Daily Archives: 9 April 2012

Our Government at Work

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This time, it’s Homeland Security, and its move to confuse and then steal from, an American family, that is hard at work.  The present case involves a couple and their two-year-old daughter traveling from George Bush International Airport in Houston, TX, to Addis Ababa, Ethiopia, the wife’s city of birth and a cash-and-carry city, where they planned to stay for two months visiting her family.  At the airport, TSA agents confiscated every dollar the family had on them because they were confused both about what constituted “currency” in the agents’ eyes and were uncertain about the amount of money they had on them and in their luggage.

Their case wound up in Federal District Court for the Southern District of Texas; here are some excerpts from District Judge Lynn N. Hughes’ ruling [emphasis mine]:

The government presented no evidence—none—that the Joneses intended to evade the reporting requirements.  Kyle told Hernandez that he did not know the amount of money he was carrying.  Saying “I do not know” is not a deliberate failure to report.  After Hernandez insisted on an answer, Kyle said that he would have to guess.  Guessing is not a material omission or a misstatement of fact—certainly not one the government can use to steal the money.

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These public servants sought to earn credit with their agency by collecting money.  Some of it is returned to the agency—like justices of the peace whose pay is derived directly from the fines they impose. They focused on bureaucratic imperatives—not their duties to the public and law.

and

A lack of leadership at the agency allowed this.  Its mission statement—which none of the officers could recall at the trial—is to serve the American public with vigilance, integrity, and professionalism.  They displayed none of these.  The agency says that integrity is its cornerstone; that its officers are guided by the highest ethical and moral principles.  A gang of armed security officers bullied this family—a family who cooperated with the officers to their detriment.  Our homeland will not be secure by these rascals.

While Mr and Mrs Jones, the parents in this traveling family, might be derided for not knowing how much money they had with them, this is neither illegal, evidence of illegality, nor actionable under any other guise of interest to Homeland Security.  Nevertheless, on being pressed to fill out (legitimately required) forms declaring the amount of money the Jones were taking out of the US based solely on their guess, their money then had been seized in its entirety, without allowing the Jones to correct their error.  It’s also important to note that the amount stolenseized was over $31,000 and that the recommended penalty for an actual evasion of this type is a forfeiture of $500-$5,000.

Judge Hughes ordered the Jones’ full $31,131, the amount seized, returned to them and she awarded the Jones court costs and legal fees.  I would have added to that the $1,500 the Jones were required to pay for a new airline ticket, this assault having forced them to miss their scheduled flight; the cost of the hotel room they were forced to get while waiting for that next-day flight; and the value of their time consumed by this wholly unnecessary delay.

The complete opinion is short and to the point, and it can be found here.

Note, though, that despite my (and others’) pontificating on this, it’s not Homeland Security’s fault.  After all, as DHL Secretary Janet Napolitano said in another case,

Look, everybody has a role to play. … And if people don’t want to play that role, if they want to travel by some other means, of course that’s their right. This is the United States….

A Bill Under the Commerce Clause

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Some view the Constitution’s Commerce Clause as granting to the Congress expansive powers of Federal control of intrastate activities, individual activities, and even the thoughts of private citizens.  A supine Supreme Court has supported this view.  Wickard v Filburn, for instance, agrees that Congress can regulate privately carried out agricultural activities, and NLRB v Jones & Laughlin extends that to manufacturing activity that occurs wholly within a state—an activity that prior to Jones & Laughlin was considered separate and distinct from any commerce-related process.  With these rulings in mind, a Federal District judge, Gladys Kessler, has even held that this Commerce Clause control extends into the private thoughts of individual citizens (Mead v Holder).

The line of reasoning for this startling evolution can be summarized in Chief Justice Charles Evans Hughes’ majority opinion in Jones & Laughlin: activities that are intrastate in character (which rather tautologically includes those individual activities) are regulable under the Commerce Clause when they bear a “close and substantial relation to interstate commerce.”

Agriculture is such an intrastate activity when the processes of field preparation, sewing, growing, and harvesting are considered separately, and separately from any subsequent process of bringing that harvest to market.  Likewise, manufacturing is such an intrastate activity when the processes of gathering equipment and locally procured supplies, the assembly of those supplies into finished product, and their in-plant inspection are considered separately, and separately from any subsequent process of bringing those finished products to market.  However, since Wickard and Jones & Laughlin hold such activities to bear a “close and substantial relation to interstate commerce,” it is reasonable to hold that any activity that impacts those processes of agriculture and manufacturing also bear a “close and substantial relation to interstate commerce.”  Such activities here plainly include union strikes and boycotts.

Accordingly, I propose a simple, one-page bill (no 2,000+ pages for me) that bans union strikes and boycotts, citing the Commerce Clause as the constitutional authority for such a ban.

It would be interesting to hear the Commerce Clause objections to such a bill.  What rationalizations might be offered?