadening the reach of federal criminal laws. But civil-rights groups now view double jeopardy as a virtue when it comes to people accused of hate crimes. They consider hate crimes so terrible that not even innocence should be a defense.

The latest example of this comes from the Leadership Conference on Civil Rights (a coalition of hundreds of liberal civil-rights groups including the ACLU), and the Mexican American Legal Defense and Educational Fund in a May 5 blog commentary entitled, “Pennsylvania Teenagers Acquitted of Hate Crime; Federal Law Needed.” It approvingly quotes the General Counsel of MALDEF arguing that the federal hate-crimes bill is needed based on not-guilty verdicts like the recent acquittal in state court of teenagers accused of a hate crime against an illegal alien from Mexico: “Last week, the House of Representatives passed the Local Law Enforcement Hate Crime Prevention Act, which will . . . give federal government jurisdiction over prosecuting hate crimes in states where the current law is inadequate. ‘[T] his verdict underscores the importance of the passage of this Act,’ said Henry Solano, MALDEF interim president and general counsel. ‘It is time for the Department of Justice to step in and bring justice to the Ramirez family and send a strong message that violence targeting immigrants will not be tolerated and will be prosecuted to the full extent of the law.’ The Justice Department is currently investigating whether to prosecute the two teenagers under federal civil rights statutes.”

By contrast, four members of the U.S. Civil Rights Commission opposed the federal hate-crimes bill in an April 29 letter, calling it a “menace to civil liberties,” since its “most important effect” will be to circumvent double-jeopardy guarantees. The full U.S. Commission on Civil Rights subsequently decided to oppose the bill.

MALDEF and the Leadership Conference on Civil Rights are not alone in seeking to reprosecute people found innocent in state court. Many supporters of the hate crimes bill want to allow those found innocent to be reprosecuted in federal court. As one supporter put it, “the federal hate crimes bill serves as a vital safety valve in case a state hate-crimes prosecution fails.” The claim that the justice system has “failed” when a jury returns a not-guilty verdict is truly scary and contrary to the constitutional presumption of innocence and the right to trial by jury.

But it is a view widely shared among supporters of the hate-crimes bill. Syndicated columnist Jacob Sullum pointed out in 1998 that Janet Reno, Clinton’s Attorney General, backed the bill as a way of providing a federal “forum” for prosecution if prosecutors fail to obtain a conviction “in the state court.”

Supporters of the hate crimes bill also see it as a way to prosecute people even in cases where the evidence is so weak that state prosecutors have decided not to prosecute. Attorney General Eric Holder has pushed for the hate crimes bill as a way to prosecute people whom state prosecutors refuse to prosecute because of a lack of evidence. To justify broadening federal hate-crimes law, he cited three examples where state prosecutors refused to prosecute, citing a lack of evidence. In each, a federal jury acquitted the accused, finding them not guilty.

Advocates of a broader federal hate-crimes law have pointed to the Duke lacrosse case as an example of where federal prosecutors should have stepped in and prosecuted the accused players — even though the state prosecution in that case was dropped because the defendants were actually innocent, as North Carolina’s attorney general conceded, and were falsely accused of rape by a woman with a history of violence (including trying to run over someone with her car) and making false accusations.

Civil libertarians like Wendy Kaminer and law professors like Gail Heriot have criticized the federal hate-crimes bill for taking advantage of a loophole in constitutional double-jeopardy protections.

The hate-crimes bill also violates constitutional federalism safeguards, such as the Supreme Court’s decision in United States v. Morrison (2000).

Supporters of the hate-crimes bill have all sorts of lame rationalizations for disregarding not-guilty verdicts. Hate-crimes activist Brian Levin, who testified before Congress, claims reprosecutions are needed because local jury pools are biased. NOW Legal Defense Fund told Congress that reprosecutions are appropriate if local prosecutors had “inadequate resources” or were of “questionable effectiveness.” (These rationalizations make no sense and have no principled limits: there is no evidence that state juries are more biased than the federal juries that would hear federal hate-crimes cases, or that they are typically biased; and even well-funded prosecutors have complained of having inadequate resources).

Given the politically-charged nature of many hate-crimes trials, Kimberly Potter of New York University was probably right when she told Congress back in 1998 that if the federal hate crimes bill is enacted, “the acquittal of [hate-crimes] defendants in state court will frequently trigger demands for federal prosecution.”

The bill’s sponsors seldom talk about that controversial aspect of the bill, however, when addressing the general public. Instead, they trumpet the fact that the hate-crimes bill would include gays, lesbians, and transgendered people among the classes of people it covers (the existing federal hate-crimes law only covers race, but not gender, sexual orientation, or disability, and it does not reach most hate-crimes, but rather only those that involve federally-protected activities).

The bill’s supporters, such as the National Center for Lesbian Rights and the ACLU, claim the law is needed because of the case of Angie Zapata. Zapata is a transgender woman whose lover killed her when he found out she was biologically a man. But this argument makes little sense, given that Zapata’s killer was swiftly convicted and sentenced to life in prison without the possibility of parole by a Colorado state court, which found the killer guilty of both murder and hate crimes. (The federal hate crimes bill does not provide for the death penalty, and its maximum penalty is the same one that Zapata’s killer got: life without parole).

But precisely for that reason, a federal hate-crimes law is duplicative and unnecessary. Moreover, even the few states that don’t have hate-crimes laws, like Wyoming, still punish hate criminals under their laws against murder and assault. The killers of Matthew Shepard were given life sentences, which is the maximum penalty available under the federal hate-crimes bill. (Ironically, the Wyoming prosecutor wanted them to get the death penalty, while liberal groups like Lambda Legal, which supports the federal hate-crimes bill, oppose the death penalty in all cases). There is no evidence that any state gives people who commit hate crimes lesser sentences on average than people who commit similarly violent crimes not motivated by bias.

There are plenty of reasons to oppose the federal hate crimes bill, which is known as the Local Law Enforcement Hate Crimes Prevention Act of 2009. But since it was used as a political wedge issue in the 2008 election by both the Democratic Party and President Obama, who support it, there is little doubt that it will pass Congress and be signed into law by the President.

The ACLU long opposed the loophole in Constitutional double-jeopardy protections that the bill is designed to exploit. But it switched its longstanding position in order to back the federal hate crimes bill, apparently believing that civil-liberties must be sacrificed in order to fight hate.

The ACLU’s support for the federal hate-crimes bill is hypocritical for another reason: the bill seeks to circumvent double-jeopardy protections recognized by a treaty called the International Covenant on Civil and Political Rights (ICCPR), which the U.S. ratified (albeit with a long series of reservations, understandings, and declarations — including one dealing with double jeopardy) in 1992. The ACLU has also long argued that the United States should not only comply with that treaty but give it a very expansive interpretation, and not seek to hide behind any reservations made by the U.S. in ratifying the treaty.

Article 14 of the treaty specifically prohibits double jeopardy, without any exception for the loophole relied on by supporters of the federal hate crimes bill, mandating that “No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted.”

But the ACLU conveniently ignores the treaty when it comes to the federal hate-crimes bill, even though the ACLU has sought to stretch the treaty’s language to achieve a host of liberal political goals, such as mandating “affirmative action” in the U.S. The ACLU also has argued for an expansive interpretation of the treaty to require benefits for illegal aliens. For example, the ACLU criticizes the U.S. Supreme Court’s decision in the Hoffman Plastics case, which refused to award illegal aliens backpay against employers who fired them. The ACLU’s bizarre interpretations of the treaty conflict not only with its language, but also with the longstanding practices of most ICCPR signatory countries.

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