Episode III

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Update: Bruce Schneier has a well-thought-out viewpoint from a security analyst’s perspective.  Well worth a read.

I have a confession to make. I have always believed in good and evil. Since I was a little kid, reading Tom Swift books and the Chronicles of Narnia, through my teenage years, and until now, I have believed in good and evil; a Dark Side, and a Light Side. And just as in the Chronicles of Narnia and Star Wars, I believe that ultimately Good always wins out. It so often seems like the underdog – it obeys rules, does what’s right – it has ethics. How can Good triumph over Evil when the deck is so obviously stacked in Evil’s favor? And yet, somehow it does. It always does.

Yesterday I became more politically active than I have ever been. Oh, I’ve been involved in "government" for a long time, but it’s always been in a much smaller context – student council in high school, Student Government and Fraternity leadership in college, etc. But yesterday I became politically active on the national scale. I wrote a letter to the two Senators for Washington State, and I had it faxed to them along with 19,999 other US citizens. All of this in protest of a so-called "rider" that was tacked onto H.R. 1268.

The most angering thing about this whole situation is the fact that the practice of attaching riders to important bills, such as appropriation bills, not only exists, but that it’s commonplace, and by virtue of that fact, essentially considered ethical. Well, I personally don’t think it is. I think it’s subversive and just plain wrong. if I had known about this practice sooner I would have gotten angry sooner, believe me. I have been told that some states, including Minnesota and Indiana, actually have laws preventing riders. This just seems logical to me, though it strikes me as odd that anything logical is coming out of Indiana.

But the reason I got into this whole mess is because of the Real ID Act. There’s a little more information about it on my previous post, and I’ll have some more links throughout the rest of this post. I got really mad when I realized the extent of the Act and the fact that it was a rider. And if you know me, when I get angry, I fight. So I did everything I could think of. I posted to my blog, I wrote the Senators, I posted a message to the New Graduates Social discussion group at Microsoft and urged people to take action, whether they opposed or supported the Act. And people did. I got some feedback from friends and people on the discussion group saying they had written letters in protest as well. I was ecstatic. Reading over the long list of comments on the UnRealID site (through which I sent my fax to the Senators), I was happy to see how many people were pouring their outrage out in a meaningful way. I was also a little mortified by the way some people had written – bad grammer, inappropriate language, lack of respect for the Senators. Sheesh, no matter how you feel, you have to treat them with respect. How else do you expect them to listen to you? But I digress; a majority of the comments were good, lucid, well-thought-out arguments pleading for reconsideration of the bill.

My happiness was short-lived, however, when I learned this evening that the Senate had unanimously voted for it. Now, I understand that the larger issue at hand was the appropriations bill for spending in Iraq. And I understand that by not voting this in, we’d be delaying funding. But I wish one Senator would have had the balls to stand up and say, "No! I will not stand by and let a subversive piece of Orwellian legislation slide through along with this much-needed appropriations bill. I’m sorry, but don’t blame me – I would have voted for the bill, if it were solely an appropriations bill. If you’re looking for someone to blame, blame Senator Sensenbrenner, who saw it fit to tack this totally inappropriate piece of legislation to an appropriations bill." Honestly, after reading Senator Durbin’s rather rousing statement against the Real ID Act, I half expected him to vote against the bill. But no. Not one Senator opposed it. Why not? Only the Senators themselves know the real answer. But I submit that for many, if not most of them, it was a political move. None of them wanted to have a vote against a war appropriations bill come and bite them later in their careers. But it makes me wonder where they draw the line. If an Act mandating that all Islamic people wear a gold crescent on their bodies for identification purposes, would they have stood by and let it pass, fearing the possible political repercussions?

Tonight I feel like we’re coming to the end of Episode III in the Star Wars trilogy. The Republic is destroyed, the noble Jedi decimated, and the Emperor has taken control of the galaxy. My only hope is that the Luke, Leia, and Han of our story will be as successful as they were in Star Wars. And fortunately, we do have a Luke, Leia, and Han.

The governors of many states oppose this act, if for no other reason than the costs it imposes. In Durbin’s statement, he reports that "Every Senator has received a letter opposing the REAL ID Act from the National Governors Association, the National Conference of State Legislatures, the Council of State Governments, and the American Association of Motor Vehicle Administrators. They have said clearly, this REAL ID Act will ‘impose technological standards and verification procedures, many of which are beyond the current capacity of even the Federal Government.’"

Also, there may be legal grounds to attack this. In Congressional Research Service’s analysis of the bill, there is a footnote (number 92, page 33 if you’re looking at the PDF) that reads:

Whether limiting the standards to federal acceptance – as opposed to direct federal prescriptions on the states – obviates federalism concerns under Supreme Court jurisprudence, remains to be seen. The Court has held that in exercising its power under the Commerce Clause, Congress may not “commandeer” the state regulatory processes by ordering states to enact or administer a federal regulatory program. See New York v United States, 505 U.S. 144 (1992). The Court has extended this principle by holding, in Printz v. United States, that Congress may not circumvent the prohibition on commandeering a state’s regulatory processes “by conscripting the State’s officers directly.” Printz v. United States, 521 U.S. 898, 935 (1997). It may be possible to argue that, because the issuance of drivers’ licenses remains a state regulatory function, the minimum issuance and verification requirements established in this bill, even if limited to federal agency acceptance, constitute an effective commandeering by Congress of the state regulatory process, or a conscription of the state and local officials who issue the licenses.

Some governors have hinted that they may take judicial action if it becomes necessary.

Finally, there is a very big can of worms related to the so-called Article 3, Section 2 exemption, which essentially allows Congress to forgo judicial review. This Act would be the first time in history a Congress has elected to invoke the exemption, which is a big deal, and may work in our favor if they figure out that doing so would be a far greater hassle than it’s worth. Anyway, there’s a lot more to link to available through this article at ArsTechnica.

For now, though, I am going to bed. I have lost this battle, but in researching this Act, I have discovered that the war waged by our government on our freedoms is far from over. We have a lot more to do. I don’t know about you, but when Luke, Leia and Han decide to make their move, I’m going to be there with my own trusty blaster.

Permalink | May 10, 2005, 10:39 pm

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