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two_articles.docxHuman Inventory Control
It was inevitable that the radio tags that let cars breeze through toll plazas would get placed on, or in, people. The sole elementary school in a California town 50 miles northwest of Sacramento raised hackles far and wide this past January when it tagged students with the same technology used to determine the whereabouts of cattle and to keep tabs on toilet paper rolls at Wal-Mart. The Brittan Elementary School in Sutter required the seventh- and eighth-grade students to wear a badge that sported a name, a photograph and a radio tag containing identification data that could be read automatically at attendance time. Purportedly, the radio-equipped badges would have also helped improve safety and prevent vandalism.
The situation in Sutter quickly turned incandescent. One tagged student returned from school and told her parents that she felt like a piece of supermarket produce, according to a report in the Los Angeles Times. Parents staged a protest.
The American Civil Liberties Union and other groups jumped in. After the local company that developed the technology reacted to the controversy by withdrawing from the project, the school abandoned it in mid-February.
The radio tags deployed in Sutter are, like all new technology, neither inherently good nor bad. Their value, of course, depends on how they are used. Tags could help detect a container shipped into the Port of Baltimore carrying a dirty bomb. In Brazil, businessmen have of their own accord taken more drastic steps than those imposed at Brittan Elementary. In response to that country's rash of kidnappings, forty of them have gone so far as to implant radio-tracking chips under their skin. The company that imports the chips from the U.S. told the Brazilian daily O Globo that it has a 2,000-person waiting list.
But, unlike the Brazilian empresários, students in Sutter had no choice in the matter. They faced the threat of expulsion if they showed up in the morning without badges strung around their necks. A seventh-grade classroom was clearly the wrong place to implement radio tags that convey precarious implications for individual privacy. The Brittan school board may have had the best intentions, but tagging junior high kids becomes a form of indoctrination into an emerging surveillance society that young minds should be learning to question.
Public education and debate about the proper framework for protecting electronic privacy is desperately called for because we are beginning to see the floodgates open. The U.S. government is pushing aggressively ahead with plans for radio tags in passports, which will store personal information and be readable remotely by anyone, whether a customs official at a desk or a terrorist standing nearby. The Department of Homeland Security has already strapped more than 1,700 immigrants applying for permanent residency with ankle bracelets to prevent those who may be ordered for deportation from fleeing. The respite for the student-tagging business, moreover, may be shortlived. InCom, the company that outfitted Sutter students, has received calls from many other school districts interested in implementing similar programs.
Some segments of U.S. society have always had a visceral aversion to a national identity card. Those instincts are sound and should be reinforced. Widespread adoption of human-tracking devices should never be embraced without serious and prolonged discussion at all levels of society.
We the People
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The new rule was promised last September in the Republicans' Pledge to America. Its appeal is evident. Americans extol the virtues of self-government, by which we mean constitutional self-government. That is, we govern ourselves under our Constitution, the "supreme law of the land." Because members of Congress, like the president and members of the Supreme Court, take an oath to uphold the Constitution, it is fair to ask whether congressmen are living up to their oath if they pass a law without considering their constitutional authority to enact it in the first place.
Congressional Democrats (and some Republicans, too) have often been dismissive of the obligation to consider constitutional questions of legislative authority, thinking such questions should be left to the courts. The debate over the mandate included in Obamacare - that every American buy health insurance or face a penalty - is illustrative in both respects.
When House Speaker Nancy Pelosi was asked by a reporter "where specifically . . . the Constitution grant[s] Congress the authority to enact an individual health insurance mandate," she seemed shocked by the question, and asked the reporter whether he was "serious." In the Senate, meanwhile, Democrat Claire McCaskill responded to a question about the mandate's constitutionality with the observation that, "if anything in this bill is unconstitutional, the Supreme Court will weigh in." (The courts must be too slow for McCaskill, who faces reelection in 2012, as she recently voiced opposition to the mandate.)
Odd as it may seem to put this way, the Republicans' new rule makes it okay for the House to take the Constitution into account in its deliberations. Of course, the mere citation of constitutional authority will not make a law constitutional. Nor will it oblige courts, exercising the power of judicial review, to declare a law constitutional. What advocates of the new rule hope is that it will lead to more discussion among members about the congressional authority to legislate, and that the House will take a more restrained understanding of its capacity, one more consistent with the Constitution's original meaning.
It is useful to put this issue of legislative authority in larger perspective. What might be called the unlimiting of the national government began to take place during the New Deal, when the Supreme Court understood congressional authority to be so capacious as to leave little that Washington could not regulate. Congress largely accepted the Court's jurisprudence and extended its legislative reach, losing sight of the core purposes of government and building our big and costly welfare state.
Against this development, the Court under Chief Justice Rehnquist eventually pushed back, though with only modest success. In 1995, in United States v. Lopez, the Court found that congressional power had become virtually limitless when President Clinton's solicitor general was unable to identify any principle that might confine congressional regulation under the commerce clause. In Lopez, the Court struck down the Gun-Free School Zones Act on grounds that it exceeded congressional authority under the clause. Because of Lopez and a few other cases, there are some limits to what Congress constitutionally may legislate. If the individual mandate is upheld, there will be fewer.
The unlimiting of government, never so well understood until now, is what House Republicans are responding to. They have the numbers to defeat any bill that they believe Congress lacks the authority to enact, and by requiring bills to be accompanied by a constitutional authority statement, they are indicating their interest in doing precisely that. That the House may be willing to give up authority established by case law and historical practice is startling, indeed a development without precedent in our politics. But it is nonetheless an encouraging development, one that House Republicans will be pushed by the Tea Party to follow through on. As they should.
