Monthly Archives: October 2009

Off Topic – Halloween Humor

I’ve been looking for a reason to share this video for a long time.

Why?

Because its one of the funniest videos I’ve seen on YouTube for awhile.

Yeah, I realize that this video has little to nothing to do with the theme or purpose* of The Liberty Papers but sometimes a little humor can go a long way.

This video was made from a group of friends who call themselves Jake2Matt. This was the winning video that was entered in a home video contest that the band Avenged Sevenfold (a.k.a. A7X) held for their song “Scream.”

Warning: The video contains crude humor and likely NSFW.

Enjoy!

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The Cult Of The Imperial Presidency

whitehouse

Over the past 30 years, America has seen Presidential scandals ranging from Watergate to Iran-Contra to Travel-gate, Whitewater, the Lewinsky scandal, and the Valerie Plame affair. We’ve learned the truth about some of the truly nefarious actions undertaken by some of most beloved Presidents of the 20th Century, including the iconic FDR, JFK, and LBJ. And, yet, despite all of that, Americans still have a reverential view of the President of the United States that borders on the way Englishmen feel about the Queen or Catholic’s feel about the Pope.

How did that happen and what does it mean for America ?

Gene Healy does an excellent job of answering those question in The Cult of the Presidency: America’s Dangerous Devotion to Executive Power, making it a book that anyone concerned with the direction of the American Republic should read.

As Healy points out, the Presidency that we know today bears almost no resemblance to the institution that the Founding Fathers created when they drafted Article II of the Constitution. In fact, to them, the President’s main job could be summed up in ten words set forth in Section 3 of Article II:

he shall take Care that the Laws be faithfully executed,

The President’s other powers consisted of reporting the state of the union to Congress (a far less formal occasion than what we’re used to every January), receiving Ambassadors, and acting as Commander in Chief should Congress declare war. That’s it.

For roughly the first 100 years of the Republic, Healy notes, President’s kept to the limited role that the Constitution gave them. There were exceptions, of course; most notably Abraham Lincoln during the Civil War but also such Presidents as James Polk who clearly manipulated the United States into an unnecessary war with Mexico simply to satisfy his ambitions for territorial expansion. For the most part, though, America’s 19th Century Presidents held to the limited role that is set forth in Article II, which is probably why they aren’t remembered very well by history.

As Healy notes, it wasn’t until the early 20th Century and the dawn of the Progressive Era that the idea of the President as something beyond what the Constitution said he was took forth. Healy documents quite nicely the ways in which Presidents from Theodore Roosevelt to Woodrow Wilson to FDR went far beyond anything resembling Constitutional boundaries to achieve their goals, and how they were aided and abetted in that effort by a compliant Supreme Court and a Congress that lacked the courage to stand up for it’s own Constitutional prerogatives. Then with the Cold War and the rise of National Security State, the powers of the Presidency became even more enhanced.

One of the best parts of the book, though, is when Healy attacks head-on the “unitary Executive” theory of Presidential power that was advanced by former DOJ official John Yoo in the wake of the September 11th attacks and the War on Terror. As Healy shows, there is no support for Yoo’s argument that the Founders intended for the President to have powers akin to, or even greater than, those of the British Monarch that they had just spent seven years fighting a war to liberate themselves from. The dangers of Yoo’s theories to American liberty and the separation of powers cannot be understated.

If the book has one weakness, it’s in the final chapter where Healy addresses only in passing reforms that could be implemented to restrain the Cult Of the Presidency. I don’t blame Healy for only giving this part of the book passing attention, though, because what this book really shows us is that no matter of written law can stop power from being aggregated in a single person if that’s what the people want and, to a large extent, we’ve gotten the Presidency we deserve.

Healy’s closing paragraph bears reproducing:

“Perhaps, with wisdom born of experience, we can come once again to value a government that promises less, but delivers far more of what it promises. Perhaps we can learn to look elsewhere for heroes. But if we must look to the Presidency for heroism, we ought to learn once again to appreciate a quieter sort of valor. True political heroism rarely pounds its chest or pounds the pulpit, preaching rainbows and uplift, and promising to redeem the world through military force. A truly heroic president is one who appreciates the virtues of restraint — who is bold enough to act when action is necessary yet wise enough, humble enough to refuse powers he ought not have. That is the sort of presidency we need, now more than ever.

And we won’t get that kind of presidency until we demand it.”

And, if we don’t demand it we will find ourselves living in a country where the only difference between President and King is merely the title.

Coming Next Week At Reason TV: Honoring Ayn Rand And Her Ideas

This promises to be very interesting:

Coming November 2, Reason.tv will debut “Radicals for Capitalism: Celebrating the Enduring Power of Ayn Rand’s Ideas,” a new video series featuring segments on the novelist’s continuing presence in American culture and exlcusive interviews with Nathaniel Branden, Barbara Branden, Reason Foundation founder Robert W. Poole, Rep. Paul Ryan (R-Wisc.), and many others.

For more details and an archive of recent Reason-related stories on Rand, including reviews by Brian Doherty and Nick Gillespie of two new biographies of Rand, go to http://reason.org/rand

Hubris – Above The Law

I hate excerpting entire blog posts, but this one at Radley Balko’s place is short and can’t be done justice without the full text:

If you follow with any regularity the police misconduct stories I post on this site, you’re no doubt familiar with the phrase “paid administrative leave.” No matter how serious the alleged misconduct, cops nearly always get paid while they’re being investigated, a period that typically takes months.

But last week Stockton, Utah police officer Johsua Rowell was actually put on unpaid administrative leave.

His transgression? He issued a traffic citation to the son of Stockton Mayor Dan Rydalch.

Go ahead and read the news account linked… It’s as bad as (or worse than) Radley makes it sound.

Street Value

Uh-oh:

Last week the Minnesota Supreme Court ruled that bong water is an illegal drug. Under state law, a controlled substance includes any “mixture” containing that substance, “regardless of purity.” The consequences of reading that definition literally can be severe. In the case before the court, a woman whose bong contained 37 grams of water with traces of methamphetamine will now be treated as if she possessed 37 grams of speed, which converts possession of drug paraphernalia, a petty misdemeanor punishable by a $300 fine, into a a first-degree drug offense, punishable by seven or more years in prison.

Wow… According to such a ruling, and since the old wives’ tale is true, I must be carrying cocaine with a street value of $35 around with me (one Jackson, two Lincolns and five Washingtons). Good thing I’m not carrying any c-notes today! A Benji would certainly push up the mandatory minimum!

The Institute for Justice Challenges Unjust Law Banning Compensation for Bone Marrow

In January 2008 I wrote a post calling for the repeal of the National Organ Transplant Act of 1984. As I mentioned in the post, many thousands of lives are being sacrificed because of the moral hang-ups of certain individuals who think its icky to sell organs to people who need them. How dare they.

As if this wasn’t bad enough, bone marrow is included as part of the ban. The act of paying an individual for his or her bone marrow is a felony which is punishable for up to five years in prison for everyone involved in the illegal transaction.

The Institute for Justice has decided to challenge this most absurd provision of this absurd bill. Below is a video from the organization explaining their lawsuit against U.S. Attorney General’s Office:

For the sake of the Flynn family, here’s hoping that the Institute for Justice wins the day.

Hat Tip: The Agitator

A symbolic victory in a sea of defeats

The governator sent a letter to the California State Assembly where he, er, told them he would “strike” them. Carnally.

To the Members of the California State Assembly:

I am returning Assembly Bill 1176 without my signature.

For some time now I have lamented the fact that major issues are overlooked while many
unnecessary bills come to me for consideration. Water reform, prison reform, and health
care are major issues my Administration has brought to the table, but the Legislature just
kicks the can down the alley.

Yet another legislative year has come and gone without the major reforms Californians
overwhelmingly deserve. In light of this, and after careful consideration, I believe it is
unnecessary to sign this measure at this time.

Sincerely,

Arnold Schwarzenegger

Now that you’ve read the whole letter, read the first column of letters.

H/T The widely read libertarian culture site Urkobold.

I am an anarcho-capitalist living just west of Boston Massachussetts. I am married, have two children, and am trying to start my own computer consulting company.

Quote Of The Day

Hugo (via Cato):

Every day I’m more of a revolutionary, every day I’m more socialist… I’m going to take Venezuela toward socialism, with the people and the workers…The revolution is not negotiable, socialism is not negotiable, because every day I’m more convinced that socialism is the kingdom of God on earth. That is what Christ came to announce.

My personal belief (that Christ may have been an anarcho-socialist) notwithstanding, I fail to understand how creating a system of mass oppression, malnutrition, and the rationing of electricity and water has to do with Jesus. Maybe he’s taking Jesus admonishment about the likelihood of a rich man entering heaven a bit too literally, and wants to ensure there are no rich men in Venezuela.

So I’ll leave it up to you, readers… Can you make sense of Chavez? Give it your best shot.

Obama Creates Perfect Storm with Marijuana Policy Change

Last week’s announcement from the Obama Administration that the Justice Department would call off the dogs with regard to medical marijuana in states where legal has created a perfect storm regarding state and local regulations. Colorado Attorney General lamented that with this announcement, a “legal vacuum” has been created and was quoted in The New York Times: “The federal Department of Justice is saying it will only go after you if you’re in violation of state law,” Mr. Suthers said. “But in Colorado it’s not clear what state law is.”

Here’s a thought Mr. Suthers: rather than trying to interpret the law yourself, why not allow the state legislature and/or Colorado voters clarify the law. In the meantime, while the law in your opinion is vague, err on the side of freedom by no longer prosecuting medical marijuana users or dispensary operators.

Greeley (Colorado) City Council member Carrol Martin also expressed concerns with the Obama Administration’s change in federal policy: “The federal government says they’re not going to control it [medical marijuana], so the only other option we have is to control it ourselves” and “If we have no regulations at all, then we can’t control it, and our police officers have their hands tied.”

Councilman, I would argue that this is a very good thing. You are no longer responsible for enforcing federal laws but state and local laws regarding medical marijuana. Your police officers “have their hands tied”? I think it’s quite the opposite councilman. Your police department can now concentrate on violent crime rather than spend valuable resources on going after non-violent, medicinal, marijuana users and their suppliers. If anything, the Greeley police has their hands freed!

In a time when we have an administration which wants to control banking, housing, the auto industry, the healthcare industry, and everything in-between we have one instance of the same administration relinquishing control and giving it back to the states. This is the perfect opportunity for states to act as independent laboratories of government. Some will pass stricter controls on medical marijuana (or outright ban it) while others may go the other direction and outright decriminalize or leagalize marijuana altogether.

Kirk Johnson writing for The New York Times:

Some legal scholars said the federal government, by deciding not to enforce its own laws (possession and the sale of marijuana remain federal crimes), has introduced an unpredictable variable into the drug regulation system.

“The next step would be a particular state deciding to legalize marijuana entirely,” said Peter J. Cohen, a doctor and a lawyer who teaches public health law at Georgetown University. If federal prosecutors kept their distance even then, Dr. Cohen said, legalized marijuana would become a de facto reality.

Senator Morrisette in Oregon said he thought that exact situation — a state moving toward legalization, perhaps California — could play out much sooner now than might have been imagined even a few weeks ago. And the continuing recession would only help, he said, with advocates for legalization able to promise relief to an overburdened prison system and injection of tax revenues to the state budget.

This seems like a very reasonable step to take for California from a purely economic standpoint. As I reported in my post Reforming America’s Prison System: The Time Has Come, last year California spent almost $10 million on corrections, more than half of the U.S. prison population accounts for drug offenses, 75% of state drug offenders are non-violent offenders, and that nearly half of all drug arrests in the U.S. were for marijuana offenses.

By my math, that would mean that if California* released all non-violent marijuana users and stopped prosecuting new cases involving non-violent marijuana use, the state could cut its prison population by 19% and save California taxpayers about $2 million** per year just on corrections (to say nothing of other costs associated with policing marijuana use).

If California or any other state tried such a bold approach, the American public would most likely learn that legalization does not lead to the sort of mayhem drug warriors have warned us of over the decades***. We would most certainly not see the sort of mayhem that has occurred via the drug war.

Not only does this perfect storm which the Obama Administration created have possible implications for the War on (Some) Drugs, but the very concept of Federalism itself. What might state governments learn about self governing once they have been encouraged to do so? Might the states resist the next attempted power grab from Washington?

There are many exciting possibilities. Those of us who advocate for smaller government should make the most of this opportunity.

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Liberty Rock Friday: Tyrant by Judas Priest

By reader’s request, “Tyrant” by Judas Priest

Judas Priest
“Tyrant”
Sad Wings of Destiny (1975)

jpswod
Behold ’tis I the commander
Whose grip controls you all
Resist me not, surrender
I’ll no compassion call

(tyrant) capture of humanity
(tyrant) conqueror of all
(tyrant) hideous destructor
(tyrant) every man shall fall

Your very lives are held within my fingers
I snap them and you cower down in fear
You spineless things who belly down to slither
To the end of the world you follow to be near

(tyrant) capture of humanity
(tyrant) conqueror of all
(tyrant) hideous destructor
(tyrant) every man shall fall

Mourn for us oppressed in fear
Chained and shackled we are bound
Freedom choked in dread we live
Since tyrant was enthroned

I listen not to sympathy
Whilst ruler of this land
Withdraw your feeble aches and moans
Or suffer smite from this my hand

(tyrant) capture of humanity
(tyrant) conqueror of all
(tyrant) hideous destructor
(tyrant) every man shall fall

Mourn for us oppressed in fear
Chained and shackled we are bound
Freedom choked in dread we live
Since tyrant was enthroned

My legions faithful unto death
I’ll summon to my court
And as you perish each of you
Shall scream as you are sought

(tyrant) capture of humanity
(tyrant) conqueror of all
(tyrant) hideous destructor
(tyrant) every man shall fall

Quote Of The Day

We all know youths who have changed for the better. When I was a lawyer in Cody, the court sometimes appointed me to represent juvenile offenders, and parents who knew of my history often asked for help with their children. I once handled the case of an 18-year-old who stole a car and drove it to Seattle. I later hired him as chief of staff for my Senate office, and he turned out to be one of the most able of the people I put in that job.

I was lucky that the bullets I stole from a hardware store as a teenager and fired from my .22-caliber rifle never struck anyone. I was fortunate that the fires I set never hurt anyone. I heard my wake-up call and listened — and I went on to have many opportunities to serve my country and my community.

When a young person is sent “up the river,” we need to remember that all rivers can change course.

Former Senator Alan Simpson (R., Wy) on the upcoming Supreme Court arguments on the Constitutionality of life imprisonment for youths convicted of crimes that don’t involve death

Risk and Compliance

For the first time today, TASER international has acknowledged that the use of their electro-compliance device has a higher risk to the health of the restrainee than they have advertised

Taser: Don’t shoot stun gun at chest

First time company has suggested there is any risk from its stun guns

AP – updated 8:23 a.m. PT, Wed., Oct . 21, 2009

PHOENIX – Taser International is advising police agencies across the nation not to shoot its stun guns at a suspect’s chest.

The Arizona-based company says such action poses a risk — albeit extremely low — of an “adverse cardiac event.”

The advisory was issued in an Oct. 12 training bulletin. It marks the first time that Taser has suggested there is any risk of a cardiac arrest related to the use of its 50,000-volt stun guns, The Arizona Republic reported.
Story continues below ?advertisement | your ad here

Taser officials said Tuesday the bulletin does not state that Tasers can cause cardiac arrest. They said the advisory means only that law-enforcement agencies can avoid controversy if their officers aim at areas other than the chest.

Critics called it a stunning reversal for the company.

We have all of course seen or heard of such incidents as the intransigent elderly woman who was TASED a few months ago in Texas (and many other similar incidents involving the elderly or emotionally disturbed); and most famously of course, of Rodney King, who continued resisting arrest after multiple TASER hits (which is why the officers began beating him. What started as an attempt to physically restrain a violent and intoxicated offender, turned into an emotional free for all).

Less frequently, we hear of someone experiencing cardiac or respiratory arrest, seizures, or nervous system damage from the use of the TASER.

Civil liberties activists have claimed that TASERs have directly caused the death of at least 350 people this decade; and that unjustified use of the TASER device is rampant, with thousands of effective cases of police brutality every year.

I take those claims with a hefty grain of salt.

Unfortunately, it IS clear that there have been a not insignificant number of deaths, either directly or indirectly caused by TASER usage; and that the risks of TASER usage are in fact much higher than law enforcement agencies and individual officers have been trained, or led to believe.

Because of these risks, those same civil liberties activists have called for the TASER device to be banned.

For years, TASER international has utterly denied the possibility of any elevated risk of death or serious injury involved in the use of the TASER.

Today, for the first time, the company acknowledged those risks; but in response suggested something I believe is ridiculous, counterproductive, and may even be harmful. In order to avoid liability, they are advising law enforcement agencies to train their officers to avoid shooting restrainees in the chest…

This is patently ridiculous.

First, the TASER is most effective when shot into the chest. The TASER device works by disrupting neuromuscular co-ordination, and hits outside of center mass are far less effective at causing systemic disruption. Other areas simply do not have the concentrations of nerve and muscle junctions that allow for effective immobilization.

When targeting peripheral areas of the body, effective immobilization may be limited to the localized area of the hit, or to one side of the body. Even hits to the abdomen or pelvis are far less effective in immobilization, (especially on larger restrainees) though they are exceptionally painful.

It is entirely possible (though very difficult) to fight through a TASER hit to a peripheral area, whereas it is nearly impossible to do so with a chest hit (unless you are physically huge, or very high).

It is also standard tactical doctrine for all projectile weapons training to aim for center mass; and it’s damn near impossible to hit a limb in a stressful situation. You don’t want to train officers to shoot for other targets under stress, it will just cause more problems.

Even after the department training officers and lawyers dutifully pass on the message from TASER; officers will, RIGHTLY, ignore this warning.

If you’re going to restrict TASER usage to targeting peripheral areas of the body, you might as well ban their use entirely.

I believe banning TASERs would be a huge mistake, as would changing the targeting area for the device; but clearly something needs to change.

The problem with TASERs isn’t their risks; it’s their doctrine for use.

I’ve been a law enforcement trainer myself, and I’ve been through various less-lethal force training courses, including TASERs. I’ve been TASED several times, and have had several other electro-compliance devices demonstrated on me (to great effect).

Officers are trained to view TASERs as, and to use them as, a less harmful compliance option than direct physical contact; with less risk to both the officer, and the restrainee. The TASER is viewed as a less risky, and less harmful option in the continuum of force.

While the less risk to the officer part is true, the risk of great harm to the restrainee is very high. Much higher than that of chemical compliance techniques, and as high as PROPERLY EXECUTED physical restraint and compliance techniques

Improperly executed physical restraint and compliance techniques, unfortunately present nearly as high a risk of fatality as a shooting; and with much greater risk to the officer. Without extensive training, continuing practice, and exceptional strength and physical fitness; it is very difficult for officers to maintain proper physical restraint and compliance techniques. Even with proper technique, the risk to the officer remains much higher than non-contact restraint and compliance techniques.

It is these issues, which in fact prompted much of the development of less-lethal force technologies; including chemical restraints, and electro-compliance devices like the TASER.

So where does this leave us? Where does this leave law enforcement officers; who are simply looking for a way to effectively restrain subjects, with less risk to the officer, and the subject.

This improper perception of risk has created an environment; especially in smaller law enforcement organizations, with lower training budgets and more permissive attitudes towards the continuum of force; where TASER use is not considered serious.

In general, many officers would prefer to use the TASER than other means of enforcing physical compliance; because it presents the least risk to them, and the most compliant restrainee.

Combined this false perception of low risk, with a more permissive attitude, and the undoubted advantages to the officer; and it is understandable why in many jurisdictions it seems that taser usage is out of control, and suspects are being TASEd almost casually.

The use of the TASER should be understood to be (and officers should be trained to this effect) 1/2 step below the use of a firearm in the continuum of force. Officers should be trained in a more realistic assessment of the risks and dangers of the TASER (and other electro-compliance devices).

Additionally, TASER use in the line of duty, should be reviewed with the same diligence as the discharge of a firearm.

I don’t want to take the TASER away from officers, as it is a useful and excellent tool that in general DOES increase the safety of both the officer, and the restrainee.

What I want, is for officers, and agencies, to understand, and take the risks and impact of TASER usage more seriously.

I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

Memo To Libertarians: Unite Or Die

one

Over at United Liberty, Crystal Gross argues that Libertarians (and libertarians) need to back off from their doctrinaire attitudes:

[M]y day-to-day experience with card-carrying members of the Libertarian Party indicates a considerably different perspective on the libertarian philosophy: “Live and let live … or else.”

Why would members of a “Party Of Principle” with the aforementioned philosophy exclude other people from their little club because they disagree on a few matters? Why is a platform more important than a fresh idea? Why is youthful intellectual curiosity discouraged among a group of people who profess to want YOU to THINK?

The more “radical” Libertarians — the biggest L’s among us — play a major role in the advancement of the Party in the future. Unfortunately, the readiness and enthusiasm with which they attack their own people distracts them from constructive efforts which only they are capable of carrying out. Like attacking politicians and bringing about actual change.

(…)

It’s high-time Radical Libertarians backed off. Otherwise, you’re going to have a lot of room in that tent.

Of course, as some of us know all too well, purging of the insufficiently orthodox is something that’s as common to libertarians as the sun coming up in the morning.

But, Crystal has a point here.

Considering that libertarians are such an extreme political minority, it seems incredibly stupid to kick people out of the movement for being insufficiently orthodox on, say, the Non-Aggression pledge, when there are so many other battles where we could unite with others — including, in some cases, Republicans and Democrats — who agree with us on specific issues.

It’s largely the reason that the Libertarian Party, nearly 40 years after it’s founding is a non-entity in American politics, and why the most effective libertarian organizations are groups like The Cato Institute who see the value in reaching out beyond the relatively small echo chamber of libertarian debating societies.

There’s room for the radicals and the moderates in the fight for liberty, and if we don’t unite we’re destined to lose

Is An Individual Health Insurance Mandate Constitutional ?

Over at Findlaw, Cornell University Law Professor Michael Dorf criticizes the libertarian argument that a government requirement that every citizen purchase health insurance is unconstitutional:

A federal statute that was already in effect in 1994 provides that “all citizens shall have . . . an obligation to serve as jurors when summoned for that purpose.” To be sure, the mechanisms used to assemble a pool of prospective jurors enable some people to slip through the cracks, but then, that surely would also be true of the individual mandate to obtain health insurance. No law can be perfectly enforced. The important point here is that jury duty, like draft registration, serves as a precedent for the imposition by the federal government of an affirmative duty on citizens.

The difference, of course, between a jury duty mandate or the draft and a law requiring every citizen to purchase health insurance is that both of these obligations of citizens predate the drafting of the Constitution and therefore it’s simply illogical to say that they are barred by the Constitution today, or that the Framer’s contemplated that in allowing the state to compel people to serve on juries, the were opening the door to a whole host of mandates that, if enforced would make freedom a mockery.

Since there doesn’t seem to be much precedent in Federal law, though, Dorf quickly moves on to state law:

Consider that states may impose an affirmative obligation of vaccination on residents. Even in an era when the Supreme Court was otherwise vigorously enforcing libertarian constitutional principles, in 1905, in Jacobson v. Massachusetts, the Court rejected a constitutional challenge to mandatory vaccination.If the government interest in public health is sufficient to overcome libertarian objections to injections into the very bodies of citizens, then surely the public health interest–which is, at bottom, what is at stake in the health insurance reform bills–should suffice to require Americans to buy health insurance or else pay a tax.

Again, it’s clear that Dorf makes the mistake here of finding an exception and turning into a rule. The important thing to note about Jacobson is that it dealt with mandatory vaccination of children for smallpox which was, until defeated by aggressive vaccination, a highly contagious, virulent disease with a high rate of mortality. Which there is a long argument on both sides of the mandatory vaccination issue, the argument in favor is certainly stronger when it involves combating the spread of a disease that poses such a severe risk to public health when balanced against the individual liberty interest in not getting vaccinated. It’s by no means clear, for example, that the result would be the same if the disease in question were something far less threatening to public health, like the seasonal flu.

Unless Dorf can make the argument that lack of health insurance poses an imminent threat to public health on a par with a smallpox epidemic, the Jacobson precedent would seem inapplicable.

The question of the Constitutionality of a health insurance mandate was addressed in a Washington Post Op-Ed by lawyers David Rivkin and Lee Casey and their argument bears repeating:

The Constitution assigns only limited, enumerated powers to Congress and none, including the power to regulate interstate commerce or to impose taxes, would support a federal mandate requiring anyone who is otherwise without health insurance to buy it.

Although the Supreme Court has interpreted Congress’s commerce power expansively, this type of mandate would not pass muster even under the most aggressive commerce clause cases. In Wickard v. Filburn (1942), the court upheld a federal law regulating the national wheat markets. The law was drawn so broadly that wheat grown for consumption on individual farms also was regulated. Even though this rule reached purely local (rather than interstate) activity, the court reasoned that the consumption of homegrown wheat by individual farms would, in the aggregate, have a substantial economic effect on interstate commerce, and so was within Congress’s reach.

The court reaffirmed this rationale in 2005 in Gonzales v. Raich, when it validated Congress’s authority to regulate the home cultivation of marijuana for personal use. In doing so, however, the justices emphasized that — as in the wheat case — “the activities regulated by the [Controlled Substances Act] are quintessentially economic.” That simply would not be true with regard to an individual health insurance mandate.

The otherwise uninsured would be required to buy coverage, not because they were even tangentially engaged in the “production, distribution or consumption of commodities,” but for no other reason than that people without health insurance exist. The federal government does not have the power to regulate Americans simply because they are there. Significantly, in two key cases, United States v. Lopez (1995) and United States v. Morrison (2000), the Supreme Court specifically rejected the proposition that the commerce clause allowed Congress to regulate noneconomic activities merely because, through a chain of causal effects, they might have an economic impact. These decisions reflect judicial recognition that the commerce clause is not infinitely elastic and that, by enumerating its powers, the framers denied Congress the type of general police power that is freely exercised by the states.

That’s the question that Dorf fails to answer — where in Article I Section 8 is Congress authorized to pass this mandate ?

The fact that he doesn’t address it suggests that there isn’t really an answer in the affirmative.

Government Reasonability Quiz

On Monday morning around 5:30 a.m. in Springfield, Virginia, Eric Williamson was making coffee (in the privacy of his own home) in the buff. Unbeknownst to Williamson, a woman and her 7 year old son could see him in all his glory as they took a shortcut through his front yard.

The woman, horrified that her and her son saw Williamson naked, called the police.

How does the police/District Attorney choose to deal with this situation? (Hint we are dealing with government officials here, throw common sense out the window)

A. Nothing. Police advise Williamson to make sure the windows are properly covered next time.
B. Nothing. The woman is advised not to take this shortcut again.
C. Both A and B.
D. The woman is charged with criminal trespass and violation of Williamson’s privacy. She could face up to 6 months in jail and a $1,000 fine if convicted.
E. Williamson is charged with indecent exposure and could face up to 1 year in jail and a $2,000 fine if convicted.
F. Both D and E. Both parties broke the law as both parties violated the rights of the other.
G. Neither D nor E. Both parties broke the law, therefore the penalties offset and no charges will be filed. (Replay 3rd down?)

(See the correct answer below the fold.)
» Read more

When the Government Controls Medical Care …

… patients are an expense or liability to be gotten rid of rather than a source of profit who must be served.

Much of the problems with government supplied health care can be traced to this truth concerning incentives.  A hospital is not paid more if they treat people well.  They don’t lose money if they do a poor job.  They face no liability; any judgment the government permits to be levied against them is made up by taxes looted from the productive classes.

And, the goal of a medical care provider is to please his pay-masters rather than the patients he treats; and all to frequently when the interests of patients and the government clash, the patients will lose out.

This phenomenon is quite evident in the sad case of British Corporal Matthew Millington of the Queen’s Royal Lancers who died at the age of 31 from lung cancer, after receiving – in a transplant – the cancerous lungs of a smoker who averaged 30 – 50 cigarettes a day.

Why would a hospital implant the lungs of a person who smokes so many cigarettes a day into a patient?  Was it the result of an inexperienced surgical team making a ghastly mistake?  No.  The surgery was performed by Papworth Hospital in England,  which is the main transplant hospital in the United Kingdom, whose spokesmen claim that in fact everything was done properly!

A spokeswoman for Papworth, the UK’s leading cardiothoracic hospital, said that it was not unusual to use smokers’ lungs, adding that all organs are “screened rigorously” before a transplant. “We have a strong record of high quality outcomes and this is an extremely rare case.”

In the past year there were 146 lung transplants in the UK, and 84 people died while waiting on the transplant list, she added. “If we had a policy saying we did not use the lungs of those who smoked, then the number of lung transplants would have been significantly lower.”

Let us ignore the fact that the supply of organs is kept low by the superstitiously premised laws outlawing people from selling their own organs. Let us pass over the laughably implausible claim that transplanting smokers’ lungs results in acceptably good outcomes.

Let us, instead, focus on the question of how the hospital handled the case of Corporal Millington of the Queen’s Lancers and compare it to how a hospital that saw him as a customer would have treated him.

Often the detractors of free markets accuse it of being a dehumanizing system of cut-throat competition.  What they do not realize is that when two people engage in trade, they are cooperating.  The competition is between actors striving to be the best cooperators with prospective trading partners.  In a free market, the providers of health care services would be competing to see which one of them could better care for a prospective customer.

Thus, in a free market, Corporal Millington would have contracted with the hospital that sought to cooperate with him most effectively.  He would have chosen a hospital that committed to satisfy his need for undiseased, functional lungs at an affordable price.   In a free market, the availability of disease-free lungs would have been much higher; people would be far more likely to sign up to supply  their organs for transplant if their heirs or estate would be paid a fair market price for them, and the hospital would not have to worry about waiting lists.

However, had the new lungs developed cancer (and let’s not forget occasionally non-smokers get lung-cancer too), the hospital would have had a strong incentive to make it right, either out of a sense of obligation or out of fear of retribution; In a free market, there are two incentives to keep unscrupulous people treating their customers well.  The first is, of course, the fear of lawsuits.  the second, though, is their greed for future profits and their fear of losing these future profits should they ever develop a bad reputation.  The latter can particularly devastating.  The McDonald-Douglas Aircraft Company, for example, was nearly driven into bankruptcy by the perception that the DC-10 was an unsafe aircraft.  To this day, the Massengill corporation has never returned to the drug-making business after the debacle of 1938.  The yellow press would love nothing better to go after a hospital for transplanting diseased organs into a patient; the readership and viewership of such pieces would bring in a tidy sum in advertising dollars.

Thus the hospital, if nothing else to avoid the collapse of their business after a widespread accusation of incompetence/malpractice, would face a huge opportunity cost if they forewent transplanting in a new, second set of lungs.

But, unfortunately for Corporal Millington, he wasn’t the customer of Papworth.  Rather, some officials of the NHS were. The desire of the actual customers (NHS) were to keep costs down by a) cutting corners on the type of lungs transplanted into patients, b) concerning themselves with patient outcomes in the aggregate, and reducing seemingly unnecessary, redundant duplication of services by centralizing transplants as much as possible.

Thus they faced no economic loss for allowing him to die of cancer.  There was no profit to saving him; in fact, saving him would have been an expense.  They didn’t have to cooperate with Corporal Millington and so they didn’t.

I am an anarcho-capitalist living just west of Boston Massachussetts. I am married, have two children, and am trying to start my own computer consulting company.

Quote Of The Day

From Lexington, The Economist:

A fool of a justice of the peace in Louisiana refused to marry a biracial couple. He said he was concerned for the children.

A White House spokesman, asked about the case, quipped: “I’ve found that, actually, the children of biracial couples can do pretty good.”

Yeah, it’s a pretty funny quip.

But how do you get a job as a WH spokesman if you can’t speak English properly?
» Read more

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