Archive for the ‘Government agencies’ Category

Oregon vaccination bill SB 132: looks good on paper, but ambiguous language and open liability questions leave room for improvement

June 11, 2013

Oregon, finally taking action on widespread non-medical child vaccination refusals, has passed a revision to its vaccination requirement laws that imposes some interesting new requirements on parents who want to use non-medical reasons to excuse their children from vaccinations. Under the old system, all that parents had to do in order to prevent their children from getting potentially life-saving vaccinations and still go to public schools was sign a free waiver claiming some kind of nonspecific religious affiliation that forbids vaccinations. With virtually no regulatory oversight, ease of access, and an inability of state health agencies to combat the inexorable propaganda arm of the anti-vaccination crowd, rates of unvaccinated children in Oregon are very high, more than five times the national average. The problems with such a system are tragically obvious: pertussis epidemics, weakened herd immunity, converging on the sad and detestable fact that philosophical, religious, and non-scientific objections to vaccinations hurt children.

But really the only thing that saves the entire national vaccination scheme from destruction at the hands of the First Amendment’s religious protections is that people with religious beliefs are exempt. A vaccine system without a religious exemption would be both politically impossible and Constitutionally problematic. But when you leave a hole in the vaccination scheme for any parent whatsoever who wants to avoid vaccinations for whatever reason, including non-religious pseudoscientific objections to vaccinations, you get problems so serious that they almost amount to the same thing. Case in point: Oregon. When the number of immunized members of a population drops below a certain threshold (“herd immunity”), the unvaccinated persons provide a large enough biome for that disease to not just infect the unvaccinated persons, but to mutate and evolve in their bodies and then spread to vaccinated people, since the vaccine is targeted to the pre-mutation disease.

In short, a vaccine program that doesn’t get to herd immunity levels is worthless, but a program that doesn’t have a religious exemption is impossible. So, what’s a state government to do?

SB 132‘s approach is pretty clever. Instead of just ending the exemption, it requires everyone – religious or not – who wants their children out of the vaccine program to either get the signature of a “practitioner of healing arts” saying that the parents have been provided with factual information provided by the state about the safety and importance of vaccines, or to complete an online course in vaccine safety and importance, which comes with a certificate of completion.

In an ideal world, this system strikes a good balance: those with religious objections to vaccines aren’t objecting on grounds of safety or importance so getting that information can’t interfere with their religious beliefs, and those objecting for pseudoscientific reasons are objecting on grounds of safety or importance, and so a little education can only help to nudge them in the direction of public safety. Right?

I am irked by some ambiguities in the language of the bill. Firstly, while the bill clearly states that the online education module parents can complete in order to opt out of the vaccine program must be prepared and provided by the state health authorities, and so will likely be accurate. Instead of the online module, however, parents can get a signed statement from a medical practitioner saying that information has been provided to the parents, instead of taking the state-authored course. But it says nothing about what kind of “information” a “practitioner of the medical arts” must “provide” for the waiver to be effective.

  • The bill says that the information must be about the “risks and benefits of immunization.” But who screens this content? The bill doesn’t say. Does the information have to give “equal time” to both scientific and nonscientific assessments of vaccine safety? The bill doesn’t say. Does the information even have to be accurate? The bill doesn’t say! And if it does have to be accurate, who gets punished for the inaccuracy of the information when a child gets hurt – the parent? The publisher of the information? The doctor?
  • What is a practitioner of the medical arts? The bill does not say, and the phrase is so awkward and ambiguous that it seems clear to cast a wide net. Does information qualify if it comes from your homeopath? What about from your snake-handling faith-healer? Or from your great-aunt Gertie, the one who gave you chicken noodle soup when you were home sick from school?
  • How does the doctor know when information has been provided to the parent, and who provides it? What if the parent gets the information from the internet and tells their doctor that they’ve read about vaccines already? What if it’s a book published by the anti-vaccination crowd? What if the doctor gives the parent a stack of accurate, reliable, and well-vetted information from prestigious national and international medical bodies extolling the virtues of vaccination, and the parent drops them in the trash can on the way out of the office – is that providing information on vaccines?

Unfortunately, these questions will likely have to be resolved through litigation, which of course means that somebody has to get hurt, and somebody has to get punished, before we get clear answers to these questions.

But that raises the obvious next question of liability. Suppose a doctor gives a parent information showing that vaccines are safe and important, per the doctor’s good-faith attempt to follow the rules of a good-faith vaccination bill, but then that parent’s child ends up getting sick or even dying from a vaccine allergy. Will doctors be chilled from giving out even reliable vaccination information? The bill says nothing about liability shields for information-providers (which, I’m annoyed to say, could have been solved if the Oregon legislature had just stuck the word “accurate” in there!), or for doctors. Are doctors allowed to refuse to sign the waiver forms, even if they’ve provided the educational information? If they are, who accounts for the rights of the religious waivers, and if they aren’t, who accounts for the conscience of a doctor?

I like SB 132. I like where its head’s at. But the bill is taking on a difficult task: balancing the Constitutional rights of those whose religions put everyone else at risk, against the equally dangerous but less-protected desires of those whose secular pseudoscientific beliefs put everyone else at risk. If we see an uptick in the Oregon vaccination rates by even the slightest degree, the bill is a success. But I’m much more confident that we’re going to see an uptick in litigation before we see the health outcomes.


January 11, 2013

There are a ton of unconstitutional ways that the executive branch (the President and his various assigns) could handle the manufactured fiscal “crisis” currently filling the Congressional paybill. The President could do what a lot of people are doing and misread the 14th Amendment’s “public debt” clause to mean that the President has unilateral power to raise the self-imposed “debt ceiling,” or even to directly cut and authorize checks drawn on the Federal Reserve or on the Treasury to pay outstanding bills. The Treasury department could do likewise. Or, we could just default on or obligations and let the chips fall where they may.

But there is another way. A way that started as a half-tongue-in-cheek but has become a startlingly plausible alternative to letting Congress play out its sectarian shennanigans until the same thing that always happens happens (we hit the arbitrary, self-imposed deadline and then extend it a few months). A way that just screams “crazy enough to work.” We could just mint a $1 trillion (or $2 trillion, or $10 trillion)-dollar platinum coin, drop it in the ol’ piggy bank, and use it to pay down existing debts or extending our borrowing power in the future.

Consider it quantitative easing on steroids. Instead of diverting the money from elsewhere, at the expense of the very programs that are at stake in the existing debt ceiling fight, the money comes from where all money comes from: nowhere in particular.

The easy question is: is it legal? The short answer is, yes, but it’s complicated why it’s legal. The Constitution authorizes Congress and Congress alone to mint and produce currency. But the Constitution, and there’s too much caselaw agreeing with this point to even know where to begin citing, permits Congress to delegate its authority to various federal and even some state agencies. One of those agencies, staffed by executive appointment with the advise of the Senate and subject to Congressional funding allocaton, is the Department of the Treasury, one of whose many tasks is to oversee the creation of currency (not to be confused with the creation of money). Down to the size in millimeters and metal composition ratios, there are very close controls on the standard denominations.

But there’s on ambiguous coinage allocation: platinum coins. Congress saw fit to create, under 31 USC §5112, the discretionary power of the to Secretary of the Treasury to “mint and issue platinum bullion coins and proof platinum coins in accordance with such specifications, designs, varieties, quantities, denominations, and inscriptions as the Secretary, in the Secretary’s discretion, may prescribe from time to time.”

In short, whether or not the trillion-dollar coin gets minted is legally up to the sole and complete discretion of the Treasury Department. In practical terms the Treasury would probably not take such extravagant liberties with its currency powers without the advise of the President, the Congress, or both, but legally speaking, Congress has fully delegated its authority in minting to the Treasury, and as part of that delegation, it let the Secretary determine the value of platinum coins at the time of their minting.

Why would Congress do that? Because creating discretionary powers in fiscal bodies is a really good way to give them power to deal with sudden catastrophes. Probably what Congress had in mind was something like, suppose there were a sudden global shortage either of copper or of liquidity in copper assets. Better give the Treasury the power to start churning out one-cent platinum coins at a moment’s notice until the supply chain settles down. Seems sensible enough, but unfortunately, when you make open-ended crisis management rules, you create open-ended crisis management rules. The Treasury currently has the effective power to #mintthecoin at its sole discretion, thanks to a well-intentioned Congressional delegation written by people who, shockingly, did not foresee the monumental incompetence that has drawn us once again to the shores of sovereign insolvency.

So yes, it is legal. Is it a good idea? I haven’t got the economics acumen to answer this clearly, though I invite comments on that point. One thing I can say, though, is that I am skeptical of the supposed inflationary apocalypse that would result, for a few reasons. Suppose we drop a $2-trillion platinum coin into the Treasury tomorrow, apportioned specifically for existing liabilities, ie, bills the Congress already has on its tab. That means that money going out to pay those debts would not really be any new money, it would merely be currency representing amounts already accounted for by the various states, firms, and individuals (a huge fraction of America’s sovereign debt is owned by private citizens in the form of T-bills and the Social Security trust fund, for example). But it’s still money that, originally, would have to be diverted from elsewhere, that is now coming from nowhere in particular (which we do in slow-motion in normal economic circumstances).

Against the alternative, though, #mintthecoin is fast becoming a perfectly good idea. Congress has proven incapable of addressing the issue; like bad law school students, they let the paperwork get closer and closer to the deadline, they stress out over it and raise hew and cry over basic principles of government, then it comes down to the wire and they push the problem off by asking the global markets for a brief extension while the various sides recalibrate their political schemes to better blame the other party for the next round of premeditated negotiation failures. I say, concede that Congress has backed the economy into a corner, concede that representative democracy occasionally yields such absurd results as this, mint the coin, and then let Congress explain what its better alternative was. As Harvard Law School’s resident internationally-renowned sage of the law Laurence Tribe explains:

 This is a situation where the political and economic considerations, not the legal considerations, have to drive the decision-making about this option. It’s certainly a lot better from just about every perspective than having the nation stuck on either horn of the very real dilemma you outlined below, which I agree offers no plausible way out as long as enough leaders in Congress insist on playing Russian Roulette with our economy and risking our full faith and credit by using the debt ceiling as a bargaining chip as they are threatening to do.

Legal pseudoscience: Sovereign Citizens and the 1933 Banking Act

January 6, 2013

Every field has its pseudoscience, and the law is no exception. On the innocent end of the spectrum are the simple errors: “a cop has to tell you he’s a cop,” your “one phone call,” all the rest. But on the other end you have income tax deniers, sheriffs-onlyers, “natural citizens” agitators, all the general melange of legal bizarrity that altogether make up the loose far-right loony-bin colloquially described as the ‘Sovereign Citizens movement.’ There’s a good piece up on the Daily Beats about them from last week, which focuses on one of the core legal pseudosciences of the Sovereign Citizens movement: the 1933 Banking Act.

Before getting into the details, it is important to understand that while it may be an interesting academic exercise merely to dissect the gross errors of fact and law asserted with great random in Sovereign Citizens circles, it should be appreciated that, in no uncertain terms, the Sovereign Citizens movement is dangerous. Participants in that ideology are closely affiliated with the militia movement, and they have committed crimes up to and including murder operating under the express claims of that movement. The movement is hopelessly bound up in a long tradition of anti-Semitism, racism, anti-government terrorism, and the same kind of profound delusional paranoia one might expect to see in an insular doomsday cult. In a nutshell, Sovereign Citizens believe that the United States government is illegitimate, that most or all of its laws are illegitimate, and on a good day the furthest authority they will concede to anyone but Jesus and their guns is that states have the right to empower sheriffs to carry out the law. Anyone else they see as an agent of the United Nations, of international (Jewish) banking interests, or of Israel.

The Sovereign Citizens movement is the Tea Party with its hair let down. There’s a reason that its ideology is preserved more or less intact in the corpus of Ron Paul’s dwindling supply of acolytes: it is libertarianism run amok.

A big chunk of their rhetoric comes from their broad misreading of the 1933 Banking Act and the transition from fiat gold currency to simple fiat currency. I say “fiat gold currency” because a common, nonsensical trope of both the Sovereign Citizens movement and advocates of a return to the gold standard at-large is that the value of gold, or silver, or some other shiny metal in finite supply culled from the Earth’s crust, is somehow more “real” than currency valued at an exchange rate on a finite supply as determined by the Federal Reserve instead of geology. But that’s too broad a topic to explore much more closely here.

If you have the stomach for it, there’s an hours-long interview series between what so far as I can tell is several insane asylum inmates discussing how the Banking Act of 1933 is nothing more than a complete forfeiture of the United States government to shadow-governments that go by such subtle noms-de-plume as “the Jews.” The speakers in those interviews seamlessly and easily confuse the ’33 Act with the end of the gold standard, which is far from their most grotesque distortion of a perfectly sensible banking insurance program.

Because that’s what the 1933 Banking Act is: insurance. It established the FDIC, and required banks to pare their speculative investments from their traditional banking operations – and this latter function was significantly de-stressed in subsequent amendments to the Act. The legislation more germane to their semi-literate dogma is the Emergency Banking Act (an understandable confusion for people of this level of seriousness, since it’s from the same year and has the word “Bank” in it somewhere), which was little more than a recapitulation of the authority of the federal government, as established in the Constitution, to borrow on American credit, to create uniform bankruptcy codes, and to create currency. States are expressly forbidden from creating their own currencies, and the Constitution grants broad powers to the government to decide what ‘currency’ actually is.

The Emergency Banking Act does what virtually all Congressional legislation does: it delegates Congress’s powers to somebody else. The EBA in particular delegates Congress’s power to mint and control currency to the Treasury Department, and unites banks that are potential bailees for government-backed securities under the auspices of the Federal Reserve. The ’33 Act is basically a long-term version of the short-term guarantees of bank solvency promised by the EBA, all of which are, in my view, mere recapitulations of the positive duty placed on the government by the 14th Amendment to respect the rights of creditors of the US government.

But in the eyes of the Sovereign Citizens, the EBA and the ’33 Act together constitute a complete secession of American sovereignty to international banking interests (this is an innovative synonym for “the Jews” in Sovereign Citizen literature). By delegating Congress’s power to the Federal Reserve to control currency levels, rather than the varying amounts of gold in the Earth’s crust, the government apparently turned citizens themselves into currency, and the rails are so far behind already that it’s hard to remember where we started. With the grace and aplomb of a Tim LaHaye novel, Sovereign Citizens interpret a (quite successful) federal insurance program designed to save a banking industry on the brink of collapse from its own excesses into a global human trafficking scam in which Social Security numbers are the new physical anchor for American currency and apparently Jews or the United Nations or somebody scary owns all your money. And since the government has capitulated to the “international bankers,” there really isn’t a government anymore – and so no valid lawmakers in the federal government, and so no more federal law, and certainly no valid income taxes.

If you want me to connect the dots, I can’t, because there are no dots to connect. The Sovereign Citizens movement is such a menagerie of frankly archaic xenophobia that it’s less of a coherent game of ideology and more like a game of word-associations played by militiamen and bored Ron Paul fans to pass the time between target practice and tax-evasion seminars until Jesus comes back and re-issues golden Treasury certificates to all the good Christians and roasts the rest of us on a pyre of unbacked fiat currency. There is little actual argumentation to rebut in Sovereign Citizens literature because its core doctrines are simply bare erroneous statements about laws that anybody can read.

Perhaps there is no better representative of the jurisprudential miscarriage than James Traficant. A celebrity in Sovereign circles, Traficant made a name for himself championing the rather creative hypothesis that the Emergency Banking Act formally dissolved the federal government in 1933 by declaring the federal government to be bankrupt. In a 1993 Congressional floor speech, he offered the chronological noodle-scratcher that the federal government actually became a proprietary of the United Nations in 1933 – 14 years before the United Nations existed – and, between that and being bankrupt, ceased to exist. Never mind that the United States government hasn’t been bankrupt since the days of the Articles of Confederation. Never mind that neither the EBA nor the ’33 Act say anything about the insolvency of the government (rather, they are peripheral guarantees of its solvency). What’s important is that a lot of scary-sounding things (United Nations, “international bankers,” World Trade Organization) are involved, and that somehow going bankrupt simultaneously makes an entity 1) stop existing, 2) the property of the United Nations (before the UN existed; perhaps it was merely insolvent?), and 3) exist “in name only,” as opposed to all of the other governments that are actual flesh-and-blood golems.

Mr. Traficant finished out his career defending a war criminal, going to jail with a rap sheet that could be a Sovereign Citizens laundry list (tax evasion, corruption, and slavery), and counting on the support of such Sovereign Citizens luminaries as David Duke.

It is difficult to rebut what is so grievously misstated in the first place. Where its rhetoric about the solvency, or the existence, of the federal government is concerned, the Sovereign Citizens movement is simply wrong. Pseudoscience exists in every field, from biology to philosophy, from astronomy to physics, but it exists in the law, too, and it is those who deliberately twist and undermine the rules that separate societies from mafias that do us all the greatest disservice. And the Sovereign Citizens movement is a disservice, make no mistake. I like American history. I like reading about the Constitution and the Founding Fathers. I think that the relationship between the branches and between the federal and state governments is fascinating. I think that people should read the law more, that people should be more confident in representing themselves and getting their days in court, and I think that we should be vigilant against abuses of the Constitutional system. And so do Sovereign Citizens. The difference is that the Sovereign Citizens movement does all of those things with such cavalier disregard for reality, with deliberately crass loathing for all outsiders, with such seething anger against phantom enemies, that they spoil it for the rest of us. I can’t read about the gold standard without running into their nonsense. I can’t look into the fascinating story of the Federal Reserve without encountering them (which is a shame, because the Fed is as interesting from an agency perspective as it is good for the economy). They’ve ruined sincere amateur legal discourse for the rest of us, and that may be what I despise about them the most.

Anti-Westboro Baptist Church petition is legally meaningless

December 29, 2012

Media excitation continues to grow over a petition created on the White House’s “We the People” page calling for the White House to “Legally recognize the Westboro Baptist Church as a hate group.” Go and read the petition; it’s quite brief, and is apparently the most popular petition ever posted to that page.

In its terseness, the petition seems to leave out certain crucial details, such as what the petition actually hopes to accomplish. I have asked various friends who have signed the petition what they think it would mean for the White House to “legally recognize” the WBC as a hate group, and invariably the answers reduce to either a shrug, or a statement of the bizarre notion that, apropos of the holiday season, the White House keeps some kind of master naughty-or-nice list, and the petitioner wants to see WBC firmly filed away (“legally”) in the naughty category.

The term “hate group” is not a thing, not even “legally.” The petition itself notes that private groups such as the Southern Poverty Law Center do just fine categorizing our moral distastes for us, but the government does not. The government keeps various security lists (FBI’s most wanted list, various terrorist watchlists, etc.), but it does not keep a “These Guys Are a Bunch of Assholes” list.

Attaching the word “legally” onto the front of the petition is the strangest part. It’s as if the petition’s author envisions a committee somewhere, presumably of men in nice suits, sitting around a table debating whether or not someone belongs on the naughty list. They pass around dossiers, exchange motions and objections, the pass a sheet of paper to the oldest, wisest man in the room. He swipes his pen across a huge signature line at the bottom, nods sagely, and then church-bells begin to ring somewhere as the Westboro Baptist Church, widely believed to be a hate group is now officially, certifiably, legally a hate group – as though there is some judicial body out there somewhere that converts subjective opinions into objective facts and they just haven’t gotten on this one yet because, dammit, there hadn’t been a petition yet!

And then the Westboro Baptist Church presumably realizes the error of its ways and converts from church to monastery, its members sealing themselves inside for penitence beneath the shaming glare of a society that finally, officially, legally recognizes them to be a hate group.

Unfortunately for slacktivists nationwide, the law will not solve the WBC problem if a petition gets enough signatures. It is simply a cathartic exercise for everyone too lazy to join a counter-protest or petition the legislature for legitimate redress to express a condemnatory opinion that everybody else already agrees with. Hating the Westboro Baptist Church is the ultimate non-controversial opinion. The WBC is frequently referred to as “controversial,” but in reality, it is not controversial at all: nobody disagrees that the Westboro Baptist Church is  a roving circus troupe of mentally malformed assclowns. There’s no controversy about them whatsoever; what’s controversial is how we deal with them.

People line to get up in arms whenever they hear about the government making some kind of list, but now they want there to be that list. People want the law to reflect their moral preferences when it simply does not and cannot. The law is for ordering society, not conforming it to our moral preferences, and it would be a disordered society indeed that tells the government to tally up our shared disdain for certain groups. How long would groups like American Atheists, the Center for Inquiry, or even the Catholic Church be able to stay off that list? How many NRA members do you think would be ready and willing to label the entire Democratic Party as a “hate group,” and vice versa for Planned Parenthood and the Republicans?

The petition against the WBC is a legally meaningless exercise in expressing a non-controversial opinion that’s just fun to say. It relies both on the laziness of its signers and a cartoonish understanding of the law and the government, and makes people feel like they’re part of the solution when really there is no solution other than to either radically revise our free-speech principles or to just start ignoring the hell out of the Westboro Baptist Church.

I shall endorse the latter proposition promptly and legally.