They called it a “stunt” early last week when House Financial Services Committee Chairman Jeb Hensarling (R-Texas) refused to allow Consumer Financial Protection Bureau (CFPB) director Richard Cordray to testify due to the constitutional cloud over Cordray’s appointment. But this “stunt” just may have forced the Obama administration’s hand in submitting a brief later in the week urging the Supreme Court to resolve the issue.
In a statement, Hensarling announced that the committee could not “legally accept testimony from Richard Cordray … until he is validly appointed as the bureau’s director.” In the letter that Hensarling sent to Cordray, Hensarling cited the ruling of the U.S. Court of Appeals for the D.C. Circuit in Noel Canning v. National Labor Relations Board that three “recess” appointments to the labor board made the same day and in the same manner as Cordray’s appointment were ruled unconstitutional. “It is clear,” Hensarling wrote, “as a number of legal scholars have concluded, that your appointment was also unconstitutional.”
This is exactly what the Competitive Enterprise Institute, and our co-plaintiffs the 60 Plus Association and the State National Bank of Big Spring (Texas), argue in our lawsuit challenging the constitutionality of the CFPB and other elements of Dodd-Frank, the so-called financial reform law rammed through Congress in 2010. Neither Cordray nor the NLRB officials were valid “recess” appointments, because the Senate was in pro-forma session, gaveling in and out every three days and ready for legislative business should it occur (including changes to payroll tax legislation Congress made during these sessions).
The Obama administration’s action was unprecedented. As noted by the nonpartisan Congressional Research Service and reported by Politico, during the 2007-08 pro forma sessions when the Democrats controlled both houses, President Bush “made no recess appointments between [Democrats’] initial pro forma sessions in November 2007 and the end of his presidency.” As I asked on OpenMarket on January 4, 2012, the day the recess appointments were made, “If any adjournment or break the Senate takes can be defined as ‘recess,’ can the president make appointments when the Senate is in formal session and gavels out for the evening?” Or could a recess even be declared when the Senate adjourns for a bathroom break?!
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The U.S. government is banning a standard, normal-smelling French cheese based on its own squeamishness. The cheese in question is Mimolette, a commonplace, orange French cheese so mild in flavor that I once confused it with cheddar when I visited my French relatives and ate it for the first time. The ban has triggered protests in New York City, reports the Global Post:
Around 40 protesters took to the streets of New York on Saturday to demonstrate against a US ban on mimolette that has angered lovers of the distinctive French cheese.
Since March, several hundred pounds of the bright orange cheese have been held up by US customs because of a warning by the Food and Drug Administration that it contained microscopic cheese mites.
The mites are a critical part of the process to produce mimolette, giving it its distinctive grayish crust.
The US decision has angered importers and consumers, who have even set up a Facebook page titled “Save the Mimolette.”
Benoit de Vitton, an importer of the cheese. . . said he was baffled by the recent blockade, noting he has imported mimolette for two decades without a problem.”They are afraid of allergies,” he said. “But we’ve been doing this for 20 years without any problem.”
Who cares if it has tiny, invisible mites in it? Cheese is the product of bacteria. Good yogurt has live cultures of bacteria in it, and that is beneficial for your health. Food that is alive can be good for you. The human body is full of living, friendly microbes that keep us alive. The cheese mites in Mimolette are there to enhance its flavor: as Wikipedia notes, the “crust of aged Mimolette is the result of cheese mites intentionally introduced to add flavor by their action on the surface of the cheese.”
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Our new euphemism for a national identification system is “identity authentication mechanism.” The Gang of 8, the leaders of which are proponents of biometric national ID cards, included a provision in the electronic employment verification portion of the immigration bill that calls for such a “mechanism” to identify every American at the click of a mouse.
E-Verify, the verification system used voluntarily by about 7.5 percent of employers, is currently national ID-lite. Right now, E-Verify only compares identifiers, such as your name and Social Security number, to the Department of Homeland Security database. This means the system cannot know whether the person submitting the identifiers (SSN, name, etc.) is the individual those identifiers refer to, which would be true identification.
True identification, as the Cato Institute’s Jim Harper explains in his book, “Identity Crisis,” must compare biometric identifying information — pictures, fingerprints, retina scans, DNA, etc. — to the actual individual. The Gang of 8 bill does this. It allocates $250 million to DHS to include all passport, DMV and state ID photos and ID numbers into the system. Employers would then compare the database picture to the new hire.
This is a true national identification system — the exact thing Americans have resisted for the past 80 years, ever since the Social Security card was first proposed. Nonetheless, the Gang of 8 bill contains the obligatory “Nothing in this section may be construed to directly or indirectly authorize the issuance, use, or establishment of a national identification card.” Of course it creates “tamper-proof, fraud resistant” Social Security cards required for work, but presumably those don’t count. In any case, it creates something far more odious to privacy — a national ID system accessible anywhere at any time to identify anyone, or at least any U.S. citizen.
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Cato Institute attorney Ilya Shapiro wrote Tuesday about “Thomas Perez, the assistant attorney general for civil rights who personifies . . . this administration’s flouting of the rule of law.” As he notes, Perez “is due this week for a vote in the Senate Health, Education, Labor, and Pensions Committee on his nomination to be Labor Secretary.”
Shapiro provides this “recap of Perez’s nefarious dealings” (drawing on the work of Quin Hillyer, who provides more detail at this link):
- Interference with the Supreme Court case of Magner v. Gallagher, getting the City of St. Paul to dismiss its appeal to prevent what would’ve been a sharp . . . rebuke to the federal government regarding its use of “disparate impact” racial theories in housing policy . . . [CEI discussed Perez's misuse of "disparate impact" law here]
- Refusal to comply with subpoenas from the U.S. Commission on Civil Rights [which CEI discussed here];
- Dismissal of the Justice Department’s already-won prosecution of the Black Panthers for voter intimidation during the 2008 election [which CEI discussed at this link];
- . . . running a department dedicated to the proposition that voting rights and other civil rights law don’t protect white people [CEI discussed an example here];
- Willfully misleading and lying to Congress under oath several times [D.C. District Court Judge Reggie Walton said he made false claims in response to queries about the black panther case];
- Racial abuse of the New York fire department, to the detriment of public safety and qualified minority applicants;
- Hiring for “career” (non-political appointee) slots only attorneys who have demonstrable left-wing credentials—making Alberto Gonzales’s politicized-hiring foibles look like the model of civil service administration [see examples here];
- Trampling on religious liberties to the point the Supreme Court unanimously rejected his arguments in Hosanna-Tabor v. EEOC regarding the “ministerial exception” to employment laws;
- Conducting government business from a personal email account as many as 1,200 times (!) and now refusing to comply with congressional subpoenas to release those emails. [CEI lawyers have repeatedly uncovered such abuses, and the use of false-identity alias email addresses, by Obama administration officials, as you can see here and here].
CEI earlier discussed the Magner case and why the Obama administration’s position in that case could undermine the stability of the financial system and cause future financial meltdowns. (CEI joined in an amicus brief opposing the Obama administration’s position, in the Supreme Court). It also highlighted the Obama administration’s (and Perez’s) massive, ethically dubious payoff to the City of Saint Paul to drop the case. Earlier, CEI discussed the Obama administration’s extreme position in the Supreme Court’s Hosanna-Tabor case and how it would have undermined First Amendment freedoms, religious autonomy and the separation of church and state. CEI also examined the Justice Department’s politicized hiring during the Obama administration.
Earlier, I wrote about how it was a good thing that the Supreme Court blocked foreigners from suing in the U.S. over putative violations of “customary international law” by corporations and other defendants with deep pockets. My conviction has grown stronger, since I learned that the U.N. Committee on the Elimination of Racial Discrimination has ruled that Germany violated international law by not prosecuting a former German legislator for an interview with a cultural journal in which he said negative things about immigration and the alleged dependence on welfare of Turkish immigrants to his country. That ruling illustrates that international-law norms can be inimical to American civil-liberties such as freedom of speech, making it inappropriate for U.S. courts to enforce such foreign norms.
German prosecutors had concluded that the former legislator’s remarks were protected by Germany’s (limited) free-speech guarantees because, while offensive, they were part of a “discussion” of “problems of economic and social nature,” and did not rise to the level of hate speech. (Germany generally bans hate speech; by contrast in the U.S., the Supreme Court voided a hate-speech ordinance in 1992 on First Amendment grounds. A federal appeals court has also ruled that a professor’s racially-charged anti-immigration diatribes were protected speech in the Rodriguez case.) Law professor Eugene Volokh reprints the speech that, “according to the Committee, must lead to a criminal prosecution in countries that have ratified the International Convention on the Elimination of All Forms of Racial Discrimination.” (The U.S. has ratified that convention, but, as Professor Volokh notes, “I am pleased to say that the U.S. has not recognized the competence of the Committee to enforce the Convention, though most European countries have; the U.S. has also ratified subject to a specific reservation in favor of the freedom of speech.”)
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If Americans truly want to ensure no unauthorized immigrants work in the United States, they better get ready to pay top dollar. E-Verify, the electronic national identification system contained in the Gang of Eight’s immigration bill, will cost government, businesses and workers at least $8.5 billion per year, according to my new study on E-Verify released yesterday. That’s $13,000 per unauthorized immigrant denied a job.
E-Verify requires employers to submit Form I-9 information for comparison with information in databases held by the Social Security Administration and the Department of Homeland Security. People who advocate E-Verify as a cheap solution to illegal immigration need to understand this requirement is the most extensive regulation possible—it imposes requirements not just on every single business in America, but every single American citizen. Even small expenses distributed among such a large population will produce major costs.
This study basically accepted all federal data about E-Verify at face value and attempted to estimate its impact on the entire economy using the government’s own assumptions. First, as for government, the Congressional Budget Office estimated a national E-Verify mandate would cost, on average, $1.22 billion annually, not including DHS personnel costs. Add $227 million for the 5,000 new DHS enforcement agents called for in this bill, and the cost jumps to $1.45 billion.
But the big costs come from the impact on employers. Based on the estimates in the DHS’s Regulatory Impact Analysis for its 2008 E-Verify mandate for federal contractors, employers nationwide would spend $4.1 billion setting up, training and implementing the new system. That’s nearly $2.4 billion more than the estimated cost to businesses under the White House draft legislation, which exempted small businesses. Annually, employers will spend $2.55 billion operating system checks, based on DHS assumptions alone. This estimate is close to a 2011 Bloomberg Government report that found a national E-Verify mandate would cost businesses $2.6 billion annually (a number that actually ignored costs to 76 percent of businesses).
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In his column today, The Wall Street Journal‘s Gordon Crovitz notes the significant help that video footage played in helping police identify the Boston Marathon bombers. However, he seems to miss what the Boston police’s success actually implies — that government-run security cameras are unnecessary for protecting public safety.
Boston is one of the less-wired large cities when it comes to surveillance cameras, so authorities relied largely on footage from private parties, such as the Lord & Taylor department store near the scene. The most recent estimate, from 2010, is that Boston and surrounding towns have some 150 police surveillance cameras, plus 400 in the subway. This compares with more than 3,000 government and networked private cameras in New York City’s financial district alone, and some 400,000 cameras in London.
While Crovitz doesn’t explicitly say so, the seeming implication that Boston being “one of the less-wired large cities” may be a shortcoming is troubling and misses the real lesson of the search for the bombers — the value of the public’s engagement in helping to protect their own city. The Washington Examiner‘s Tim Carney, on the other hand, gets it right.
So it turns out we already have plenty of cameras on the street. They’re not government cameras, but rather cameras owned and operated by private individuals and businesses. In a bout of public spiritedness, these pedestrians and businesses willingly shared their videos with law enforcement. Even if the crime had not been so notorious, the police could expect public cooperation — what merchant wouldn’t share his surveillance tapes to aid in a murder investigation?
Indeed, until private surveillance and recording of events prove inadequate — and there is no reason to believe that they will — the burden of proof should remain on government on the need to expand its surveillance capabilities.
UPDATE: In a related topic, David Henderson at Econlog explains the value of decentralized, citizen-driven information in ensuring public safety (h/t Iain Murray).
One way the current political climate discourages hiring is by turning problem employees into potential lawsuits for the employers who take the risk of hiring them. The legal climate has gotten much worse over the past several years due to the appointment of more left-wing, anti-employer judges by President Obama, and an increasingly out-of-control Equal Employment Opportunity Commission, which sues employers for terminating bad employees who fall into “protected classes,” and for sensible hiring decisions that most judges would consider perfectly legal, since the plain language of federal civil-rights laws permits them. The EEOC even sues employers for using hiring criteria required by state law, such as health and safety codes.
The EEOC’s abusive, out-of-control behavior is a point of agreement among lawyers who agree on little else, liberal and conservative alike. The liberal lawyer “Loki,” writing at the Volokh Conspiracy, observes:
Without going into too much detail, I recently had the bizarre experience of the EEOC first arguing that the plain language of the statute didn’t matter. Then we dug up their own policy, which contradicted their stated litigation position. They argued that their own policy didn’t matter. The issue hadn’t been litigated much, but we found case law directly on point contradicting them (and for which they had been sanctioned). They argued that the case law didn’t matter. Then we found prior DOJ opinions on the issue- guess what? The EEOC said the DOJ opinions didn’t matter.
The judge? He thought it mattered.
I wish this was a one-off experience, but it’s not. Every single time I have dealt with the EEOC, it’s something similar. It’s gotten to the point where I fully expect them to be pissing on my leg so they can tell me it’s raining. And note that I’m not reflexively anti-government; I’ve dealt with the DOJ and SEC (among others) and have nary a bad word to say with the attorneys I’ve dealt with. . .I honestly don’t know what it is in the water at the EEOC. . . I had to do a lot of research on EEOC cases, and I found so many cases where the trial courts just got fed up with the EEOC it wasn’t funny.
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Even in a divided Washington, everyone agrees on the importance of creating jobs in America. So why are some government agencies using taxpayer money to lobby against some food manufacturers?
At least one lawmaker, Rep. Aaron Schock (R-Ill.) thinks it’s time government officials stopped using taxpayer money to run smear campaigns against the makers of lawfully produced goods that consumers want. On April 15, Rep. Schock introduced the Stopping Taxpayer Outlays for Propaganda Act (STOP) Act (H.R. 1572), which would prohibit the use of federal funds for advertising and media campaigns to discourage consumption of any food or beverage that is lawfully marketed under the Federal Food, Drug, and Cosmetic Act. In a Politico op-ed this week, Schock explains that in this time of economic stress, using taxpayer money to harm American industry doesn’t make a lot of sense.
Not only do these government-funded campaigns harm American businesses, they are doing nothing to improve Americans’ health — and may even cause harm in some cases. Government is simply not very good at determining what is best or healthy for each individual. Studies funded by government grants are often cited by legislators to promote one-size-fits-all policies that fail to take into account a person’s health risks or specific dietary needs. Yet many such studies are based on limited data that often result in incorrect conclusions.
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Have a listen here.
Today, the House passed the Cyber Intelligence Sharing and Protection Act of 2013 (CISPA). Associate Director of Technology Studies Ryan Radia opposes the bill because it would nullify existing contracts and eliminate the rule of law in certain areas.
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