Obama Follows Lead of Dictators

So here is what Obama is planning vis-à-vis immigration, and it’s truly stunning. In fact, this is the first thing I’ve seen any modern President do that I would qualify as genuinely dictator-like. Indeed, the reason he claims he can grant amnesty to five million illegals is the precise kind of false legalism that only people like Hitler have tried, typically as they try to work their way out from under the restraint of law. Observe.

Obama is claiming:

(1) The Executive Branch has prosecutorial discretion in terms of who it will deport. Essentially, the Executive gets to decide which cases it will pursue and which it won’t.

(2) Prior Executives have granted protection to particular groups from deportation.

(3) The Executive Branch has the authority to grant work permits to the groups it seeks to protect.

(4) Ergo, the White House intends to use its discretion to extend this protection and to refuse to prosecute half the illegals in the US and to issue work permits to them in the process.

WOW! Let me explain how unbelievably wrong this is. First, prosecutorial discretion is one of those things that shouldn’t exist in an ideal world, but it does because this world is not ideal. The idea is that on a case by case basis, prosecutors should have the discretion not to prosecute someone who has technically broken the law but prosecuting them would lead to an injustice. But this type of decision is made on an individual basis and usually is only invoked where a significant injustice would result from prosecution... it has never been used as a means to nullify a law, as Obama is proposing now. In fact, doing so would be completely unconstitutional as it would give the Executive the power to ignore the legislature at its whim. To even contemplate this is dictator thinking and shocking.

Next, while the Executive has extended protection to some immigrants in the past, there has always been a very strong justification. Typically, these cases involve the protection of fundamental human rights or the preservation of life to protect these groups, such as where they are refugees from a war, ethnic cleansing or natural disasters, or where they face some sort of institutional harassment that borders on murder, e.g. gays in Africa, women seeking to avoid forced abortion in China, etc. Basically, it is to avoid returning them to a situation where they might be harmed. It has never been used as a means to circumvent the law or without a strong justification. Obama would be doing this on an unprecedented massive scale with no justification whatsoever.

Finally, let’s just square the circle by pointing out that if Obama thinks he has this right and power and that it’s justified, why only apply it to half the illegals? How does that make sense? What he is basically saying is that these people need to be protected from some evil that will befall them... but he’s only willing to help half of them. That discredits all of this even more. It shows he has no justification for protecting these people or he wouldn't leave half to suffer. It also shows that he bizarrely thinks that by only doing half, he can somehow sneak this through... incredible. And it shows that he's not acting on principle, he's acting deceptively. Even more importantly, it shows that he does think like a dictator and that the Constitution and rule of law mean nothing to him. In fact, this idea is so rotten that a great many liberals are freaking out that he may actually do this.

What has liberals most freaked out about this is something Obama apparently hasn’t even considered. Specifically, any future administration can use this same outlandish argument to invalidate any law they choose... or to apply it only to individuals and groups they dislike, e.g. why not exempt ____ from tax laws?! This is crazy! See, what Obama is doing is turning the US into a Banana Republic, at best, or a nascent Nazi Germany at worst. Once rule of law is rendered meaningless, it could take generations or bloodshed to restore it. It took our country almost 150 years to truly become a nation governed by laws rather than a nation controlled by powerful politicians who manipulate a graft-riddled government. This would undo that.

Thoughts?

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Let's Change the Constitution!!

One of the things you hear constantly from the talk radio crowd is that they want to change the constitution. Forget it. That’s dead end stupidity. It can’t work and the moment you suggest changing the constitution, you lose the American public. Why? Because they don’t trust anyone monkeying with that document and they aren’t going to waste their time with people offering worthless and futile solutions. Let’s discuss the problems with advocating changes to the constitution.

● Pointless: Right out of the gates, we have an insurmountable problem... this is a nonstarter. No matter how you slice it, any proposed amendment to the constitution must be approved by 3/4 of the states. That means 38 states. All it takes is 12 to stop it. There are 18 dark, dark blue states. There are 8 more rather blue states. That’s 26 blue states. There are 22 red states and two more up for grabs. See the problem? Nothing that isn’t agreed upon by both liberals and conservatives has a snowball’s chance in hell of passing, and the public knows this. So they immediately tune out the people who advocate it because they aren’t going to waste their time with fantasy and they aren’t going to trust the solutions of anyone who can’t distinguish fantasy from reality.

As an aside, this is the reason opportunistic politicians love to advocate constitutional changes. It sounds extreme and “pure” and it lets then outbid all the honest politicians, but it’s not anything they actually need to worry about because it will never happen. That means they can pound their chests with impunity.

● Non-solution: From the public’s perspective, changing the constitution achieves nothing meaningful. Unlike the people screaming to change the constitution, the public correctly understands that the constitution is just a generalized set of rules that only decide who gets to make decisions, it does not decide what those decision are. In other words, the constitution is just about procedure, not substance. So trying to change the direction of government through the constitution is as futile as trying to change the outcome of a particular future baseball game by amending the rules of baseball.

And while some will think this is still a worthy goal, the public doesn’t. This is the same problem with the conservative instinct to argue for changes to House voting rules (“they need to read the bills!” “a bill should be less than 10 pages long!” etc.). Big whoop. The things the public wants fixed are things like creating more jobs, lowering the cost of healthcare, protecting the public from bad people... tinkering with the procedures of the constitution does none of that. Tinkering with the constitution is inside baseball.

Moreover, contrary to what “constitutional lawyers” like Mark Levin will tell you, it is impossible to change the direction of the government through the constitution. Take what you probably think of as the easiest thing to impose: a balanced budget requirement. How exactly would you do that? Putting aside the fact that the Supreme Court will strike down such a restriction because one Congress cannot bind a future Congress, there is still no way to define revenues and spending which will actually control government spending.

For one thing, both spending and revenues are estimated and the government can dramatically massage the numbers just by changing the basis of their estimates. For another, if you just demand a balanced budget, then that does nothing to control spending, which is the real issue. And how do you keep the government from just moving spending off the books, like they have with social security? And even if you could sort all of that out, which you can’t, what would be the penalty if the government just blows off your rules?

These problems get even worse once you move to more complex issues. Want to rein in the government’s power to regulate? How are you planning to redefine “commerce” that doesn’t hopelessly cripple the government by giving people a roadmap for how to evade regulations but still reduces the scope of the word without giving the feds a way to evade your new restrictions? Here’s a hint: you can’t.

There are things you can do to make it harder or easier for the government to act, but let me assure you that none of these “constitutional lawyers” knows what those are. When they talk to you about changes, they are playing you for fools. They are selling you placebos that sound good, but have no meaning and can’t be implemented in any meaningful way. And the fact the public isn’t interested and that the blue states will never let you do it, and it should be clear this is futile.

● Optics: The Loser Label: Finally, when people advocate constitutional change as a way to circumvent the democratic process, they will be seen as sore losers. Essentially, they can’t win the public so they are trying to change the rules to take the public out of it. That’s bad PR. And if you don’t believe this is what the public will think, then ask yourself what you thought whenever the Democrats tried to get courts to impose their ideas or when they change the voting rules to give themselves an advantage... that’s how the public will views this: as an attempt to use the constitution to push something you couldn’t get through the political process.

This is why the people advocating constitutional change are wrong. They are telling you they can change the world with changes that are ultimately impossible to get and meaningless if they could somehow be gotten. Meanwhile, not only won’t the public support you, they will actually see you as a fool who can't separate reality from fantasy and who wants to sneak their ideology into place against the public’s will.

Also, let’s kill this idea of a constitutional convention. A sizable group on our fringe have been advocating a constitutional convention because they incredibly believe that they would be chosen as the ones to rewrite the constitution they claim to love. Ha! Who do you think California will send? Mark Levin or Nancy Pelosi? What about Massachusetts? Sarah Palin or Barney Frank? If we convened a constitutional convention, all 26 blue states would send far-left liberals. A third of the 22 red states would send Tea Party crazies. A third would send Religious Right zealots. The remaining third would probably send a mix of Democrats and moderate Republicans. Guess what kind of constitution you’re going to get out of this? It’s going to be a Democratic wish list. It’s going to look like a repeat of the European constitution which was a million pages long and made clean air, union membership, public masturbation and clean socks a human right. And the only hope for America will be that enough red states refuse to sign onto the new one.

Yeah, that will be fun.

There are no shortcuts in life or in government. If you want conservatism to restore America to her glory, then you need to do it in the only way you can achieve anything in a democracy... win over the public and make belief in conservatism irresistible.

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Democracy: U.S. Style?

Last week's latest military coup popular revolution in Egypt only missed landing on the Fourth of July by a few hours, duly noted by many on the Internet. And it's easy to argue, as many have, that as a struggling would-be democracy, the folks in Cairo would do well to follow our example. They may be right. But how closely?

Earlier this week, one Ed Krayewski, a writer at Reason.com, made the case for why Egyptians should adopt a near carbon-copy of the U.S. Constitution as their governing document. Egypt's existing constitution, a 236-page monstrosity, reads more like an owner's manual than a promise of order and liberty--and of course, it has not done very well at providing either. Supreme Court Justice Ruth Bader Ginsberg commented that it was more reminiscent of troubled, unstable South Africa than of America. (Naturally, though, she thought this was a good thing.) Anyhoo, Krayewski suggests that Egypt preserve its attempt at democracy by forming a constitution very similar to ours, in its formal organization of government, its system of checks and balances, its Bill of Rights or equivalent thereof, etc.

I can think of ideas a lot worse than this. There's no denying that America's democratic system has been the most stable and long-lasting of its kind, ever, and definitely outshines its rivals--say, continental European technocracy--by a mile. But is trying to completely recreate our political order over there the best option?

Here, of course, we have one of the big fault lines for American policymakers, and one of the key contested assumptions behind the project of "nation-building," since at least the Iraq War. Whether or not a Western-style liberal democracy can be created within a few years in a country with little or no such native political tradition, such as most of the Arab world, is a question still up for grabs. And not being a foreign policy expert myself, I don't pretend to have a clear answer. But I am a bit leery (though not entirely so) of the idea that carbon copies of our government and our ethos of ordered liberty will solve things. It's not that they wouldn't work--they might--but that our system in all its particulars is not a universal, self-evident rule; it has a political history, like all documents, and that history is particular and different from other locales.

Consider our principle of federalism, for example. Personally, I think the more decentralized a government is, the better; it's one of the key reasons why I am a conservative. Keep in mind, though, how such a dispersal of power originated in our country. America began as a string of separate and often isolated colonies--colonies with a common language and legal system, to be sure, but still as self-contained and internally sovereign as Ghana, Nigeria, Rhodesia, etc. would be a century or two later. Any overarching government those colonies formed would have to respect their existence and leave them as sub-units with a lot of autonomy; hence our federalist system. That doesn't make as much sense in Egypt, where most of the population is concentrated in a small land area and easily connected by the Nile river. No doubt some delegation and decentralization of authority would be useful, but there's just not the same call for it--for the sovereign state of Cairo, or Alexandria, or Giza, or what have you--in that situation.

Not a fatal issue, most likely, but it is one example of these different political traditions. In any case, beyond such matters of form, there is that thorny question of whether it's in everyone's best interests for the country to experience such full universal democracy all at once, the one you can't ask without sounding like a pretentious jerk. (No, trust me--you really can't do it.)

Lots of people, especially libertarians, would naturally answer that you have to empower the people, let them make their own decisions, even if the consequences are sometimes negative. Fair enough, and perhaps that is the best option in the long run; given how mass political movements often go, however, especially in the Middle East, the possible short-term consequences are worth giving some thought to. If mass democracy should somehow lead to a war with Israel or Iraq or whoever, that would assuredly not be a good thing.

All of which is to say, for Egyptians to try and introduce an all-new political system overnight, even a fully democratic one, would be extremely risky and unstable without taking account of the realities in the country and what people are familiar with. If nothing else, consider the inertia and quasi-independence of the civil service and other institutions, which don't like discontinuity. More than a few observers have noticed the inactivity of the police and other services under Morsi, for example, and wondered whether they actively undermined the regime. Either way, deliberately alienating those who hold so many of the levers of power is rarely smart, and another reason to make the changes as slow and smooth as possible, not impose new schemes.

That being said, I do think the Reason article makes some very good points, especially its characterization of our Constitution as a document of "negative rights" (i.e. the government declines to interfere in daily life), versus the "positive rights" (spelling out what the government will be doing), as one sees in the current Egyptian and other owner's manual constitutions today. A revision to the negative form would be helpful indeed, if for no other reason than it would transfer a lot of the responsibility for Egyptians' security and prosperity to Egyptians themselves, and encourage the growth of a strong civil society. In that respect, maybe the lesson is for Egypt (and others) to take the spirit of our American documents as their guide, and not necessarily the letter. But this is just one interpretation. Feel free to share yours.

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Debunking A Few Arguments

I like to think of our audience as a cut above. Indeed, it makes me happy that you all like to understand what is really going on rather than just running with the mob. So in light of that, let me offer a few more tidbits to add to your knowledge of politics and government. In particular, let me debunk a couple arguments you see used a lot these days. Before we begin, however, let me point out that this is not a defense of the Rubio bill, though I will discuss that because that is the context in which these arguments are arising at the moment. My point is to help you understand why some common arguments made against many bills are nonsense.

● “It’s a 1,000 pages long!”: You hear this a lot these days. It first gained prominence with Obamacare and now it’s being used with the Rubio bill: “It’s a 1,000 pages long!” and “Why do they need a bill that long?!” Arg.

Bills are long because they need to be to get the job done because everything Congress doesn’t explain in the bill is left up to the President to decide. Take the Rubio bill. We could whack off large parts of it by just writing, "Secure the border." But does that mean anything? No. That doesn’t tell the executive which border, how to do it, or what we mean by secure -- and don’t think this is just "lawyer games" with me trying to find ambiguity in things "common sense should tell us everybody knows."

Seriously, you tell me: what does "secure" mean? Does it mean no one can cross without permission? Does it mean anyone who does cross will be rounded up? Within how many days? What do we do with them when we catch them? Lock them up or send them home? How? Where do you send them if you don't know where they came from? What agency will do all of this? What money will they have to do it? What happens if you grab an American by mistake? Do the people you grab have a right of appeal? Under what legal standard? Where do they appeal or can they just pick a court? Do they need to be convicted before we send them home? That's a lot of questions. At least we know what "the border" means though, right? Or do we. Does the border include Canada? What about US military bases overseas? What about foreign embassies here? Do we make exceptions for defectors? What is a defector? What about those who are already beyond the border when they go illegal -- like those who overstay a visa -- how do they fit into the idea of "the border"? Now that we mention it, what does overstay mean exactly? And how do we know they've overstayed? Is there a system somewhere? Who runs it? Who follows up to make sure people are gone?

Every one of those questions requires that written direction be added to the bill. If you don't do that, you run the risk that the courts will invalidate the law for not giving the executive adequate guidance on how to implement the law -- this is because the executive implements the law, but cannot make the law. If too much is left to the executive, then courts will strike it down as allowing the president to make the law. Moreover, even if it isn't struck down, do you really want Obama answering all those questions himself? Do you see now why these things are as long as they are? Claiming that the law should be short and easy makes for a great soundbite appeal to "common sense," but is really only evidence that the person doesn't understand how government (AND THE CONSTITUTION) works.

Also, as an aside, these bills aren't nearly as long as you are told. When Congress puts out a bill, it uses 25 lines per page and heavy indenting. The result is that you get a little over 100 words per page on average, as compared to 250 words per page on a word processor or in a Harry Potter novel. So that 1,000 pages is really only 400, and much of it is repetitive. What matters is not the word count, but what the words say, and people trying to scare you with the page count are basically conceding they don't know how to scare you with the substance of the bill.

● “It’s Incomprehensible!”: When you read a law, a lot of it will look like gibberish to the untrained eye, but it's not. The US Code is a lot like a computer program. When you add a new law, you typically make minor tweaks to other existing laws and you often define the terms in your new law by referencing existing laws because all of the nation's laws need to harmonize. If each law stood alone within the code, the already-enormous code would be many times larger and full of fluff, and the chance of a contradiction would rise significantly. Referencing existing laws reduces those problems. That's why laws often look like logic puzzles. But these things are easy to understand if you take the time to look up the references to other laws. Unfortunately, the people making this claim are more interested in feigning ignorance than making legitimate arguments -- like Eric Cantor who criticized the Rubio bill and then said this weekend that he hadn't read it because "It's a 1,000 pages long!!" That statement tells us exactly what we need to know about Cantor.

● “It’s Got Waivers!”: One of the early criticisms of the Rubio bill (and Obamacare) was that it included a lot of waivers and exemptions. The critics latched onto this as proof that the whole thing was a shell game. That's not true, however. In fact, despite initially screaming about 400+ waivers, the critics ultimately were only able to point to one that raised some concern. But why have waivers at all? Three reasons:

1. When a law allows no exceptions, the courts will often find it unconstitutional because it denies those targeted by the law due process under the 5th and 14th Amendments to the Constitution. Those Amendments guarantee people the right to challenge government action that applies to them and which violates their rights. The exceptions and waivers are often made to ensure that the requirements of the Constitution are not ignored, i.e. to preserve rights, because failing to do that would lead to the invalidation of the entire law. For example, suppose it would violate the Constitution to deport someone who is 9 months pregnant and might lose the child on the journey. If there is no waiver or exception excluding such people from deportation, the court would strike down the entire deportation provision... or maybe even the entire law.

2. Moreover, if the new law conflicts with existing laws in some way, the court may strike down the new law depending on various factors. Once again, waivers and exceptions prevent this.

3. Waivers are needed to make the system work. Suppose the law says you need to complete the fence by June 1. If you're 99% finished on May 30, then you need a waiver to be able to finish the fence. Otherwise, the law would expire, work would stop, and the whole thing would need to start over. Waivers and exemptions are ways to make rigid requirements less rigid so you can account for changes you encounter along the way.

This is why the fact of the inclusion of waivers and exceptions is meaningless. What matters is what the waivers realistically allow, not that they exist.

● Just Follow The Constitution: People who say this typically have no idea what the Constitution provides or how it works. The Constitution divides power between the federal government, the state governments, and the people. It talks about the procedures of government. It rarely delves into the substance of government. And when it does, it invariably gives more power than people want to admit. The Commerce Clause, for example, gives the Congress the power to regulate anything that affects interstate commerce. That is an incredibly broad power and saying, "follow the constitution" is not a meaningful restriction. Immigration is the same. In fact, consider immigration.

Congress’s power to regulate immigration comes entirely from this sentence in Article I, Section 8: Congress shall have the power “To establish an uniform Rule of Naturalization.” That's it. So tell me, if someone says, “We should just follow the Constitution,” what exactly does that mean? Under this provision, Congress can pass anything it wants regarding immigration provided it is "uniform." And before you say, “that means everyone needs to be treated the same,” actually it doesn’t mean that at all. Uniform in this case means as between the states. In other words, one set of rules that will apply in all states; it says nothing about how we treat people who are here as citizens, visitors or illegals. Most other issues work the same way. The Constitution is rarely informative, except to the extent it tells us which part of the government has been granted the unlimited power to act this time.

Anyway, the point here is not about immigration or Obamacare, it's about legislation generally. The arguments above are false soundbites designed to make something sound like it is evil or obvious. The truth, however, is that these arguments are nothing more than misdirection. So when people pound the table saying these things, challenge them: ask them what the substantive problem really is... odds are they can't tell you.

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The End of Executive Order Government

Over the past several years, it’s been fashionable to claim that Obama would run the government as a dictator and would simply do whatever he wanted by Executive Order. This has typically been promoted by the self-described “constitutionalists” in our midsts. Naturally, no such thing is possible under our Constitution, as the last few weeks have proven once again.

● Appointment Time: As far as I can tell, the only constituency Obama cares about at all is labor unions, and labor unions care about the National Labor Relations Board (NLRB). The NLRB is a five member board that hears claims of unfair labor practices. Labor hopes to use the NLRB’s rulings to forcibly unionize companies like Boeing, who have relocated to right to work states where labor unions are all but extinct.

The problem for labor has been that the NLRB hasn’t had enough members to issue decisions. Between January 1, 2008 and continuing through March 27, 2010, the board only had two members. That’s not enough to issue decisions legally, but they did it anyway. Those two members issued nearly 600 decisions. Sadly for them, in June of 2010, the Supreme Court came along and wiped out all of those decisions in New Process Steel v. NLRB, which held that the Board must have at least three members to issue valid decisions.

Whoops.

Since the Republicans weren’t willing to allow Obama to appoint anyone new to the NLRB, Obama took matters into his own hands and appointed three new members in January 2012, claiming they were “recess appointments.” So the Dictator got away with it, right?

Well, no. In January of this year, the DC Court of Appeals ruled that Obama could not do that. They ruled that recess appointments could only be made when a genuine recess happened, not just when Congress took a quick break. Basically, they defined “recess” as the end of the Congressional term. That’s undone everything Obama tried.

Meanwhile...

● I Declare Thee Legal: When the immigration debate first drifted into freak-out mode, our “constitutionalist” friends screamed that “Obama’s going to make them all legal with an Executive Order!!” Said Glenn Beck, “The Fedrechauns are here for me gold!!” Oops, sorry, wrong quote. Anyway, once again, reality has caught up. See, Obama has no power to change immigration LAW in the Unidos Estados... the President has no power to change any LAW. In fact, that’s a good word for scholars like Mark Levin to learn: LAW.

LAW = Congress, not President.

To put it simply, a president may not make laws or decide how to spend money. The president has only the power to spend what Congress tells him and to issue regulations in accordance with the laws Congress passes. But those regulations (1) must be consistent with the law, and (2) may not exceed the authority granted to the president under the law. Basically, a President can only do what Congress tells him to do. Simple enough.

So what happened vis-à-vis the immigration issue? Obama tried to force the states to give illegal aliens drivers licenses by issuing an Executive Order. Arizona Gov. Jan Brewer immediately issued her own executive order refusing to follow Obama’s order. She got sued on the basis that her order conflicted with “federal law.” This month, a Federal District Court agreed with Brewer because the court noted that Obama can’t create immigration law. Thus, he cannot impose such a requirement on Arizona.

(As an aside, Brewer may eventually lose this case on other grounds because Arizona already allows some illegal aliens to get licenses, but that’s a different issue.)

So what is the point? Well, this. Don’t believe all the loony theories about what secret things Obama is planning to do... they can’t be done. Our system works just like they told you it does in civics class when you were a kid. Obama cannot run the government by executive fiat. He may issue such orders from time to time, but they will be struck down by the courts and his efforts undone. He can’t create a private army. He can’t ban ammunition or guns. He can’t declare gay marriage the law. He can’t legalize all the illegals. He can’t spend money in any way Congress doesn’t allow. He can’t just appoint whomever he wants either. He needs to follow the same rules every other President has followed... whether he or Alex Jones like it or not.

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The Day Democracy Didn't Die

Democracy is a sham, folks. The White House turned down our petition to begin building a Death Star. Oh, and Piers Morgan won’t be deported! And some stuff on secession. Blah.

For those of you living under a rock, here is what happened. Sensing a great disturbance in the Force, a vast swath of America submitted a petition to the White House demanding that the administration start construction of a Death Star. Team Obama has denied that petition and I think their reasoning is very instructive. Here are their reasons:

● The construction of the Death Star has been estimated to cost more than $850,000,000,000,000,000. We're working hard to reduce the deficit, not expand it.

● The Administration does not support blowing up planets.

● Why would we spend countless taxpayer dollars on a Death Star with a fundamental flaw that can be exploited by a one-man starship?

Grrr. Think about this. The first point really shows liberal hypocrisy. Aren’t these the same people who believe in Keynesian economics? Seriously, if a trillion dollar stimulus was supposed to create jobs, why won’t they spend $850,000 trillion? Huh? Tell me that... liars.

The second and third points show that liberals are stupid. First, what’s wrong with blowing up planets? Damn environmentalists. Be even more, why is this administration so unwilling to be prepared? What are we going to do when somebody else’s Death Star drifts into our system? As for this idea of being exploited by a “one-man starship,” first, it was a snub fighter a-holes, not a starship. Secondly, how stupid do you need to be to decide that the project can’t be fixed? Just put a damn grate over the exhaust vent, don’t scrap the whole idea! Seriously, are liberals really this stupid?

And another thing, why the heck aren’t we deporting Piers Morgan? People want it. The guy is an annoying turd. He’s so annoying, the British... a land of arrogant, annoying people... tossed his butt out. Seriously, how bad do you need to be to get tossed out of binge-drinky, knife-fighty land? Sure, the Constitution guarantees you the right to be an ass, but dammit, aren’t we grown up enough as a people to toss this jerk off out of the country? And for those of you who think this isn’t a big deal, let me point out that since Morgan came to the US, there have been numerous mass shootings, the deficit has soared, New Yorkers have started robbing each other for pain pills, and millions of jobs have been lost. Coincidence? Hardly. I... blame... Morgan.

Finally, I am horrified that Team Obama turned down all those petitions to secede. What an outrage! Such tyranny! This is an issue talk radio should adopt. I’m sure that if they did, 70%, 80%, 90% of the public would be behind us! Grumble grumble grumble. Democracy is indeed a failure when a small group of citizens can ask for things that are either idiotic or which violate the Constitution and not get their way. Harrumph.

Nah, I'm just kidding.

In all seriousness, I’ve enjoyed the petitions and I need to give Obama credit for his responses, especially the Death Star thing. Team Obama took the Death Star thing in the spirit in which it was intended and responded with good humor. On the Morgan thing, they made a solid point about individual rights. And the secession thing, well that was just stupid, but Obama responded in good faith and pointed out the Constitution really doesn’t include an exit clause.

IF conservatives were smart, they would use these rulings to make a point.

1. Keynesian economics is garbage. If it was true, then we should start building a Death Star. You can’t spend your way to prosperity, nor can you spend your way out of debt. And Obama seemed to get that this time... too bad he didn't get it before he created trillion dollar deficits.

2. Freedom of speech includes the right to say things that people might not like. We need to stop the assault on freedom of speech in college speech codes, in attempts to censor talking heads we don’t like, in censoring the internet, and in criminalizing “hate.”

3. The Constitution does indeed have mechanisms within it to change things you don’t like. We should respect those mechanisms and stop looking to judges to make law or change the Constitution without the consent of the people who gave their consent to Constitution.

Obama is right in each of his responses, but not for the reasons he thinks. We should be pointing that out to people.

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How To Debate: Follow The Constitution!

I’m starting a new series today called “How To Debate.” This will be a series of articles about all aspects of how to frame arguments and how not to frame arguments. Some will be political, some won’t. Today I’m going to start by laying out an argument conservatives use which they shouldn’t. Conservatives love this argument, but it’s not only guaranteed to fail, it discredits them: “follow the Constitution!”

Conservatives think that if we could only return to the way the constitution was before “lawyer and liberals” spoiled it, everything would be great. Conservatives see this as the Holy Grail of arguments, the intellectual nuclear button: mention the constitution and our agenda become undeniable. In reality, this is a worthless argument. Not only do conservatives misunderstand the constitution, but citing the constitution simply isn’t a valid answer to the public.

Let’s start with the biggest reason not to make this argument: the constitution is meaningless to people’s lives. People look to politicians to solve problems and they evaluate ideologies in terms of their abilities to solve problems without creating new problems. For almost all Americans, the issues that matter are things like getting jobs, raising kids, buying a house, having a clean environment and good roads and good schools, and personal safety. The constitution doesn’t address any of that. Go ahead and look, you won’t find it.

The constitution is about the distribution of decision making authority, it never delves into the nature of the decisions to be made. In other words, it only talks about who gets to make the decision, not what the decision will be. That means, it offers nothing useful to average people who just want an answer.

Think of it this way. A group of people are arguing about where they want to hold a retirement party for a fellow employee. Some want to order pizza, some want to go out for burgers, and some want to bring cake. Arguing the constitution is the same as telling this group that the employee manual allows for employees to organize such a party... that’s absolutely useless to their needs. That’s the problem with the constitution argument: it’s useless. People want solutions, they don’t want to hear instructions on how decisions should be made.

And there’s more...

This is where it gets ugly. Let’s assume that people do care about the constitution. Here’s the problem: the conservative view of “the constitution” is actually a myth. When conservatives talk about the constitution, they are referring to an idealized interpretation of the document based on the rhetoric of the politicians who sold the document to the public, and not the document itself.

Indeed, to maintain their interpretation, conservatives overlook the parts they don’t like, like the commerce clause. The commerce clause (and the other caveats) allows the Federal government nearly unlimited power over most aspects of our economy. To get around this, conservatives fall back on a logical fallacy: “well, the government didn’t regulate this before, so it shouldn’t be able to regulate it now.” But that’s not a valid interpretation of the document. That’s an argument for tossing out the entire constitution and replacing it with one line: “The federal government shall have only the specific powers it exercised in the year 18__.”

Here is an example of the problem. The federal government has unlimited power to regulate commerce. Food is commerce. Ergo, the federal government has unlimited power to regulate food. Ergo, even under the conservative follow the constitution argument, the federal government has unlimited power to decide what you may or may not eat and under what conditions. Is that something conservatives want? No, it isn’t, so why are you putting all your eggs in that rotten basket?

So what is the point? Well, there are several.

First, trying to limit the government through the constitution is a hopeless cause. You may wish the constitution was written differently, but it’s not, and the way it’s written, the federal government has enough power to do everything liberals want. Relying on this argument is a dead end for conservatives.

Secondly, the American public has no interest in “what if” frivolity, nor do any of them want to turn the clock back to the 18th Century. So proposing to make things like they were when tricorn hats were in fashion will always fall on deaf ears with the public. Indeed, this argument makes it incredibly easy for the public to dismiss conservatives as out of touch. This argument reinforces the idea that conservatives don’t live in the modern world and have nothing to offer which the public could possibly want. It makes people think conservatives want America to look like Amish country.

Third, this argument is an evasion which takes conservatives out of the policy debate and cedes the ground to liberals to offer the public solutions...

Liberal: I can fix your problems.
Conservative: The constitution says I can’t help you.

Who wins that debate?

This highlights something we touched upon in the comments yesterday. Conservatives too often get wrapped up in procedure rather than substance. A good example is the idea of pushing the Democrats to put together a budget. This is not something that matters to the public because it doesn’t affect the public if there is a budget or not... either way, the same amount of money gets spent. Conservatives need to start thinking in terms of how to frame arguments in ways that affect people in real terms. Technocratic arguments about the division of power don’t do that, especially when the public can just point to the Supreme Court, which never sees the constitution as a limit on federal power, and say, “see, you conservatives don’t know what you’re talking about with the constitution.”

Drop this argument. Focus instead on the policies that affect people in areas that matter to them.

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Some Final Thoughts On Obamacare

I’m taking the week off until next Monday. But before I go, here are my final thoughts on the ObamaCare ruling. Basically, while this is a legal disaster for the country, I think politically this is a very good thing. Also, by way of a bonus, at the end of this article, I’ve included some links to the CommentaramaCare proposal which outlines the reform we really need.

● The Supreme Court Fails: Legally speaking, the ObamaCare decision is horrible. Some conservatives have latched onto the fact Roberts made a lot of great points about how the Commerce Clause and the Necessary and Proper Clause don’t extend nearly as far as the statist would have you believe. Sure, that’s nice. BUT then he turns right around and opens an unlimited window for Congress to use its tax powers to do anything! There may eventually be limits on this power, but as it stands right now, this is one of the five or six biggest power grabs in Constitutional history.

It is also troubling that this decision is based on verbal semantics: punishing someone for non-compliance is not the same thing as forcing someone to comply. Really?! That’s nonsense! That’s a distinction without a difference -- a verbal game -- and it’s disturbing that the Supreme Court would accept this double-speak as reasoning. This will lead to a whole new world of control once Congress realizes it can just “tax” you into compliance without ever triggering the limits on its power to “punish.” That’s troubling.

● The Conservative Opportunity: Politically, however, this is a very different story. Politically, I think this decision is a Godsend for two reasons.

First, this decision will destroy the Democrats, and not just Obama. Human nature tells us that people forgive and forget misbehavior if it stops before the negative consequences kick in. So long as people assumed the Supreme Court would rein in ObamaCare, the public was very likely to forgive the Democrats and consider this a non-issues. Now that assumption is gone, and this decision revives the possibility of negative consequences. That will wake up the public and end its forgiving mood. Indeed, I would suspect this will endanger another 3-5 Democratic Senators in flyover country and could ultimately give us another 2-3 seats. And while I don’t think that will give us enough seats in the Senate to overcome a filibuster, it will be the difference between a majority (52-53 seats) and a solid majority (54-57 seats), which should be all we need under the new scorched-earth Senate.

Secondly, I think this ruling saved us from a disaster. If the Supreme Court had struck down the mandate, but left the rest, I have no doubt the Republicans would have declared victory and just moved on. That would have left a plethora of horrible things ensconced in law, including trillions in taxes, dirty deals with drug companies, anti-competitive requirements on hospitals and doctors, new entitlements, the unfunded expansion of Medicare, the creation of these insurance exchanges, etc. In effect, the least damaging part of the law would have been struck down and the other 99% of the harm would have remained. Now the Republicans will need to address the bill itself, and the pressure will be to repeal and replace the whole thing. That means they will actually need to fix much of this. That is the real reason this decision may ultimately prove to be a saving moment for the Republic, because it means the Republicans can’t ignore the real problems.

● Repealing Stupidity: Repealing ObamaCare should be simple. Passing it by reconciliation means that by definition it can be repealed by reconciliation. And reconciliation only needs 51 votes. Naturally, the Democrats (and some weak Republicans) are whining that somehow the bill can’t be repealed by reconciliation, but that’s nonsense.

● Building A New Crisis: There is an economic crisis built into ObamaCare and it will be interesting to see what happens. The law expands Medicaid to the point that it will shatter state budgets. But states don’t need to sign up for this. Indeed, the Supreme Court ruled that the states can refuse to expand Medicaid as the bill requires, and the Federal government cannot withdraw Medicaid funding if the state so chooses -- it can only withhold the additional funds intended to cover that expansion.

But just because states don’t need to sign up, doesn’t mean they are smart enough to refuse. A few Republican governors have said they won’t sign up, but most see this more as an opportunity to negotiate a lot of freedom from the requirements of Medicaid. It will be interesting to see what they obtain. The problem, however, lies with the Democratic states. . . as always. These idiots are rushing to sign up as a show of support. This will result in a dramatic increase of their Medicaid costs, which will bust their budgets. At first, the federal government funds this expansion, but within a couple years, that subsidy vanishes. That’s when states like California and New York will find themselves in budget hell (as if they weren’t already). Without federal money, I don’t see this as sustainable, but how will they cut off so many people once they sign them up? Watch out if you live in a liberal state which accepts this expansion!

● Death to the Middle Class: Conservative economist and Senior Economics Writer for the Wall Street Journal, Stephen Moore, just made an interesting statement. He claims that 75% of the cost of ObamaCare will fall on the middle class -- people making less than $125,000 per year. That’s not at all surprising because that’s who always pays for these programs. Still, this is unwelcome news for a middle class which has been hit with falling incomes, falling asset values, falling home prices, massive inflation, an ever-higher tax burden, and fewer job prospects. At some point, this rubber band will break.

Conclusion

To sum up my thoughts, this bill is a disaster. It will crush the stupid states, it will crush the middle class. It will damage our healthcare system a lot. The Supreme Court’s ruling has damaged our Constitution. BUT this will wake up the public and will help to finish off the Democrats. It will also force the Republicans to act. In the end, this decision may prove to be the moment which spurred the Republicans to actually fix the healthcare crisis, and thereby save the country. Let’s hope.


Finally, by popular demand, here are some links for you to consider:

First, here’s what’s wrong with our healthcare system: Out of Control Costs, Out-of-Control Costs II, Access, and Quality Control Problems.

Secondly, we have a report card on why ObamaCare fails to address these problems: FailureCare.

Lastly, we have CommentaramaCare, a proposal on how the system should be fixed: Com-Care Tort Reform, Com-Care Medical Reforms, Com-Care Coverage Reform, and Com-Care Summarized and Priced.

Have a happy and free Fourth everyone!

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Video Game Violence: What About The Parents?!

Being a huge proponent of freedom of speech AND a believer that videogames, television, advertising and films can negatively distort people’s perceptions of reality, you would think I would be torn about yesterday’s 7-2 decision by the Supreme Court striking down a law that prevents minors from buying violent videogames. But I’m not. The court got it wrong, pure and simple.

The issue before the Supreme Court was a California law that makes it illegal for retailers to sell violent videogames to minors. The law defines “violent” as games that depict the “killing, maiming, dismembering or sexually assaulting an image of a human being.” It carried fines up to a $1,000.

Writing for the majority, Justice Antonin Scalia struck down the law, saying that the First Amendment applies to “entertainment,” and thus, videogames are afforded the same degree of protection as books and movies. He conceded that states do have a legitimate interested in protecting children, but he held that “does not include a free-floating power to restrict the ideas to which children may be exposed.” And since “disgust is not a valid basis for restricting expression,” the law had to be struck down. Indeed, by way of comparison, he noted that television and children’s books throughout history have depicted violence:

“Certainly the books we give children to read — or read to them when they are younger — contain no shortage of gore. Grimm's Fairy Tales, for example, are grim indeed.”

If we were talking about adults, then I would agree with the court. Free speech is one of our most vital freedoms. It is the way we determine which ideas have value and which don’t. It is how we test our beliefs. And our society is more than strong enough to allow idiots to present stupid, disgusting or wrong ideas without fear that our country will collapse.

But we’re not talking about adults, and that’s where the court went wrong.

The court should have upheld the law for one simple reason: children do not have freedom of speech rights. If they did, then public education would be virtually impossible as children would have a right to decide which ideas they wanted to be exposed to and which they didn’t. Similarly, parenting would become impossible whenever the state got involved, for example at a child custody hearing, as children would have all the rights of adults.

Justice Thomas made this point in his dissent where he noted that the First Amendment does not “include a right to speak to minors without going through the minors’ parents or guardians.” In other words, children's rights get exercised through their guardians, and the state is well within its rights to say that children may not engage in free speech, or commerce, or gun ownership or anything else without the approval of those guardians.

Putting this another way, the court’s question of whether disgust is a significant enough basis to restrict the child’s freedom of speech rights is a false premise because the child has no such rights in the first place. Liberal Justice Stephen Breyer (the other dissenter) backed this point when he noted that the state was not trying to bar the minor having such material, it only required the approval of a guardian:

“The statute prevents no one from playing a video game, it prevents no adult from buying a video game, and it prevents no child or adolescent from obtaining a game provided a parent is willing to help.”

Breyer also made the less principled, but quite logical point that since the court still forbids children from buying pornography, the court has created an incredible hypocrisy here:

“What sense does it make to forbid selling to a 13-year-old boy a magazine with an image of a nude woman while protecting a sale to that 13-year-old of an interactive video game in which he actively, but virtually, binds and gags the woman, then tortures and kills her?”

The dissent is correct. This was a mistake.

And let me be clear, I’m not siding with the “what about the children” crowd. That’s sophist nonsense used to hide true motivations and is usually advanced by busybodies who want to rule over others lives. What I’m talking about here is respecting the right of parents/guardians to make decisions regarding their children. If this law had tried to ban children from being given such material, then I would have supported the court’s decision. But it didn’t. All it did instead was try to prevent retailers from circumventing the rights of guardians/parents to make decisions for their children. That is well within the constitution and no rights are violated by such a statute.

How can we legitimately tell parents that raising kids is their responsibility when we take away the state’s power to help parents enforce those decisions.

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Has The Supreme Court Solved The Immigration Problem?

America changed last Thursday. While everyone was dreaming of hotdogs and television marathons, the Supreme Court quietly issued a decision that may end up solving the illegal alien problem. In a 5-3 vote, the Supreme Court upheld an Arizona law from 2007 that penalizes businesses that hire workers who are in the United States illegally. Democrats and big business should be very afraid.

The law in question is the Legal Arizona Workers Act. This law provides that Arizona employers who knowingly or intentionally hire illegal aliens will have their business licenses suspended or revoked. The loss of a business license in most states means that a company cannot transact business, cannot bring lawsuits or defend itself in court, and cannot do things like participate in workers compensation schemes (i.e. have employees). It is essentially, a death sentence for a business. But, you ask, what keeps employers from just turning a blind eye to avoid the “knowingly” requirement? The law further requires that employers must use the federal “E-Verify” system to confirm the eligibility of workers for employment.

This law, signed by Gov. Janet “The Village Idiot” Napolitano in 2007, was challenged by the Chamber of Commerce (a theoretically conservative organization), with backing from the ACLU (a known America-hating outfit). They argued that the law was illegal because immigration law is exclusively within the power of the federal government. Thus, Arizona has no right to pass any laws involving immigration.

Writing for the majority, Justice John Roberts shot this down. He wrote that Arizona’s employer sanctions “fall well within the confines of the authority Congress chose to leave to the states.” In other words, Congress controls the nation’s immigration laws, but it has allowed the states some powers and the power to punish employers who hire illegals is one such power. Each of the leftist judges voted against this except Kagan, who recused herself because she had challenged the law on behalf of the Obama administration.

So why is this important?

Well, let us be honest about illegal immigration for a moment. To convince you that they are tough on illegal immigration, many conservative politicians pound the table and loudly proclaim that if only we (1) built a wall and (2) deported all the illegals, we could solve the immigration problem. This is pandering.

The truth is that a majority of illegal aliens do not cross illegally over the border. Most overstay visas. Thus, putting up a wall will do nothing to stop them. Moreover, as long as they can climb over the wall, dig under it, go around it by boat or plane, or get passes to visit the US even on day trips, no wall will ever be effective. It’s a fantasy to think otherwise.

Deporting them is an equally false solution. There are 12 million illegal aliens in this country with more coming every single day. Last year, we deported 380,000 people. That is 1/31 of those who are here. It took 21,000 officers to do that. Imagine how many officers it will take to get the other 30/31 and tell me if paying for those officers is politically sustainable? Moreover, finding these people is not easy and will breed massive resentment as it would require neighborhood sweeps and a police state that rivals East Germany. And even if we can ultimately find them all, there is nothing stopping them from simply turning around and coming back. You would if you were dumped in Mexico overnight, so why would anyone think they won't?

The only realistic solution to this problem is one that prevents illegal aliens from wanting to come to the United States. There is considerable evidence that they do not come when and will not stay here if there are no economic opportunities for them. Indeed, during the last recession, nearly two million went home.

In light of that, consider what the Supreme Court has done. It has given states the power to take away the economic opportunities that attract illegal aliens. As Republican states one by one make it dangerous for employers to hire illegals, employers will stop hiring them. Liberal states will need to follow suit or get flooded by illegal aliens. As the economic opportunities in the US dry up, illegal aliens will stop coming to the US and those that are here will start to leave. It won't get rid of all, but it will make this problem infinitely more manageable.

Thus, while the federal government pretends to act and offers placebos in the hope of distracting the public from its complicity in working to bring in substitute labor and votes, the states can now fix this problem all on their own.

Even better, as far as Republicans should be concerned, this avoids the political damage of being seen to be the party of mass deportations. Better yet, while everyone is focused on the flashy new law Arizona passed in 2010, this one will silently go about its job of fixing this issue with little fanfare.

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Individual Mandates: A Legal "Bridge Too Far"

By now you’ve all heard that “ObamaCare was struck down.” As usual, little of what you’re hearing is right. So let’s go over several points, some of which are really quite fascinating, particularly Judge Roger Vinson’s deep understanding of his role as a judge.



1. First, unlike what I pointed out in my prior article on the ruling of the District Court in Virginia, this decision involves 26 states. Moreover:

● This decision, even more so than the Virginia decision, guarantees the Supreme Court will review this issue, because of the involvement of the states attorneys general.



● This decision gives more ammo to Senate Republicans, all 47 of whom openly support repeal. It also provides cover to any Democrats looking to save their political lives by voting for repeal. Joe Manchin (WVa) and Ben Nelson (Neb) specifically have been mentioned -- though both claim they only want to fix the law rather than repeal it.

2. It is worth noting that the arguments made and the Judge’s reasoning come down exactly as predicted in my March 2010 and May 2010 articles, and that the so-called legal experts (read: liberal propagandists) were not only wrong, but were so wrong as to constitute malpractice.



3. Vinson’s decision has two parts. The first part deals with the argument Congress violated the constitutional spending principle by forcing the states to expand Medicaid to the point where it will bankrupt the states. ObamaCare defenders argued that Medicaid is a voluntary program, and thus Congress may impose such requirements because states are free to back out if they think it will cost too much. The states countered that they can’t back out because they are effectively “coerced” into staying in Medicaid. Vinson rejects the coercion argument because every other court that’s looked at Medicaid has found it to be a voluntary program.



I think Vinson is wrong on this point, but I attribute this to a failure by the plaintiffs to properly brief this matter. Vinson seems a thoughtful judge, but it looks like the states just didn’t present much of an argument. Vinson sounds unimpressed with the evidence they offered and they apparently provided him virtually no legal support for their position. In fact, they entirely avoided the stronger Ninth and Tenth Amendment arguments, which were not briefed “except in a single passing sentence.” That’s attorney failure.



4. In the second part, Vinson strikes down the individual mandate. This is where things get interesting.



First, for history/legal buffs, Vinson delves into the entire history of the Commerce Clause and how (and why) it changed over time. Such an in-depth history is rare in District Court rulings, and what he presents is highly informative and quite accurate. Click here to read the decision.



Secondly, his reasoning striking down the individual mandate is impeccable. Vinson points out the cases cited by both sides, and he explains:

● That not a single case has ever held that Congress has the power to regulate “inactivity” under the Commerce Clause; and



● He rejects the ProObamaCare argument that inactivity constitutes activity. They claimed that it’s impossible to truly opt-out of healthcare and, thus, the uninsured are merely engaging in "future cost-shifting" because someone else will ultimately have to pick up the tab for their care when they get sick. He called this too attenuated; saying it was “a bridge too far” to use a person's decision now which might one day result in future cost-shifting which might affect interstate commerce as the basis for finding the current decision to involve engaging in interstate commerce -- especially since they may be wealthy enough to self insure, or charities may pick up the tab, or they may buy insurance before that happens. Thus, there are too many "ifs". He also notes that accepting this argument would give Congress unlimited power because anything could then be considered engaging in commerce:

Congress could more directly raise too low wheat prices merely by increasing demand through mandating that every adult purchase and consume wheat bread daily, rationalized on the grounds that because everyone must participate in the market for food, non-consumers of wheat bread adversely affect prices in the wheat market. Or. . . Congress could require that people buy and consume broccoli at regular intervals, not only because the required purchases will positively impact interstate commerce, but also because people who eat healthier tend to be healthier, and are thus more productive and put less of a strain on the health care system. Similarly, because virtually no one can be divorced from the transportation market, Congress could require that everyone above a certain income threshold buy a General Motors automobile --- now partially government-owned --- because those who do not buy GM cars (or those who buy foreign cars) are adversely impacting commerce and a taxpayer-subsidized business.



Should Congress thus have power under the Commerce Clause to preemptively regulate and require individuals above a certain income level to purchase a home financed with a mortgage (and secured with mortgage guaranty insurance) in order to add stability to the housing and financial markets (and to guard against the possibility of future cost-shifting because of a defaulted mortgage), on the theory that most everyone is currently, or inevitably one day will be, active in the housing market?

* * *

The problem with this legal rationale. . . is it would essentially have unlimited application. There is quite literally no decision that, in the natural course of events, does not have an economic impact of some sort.

● The ProObamaCare people also tried to squeeze this individual mandate through the “Necessary and Proper Clause,” which allows Congress to pass all laws that are necessary and proper to carry out its duties. But Vinson correctly notes that this clause cannot be used to justify unconstitutional laws.

5. Finally, we come to the most interesting aspect of this decision -- a true moment of judicial restraint. After finding the individual mandate unconstitutional, Vinson needed to decide if the rest of the statute could go into effect without it. This involves something called severability, which is a legal doctrine that holds that if the unconstitutional provision can be severed from the rest of the law, then it should be, and the rest of the law should go into effect.



Based on the history and the functioning of the act, Vinson concludes that severability is not possible. He notes, for example, the Congressional Record is full of statements about the true purpose of this act bring insurance reform and that the individual mandate was the key element of that reform. He notes that the defendants repeatedly stressed throughout the litigation that the individual mandate is “essential” to the Act. He also notes the failure to include the severability clause in the final draft, which is not fatal in and of itself, but which suggests that Congress viewed the entire Act as one piece.



Ultimately, however, his decision comes down to the fact that Vinson considers it impossible to separate the individual mandate from the Act, while still carrying out the purpose of the Act “as Congress intended.” In other words, the statute is “a carefully-balanced and clockwork-like statutory arrangement comprised of pieces that all work toward one primary legislative goal [which] would be undermined if a central part of the legislation is found to be unconstitutional.”



Vinson then shows a deep understanding of the role of the courts, when he concludes that this makes it impossible for him to carve out the individual mandate. Not only does he say that he doubts he could actually determine which portions of the Act depend on the mandate, but he says that this is not a proper role for the courts:

Cleanly and clearly severing an unconstitutional provision is one thing, but having to re-balance a statutory scheme by engaging in quasi-legislative “line drawing” is a “‘far more serious invasion of the legislative domain’” than courts should undertake.

* * *

If Congress intends to implement health care reform --- and there would appear to be widespread agreement across the political spectrum that reform is needed --- it should do a comprehensive examination of the Act and make a legislative determination as to which of its hundreds of provisions and sections will work as intended without the individual mandate, and which will not. It is Congress that should consider and decide these quintessentially legislative questions, and not the courts.

So when the media (and the Democratic PR machine) start running around calling this judicial activism, remember this quote. This is exactly how courts are supposed to act -- with judicial restraint by leaving the legislating to the Congress.



Finally, let me point out one irony. As an attorney, one of the most common mistakes I’ve seen has been attorneys who simply cannot let go of bad arguments. If the defendants had given up on the mandate, or simply not stressed its importance, Vinson may have just struck down the mandate and left the rest of the law in place. But like so many other bad attorneys I’ve met, they were not going to give an inch of ground if it killed them. And in this case, it did. It truly became a bridge too far.





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It's Not That Simple...

Tomorrow, I’ll discuss how the Tea Party is bringing much-needed common sense back into politics. But before I do that, I want to dispel this idea that governing should be simple if we only used common sense. What I'm talking about is best illustrated in a recent commercial which asked, “what would the world be like if firemen ran it.” As the firemen sit in the legislature, the chief asks, “who wants clean water?” Everyone raises their hands, and the chief says, “easiest job in the world.” Sadly, many people believe this utopian view is how government should be and they see any suggestion that governing is more complex than that as an attempt to keep "real" people out of government. This is utter nonsense.

To explain why, let’s start with the most basic principle ensconced in law. This is one we can all agree upon and which most people view as so entirely obvious and unambiguous that they think it could be put into law “as is,” and they complain that only a lawyer could see ambiguity in it: thou shalt not kill. Unambiguous, right?

Well, let me ask: what if I kill in self-defense? Suddenly, we've found an exception and the statement is no longer as inviolate as it seemed. But this is only one exception and everyone understands what self-defense is, right? Ok, is it self-defense if I kill someone who wasn’t actually trying to kill me? Does his intent matter or how I perceived it? What if I acted preemptively, before he made the threat? What if I started the fight or if I could flee with no danger? What if I killed an innocent bystander in the process? Does it matter if the danger passed before I finished the killing? Does it matter if I was defending someone else instead of myself? What if they didn’t want my help? What if I was drunk? What if someone else made me drunk or a medication made me lose touch with reality? What if the medication was illegal? Ok, forget self-defense, what if my killing took place on a battlefield where the government instructed me to kill? Can I kill in the government's name? Anyone at any time? What if I’m violating orders? What if I kill an enemy soldier who has surrendered? What if I kill a friendly soldier by mistake? What if I kill purely by accident? What if the accident resulted from my carelessness or recklessness or indifference? What if I built a dangerous product that I knew would kill someone? What if I only suspected it might? What if they misused it, but I knew they probably would? What if the person I killed was about to die anyway? What if they were being eaten by a shark, and they asked me to shoot them to stop the suffering? Does any of this apply to animals? Should it apply to a fetus? What if the woman was on her way to get an abortion when I killed the fetus? I could go on for pages.

Do you see the problem? It sounds easy to say “this is an obvious principle and there’s no reason it should be complicated” until you stop to realize that it is complicated. This is the clearest, most agreed upon principle across the planet, but it lends itself to hundreds of pages of discussion because there are thousands of scenarios to consider. And as you get further and further along, you’ll find that opinions begin to diverge until you find scenarios where there is no clear consensus. Now imagine how much more complex this becomes with less clear issues like “respect another’s property” or with dividing up the use of river water.

You can often see that people don’t grasp that these issues are inherently complex when they start talking about the Constitution. Too many people who adopt the simplistic view will spit out a single phrase they’ve picked from the Constitution and they will assume that settles the issue. For example, gun people often say, “shall not be infringed,” to argue that the Constitution clearly forbids any regulation. But that’s an irrationally simplistic view of the Constitution, as even the “no infringers” will simultaneously agree that police should have the power to disarm you in a confrontation and that wardens can keep prisoners from buying guns. Both of these are infringements. And if you accept that the phrase “shall not be infringed” cannot be taken literally, i.e. it does allow for infringements, then you’ve interjected ambiguity, the same ambiguity the simplistic view finds so offensive.

Moreover, despite popular opinion, the Constitution is not a complete guide for government nor is it a detailed list of dos and don’t. . . it is ambiguous. For example, while the Constitution provides a list of rights and powers, that list is crawling with vague terms, such as allowing the government to impose regulations for the “health, safety and welfare” of the people. Taken literally, that would seem to grant unlimited power. It took the Supreme Court to decide that the Bill of Rights limited state governments as well as the Feds -- the Constitution is silent on that point. So should we undo that? It's the rare literalist who says we should. Even more interestingly, the Constitution doesn’t actually tell us who decides what's constitutional, the Supreme Court grabbed that power in Marbury v. Madison, yet everyone seems to accept that now.

There is also often a utopian flavor in the simplistic line of thinking. You often hear: why don’t the politicians just do what the people want? But which people? And what if the majority want to enslave the minority? We’ve asked before, should the role of representatives be to do the will of the majority in their district or should they use their judgment? None of our readers was willing to say entirely one or the other, in other words you all accepted an ambiguity in the system.

The point to all of this is that the simplistic view that governing is all about just reading the Constitution and doing the common sense thing is flawed. Simplicity is not a sign of purity of thought or wisdom, it is a sign of ignorance of reality. (The same holds true in science as well, where answers usually only seem simple when you’re missing critical details.)

Now, that said, let me state that we need a return to common sense principles in government. Too many politicians live in a world of semantics and false logic where verbal games and procedure trump substance. They see a critical difference between a fee and a tax, even though both are the same. They see a reduction in a projected rate of growth as a cut. They think they can balance a budget by taking spending “off budget” or by adding in fake future cuts that will never happen. This is where common sense is badly needed.

What we need are people who understand the complexities of making laws, but who also grasp the common sense principles about how a government should be run. We need to avoid the snake oil sellers who tell us “it’s simple, I’m just gonna lift the hood and fix it,” but we also need to avoid the snakes who think they can dance on the head of a pin.

This isn't that hard, but it's just not simple.

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ObamaCare and the Courts

By now you’ve heard a parade of diverse (read: all far left) law school professors tell you that the lawsuits filed by the state attorneys general are “frivolous.” I guess it doesn’t take much to be a law professor these days. “Frivolous” is a legal term which basically means so obviously wrong that you’re wasting the court’s time. For a lawyer to call these suits “frivolous” is pure propaganda, and tells you more about the lawyer than the law. Let’s talk about the two major claims and what their chances of success might be.

Issue One: Individual Mandates.

The first major challenge involves the requirement that individuals obtain insurance under threat of being fined. This is, in fact, the key to making ObamaCare work (to the extent that it does). This is what allows the Democrats to claim this bill provides “universal coverage,” even though it actually “provides” no coverage, and they are relying on the fines expected to be paid by 24 million Americans to finance the bill.

ObamaCare defenders argue that this is just like requiring drivers to get car insurance. But that argument is laughable. First, the analogy is flawed, as you only need to get insurance if you intend to drive. ObamaCare, on the other hand, requires you to buy insurance no matter what. More importantly, the ObamaCare defenders are comparing apples to oranges. It is the states, not Congress, that impose the car insurance requirements. States, unlike Congress, have the power to do that because they have the power to regulate intrastate activities. Congress has no such power; it may only regulate interstate activities. The fact that states can do something that is clearly within their power cannot be used to show that Congress has that same power.

Congress’ power to regulate comes from its power to regulate interstate commerce. Congress has the power “to make all laws which shall be necessary and proper” to regulate interstate commerce.

Using this, ObamaCare supporters point to a 2005 Supreme Court ruling, Gonzales v. Raich, in which the court held 6-3, that the federal government could make it a federal crime for Californians to grow marijuana at home for their own personal, medical use. According to the court, regulating local behavior is necessary and proper when doing so is an “essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated.”

But there are two problems with applying this to ObamaCare. First, while the drug trade clearly involves interstate commerce, and thus is subject to federal law, it is not at all clear that the same is true of "health care." Indeed, while parts of the health care industry are clearly engaged in interstate commerce, at its core, health care remains about patients and doctors, and that relationship does not touch upon interstate commerce. Thus, it's not clear that Raich can apply.

Secondly, even if the court finds such a connection, the situation in Raich still isn't comparable to ObamaCare. Indeed, in Raich it was obvious that allowing drug growers a safe harbor by claiming that they only sell locally, would all but wipe out Congressional efforts to stop the drug trade. But the same is not true with ObamaCare, where it’s not at all clear how one person not having insurance could in any way hurt other efforts to regulate health care?

So what the ObamaCare supporters argue is that the cumulative effects of the uninsured using emergency room facilities affect interstate commerce. But the Supreme Court rejected this very argument in U.S. v. Morrison, in 2000, where the court struck down part of the Violence Against Women Act. In U.S. v. Lopez, in 1995, the Supreme Court held that Congress could not make it a federal crime to possess a gun near a school zone, because possession of a gun near a school had nothing to do with interstate commerce. So when the Congress passed the VAWA, they specifically included findings that the cumulative effects of domestic violence are a burden on the economy and, thus, affect interstate commerce -- the same argument being advanced now. The Supreme Court rejected that argument in Morrison. There is no reason to believe the court will change its mind for ObamaCare.

Moreover, even if the court accepted this argument, ObamaCare still runs afoul of another issue that arises in constitutional law. The Supreme Court generally requires that laws be narrowly tailored to fit the harm they tend to address. In other words, if the use of the emergency room by the uninsured was the harm to be addressed, then the Supreme Court is unlikely to allow a solution that imposes broad-based requirements on all Americans, when the Congress could instead have found less invasive solutions.

Additionally, in each of the above cases, the court had serious heartburn about letting Congress regulate these activities. But ObamaCare goes even further than this: it regulates “inactivity.” I am not aware of any instance in which the court has ever allowed Congress to impose a penalty for failing to engage in interstate commerce.

So what does this mean? It’s hard to tell. Predicting how courts will decide issues, especially close issues like this one, is extremely difficult. There are dozens of side issues that could affect the outcome, and there are political considerations as well as legal considerations. Would the Supreme Court launch itself into something as far-reaching and contentious as this issue? Absolutely. Would it defer to Congress? That seems to be the default setting of the court these days, but not always.

Overall, I would say, the odds are even that this part will be overturned.

Issue Two: State Mandates.

The second major issue is the requirement that state governments expand Medicaid (the only actual extension of coverage in the bill). Most people assume Medicaid is a federal program, but that’s not entirely accurate. Medicaid is really a block grant, where the federal government gives money to the states provided that the states pass certain state laws. This is exactly like the highway bills you’ve probably heard about, where the feds agree to pay for the construction of new highways, if the state imposes a seat belt law. So in reality, the feds aren't imposing anything on the states, they are simply offering a bribe. But there is a catch.

In 1992, the Supreme Court held in New York v. United States, that the federal government can’t conscript states to act as its agents and it cannot “simply commandeer the State’s legislative processes.” What this came down to was that Congress could not cross the line from “encouragement to coercion.”

Thus, the anti-ObamaCare argument will be that Congress crossed that line from encouragement to coercion when it imposed these very high requirements (requiring states to spending billions of state tax dollars on expanding Medicaid eligibility and establishing these insurance exchanges) under threat of forcing the states to drop out of Medicaid if they refused.

I understand this argument, but I doubt the court will buy it. Unless the states can come up with evidence that they really could not drop Medicaid, i.e. that they truly had no choice, then it is unlikely that the Supreme Court will see ObamaCare as coercive.

Overall, I would say, the odds are about 10% that this part will be overturned.


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The Unrepealable Bill. . .

The latest bit making the rounds of the blogosphere is that Harry Reid inserted language into the health care bill “that makes it impossible to repeal or amended the bill.” There is some truth to this, but it’s not what you think. Nor is such a thing even possible. In any event, Reid's language raises an interesting constitutional issue that may destroy this part of the bill. Let’s talk about what is really going on.

This Language Does Not Affect The Entire Bill

The first, most important thing to grasp is that the language in question does not affect the entire bill -- it relates only to a Board that will be established to recommend changes to Medicare to lower the growth of Medicare costs. Here’s how the Board works.

The Board will not come into existence until 2014. Thereafter, each year that the Chief Actuary of the Centers for Medicare & Medicaid Services determines that the growth rate in the cost of Medicare services exceeds the expected growth rate, the Board shall put together a list of recommendations to cut total Medicare spending to the targeted growth rate or slightly lower.

BUT, the proposal cannot include (1) recommendations to ration health care, (2) recommendations to raise revenues or Medicare premiums, (3) recommendations to increase cost sharing, i.e. deductibles or co-pays, or (4) recommendations to change eligibility requirements. (Basically, they will have to recommend cuts to reimbursement rates to doctors.)

Each recommendation must include an explanation of the proposal and the reasons for its inclusion and an actuarial opinion by the Chief Actuary that the proposal meets the requirements of this legislation. Interestingly, each proposal must also include “a legislative proposal that implements the recommendations.” (more on this later)

The proposal must then be presented to the Congress. This is where the language in question comes in. Starting around page 1017 of the bill, the bill describes how the Senate and House must handle these proposals. This includes the rather controversially provision that prevents House or Senate members from offering any amendment to the Board’s proposals (or to this part of the bill), unless 3/5th of the Senate votes to waive this requirement.

That sounds bad. But hold on.

This Is Not Unprecedented

This is basically the format used in the 1980s with the base closing commission. When it became apparent that it was impossible to handle base closings with any rationality because every Congressman from every district with a military base would fight to the death and cut any dirty deal they could to keep their base open, the parties agreed to create an independent base closing commission. That commission was charged with coming up with a list of bases to close, based on various non-political factors. The list was then forwarded to Congress for an up or down vote. No one could amend the list. By refusing to allow amendments by individual House members or Senators, Congress managed to close unneeded bases without being stopped by the normal political process. On the surface, this is the same thing.

Further, in 2006, Sen. John Kyl (R- Az) identified at least twenty-six rule-making statutes that limit the ability of Senators to amend legislation. One, the Budget Act, has been in force for more than thirty years.

Thus, this is nothing new. But this is no reason to fret.

This Can’t Actually Bind Future Congresses

Despite the language preventing future Congresses from changing this legislation or these proposals without a supermajority, that language can’t actually control what a future Congress does. One Congress cannot bind a future Congress.

Article I, section 5, clause 2 of the Constitution states that “[e]ach house may determine the Rules of its Proceedings.” In 1892, the Supreme Court took a look at this clause in United States v. Ballin, 144 U.S. 1 (1892). In that case, the Supreme Court held that this clause grants each Congress the powers to amend their rules whenever a simple majority of the quorum are present. And this power is continuing, meaning it can be exercised at any time by any Congress: “[The] power to make rules is not one which once exercised is exhausted. It is a continuous power, always subject to be exercised by [either] house.”

Therefore, one Congress cannot bind a future Congress. Indeed, one Congress cannot even bind itself -- each Congress has the power to change it rules by simple majority vote at any time.

Thus, while Reid’s language looks authoritative, future Congresses can ignore it. . . it will only have effect until a majority of either house of Congress decides to change it.

Consequently, this is not the big deal people are making it out to be.

But there is something else in this language that troubles me.

The Board’s Proposals Can Be Enacted Without Congress?

Throughout this section, Reid allows the Secretary to implement the Board’s proposals even without Congressional approval. This is a troubling issue because this represents an abdication of Congress’s legislative powers to the Executive.

Under the Constitution, the power to enact legislation lies entirely with the Congress. It may not grant this power to the Executive. In the past, this was strictly enforced and the Supreme Court would strike down anything that gave the Executive the power to make law, rather than calling upon the Executive to enforce the law. In particular, this appeared in cases where laws were struck down for being “too vague.” If a law did not clearly define what the Executive was supposed to do, the Supreme Court would strike it down.

But this has been eroded to the point of disappearing. Indeed, the most infamous moment probably came with the Americans With Disabilities Act, where the Congress actually refused to include a meaningful definition of “disability,” instead leaving it up to the Executive and the courts to determine.

Yet, Reid's law may revive this prohibition. Think back to the language I mentioned above. The Board not only recommends changes, but Reid is requiring the Board to include “a legislative proposal that implements the recommendations.” This is fairly strong evidence that the Board’s recommendations do not involve merely filling in the gaps of clear legislation, but instead involve creating law. Indeed, if the Board weren’t creating law, there would be no reason to allow the Congress to weigh in on these proposals -- in fact, it would violate the separation of powers to let the Congress approve an agency action.

Thus, if I were to challenge this statute in court, I would argue that this abdicates the legislative function because it allows the Executive to take actions that the law itself recognizes as needing the approval of Congress, i.e. law making.

Will a court accept this? They should. The legal theory is entirely sound. And if they do, then Reid’s control-freak behavior will have resulted in this entire section of ObamaCare being wiped out by the courts.

Nice work Harry.


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