Vin Suprynowicz

The Libertarian

Vin Suprynowicz

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For four years, the case worked its way through the courts. The American Council of the Blind was asking the federal judiciary to rule that American paper money as currently printed violates the federal Rehabilitation Act, which prohibits discrimination on the basis of disability in government programs.

Now, how on earth does it do that, you might well ask.

Why, all our “federal reserve notes” are the same size, making it hard for blind people to tell a one-dollar bill from a twenty. And printing money is, after all, a “government program.”

Finally, on Nov. 28, U.S. District Judge James Robertson ruled for the plaintiffs, and against the government.

“Of the more than 180 countries that issue paper currency, only the United States prints bills that are identical in size and color in all their denominations,” Judge Robertson ruled. “More than 100 of the other issuers vary their bills in size according to denomination, and every other issuer includes at least some features that help the visually impaired.”

An infrared feature was added to U.S. notes in 1996 to facilitate the development of electronic readers -- the kind that immediately detect what denomination bill you’ve just fed into a slot machine. But advocates for the blind complain such readers are expensive and (casinos and vending machine operators may be surprised to learn) slow and unreliable.

Government attorneys argued that printing bills in varying sizes, or adding raised dots or raised ink, could facilitate counterfeiting, could harm the vending machine industry, and could cost taxpayers hundreds of millions of dollars.

Judge Robertson was undeterred. He estimates the cost increase to a bill-printing operation that ran $4.2 billion over the past decade could be as little as 5 percent -- hardly substantial enough to outweigh the need to stop discriminating against the blind.

There are two distinct issues here, and it’s worth a moment’s attention to keep them apart. The first question is whether the federal government -- specifically, the U.S. Mint -- should spend some extra money making paper notes easier for blind people to tell apart. The answer is that experts at the mint are perfectly free to review this issue, estimate the added cost and how many people would be helped and harmed, and submit a recommendation to the folks charged with making such budgetary decisions. Let them do so, by all means.

But that leads us directly to the second and more important issue. Because the folks charged with making such budgetary decisions do not include U.S. District Judge James Robertson, who with this ruling has just earned himself a place in the political dictionary under “J” for “judicial activism.”

Congress passed the Rehabilitation Act to make sure federal offices didn’t refuse to hire, say, a person who walks with crutches for some desk job, where being fleet of foot is not a legitimate job requirement. Does anyone really imagine the authors of that act meant to require twenty-dollar bills to be different shapes and sizes from one-dollar bills? Certainly no one else had been able to find that language in the law -- or any statement of such an intent in the congressional debate -- till now.

What will Judge Robertson mandate next? Handicapped ramps on nuclear submarines? Special provisions for blind airline pilots? (Oh dear: In October of 1997 the U.S. Court of Appeals for the 9th Circuit gave the go-ahead to a lawsuit under Hawaii state disabled-rights law against Aloha Islandair, a passenger airline, for declining to hire a pilot with vision in only one eye. Sarcasm does get harder all the time.)

In fact, it’s the Congress that’s charged with making the federal laws, and for a reason. If the people grow unhappy to see Congress wasting too much money ordering arbitrary and capricious expenditures to benefit select minorities (for remember, Congress is granted its limited powers only to promote the “general” welfare, not the welfare of any specific groups or individuals) they can respond by voting those spendthrifts out, and replacing them with congresscreatures more to their liking.

But what voter can elect another candidate to replace Judge Robertson? No voter, of course -- he serves for life, which is why his powers are limited and he is not supposed to dream up new laws as he goes along, no matter how “nice” they may seem.

If new printing costs mean the federal government has to cut back on body armor for the troops, who will accept the blame for the additional deaths? Judge Robertson?

The Constitution grants to Congress alone the power “to coin money (and) regulate the value thereof.” Whether the Congress actually has the power to delegate to a private corporation (the “Federal Reserve Board”) the power to print fiat notes which have the effect of “making anything but gold and silver coin a tender in payment of debts” (and to decide how many of these inherently inflationary fiat notes to float) is a discussion for another day. But certainly no one contends this power of mintage has been delegated to Judge Robertson and the judiciary.

Judge Robertson’s logic is also worth a closer look. Leaving aside his odd reference to our bills being all the same color (would a blind person find a Day-glo fiver helpful?) he pretends to “interpret” U.S. law based on his own personal estimation that the changes he wants wouldn’t cost much (“only” a couple hundred million per decade) and the fact that we’re the only nation that does things this way.

Couldn’t Judge Robertson use the same rationale to argue it’s ridiculous to continue “allowing” Americans to own firearms of military usefulness, or to attend churches or read magazines that preach hate and discord?

Few other nations take such chances with their peasantry.

If Judge Robertson’s name sounds familiar, it’s because he issued the 2004 ruling in Hamdan v. Rumsfeld, finding the proposed special trials of prisoners at the U.S. military prison at Guantanamo unlawful, since they’re “prisoners of war.”

Judge Robertson has also since resigned from the Foreign Intelligence Surveillance Court, a step for which he offered no explanation, though The Washington Post reported the resignation was related to the Bush administration’s surveillance of international communications and phone calls without judicial warrants.

Judge Robertson has a right and duty to follow his conscience, of course. Doing so is to his credit, even if it leads him to conclusions with which others may disagree.

But only so long as he strives to enforce the existing laws under the firm guiding hand of the Constitution with its separation of powers -- not when his personal preferences and sympathies lead him to make up new law as he goes along.

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