Keeping an Eye on the Law Makers

 

John D’Aloia Jr.

 

John D’Aloia Jr. is a retired navy captain and a submarine commander. He is a columnist for several newspapers in Kansas.

We Should Know What the Law Is

A Mark Twain observation about one’s life, liberty and property not being safe when the legislature is in session led off a previous column with a discussion of how members of Congress separate you from your money so they can bring home the bacon. This week a few words about the applicability of Twain’s observation to your liberty.

Have you heard the term “Secret Laws?” Former Congresswoman Chenoweth-Hage was recently introduced to the term by airport security personnel. She had been selected during airline pre-boarding for the honor of a pat-down search. She asked to see the regulation that authorized pat-down searches. The local Transportation Security Director, Julian Gonzales, refused to show Chenoweth-Hage the regulation--she refused the search. Chenoweth-Hage was not asking to see the criteria for determining which passengers are screened, only for the legal authorization for passenger pat downs. Why was she not allowed to see it? Gonzales’ response:

We do not have to show it to her. It is called “sensitive security information.” No one is permitted to see it.

Secret law. No one can see it, only those who say it exists can enforce it. This is scary. It strikes at the heart of our legal system, a system based on laws that are enacted in public and made known to all citizens. Shades of the Star Chambers of Merry Old England. It is my experience that even when laws are open and available to all citizens, officious, power-hungry Clerks attempt to impose what they think the law should be, and often get away with it if not challenged to provide a copy of the law they say they are enforcing. If it can be done with open laws, contemplate what happens if laws are kept secret.

What was the Star Chamber? The Court of the Star Chamber was a type of appeals court in Great Britain, with its roots in the 15th century. According to a British web site, by the time of the reign of Charles I (1625-1649), the term Star Chamber had become a byword for misuse and abuse of power by the king and his circle. James I and his son Charles used the court to examine cases of sedition that meant that the court could be used to suppress opposition to royal policies. Court sessions were held in secret, with no right of appeal, and punishment was swift and severe to any enemy of the crown. Finally, in 1641 the Long Parliament abolished the Star Chamber, though its name still survives to designate arbitrary, secretive proceedings in opposition to personal rights and liberty.

A Congressional Research Service Report for Congress dated November 4, 2004, written by Todd Tatelman with the long title,

Interstate Travel: Constitutional Challenges to the Identification Requirement and Other Transportation Security Regulations

discussed the history and implications of “sensitive security information,” (SSI). Apparently the first authority to put the SSI label on security matters was given to the Department of Transportation (DOT) in 1974. In 1997, DOT issued regulations that classified any rule dealing with aircraft safety as SSI, but only as it applied to airport operators, air carriers, and other air transportation entities and personnel. After 9-11, Congress expanded the authority to cover all transportation methods and gave SSI authority to the Transportation Security Agency within the Department of Homeland Security.

Tatelman’s report notes that court cases have been filed challenging the legality of secret SSI laws based on several rationales, including the Fifth Amendment right of due process. He states that

. . . the Supreme Court has held that inherent with the notion of due process are certain requirements regarding the notice and publication of the law.

Tatelman goes on to state that

The effective litigation of constitutional rights often relies on access to information and other evidence used by the government. By withholding publication, the government is arguably keeping critical evidence private, and thus, is thwarting attempts to effectively challenge not only the basis for the regulations, but also the procedures being used to implement them.

The report does give arguments that could be used to uphold SSI laws. Tatelman concludes that the Fifth Amendment arguments have a chance of success, but even so, the court could decide that the laws themselves are acceptable--all that is required is minimal publication which is absolutely necessary to satisfy the courts’ due process dictates.

That Which Is Not Seen    

While the decision to forgo the pleasure of driving in to Topeka each day to participate in the Kansas legislative session is not regretted in the least, there does remain an interest and curiosity as to what the legislature is doing to us.

Education and taxes, the death penalty and the marriage amendment--all take stage center this session, but you could not help noticing how legislators fell all over themselves to back away from the mess the last session left them with the way sales taxes were computed on the sale of used cars from one private party to another private party. Angry constituents were all over their case and the media seemed to take great delight in playing up irate citizens. A cynic could wonder if perhaps the measure was passed deliberately to set up a soft pitch for the next session to knock out of the park, providing election-time headlines of a caring and responsive legislature and detracting attention from whatever else they might have in mind to stick it to taxpayers, such as a tax increase to be able to throw more money at the education establishment. What does create a bit of wonderment is how such an august body of intelligent and world-wise people could pass the law in the first place. Did not any one of the 165 sitting behind the big desks know that not all used cars are worth the book value? Could it all have been a below-the-radar attempt to get clunkers off the road without direct legislation banning clunkers? Or did the thought that the state was not getting every bloody penny it could possibly squeeze out of every private transaction stick in their craw and blind them to the real world? Your guess is as good as mine.

They all need a heavy application of thinking through the consequences of their actions, not only today with their vote, but tomorrow and the day after tomorrow. They all need to contemplate the invocation of the Law of Unintended Consequences. Perhaps there should be a mandatory study session covering Frederic Bastiat’s That Which Is Seen, and That Which Is Not Seen. One paragraph from the introduction:

This explains the fatally grievous condition of mankind. Ignorance surrounds its cradle: then its actions are determined by their first consequences, the only ones which, in its first stage, it can see. It is only in the long run that it learns to take account of the others. It has to learn this lesson from two very different masters--experience and foresight. Experience teaches effectually, but brutally. It makes us acquainted with all the effects of an action, by causing us to feel them; and we cannot fail to finish by knowing that fire burns, if we have burned ourselves. For this rough teacher, I should like, if possible, to substitute a more gentle one. I mean Foresight. For this purpose I shall examine the consequences of certain economical phenomena, by placing in opposition to each other those which are seen, and those which are not seen.

I call it the Iceberg Law. It is not the 12 percent you immediately see (or think about or consider) that will bite you--remember the Titanic.

A scan of the bills being debated revealed others that do not make the headlines or the six o’clock news, but which would grow the size and intrusiveness of state government. (The thesis of Clint Bolick’s Leviathan is that local and state governments are a bigger threat to liberty than is the federal government. Reading introduced bills reinforces the thesis.)

Want another replay of the used car tax fiasco? The Senate tried with SB 122. This bill, introduced by the Commerce Committee, would have authorized employers to make direct deposit of paychecks to a financial institution--OK so as the employee chooses--but without the employee having any say? On a 20-20 vote, with the Senate seated as a Committee of the Whole, the bill died on the floor. What could have come next, employers given the authorization to automatically send a portion of an employee’s pay check to United Way--such a worthy cause--whether the employee wants to or not? Heck, why not? Government already dictates withholding taxes because citizens cannot be trusted to pay taxes when due. Why not make them a slave to the latest Guardian-blessed charity?     *

“The chains of habit are too weak to be felt until they are too strong to be broken.” –Samuel Johnson’