Failed Justifications: Why Privacy and Federalism Do Not Support the Ban on a Federal Unit-Record System

Organization: Georgetown Law Journal
Author: Nathaniel Custer
Published: August 1, 2012
This article suggests that the ban on a federal unit-record system cannot be supported by appeals to either privacy or federalism. Because these arguments were not fully developed by the opponents of the unit-record system and were not even explicit in the case of federalism concerns it is useful to consider legal and normative arguments within each category to determine whether either privacy or federalism can lend policy support to the legislative decision to ban a unit-record system. Ultimately, all of these arguments fall short. Part I discusses the character and relative advantages of a federal unit-record system. Part II briefly looks at the debate leading up to the 2008 reauthorization. Part III turns to the question of privacy, addressing constitutional, statutory, and normative arguments and dismissing each as insufficient to justify the statutory ban. Part IV anticipates the likely rejoinder based in legal
and normative arguments concerning federalism and again dismisses each as insufficient to justify the ban. By debunking arguments based on privacy and federalism, this Note will show that opponents of a federal unit-record system cannot maintain their opposition based on these principles alone, if and when the question of establishing the database is raised again.  Login required.