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Part One in the “Dollars and Nonsense” Series. Click here for part two.
In a recent op-ed we highlighted the importance of paying attention, pointing out that government’s actions, whether transparent or deceptive, pose a threat to our liberty. Of all the things we should pay attention to, the budgeting and appropriations process is among the most critical. This, of course, is the process whereby your elected representatives spend your money after confiscating it from you through taxes.
Sifting through and understanding the legislative budgeting process can be complicated as all the relevant information is not necessarily in one place. In an effort to help taxpayers make better sense of where their money is being spent outside of core government activities—and to peel back the curtain on the sausage grinder that is the legislature—we have compiled relevant data from multiple sources into the following document:
In addition to the “base” annual budget for recurring and ongoing expenditures, legislators can request appropriations to expend money on specific spending items in either “one-time” or “ongoing” amounts. When dollars are set aside for a very specific purpose or program we call it an earmark because those funds are reserved for that particular purpose, as opposed to general budget funds for an agency or department that might be used on any number of programs at the discretion of the agency.
Earlier this year the Supreme Court issued a ruling in Sandifer v. United States Steel Corp. At issue was whether employees must be paid for time spent donning and doffing protective work clothing. The Court ultimately held that if a collective bargaining agreement deems dressing and undressing to be noncompensable, employers can rely on this agreement and need not compensate employees for this time.
Now, legal minutia aside, why is a federal court deciding this at all? The short answer is the Commerce Clause. The Fair Labor Standards Act (FLSA) which governs employee pay and is the basis for Sandifer, was upheld, like so many bills, as a valid exercise of the commerce power.
Article I, Section 8 of the Constitution grants Congress authority to regulate commerce among the several States. When discussing this topic in the Constitutional Convention, it is evident that the founders were concerned about states erecting trade barriers against each other such as import and export taxes. The ratification debates indicate that the American population also shared a narrow conception of the word “commerce.” Prior to the New Deal, the Supreme Court itself limited the application of the Commerce Clause by distinguishing between “production,” which did not fall under the Commerce Clause, and “commerce,” which did. (See United States v. E.C. Knight Co.)
The following op-ed was published in the Deseret News.
“No man’s life, liberty, or property are safe while the legislature is in session.”
This well-known saying comes from Gideon J. Tucker, a lawyer and legislator who in 1866 presided as a judge over a lawsuit against a deceased man’s estate. The legal battle, said Tucker, ”arose from want of diligent watchfulness in respect to legislative changes.” In other words, somebody had violated the law because they didn’t realize that the law had recently changed.
Tucker’s point becomes especially emphatic when changes to the law are made quickly, with no public discussion or recognition that it’s even happening. If our liberty is jeopardized by transparent government activity, it’s far more threatened by subversive attempts to undermine our rights. This was the case in Utah just last year.
After a citizen initiative in 2000 to strengthen property rights by restricting civil asset forfeiture — the ability of police officers to seize property without charging its owner with a crime — forfeiture law remained unchanged (save for some hotly contested tweaks in 2004) until last year. Under John Swallow’s leadership, the Attorney General’s office pushed a bill in the 2013 general session that substantially amended forfeiture law and removed many of the property rights protections that had long been in place.
“The whole aim of practical politics is to keep the populace alarmed (and hence clamorous to be led to safety) by menacing it with an endless series of hobgoblins, all of them imaginary.” —H.L. Mencken
Henry Louis Mencken likened the scare tactics used to advocate for more government to imaginary “hobgoblins.” From the galleries of the halls of government we often play audience to the terrifying narratives that accompany sage warnings of these menacing “hobgoblins” that threaten our safety. One such hobgoblin is the “future thief.” You may not have realized before that there hides in the shadows a brigand who will swoop in and pilfer future government expenditures if we do not quickly create a program designed to “save money” in the future in a related current program. Each new expenditure, you see, is a way to make more efficient our future expenditures.
This line of reasoning—that we need more government now in order to save future spending via new efficiencies, or by preventing future expensive problems—is similar to the point we made in our recent post where we explained that arguments over fiscal conservatism allow the debate to be shifted from the proper role of government to the “effectiveness” of government programs. This argument circumvents discussion as to whether the government should even be involved in an activity, and subsequently ignores the increasing amount of force vested in bureaucracy. James Madison once warned that “free men must guard against the old trick of turning every contingency into a resource for accumulating force in government.” Each new problem the government seeks to solve presents a contingency that elected officials rush to solve with more government force. We are all witness to the result of this pernicious cycle.
Editor’s note: Libertas Institute has been closely following and influencing policy issues related to the use of police authority including task force raids, police militarization, and forcible entry warrants. Conventional wisdom suggests that law enforcement officials are at odds with those who champion civil liberties, but as this interview demonstrates, that narrative is not entirely accurate.
The following is an edited transcription of an interview Libertas Institute conducted with Christopher Gebhardt about these issues. Gebhardt is a 15 year police veteran and three-time SWAT commander in Utah. The comments in this interview do not necessarily reflect the views of Libertas Institute.
Libertas Institute: Describe for us your law enforcement service and experience.
Christopher Gebhardt: I started my career in Washington, D.C. working for the Metropolitan Police Department in 1990 where I finished as a Lieutenant. After that, I worked for a while in the corporate world before coming to Utah where I got back into law enforcement and worked in Utah law enforcement for seven years. I served a total of about 15 years directly in law enforcement.
LI: What type of experience did you have in SWAT?
CG: I was part of several SWAT teams here in the Salt Lake Valley. I started out as a base operator, got promoted, and worked as a team leader for several different teams and worked with a lot of the SWAT teams in the valley.
LI: What was the difference, if any, between your experience in D.C. and Utah? Were there any differences in police mentality, approach, or tactics?
Here it seemed the local police officers and deputies didn’t really dive into case law that much, or as much as I think they should.
CG: I think there was a big regional difference in approach in the Northeast compared to my experience in Utah. For example, the academy back east was much harder to get through. You had to be able to recite verbatim the 4th Amendment because it was much more embedded in the culture of law enforcement there. Case law was always being brought up and trained and instilled, whereas here in Utah, I think that is lacking a bit. Here it seemed the local police officers and deputies didn’t really dive into case law that much, or as much as I think they should.
During a recent public event, Justice Antonin Scalia of the Supreme Court was asked about the NSA’s surveillance programs, made public through the leaks provided by Edward Snowden.
While conveying concern about judges being asked to decide questions dealing with national security, Scalia replied, ”It’s truly stupid that [the Supreme] court is going to be the last word on [the constitutionality of NSA surveillance].”
We agree that it’s stupid. Lawyers in black robes, in their unelected positions as judges, have steadily weakened the constitutional protections originally intended under the 4th amendment. And the reliance by the citizenry upon the opinions of these lawyers as the last best hope of protecting our rights has been proven, time and time again, to be misplaced and naïve.
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” —Fourth Amendment to the U.S. Constitution
Imagine government authorities monitoring your every movement in addition to your every word. Of course, this is now easier to imagine in our post-Snowden world. Fiction meets reality in local law enforcement, for example with technology allowing police officers to indirectly tap your cell phone by fooling it into thinking that their suitcase-sized surveillance device was the nearest cell phone tower. Taking a page out of the NSA playbook, law enforcement agencies around the country are acquiring and using this new technology.
The device mentioned above—one of many technological tools enabling surveillance of the citizenry—is known as a “Stingray.” This telecommunications device intercepts mobile communications by funneling all nearby connections through itself before passing them on to actual cell phone towers. It is highly portable and can be deployed anywhere. It has the ability to allow law enforcement to not only obtain cell phone location data—something they already obtain quite routinely from telecom service providers—but also call records and text message logs. While the specific devices known to the public are not supposed to be able to obtain call or text content, the reality is that we live in an age when such capabilities exist, even if not currently used. While some police agencies and investigators recognize the need to obtain a warrant for this activity, many do not; research indicates that warrants are not being obtained consistently for the implementation of this technology.
Editor’s note: Libertas has been closely following the stories of birth fathers around the country who are defrauded by mothers who exploit weaknesses in Utah law to put their children up for adoption over the wishes—and without the consent of—such fathers. Recently, several of these fathers have filed a class action civil suit against the state of Utah.
The following is an edited transcription of an interview Libertas conducted with Rob Manzanares, one of the plaintiffs in the class action suit and one of the more notable cases in Utah. Manzanares has been involved in court battles for years, costing nearly half a million dollars, to win custody of his daughter, Kaia. The comments in this interview do not necessarily reflect the views of Libertas Institute.
Libertas Institute: Tell us about yourself and your story.
Rob Manzanares: My name is Rob Manzanares and I’m from Colorado. My story is about my love for my daughter. It begins in 2008 when I was living in a serious relationship with my former girlfriend—my daughter’s mother. We had moved in together and were planning on starting a family together. We took steps toward that end, probably faster than we should have, but we were definitely taking the right steps to become a family.
We found out we were pregnant about 8 months into our relationship. For me, that was the most exciting day of my life. I was 30 years old at the time and had just finished a masters degree. I was in between jobs and was figuring out what direction to take in my career. I always loved children and knew I wanted to have a family after finishing my education and so I was extremely excited to find out that we were pregnant. We sat down together and started making educated decisions on how to proceed with the pregnancy and how to raise a child together. My former girlfriend also had a six year old daughter from a previous marriage who was living with us. It was a really happy time around our household when we found out we were going to have a child.
Whether you love or hate the Common Core, it’s important to understand the end goal its architects have been striving for. Once Utahns realize what that goal is, we suspect few will be willing to support its use in this state.
In 1995, the National Governor’s Association invited Louis Gerstner to speak at the their annual meeting. Gerstner was CEO of IBM, and a longtime advocate of education reform. “You are the CEOs of the organizations that fund and oversee the country’s public schools,” he told the assembled governors. “That means you are responsible for their health. They are very sick at the moment.”
The following year, Gerstner held his own education summit for governors, telling them that ”if they come, he would pair them with a major corporate executive from their state… to back them with strong support” for the reforms he advocated. Attendees at this summit pledged to support these reforms, and afterwards a group of CEOs and governors founded Achieve, Inc. to drive the reform movement.
“The great and chief end, therefore, of men’s uniting into commonwealths, and putting themselves under government, is the preservation of their property”—John Locke, Second Treatise of Civil Government
Last night the City Council for the City of Springville considered an ordinance that would permit residential homeowners to keep and raise chickens in their backyard—albeit subject to heavy regulations and a license. After robust public comment, including input from Libertas Institute, the ordinance was passed with only one dissenting vote. While we applaud this move and welcome Springville to the growing club of cities allowing residential hens, we argue that it shouldn’t take an official ordinance to permit something that is fundamental to private property rights in the first place.
The property rights that John Locke spoke of in his treatise were not just residential property rights, but the right to productively use one’s own property for gain, subsistence, and enterprise. Since the 13th century when King John acquiesced to the Magna Carta, the English tradition of property rights has led to a modern world where nearly any person can enjoy the ownership of property. However, over just the last century in our country, a troubling trend of growing government authority in our lives has placed property rights under direct and sustained attack. From asset forfeiture to the expanded use of eminent domain, and even to zoning regulations, property rights have waned over the last century.