Wednesday, June 29, 2011

Tracking GPS: It's Not a 4th Amendment Search

The Supreme Court has granted cert in US v. Jones, in which the D.C. Circuit Court reversed Appellant Jones's conviction on drug distribution charges. The evidence used to convict Jones by installing a GPS tracking device on the suspect's car. The police did not seek a warrant prior to installing or monitoring the GPS device, which the Circuit Court declared a search. Because that search was not supported by a Fourth Amendment warrant, the evidence was tainted, and the conviction vacated.

I'm pretty excited whenever a legal case comes up that includes a police tactic dramatized in The Wire, but that's not why I'm interested in this one. This is a rare Fourth Amendment case when I think it should be a fairly easy case and the government should win.

Now, Eugene Volokh sees the issue differently, and when Volokh isn't talking about economics or public policy in general, I tend to think he's a pretty sharp commentator. I think we should take his initial reaction seriously:
But the installing of the device may give a Justice Scalia or Thomas second thoughts; the act of installing the device is the act of interfering with someone’s private property, and it likely would be a taking under Fifth Amendment principles. Given the historical connection between the Fourth Amendment and trespass law, it’s conceivable that an originalist Justice might conclude that the interference with a person’s private property without a warrant triggered by installing the device violates the Fourth Amendment even if the subsequent use does not.
I admittedly am not terribly strong on recent Takings doctrine, but the general background here is that the field of Fifth Amendment protection of personal property has been aimed squarely at environmental law. The typical Takings case involves a legislative effort to dictate the actions of private land holders, who find relief through the court by showing that the legislation has degraded their economic prospects. A development company can no longer build an assisted-living community in a swamp--now a 'wetland;' a lumber company cannot cut down trees on their own property in which endangered species roost; etc... If the Fifth Amendment has anything to say about installing a device on the undercarriage of a car or in the hollow of its bumper, it would have to take value away from the car. The only limitation that the GPS tracker removes from the vehicle is that it becomes less valuable for the commission of crimes. Perhaps if the GPS trackers were a preexisting network that the police could tap into at will, then there would be serious 4th Amendment concerns. That access would require a warrant. Because the police have to specifically pick a target and have hands-on access to the vehicle, it makes the technology less dangerous to general abuse.

Tuesday, June 28, 2011

Assault Rifles, Killings, and National Security

I think we can all agree that selling assault weapons to criminal cartels is bad. Organized criminals tend to be violent, and when a violent person purchases a gun capable of firing an extended magazine or being easily modified into an automatic weapon, violence can ensue on a much larger scale. So of course Republicans are upset that the ATF let assault weapons be sold to people probably buying them for Mexican cartels.

The problem is that we Republicasn fundamentally disagree that selling assault weapons to criminal cartels is bad. They just think it's bad when they might be able to make political points with an investigation. When a store owner knowingly sells assault weapons to an obvious straw purchaser (in arms trafficking terms, a buyer who is not an End User), the GOP has protected them. The FBI has sought authorization to sift through gun sale records for patterns indicating frequent and flagrant straw purchases, but the GOP has opposed that step. When the government has a specific law enforcement strategy in mind (gobsmackingly prone to catastrophe though it was), Republicans suddenly are against straw purchases- but only if the President is a Democrat.

If Republicans wanted to do a better job at preventing criminal syndicates from purchasing assault weapons from the United States to use against its law enforcement groups, communities, and citizens, they would reinstate the Assault Weapons Ban. It's not like the ATF provided the guns to cartels through abnormal channels. They simply allowed for a higher success rate for straw purchasers than normal (or maybe the success rate of straw purchases was unchanged and the ATF was just paying attention at this handful of stores). It's kind of unclear.

Sunday, June 26, 2011

Prosser Is Begging for Impeachment

Wisconsin Supreme Court Justice David Prosser, according to court sources, attacked fellow Justice Ann Bradley over an argument about the Walker's union-busting bill. He reportedly placed her in a chokehold, but did not exert obvious force, when she asked him to leave her chambers after an informal discussion became heated. Four other justices were in the room. Prosser has denied the allegation, releasing this statement to the Journal Sentinel newspaper:
"Once there's a proper review of the matter and the facts surrounding it are made clear, the anonymous claim made to the media will be proven false. Until then I will refrain from further public comment."
A proper review should certainly be made into workplace violence whenever it is alleged to have occurred, whether it's encouragement of hazing in an athletics program, an altercation between cubicle neighbors, or a mock-choking in the chambers of the Supreme Court. In an office or university environment, there is a process in place, managed by human resources or an established group to deal with these inevitable, though rare, instances of workplace violence. In the Supreme Court there is not.

Prosser asks for a "proper review," but the truth about the judiciary (and the Wisconsin constitution) is that there is no HR department for the high court. The only body that could provide a "proper review" for the allegations is the legislature, by instantiating an impeachment proceeding. As I understand it, the Wisconsin impeachment proceedings mirror the federal template. The state assembly draws up articles of impeachment, acting as a grand jury in deciding whether there is enough evidence to begin a trial phase. If there is, the articles of impeachment are approved by a majority vote, and the process moves to the state senate for trial, where Prosser would either be removed for his offense or acquitted. This is the only possible "proper review" that Prosser could be asking for, if he actually wanted such a review.

The alleged behavior is certainly criminal, so William Jacobsen at Legal Insurrection asks, why not file criminal charges against the attacker? First of all, if your coworker put you in a chokehold, do you think your first reaction would be to file charges? The criminal prosecution route is onerous for the victim. Any workplace or institution has internal discipline committees to deal with these problems precisely because treating these incidents as a criminal justice matter (and explaining minute details of the institution's daily functioning to external investigators) is taxing and creates enormous disruption for the institution. It's obvious that Jacobsen is a law professor; the question he asks is provocative, but the actual substance and assumptions of his "Weiner test" is laughable.

David Prosser wants to be impeached for this incident. He's confident that he will be acquitted by the majority Republican Senate, so the majority Republican House should go ahead and give him a chance to clear his name. "A proper review" requires impeachment, and Prosser knows it.

Tuesday, June 14, 2011

Decline Mongering

David Brooks has a really tough task ahead of him. His career depends on cheerleading for conservatives in 2012 to an audience who understands the poverty of their arguments. If you're going to get voters who can add excited about the Republican party, you've got to make the situation look bleak enough to distract voters from the actual plans, personalities, and platform of the Republican party.

Brooks prefaces his pundiry for the remainder of the 2012 election cyle with an simple declaration of his theme. Here is the template that David Brooks will be reusing ad nauseum:
I’ll be writing a lot about the presidential election over the next 16 months, but at the outset I would just like to remark that I’m opining on this whole campaign under protest. I’m registering a protest because for someone of my Hamiltonian/National Greatness perspective, the two parties contesting this election are unusually pathetic. Their programs are unusually unimaginative. Their policies are unusually incommensurate to the problem at hand.
Of course, any policy wonk (or man-on-the-street with a calculator) would say that Ryan's Folly and the Pawlenty Tax-a-palooza are probably too imaginative with their accounting, this will certainly be Brooks' theme. I'd like to call attention to the art of decline mongering, however. What tells Brooks that the situation is bleak as can be?

Monday, June 13, 2011

Conservatives Agsinst Free Markets

American conservatives have built their rhetoric around unconditional support of the free market. Anything that 'the market' does is good; any change in value not produced by the market is bad. This description should be a shallow caricature of Republican economic theories, but I'm afraid it isn't. Republicans want to insulate the economy from "politics," which is most plausibly defined as "authoritative allocation of value." In a democracy, Republicans want economic actors (anybody seeking to make money) to be insulated from public controls. Of course, since the American system of democratic capitalism provides that those political actors (voters) are also seeking to make money (and are thus economic actors in their own right), the Republican stance is actually that we should insulate the economy from market forces.

Democracy allows economic actors to thrive. Politically-instituted regulation mitigates the harms of firms' externalized costs, e.g. pollution from coal-fire power plants (or, for that matter, toxic run-off from coal mines). Firms that account for true costs of production by refusing to externalize such costs (say, by installing carbon scrubbers in their plants) can prevent their creative-accounting competitors from cornering the market through immoral competitive practices. The recourse to the body politic--either through legislation or the courts--is a feature of democratic capitalism.

It's more than a little intellectually inconsistent for Republicans to complain about the price effects of having a fair market:
Consumers could see their electricity bills jump an estimated 40 to 60 percent in the next few years.

The reason: Pending environmental regulations will make coal-fired generating plants, which produce about half the nation's electricity, more expensive to operate. Many are expected to be shuttered.
The horrors! An energy production method which is noxious to the capitalist system is under attack by the capitalist system. The price increase, according to basic micro-economic theory, incentivizes innovation and allows for new technologies to be developed.

This innovation is anethema to the modern conservative movement, however, which emphasizes an appraoch more out of a totalitarian regime than a free capitalist society: "Drill Here, Drill Now." The phrase beseeches government to massively intervene in the energy market, as Republicans typically criticize as "picking winners and losers." Even though Republicans are currently blocking efforts to repeal welfare subsidies for oil companies, they are asking for a new government giveaway to Exxon, BP, and Shell. It's a good time to remember that when Republicans talk about economics, they're taking things more on faith than on an actual examination of economic principles. That, and they want to richly reward the Koch Brothers and the oil and gas industry that fights so hard to put Republicans into office.

Saturday, June 11, 2011

Bush Tax Cuts Were a Great Success

This week marks the 10th anniversary of the enactment of teh first Bush tax cut into law. Commentators are calling the Bush tax cuts an abysmal failure. The tax cuts ushered in stagnating growth in real wages, retarded GDP expansion, and decreased job creation. The government surplus evaporated, leaving trillions of trillions of dollars of debt. George Bush left an abysmal economic record even before the recession he ushered in. The economic numbers show that if the goal of the Bush Tax Cuts was to create "massive job growth, vast new wealth, higher incomes, smaller government, and balanced budgets," as many conservatives argued they would, they were a complete failure.

I am afraid that those goals are a total misreading of history. The Bush White House was not interested in continuing the government surplus; all other goals besides eliminating that surplus of tax recepits compared to government expenses were ancilary to Bush's goals. Look no farther than the Governor's rhetoric as he signed the tax cuts into law:
"We recognize, loud and clear, the surplus is not the government's money," he said. "The surplus is the people's money. And we ought to trust them with their own money."
Goal #1 was to wipe out the surplus. The logic is plain: as long as government is taking in more money than it is spending, it is taking in too much money. Bush proceeded along ideological lines to zero out government balances without regard to consequences. The promised economic benefits were all made by outside voices, looking to defend the fateful decision to decrease tax receipts.

The Bush Tax Cuts achieved their only purpose: to wipe out the good governance practices of the Clinton administration, which estalished a sound fiscal footing for the federal government without enacting long-lasting socially progressive programs. Commentators are trying to fit the devastating consequences into a false narrative of enlightened statesmanship. There is little evidence that Bush intended for the tax cuts to benefit the American economy. The commentators who attempt to put the Bush tax cuts into this framework are dangerously misinterpreting history.

Wednesday, June 8, 2011

Hyperlocalism in Juries

The Washington Supreme Court heard arguments in City of Bothell v. Barnhart a few weeks ago, and I just saw it on TV. I happened to catch a few minutes of Barnhart's argument at bar this morning on my lunch break. Here's the background as summarized on the Supreme Court's blog:
City of Bothell v. Barnhart, No. 84907-2. James Barnhart was convicted by jury in the Bothell Municipal Court of stalking. The Superior Court affirmed the conviction. Bothell is one of a few cities in the state that is located in two counties—both King and Snohomish Counties. Barnhart was charged in Snohomish but two jurors from King County sat on the panel. The Court of Appeals held that the Washington Constitution (Art. I, Sec. 22) requires that a defendant be tried by a jury of the county where alleged offense was committed. The court held that Barnhart’s jury trial right was violated, reversed the conviction, and remanded for a new trial.
The State Supreme Court granted review. The City of Bothell argues that the true community in which Banhart committed his crime was the City of Bothell, regardless of county lines that divide the city. The trial court is run by the City as a whole, and often hears cases originating from crimes in both Sno and King counties. Conceptually, there is some support for the city's argument that local means municipal in 6th Amendment jurisprudence.

Barnhart's argument is that the jury was not constitutionally impaneled because two members resided in King County, relying on the plain reading of § 21 & 22 of the Washington state's constitution. § 21 explicitly defines community as having to do with a county. The principle that juries must represent the local population is well-agreed upon. The question lies in choosing the correct set arbitrary political lines that define community.

Friday, June 3, 2011

That Old History Problem

It doesn't come as a shock that Sarah Palin badly bungled the story of Paul Revere's Midnight Ride at a campaign stop at Bunker Hill this weekend:
He who warned, uh, the … the British that they weren’t gonna be takin’ away our arms, uh, by ringin’ those bells and, um, by makin’ sure that as he’s ridin’ his horse through town to send those warnin’ shots and bells that, uh, we were gonna be secure and we were gonna be free … and we were gonna be armed.
Quick review on the substance:
  • Paul Revere's warning somebody - check.
  • There's a horse involved - check.
  • Paul Revere's firing wildly as he rides through towns - negative.
  • Warned the British - backwards.
  • "gonna be secure" - not really clear what this means. As far as personal security was concerned, continuation as a colony of the British crown probably entailed less risk for Americans.
  • "We were gonna be armed" - half check.
The half check there is a bit tricky. It's also the most important part of the story in regards to the history of the 2nd Amendment, which is what Sarah Palin was (most likely) trying to get at.

The British left their bunkers on April 19th, 1776 to confiscate arms from the colonial militia. Advance warning of the British movement allowed Massachusetts farm boys to ambush and rout the British, who had not anticipated resistance. This event highlights why Sarah Palin's 'gun-in-every-home' interpretation of the 2nd Amendment is without historical basis.

Up until the invention of the breech loading rifle, whole militias would have to be raised in order to "bear arms" against a tyrannical government. The "well-regulated militia" may not have been a condition upon which gun ownership rested in the original meaning of the 2nd Amendment, but it certainly explained that the right to political violence, and the access to muskets that was a necessary precursor to that right, was one of the populace in general. The individual right to gun ownership was not protected by the 2nd Amendment; it had never been threatened by the British in America. The arms that are protected by the 2nd Amendment, in reaction to British confiscation efforts in the 1770's are guns maintained by militias.

The question that, I believe, DC v. Heller skirted, was whether the evolution of technology created an expanded right to arms. The efficacy of a single "patriot" with a gun was established by post-1789 advances in weapons technology. By inventing that efficacy, Scalia projects a deely creative interpretation onto the single-clause Amendment without any discussion of the underlying principle.

British forces were emphatically not engaged in a house-to-house confiscation of arms; if it had been, Sarah Palin would have a point that an individual right to gun ownership exists. Her rhetoric and deep misunderstanding of American history call attention to the vast absurdities of 'conservative' and 'originalist' schools of constitutional thought.