What To Do With Really Dumb Laws

A look at security laws for maritime and air cargo and why they can’t effectively be enforced

Schoolchildren in the United States generally learn this lesson about the U.S. government: the legislative branch (Congress) enacts laws, and the executive branch (the President and numerous subordinate agencies) enforces those laws.

But the schoolhouse curriculum usually does not address what happens when Congress enacts really dumb laws – so dumb that there is no practical way to enforce them.

Fortunately for those who wonder about such things, in the summer of 2007, Congress enacted two supply chain security laws now widely considered to be pure folly. One of those laws addresses maritime cargo, and the other air cargo. The outcome for maritime cargo is settled, but not so for air cargo.

The maritime law requires 100 percent “scanning” – imaging and radiation detection – of all cargo before it leaves a foreign port for the United States. With over 700 ports shipping millions of containers to the United States, and with the U.S. government lacking both the technology capable of mass “scanning,” and direct control over any of the 700-plus ports in question, this law was a dead letter from the outset.

The Department of Homeland Security, which was responsible for implementation, tried for several years to work with a few foreign governments on “100 percent scanning” programs. But these efforts just confirmed the impossibility of enforcing the law.

Knowing maritime security was important, though, the Department took a different approach. It decided to increase the amount of information that importers and others must provide about each piece of maritime cargo. With this information – data points such as where the cargo container was filled, the sender, the recipient, the declared contents – the Department assesses for each container the risk that it has dangerous or illicit goods. For high-risk cargo, additional security measures – often including imaging or radiation detection – are utilized.

The Department, in other words, decided not to pursue a fool’s errand by trying to implement the law as written. Rather, it read the law as a statement about the need to increase maritime security, and it did so not by implementing the literal provisions of the law but by collecting information that would highlight security risks, and then focusing on those risks. Commentators and even members of Congress have applauded the Department’s risk-based approach.

It is an approach that warrants repetition.

There is an analogous requirement to “screen” 100 percent of air cargo on passenger planes. In the air cargo context, “screening” means physical examination of every package via x-ray, explosive trace detection, manual inspection, or other prescribed methods. Notwithstanding the impracticality of 100 percent screening, the Department has tried to hew more closely to this law – demonstrating admirable problem-solving capabilities, energy, and commitment to carrying out the will of Congress – and the result has been a mess and a waste.

The Department quickly determined that, in the near term, it could not enforce 100 percent screening for cargo flying into the United States. The “inbound cargo” problem is acute because the Department lacks resources at and authority over, foreign airports. But cargo flying within and from the United States – domestic air cargo – was a different story. The Department was determined to accomplish 100 percent screening for domestic passenger air cargo.

Creative Department personnel realized that they could enlist the help of U.S. businesses by certifying them to screen cargo before it arrives at airports. These private sector screeners are force multipliers for the government – the government certifies and regulates the screeners, who each can screen hundreds or thousands of packages per day.

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