Author Archives: Brad Warbiany

Fiscally Conservative Republicans To Spend $3M In Tax Dollars To Defend DOMA

Ugh.

House Republican leaders have signed on to spend up to $3 million to keep defending the Defense of Marriage Act in court, according to a copy of their newly revised legal contract obtained by The Huffington Post.

House Republican leaders took over the legal defense of DOMA in the spring of 2011, when Attorney General Eric Holder announced the Obama administration would no longer defend it on the grounds that they found it unconstitutional. House Speaker John Boehner (R-Ohio) and other GOP leaders hired attorneys at the law firm Bancroft LLC to represent the House in court cases involving the federal ban on gay marriage — all with taxpayer dollars.

I’m outraged by their spending more of my money on this crap…

But let’s be honest on one point (why I added the emphasis above). The Executive is not exactly a fair and impartial arbiter of what is and is not Constitutional. I’d have to think that President Kill List and Secretary of Defense Dronestrike might need to re-read that old parchment — perhaps the 4th, 6th, and 14th Amendments would be good places to start?

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Quote Of The Day

Governor Moonbeam? Or Governor Death Ray?

You decide:

Answering critics at a solar ribbon-cutting earlier this year, Gov. Jerry Brown laid down the gauntlet, affirming his commitment to solar energy and saying he would “crush” opponents of solar.

“There are going to be screw-ups. There are going to be bankruptcies. There’ll be indictments and there’ll be deaths. But we’re going to keep going – and nothing’s going to stop me,” Brown said.

Wow. I knew he thought it… I just never thought I’d hear him say it.

Your Feel-Good Cop Story Of The Year

Here at TLP, we commonly bring you stories of police abuses, bad behavior, and general asshattery that often accompanies giving someone power over another…

…but it’s not always like that. “Thin blue line” concerns notwithstanding, the vast majority of people who go into law enforcement do so because they honestly want to serve and protect people. And the below story is one of personal kindness and compassion that warms the heart (and feet).

25-year-old Officer Lawrence DePrimo was on duty in Times Square when he encountered a barefoot homeless man walking gingerly on his heels with visible blisters on his feet on Nov. 14. After learning his shoe size, DePrimo ducked into a Skechers store, then knelt on the ground as he helped the man put the new pair of shoes on—a moment captured on the cellphone of an Arizona tourist, who later described the shot to the NYPD in an email.

Boots

Maybe I’m just getting sappy in my old age, but I’m increasingly realizing that a lot of people talk the talk about helping, but few walk the walk. Too many want to “raise awareness” or “lobby Congress” to solve problems, when those problems are right in front of them and don’t need to be solved by someone else. In my own life I’m working on trying to be better about doing rather than talking in the regards of charity.

So I applaud Officer DiPrimo. He saw someone who needed help. He had the means to help. And he rolled up his sleeves and took care of the problem. Not because he wanted accolades; just because it needed to be done. That’s a lesson that all can heed, cop and citizen alike. Good work! If he’s ever out here in SoCal, the pizza and beer from the kegerator are on me.

Why Democracy Doesn’t Work, Evidence #1,083

Over at Ezra Klein’s place, Dylan Matthews points to the fact that elections are driven by the economy (and in some years, by war). And that George McGovern, who died yesterday, gets a bit of a bad rap based on the fact that he was up against an incumbent President presiding over a rapidly-expanding economy and a major drop in Vietnam casualties during his first term.

He points to a model from political scientist Douglas Hibbs, called the “Bread & Peace” model. And uses this chart as a telling guide:

Seems pretty clear to me. When the economy is doing well, the incumbents do well. When the economy is in the crapper, the incumbents get tossed out.

That makes perfect sense if we assume that the incumbent party (Congress or the President) has a big impact on the performance of the national economy. But I don’t think there’s any evidence to support this. Business cycles tend to occur in many ways orthogonal to political cycles. Policy tends to have long-running effects on the economy, but it’s measured in decades, not electoral cycles.

It’s pretty clear that voters are not really answering the question of “who is more qualified to lead us?”, or even “who has better policies?” The question they’re answering is merely “am I doing good right now? If not, whoever is in charge is obviously to blame!” Which causes me to ask a question (one Dylan Matthews doesn’t think to ask): if elections are driven by factors often widely outside the realm of short-term election cycles, why exactly do we think that elections are a good way to decide who to put into power?

About the only acceptable answer to that question that I can find is “it’s a better system than any others we’ve tried.” Frankly, such an answer doesn’t inspire confidence.

And further, when elections are driven by forces outside the candidates’ control, how exactly can we sit idly by and let politicians claim a mandate for their policies based upon the fact that they’ve won office? Voters don’t know what will fix the economy (nor do most politicians, frankly). But I guarantee that if Romney wins, it will be claimed as a mandate that the policies of Obama are to blame for our failure to generate an economic recovery, and that Romney’s policies are much better for all of us*.

Every four years, America goes through a big circle jerk to congratulate ourselves for “freedom” and representative democracy. After all, we get to choose who represents us in Washington and we have an inherent assumption that the fact that we’ve voted for them indicates that we have given them a vote of confidence. Yet we have a Congress with a approval rate in the teens and a re-election rate usually well above 90%, and we have Presidential contests that are usually decided based upon the growth of the economy rather than the qualities of the individual candidates.

But when I point out that we, as a people, don’t do a very good job deciding who to send to Washington, so just maybe we should limit the amount of power they’re allowed to wield, I’m suddenly a libertarian extremist?
» Read more

Why America’s “Third-Party Airline” Shouldn’t Sponsor The Debates

The Commission on Presidential Debates has been coming under a lot of fire for their exclusion of third parties this year, due largely to the fact that Gary Johnson is polling at 6% nationally and happens to be suing them* at the moment. As Reason points out, they’ve already lost three national sponsors, and are currently at a lower overall sponsor number than any previous debate.

But they still have seven national sponsors, one of which is Southwest Airlines. Southwest Airlines seems like a strange company to participate in an exclusionary political sham**, given their history as a minority carrier in the market, and the fact that they so clearly buck industry trends.

So I’m sending them the below letter. Southwest is, IMHO, opposed to the very sort of exclusionary pull that the CPD is trying to push. I’d recommend that others write, call, etc to let them know how you feel***. If you’d like, feel free to use the below as your own template (although I note that it’s too long for their email submission form, so I’m sending it by US mail).

The CPD is perpetuating a sham, and has lost three national sponsors. Let’s try to make it four.

Dear Southwest Airlines,

I am writing today to express my surprise and dismay to learn that you are a sponsor of the Commission on Presidential Debates. While I understand your goal – to create an informed electorate in American participatory democracy – I don’t believe that the CPD’s practices are beneficial to the national dialogue. Further, I don’t believe that their exclusionary policy towards third-party candidates is consistent with the ethos of Southwest Airlines, the very successful “third-party” airline.

Southwest was a beneficiary of airline deregulation – of ending the system that said that every bit of air travel should be controlled by the Civil Aeronautics Board, including fares and routes of service. Southwest was forced to defend their right to fly even intrastate flights without submission to the CAB in court, an action that rose all the way to the US Supreme Court. Southwest was unable to expand into interstate routes until deregulation occurred and the CAB was dismantled. Of all enterprises, Southwest Airlines should be especially sensitive to the abuses of monopoly/oligopoly powers.

Today, the Commission on Presidential Debates is akin to the CAB. It is a body wholly run by, and for the benefit of, the Republican and Democrat Parties. Its goals are to keep third-party candidates (and by extension, third-party ideas) out of the public eye. It’s no different than the CAB only allowing approved airlines to fly interstate routes, with one exception: it’s a field far more important than air travel – the very decision of who will exert political power over American citizens.

Two minor-party candidates will be on the ballot in enough states to have a mathematical possibility of winning 270 electoral votes; Gary Johnson of the Libertarian Party and Jill Stein of the Green Party. While I certainly think it’s unlikely that either has a credible chance to win, I find it deplorable that Southwest Airlines would support a debate organization that won’t even offer them the chance to stand on stage and offer an alternative to the major parties.
I personally believe that Southwest Airlines continues to exist in the marketplace because you are different; you have more efficient business practices that allow you to streamline operations, offering lower-cost flights while still remaining profitable. Your very existence also forces the major carriers to change their practices to meet your competition. Free competition – the competition that CPD is insulating the major parties from – causes all players in the market to improve.

You offer your customers a choice, yet by your sponsorship of CPD you support a debate organization that hides choice from Americans.

I don’t believe Southwest Airlines would appreciate a monopoly action by American and United determining which airlines were entitled to land US airports. Nor do I think Southwest Airlines should sponsor a debate organizer who determines which voices are entitled to reach the ears of the American voter. As a business traveler, I fly Southwest several times each year. I do so because you offer me a compelling product not available from the major carriers. I humbly ask that you reconsider your sponsorship of an organization that won’t allow a compelling non-major product a platform in America’s most competitive product arena – our very governance.

Regards,
Brad Warbiany

» Read more

Why The Big, Dumb Spending Cuts Nobody Wants Are A Good Idea

Ezra Klein’s believes that it’s a horrible thing that the big, dumb spending cuts that nobody wants might actually happen:

The initial idea was that if the supercommittee failed, there would be automatic spending cuts and automatic tax increases. This way, both parties would have an incentive to reach a deal. But Republicans refused the tax increases side. So instead, the two sides settled on automatic spending cuts to domestic programs to hurt Democrats and automatic spending cuts to defense to hurt Republicans. And thus the big, dumb spending cuts that no one wants came into being.

…snip…

You might wonder why Republicans and Democrats, both of whom agree we should cut spending, are so dead-set against these particular spending cuts. The answer is that they are very, very dumb. A certain number of programs — Social Security, Medicaid, Medicare beneficiaries and nearly all spending directly benefiting low-income Americans — are exempt, but beyond that, everything gets pretty much the same size cut.

As a senior administration official said on a conference call today: ”The administration has no discretion in deciding the cuts identified in this report. The exempt versus non-exempt determinations are based on the requirements in the law. The administration can’t choose which programs to exempt or what percentage cuts to apply.” You can see exactly where those cuts would fall here.

In other words: Spending we consider essential gets the same size cut as spending we consider wasteful. There’s no ability to make the cuts to farm subsidies a bit bigger and the cuts to, say, the FBI a bit smaller. It’s $1.2 trillion in deficit reduction in which we pretty much don’t make a single choice about what is and isn’t worth funding.

I think that Ezra is right: these cuts are dumb. After all, that was the point. The point was to ensure that we’re going to get $1.2T of spending cuts, come hell or high water. And the fact that they’re dumb is a great incentive to find better ones.

So the options are:

  1. Get $1.2T in spending cuts that we don’t really want, but which are better than not cutting spending at all.
  2. Get $1.2T in nice, targeted spending cuts that make a lot of sense.

Contrast this to what would have happened if the sequester didn’t get put in place:

  1. Don’t get $1.2T in bad spending cuts.
  2. Don’t get $1.2T in good spending cuts, because Congress has no incentive to do anything.

I personally believe that cutting spending by $1.2T over 9 years is a good thing. I would prefer that Congress actually try to figure out where cutting that spending is most effective, slashing unnecessary and outmoded programs and departments while leaving the necessary stuff (assuming it exists!) untouched. But I’d still prefer $1.2T in “bad” cuts over not cutting spending at all.

Failure to make a deal on finding $1.2T in “good” cuts only serves as more evidence that Congress is a bunch of morons and that their collective approval rating should dip from the low teens to single digits. Frankly, that should bother them, but it doesn’t bother me.

Either way, the American taxpayer wins.

Obama Breaks Numerous Laws To Transport/Distribute Alcoholic Beverage

Okay, so the title was a bit tongue-in-cheek to get your attention… But there is a serious issue to discuss here based on a campaign stop in Iowa:

A surprising anecdote from a White House pool report this morning:

Campaign official also offers up that potus was talking about white house beer, which apparently the white house brews, she said, and one cafe patron requested a bottle, so potus sent out to Ground Force One and gave him one.

Now, I’ve known for a while that Obama is a “homebrewer” (i.e. not sure if he or someone on his staff actually brews the beer). I do think it’s pretty cool that he’s supportive of the hobby.

There’s only one minor problem with this…

Statute
§ 123.144 BOTTLING BEER.
No person shall bottle beer within the state of Iowa for purposes other than for individual consumption in a private home, except class “A” permittees who have complete equipment for bottling beer and who have received the approval of the local board of health as to sanitation, and it shall be the duty of local boards of health to inspect the premises and equipment of class “A” permittees who desire to bottle beer.

Applicable Statutory Material
§ 123.2. General prohibition
It is unlawful to manufacture for sale, sell, offer or keep for sale, possess, or transport alcoholic liquor, wine, or beer except upon the terms, conditions, limitations, and restrictions enumerated in this chapter.

I’m pretty sure that Obama, or whoever on his staff is brewing, is not a class “A” permittee in the state of Iowa. So while homebrewing is legal in Iowa, I don’t think giving a beer to a diner in a public restaurant would be legal. And I’d also think it’s pretty safe to assume that based on these statutes, “transporting alcoholic beer” on your campaign bus would be illegal, as I’m guessing that Obama’s people didn’t comply with all the different terms, conditions, limitations, and restrictions in Iowa law.

Now, I’m not a dick. I don’t want to see Obama cited for violating the law. Hell, if I was sitting in that diner, and asked him about it, I would have thought it pretty damn cool. Hell, I’d jump at the chance for him to try mine. All politics aside, I can bond with just about anyone over beer.

But I do want to point out that we don’t [or shouldn’t] have a different set of laws that apply to our elected officials than apply to the rest of us. We shouldn’t have a government that tells us that we can’t brew up a case of homebrew and drive it over to a different location to offer it free of charge to someone that might be interested in drinking it.

These are liberties that should be allowed not just for the President of the United States, but for all of us.

Eric Tweets The History Leading To The American Revolution

I’m posting this on behalf of Eric, who on twitter (@e_cowperthwaite) gave a series of tweets highlighting the key events leading up to the US Revolution & Declaration of Independence. I’m providing the whole list here:

How did the American Revolution happen? Did we really fight a bloody, 7 year war only because of taxes imposed by Parliament? #USHistory

If we care to find out, our Founders left a written record. They were committing treason and wanted to explain why. #USHistory

The roots of the American Revolution begin during the French & Indian War (aka the Seven Years War), which was very costly. #USHistory

The British govt required American products be shipped exclusively to England (Navigation Acts) in order to raise revenue. #USHistory

Next came taxes levied on molasses and sugar. Enforcing these taxes was difficult, at best. Rise of “Pirates of the Carribbean”. #USHistory

In 1765 & 66, Parliament passed: Stamp Act, Quartering Act & Declaratory Act. These led to the beginning of the rebellion. #USHistory

More info: Stamp Act http://bit.ly/niZbI Quartering Act http://bit.ly/LOaPeV Declaratory Act http://bit.ly/dD43rX #USHistory

In 1767, Parliament passes the Townshend Revenue Act to raise revenues for administration of colonies #USHistory

This results in riots & British Regulars occupying Boston. Colonial response is non-importation of British goods. #USHistory

Non-importation dries up British-American trade, and powerful British merchants get Parliament to back down. #USHistory

British occupation of Boston leads to Boston Massacre in 1770, a critical event on the path to rebellion. 5 colonists killed. #USHistory

British troops involved in Massacre are tried & acquitted or receive token punishment. Colonists react rebelliously. #USHistory

1773: Parliament passes Tea Act. This was not a tax, but rather let East India Co sell tea at very low prices in America. #USHistory

1773: the Boston Tea Party occurs when Colonists realize that Tea Act creates a monopoly on tea in the Colonies. #USHistory

1774: Parliament passes the Intolerable Acts in response to rebellious Colonists. More information: http://bit.ly/Ca315 #USHistory

Boston Port Act closes Port of Boston, gives King direct power to decide when to re-open it. #USHistory

Mass Govt Act unilaterally alters the govt of Mass, giving King direct control of Colonial Govt, limits town meetings. #USHistory

Admin of Justice Act allows Governor, not judge, to move trials of royal officials to locations outside of Mass. #USHistory

Quartering Act allows Royal Governors to house troops in colonial buildings if Colonists wouldn’t provide quarters. #USHistory

The Colonists view the Acts as a violation of their constitutional rights as British citizens and acts of tyranny. #USHistory

1774 the first Continental Congress is organized, acts to bring Colonial grievances before British govt. #USHistory

1774 Continental Congress also establishes non-importation of British goods via Association if Intolerable Acts not rescinded. #USHistory

British Govt do not allow Colonists (Franklin) to petition for redress of grievances, a right of British citizens. #USHistory

British Regulars decide to arrest Sons of Liberty leaders and confiscate arms and gunpowder of the militia. #USHistory

Ride of Paul Revere (The Regulars are coming! & lamps in North Church) to warn Revolutionary leaders. #USHistory

The battles of Lexington and Concord occur when American Militia confront the British Regulars. #USHistory

The first battle of the American Revolution is fought to prevent disarmament of British citizens by military. #USHistory

Read the Declaration of Independence for the full list of Colonial grievances against British crown: http://www.thelibertypapers.org/the-declaration-of-independence/ #USHistory

Taxation without Representation was merely one of about 30 grievances. Focus is violation of rights and tyranny. #USHistory

A clear understanding of American Revolution is that it is based on individual liberty and started because of gun rights. #USHistory

Enjoy!

‘Wendy’ Condemns Chick-fil-A President Remarks On Gay Marriage

Caught this across the wire today:

FOR IMMEDIATE RELEASE:

Wendy’s Spokeswoman ‘Wendy’ Stands With Gay Marriage Supporters

Dublin, Ohio, July 25 2012: Wendy’s corporation found Dave Thomas believed in treating all people, customers, employees, and vendors with the utmost respect. As the woman you see on the sign and in the logo of Wendy’s, it is my belief that Dave would, as I do, support the rights of same-sex couples to marry.

Being ginger, I have faced discrimination my entire life. I’ve been called “firecrotch” and “carrot top”, have endured countless barbs from people such as “you’d better get out of the sun, ginger”, and “they don’t make an SPF high enough for you.” Growing up different from your peers is hard, and when you’re already a cartoon likeness of a human being, to know that you’re a cartoon minority is itself an added struggle.

On behalf of the entire Wendy’s organization, I would like to express our solidarity with all minorities, and our firm commitment to stand beside you as you fight for equality. I would condemn other fast food chains, whether it be their company President or their chicken-hating cows, who would not offer you the same respect.

At Wendy’s, we believe that all loving couples should be afforded the same rights — the right to marry and all the legal protections that accompany the institution. We live in a nation that trumpets freedom and individual rights. It’s time to ensure that we live up to the values we espouse. Besides, I’ve got my eye on that chick from Brave. Rawr!

In addition to her role as corporate mascot, Wendy has been a tireless supporter of minority rights and equality since she was first drawn in 1969.

Contact:
Wendy
wendy@wendys.com
Wendy’s International, Inc.
One Dave Thomas Boulevard
Dublin, OH 43017

###

Quote Of The Day

David Brooks has fired up Radley Balko. And I highly recommend you go read Radley’s whole piece… It’s worth it.

One bit that I found particularly poignant, regarding why democratic politics, in particular, is not worthy of blind deference:

Politics—the quest for power because you’re sure that you, more than others, know what’s best for everyone else—has always been a profession worth ridiculing, going back to the satirists who found plenty to ridicule in the earliest democratic institutions in Rome and Greece. But here in America we have a political process—another institution subject to 236 years of fine-tuning—that’s particularly cartoonish. The set of skills it takes to get elected and achieve success in politics are not only the sorts of traits you’d never want in the people who govern you, they’re actually character flaws. They’re sorts of traits decent people try to teach out of their children. To be successful at politics, you need to be deceitful, manipulative, conniving, and mostly devoid of principle. (Principled politicians are rarely remembered as “great legislators.” And historians bestow greatness on the presidents most willing to wage war, accumulate power, and exceed their constitutional authority.) The most successful politicians sell voters on their strong convictions and principles, and then, once elected, they do as they’re told, so they can accumulate power and status within the party.

We make a big question over “which candidate we’d rather like to have a beer with” as if it’s a qualification for office. But I’ll tell you one thing — I don’t like drinking beer with pompous self-absorbed assholes. I’m certainly not going to blindly follow them.

Quote Of The Day

The AP, lamenting the fact that so many new college grads are having trouble finding work:

College graduates who majored in zoology, anthropology, philosophy, art history and humanities were among the least likely to find jobs appropriate to their education level

Actually, like the guy interviewed with a “creative writing” degree who now works as a barista, I think these folks are finding exactly the sort of jobs appropriate to their education level.

Quote Of The Day

From M.S. @ The Economist’s Democracy In America blog:

To say that most American political discourse takes place at the intellectual level of baboons would be an insult to baboons. Baboons are capable of handling two-factor reasoning problems: if I eat all the bananas now, I’ll have none left for later; better eat enough to quell my hunger now, but leave some for later. In contrast, political discourse generally takes place at the one-factor level that could be handled by, say, flatworms: Banana yummy! Hunger bad!

And politics takes place at the same level: Spend now! What consequences?!

Quote Of The Day

From Steven Greenhut, writing at Reason:

Americans suffer under the delusion that transportation systems are just that—systems for transporting people from one destination to another. What most of us fail to recognize is that the politicians, activists and planners who play the greatest role in creating those systems have far different goals than improving the way we move from Point A to Point B.

To today’s transportation movers and shakers, such systems are giant jobs-creation programs designed to boost the economy and provide high wages to members of influential unions; and the key means by which to remake society in a way that is nicer to the environment and leads to a changed citizenry that is less likely to use automobiles to get around. Think of transportation these days less as civil engineering and more as social engineering.

It sounds like a grand thesis statement, because it is. He goes on in the rest of his article to expand and justify it. But these two paragraphs crystallize why the supporters and opponents of HSR are so exasperatingly talking right past each other.

On Judge Jerry Smith’s “Homework Assignment” And Judicial Deference To The Legislature

Last Tuesday, a federal judge in the 5th Circuit, Jerry Smith, blasted a DOJ lawyer on an ObamaCare case in the wake of Obama’s comments on judicial activism. The Judge assigned the lawyer a three-page, single spaced homework assignment to draft a position on whether the judiciary has the legitimate right to overturn Unconstitutional legislation.

Everyone was up in arms over this, and to be honest, I frankly think it was pointless, in bad taste, and didn’t do anything but spin up a news cycle for about 24 hours. After reading a particular Popehat piece, I’m not all that surprised, but I’m certainly a bit dismayed that Jerry Smith decided that this was a necessary act.

Well, the homework assignment is here for all to see:

DOJ Letter to 5th Circuit re Judicial Authority

There’s a section in here that is particularly interesting. One aspect of this is an “F-U” to the judge, but points to something that I think is a bit unnecessary in Constitutional jurisprudence:

While duly recognizing the courts’ authority to engage in judicial review, the Executive Branch has often urged courts to respect the legislative judgments of Congress. See, e.g. , Nature’s Daily. v. Glickman, 1999 WL 158 1396, at *6; State University of New York v. Anderson, 1999 WL 680463, at *6; Rojas v. Fitch, 1998 WL 457203, at *7; United Food and Commercial Workers Union Local 75i v. Brown Group, 1995 WL 938594, at *6.

The Supreme Court has often acknowledged the appropriateness of reliance on the political branches’ policy choices and judgments. See, e.g., Ayotte v. Planned Parenthood of Northern New Eng., 546 U.S. 320, 329 (2006) (explaining that, in granting relief, the courts ‘·try not to nullify more of a legislature’s work than is necessary” because they recognize that’” [a] ruling of unconstitutionality frustrates the intent of the elected representatives of the people’”(alteration in the original) (quoting Regan v. Time, inc. , 468 U.S. 641, 652 (1984) (plurality opinion))); Turner Broadcasting System, inc., 512 U.S. at 665-66. The “Court accords ‘ great The “Court accords ‘ great weight to the decisions of Congress”‘ in part because “[t]he Congress is a coequal branch of government whose Members take the same oath [judges] do to uphold the Constitution of the United States.” Rostker v. Goldberg, 453 U.S. 57,64 (1981) (quoting Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 102 (1973)). These principles of deference are fully applicable when Congress legislates in the commercial sphere. The courts accord particular deference when evaluating the appropriateness of the means Congress has chosen to exercise its enumerated powers, including the Commerce Clause, to accomplish constitutional ends. See, e.g. , NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 32 (1937); McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 408 (1819). See also Thomas More Law Center v. Obama, 651 F.3d 529, 566 (6th Cir. 20 11) (Opinion of Sutton, J.); Seven Sky v. Holder, 661 F.3d 1, 18-19 (D.C. Cir. 201 1) (Opinion of Silberman, J.)

So the Supreme Court should grant a great deal of deference to Congress, because Congress cares deeply about their Constitutional obligation!

Paging the folks over at Volokh:

Most of us know that when then-Speaker Pelosi was asked where the Constitution gives Congress the power to enact an “individual mandate,” she replied with a mocking “are you serious? Are you serious?”

Here are a few more pearls of constitutional wisdom from our elected representatives.
Rep. Conyers cited the “Good and Welfare Clause” as the source of Congress’s authority [there is no such clause].
Rep. Stark responded, “the federal government can do most anything in this country.”
Rep. Clyburn replied, “There’s nothing in the Constitution that says the federal government has anything to do with most of the stuff we do. How about [you] show me where in the Constitution it prohibits the federal government from doing this?”
Rep. Hare said “I don’t worry about the Constitution on this, to be honest […] It doesn’t matter to me.” When asked, “Where in the Constitution does it give you the authority …?” He replied, “I don’t know.”
Sen. Akaka said he “not aware” of which Constitutional provision authorizes the healthcare bill.
Sen. Leahy added, “We have plenty of authority. Are you saying there’s no authority?”
Sen. Landrieu told a questioner, “I’ll leave that up to the constitutional lawyers on our staff.”

So some don’t care, and some just assume the authority exists but can’t cite it, and some make up new sections of text in the Constitution that don’t even exist. Deferring to Congress on whether or not legislation is Constitutional is like deferring to Philip Morris on whether cigarettes are good for your health.

Quote Of The Day

Arnold Kling, on the “gotcha” mentality of partisanism:

If your goal is to accumulate a fan base and fire them up, then of course calling intellectual fouls on the other side is the way to go. However, I claim that if your goal is to contribute to a discussion in which fair-minded people will consider changing their minds, then calling the other side’s intellectual fouls does not get you very far.

It’s easy, and sometimes feels good too, to blast your opponents when they do something particularly egregious. But it doesn’t accomplish much.

Point: How The Supreme Court Will Find The Individual Mandate Constitutional

This is part of The Liberty Papers’ continuing Point/Counterpoint series, where two contributors (or a contributor and a guest) argue competing sides of an issue. In this installment, I will argue that the Supreme Court has a realistic defensible argument to find the Individual Mandate in ObamaCare Constitutional. Tomorrow, Doug Mataconis will respond with a rebuttal. Links will be updated in each post as they appear.

UPDATE 4/4: Doug’s rebuttal is available here.

As always, we’re constantly looking for good debate topics for this series, and qualified guest posters to argue one side against one of the contributors.

————————————————

Stipulated up front — I believe that ObamaCare is a severe affront to individual rights, limited government, and the ideals upon which our Republic was founded. In my own view of Constitutional jurisprudence, overturning the law is a no brainer. But as with most things our government does, they’re not listening to me, so the question is simple:

Does the Supreme Court have enough precedent to find the individual mandate Constitutional?

I think they do. And the argument has several elements.

Forcing You To Act

One of the first points of contention is the question of regulating activity versus regulating inactivity. The question being whether or not the Congress can force you to act if you choose not to. Many claim that Congress forcing you to purchase a good from a private seller is a bridge farther than they’ve ever gone before.

But taking the question of “buying from a private seller” out of the equation, is anyone suggesting that the government can’t force you to do something under threat of fine or jail? Ever heard of the Selective Service? I’d say a government that can force me to report for military service to die for my country is asking something a fair bit more serious than demanding I have health insurance. The government in this case can COMPEL you to do something within its rightful power — the power to raise armies. Or on a subject less likely to result in ending up full of lead, there’s Federal jury service. The government can COMPEL you to do something within its rightful power — the power to raise courts and ensure defendants a fair trial judged by their peers.

The question isn’t whether or not the government can force you to do something — Republicans, Democrats, Presidents, and Supreme Court Justices have all agreed that it can. The question is whether or not forcing you to buy health insurance falls within the power of what they can force you to do.

The Commerce Clause

Most of the debate so far has centered around whether the mandate — a regulation of inactivity, not of activity, is within Congress’ commerce clause power. We’ve had cases like Wickard v. Filburn, where the Court has ruled that someones activity can be regulated whether or not it directly engages in interstate commerce, because the act of growing your own wheat [and not buying it from the market] may have an affect on interstate commerce. We’ve even had Gonzales v. Raich, where the Court has ruled that the grasp of Congress extends even to activities which affect an interstate market in goods the government would prefer have no market at all.

The Government’s lawyers in this case say that the mandate is Constitutional because not buying insurance may affect interstate commerce. The opposition states that Congress can regulate activity related to interstate commerce, but regulating inactivity is a bridge too far. Supporters of ObamaCare, however, do have a point here. It can hardly be argued that refusing to purchase health insurance means that you’re not impacting the US healthcare system. Unless you have an ironclad “do not treat” waiver stapled to your forehead at all times, I’m pretty certain that if you’re in a car wreck and unconscious, you’re going to become a participant in the healthcare market. And if you don’t have insurance, that’s likely to bankrupt you, cost the taxpayer a hefty sum, or both. In this case, your supposed inactivity really is activity.

But this isn’t the only argument. One of the key points that is not argued is whether or not the US Congress has the authority to regulate the US Healthcare market at all. And the reason that’s not being argued is that it’s flatly assumed that Congress can regulate the healthcare market. In fact, even most pro-liberty Constitutionalists agree that if Congress had simply voted for a single-payer system, current Supreme Court jurisprudence wouldn’t have any cause to overturn it. So this brings us to our next point:

The Necessary and Proper Clause

This is really the crux. The clause says that Congress has power to make all laws “necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States.” A long time ago, that limited the government significantly. In fact, in the fight over the First Bank of The United States, the Feds argued that the Bank was necessary to engage in all the things that the government legitimately and Constitutionally needed to do. The opponents argued that while the Bank may be convenient and helpful to the government to do what it needs to do, it was hardly necessary. They took a very strong view that the word “necessary” meant what it said — if you could accomplish the goal without doing X, then X didn’t meet the Constitutional requirement of necessity.

Sadly, the Necessary & Proper clause was one of the first to get ignored by the Supreme Court, as Randy Barnett (a lawyer opposing ObamaCare in this case) pointed out in his book Restoring the Lost Constitution. One of the key growths in Government power over the early days of the Republic was to grant deference to Government lawyers if they said something was necessary.

In this case, much of the oral arguments centered around whether ObamaCare could stand without the individual mandate. Both sides agreed that Congress has the power to regulate healthcare, but they didn’t agree that the individual mandate was, on its own, Constitutional. After all, if they can mandate you purchase insurance, which might help restrain the growth of healthcare costs, might they not also mandate you purchase broccoli, as the health effects thereof might help restrain the growth of healthcare costs?

Many ObamaCare opponents cheered at the lines of questioning whether ruling the mandate Unconstitutional would cause the entire law to fall. Those opponents believed that it was a way for the Court’s conservative wing to ensure that they could toss out the whole law, rather than simply severing the mandate. But looking at the argument another way, it proves that the mandate is necessary to the law.

So let’s look at the “necessary and proper” test. First is propriety — laws made by Congress are only proper if they relate to one of its Constitutional powers. While I might not think Congress has legitimate authority to make sweeping healthcare legislation, I think we’ve well established that current Court jurisprudence is untroubled by the idea that Congress has commerce clause power to regulate healthcare. So the test of propriety is cleared. The second is necessity: is the mandate necessary to fulfill Congress’ authority to regulate the interstate commerce of healthcare. And I think the oral arguments proved, regardless of what side you’re on in this debate, that the mandate is absolutely necessary to the structure of the law. Get rid of the mandate, and you might as well throw the whole thing out.

So if regulating the healthcare market is a legitimate authority of Congress, within their purview granted by the commerce clause, then the question becomes whether this mandate is necessary for them to exercise their authority. I think the answer, as shown by oral argument, is yes. So the government clears the bars of both the Commerce Clause and the Necessary and Proper clause.

Limiting Principles

A final argument by the opponents has been that if the mandate stands, it grants Congress ultimate power, which the Court will not allow to happen. And they’ve been encouraged by some lines of questioning in oral argument, where the “broccoli test” showed that the Government’s lawyers were unable to articulate a limiting principle of their argument.

But as loath as I am to agree with Kevin Drum on something (or whoever he borrowed the argument from), the Government doesn’t need to articulate a limiting principle. It’s up to the Court to determine whether THIS action is Constitutional. And they could very easily craft a limiting principle that allows the individual insurance mandate but doesn’t allow for an individual broccoli mandate.

How simple is it?

Q. Is the individual insurance mandate absolutely necessary to the very structure of Obamacare?
A. Yes.
Q. Is the hypothetical broccoli mandate absolutely necessary to the very structure of Obamacare?
A. No. Are you f’ing serious?

The Court already has the “necessary & proper” clause as its limiting principle. If they accept the basic structure of ObamaCare as Constitutional, extending to Congress a provision that might be Unconstitutional on its own, but necessary as part of a wider power, would not be a shock.

Conclusion

I’m not going to claim that the above argument suggests that the Court will find ObamaCare Constitutional. I’m a firm believer in the idea that the Justices often decide — like people in all other walks of life — what they want to do and rationalize an argument into it afterwards. And I think we have a pretty decent idea how 8 of the 9 Justices will decide in this case, a 4-4 tie broken by Anthony Kennedy.

Should Kennedy vote to overturn the mandate, I expect the majority opinion to fall to one of the solid conservative justices. Should Kennedy vote to uphold, he very well might pen the majority opinion. For Kennedy to accept the mandate, I think he has to see a legitimate limiting principle — and the necessary & proper clause provides both the grounds for upholding the mandate and the inklings of a limiting principle in one fell swoop. Oh, and in case you followed the oral arguments, Kennedy was *very* interested in the concept of severability and seemed to assume, whether he votes to keep it or toss it, that the mandate was necessary to the structure.

I don’t know which way this thing’s gonna go, but I’m not as confident as other libertarians, conservatives, and small-government Constitutionalists. I see a very plausible rationale for upholding it, and thus I think we’re hoping that one oft-flighty Justice happens to come down on our side of the vote.

Quote Of The Day

Is there a more worthless phrase on the political landscape than “judicial activism”?

And a court that gave us Bush v. Gore and Citizens United will prove conclusively that it sees no limits on its power, no need to defer to those elected to make our laws. A Supreme Court that is supposed to give us justice will instead deliver ideology.

Really? EJ Dionne thinks that a legislature should be able to do whatever it wants, even if it violates the Constitution (as the Florida elections board did in Bush v. Gore and the US Congress did in Citizens United)? So he wants to throw out the entire doctrine of judicial review that’s existed since the days of English Common Law & Marbury v. Madison?

No, I don’t think that’s it. I don’t think he supports the Congress doing things that are unconstitutional. He’s just attacking the Court for striking down policies he likes. Just as conservatives do when the Court strikes down policies they like.

Claims of “judicial activism” are just criticisms of a Court doing something you disapprove of. But claims that the Court should defer to the legislature are misplaced — the Court is a check on the power of the legislature, as it should be. It’s there to rein in the legislature when they try to do something beyond the bounds of their Constitutional authority. That’s not judicial activism, that’s their job.

Happiness Is A Choice

I’m not an old or wise man. I’m assuredly not qualified to dole out advice — particularly to people I’ve never met. I was raised in a family where one didn’t readily admit the existence of ones feelings much less talk about them. For everything I’ve learned, I’m still filled with more dysfunctions than I can count. But in my limited 33 years on this planet, I feel like I’ve learned more than my fair share about human emotion, and more than a few times through the painful prism of experience. So the post I’m writing is something that’s been germinating in the nether reaches of my brain for several years, and something that I’m only writing in the hopes that some people out there — a few in particular — might find something useful in my experience that they can apply to their own existence.

This post was brought to the surface by a couple of events. First, an acquaintance of mine revealed that he’s suffering from depression. The tone of the reveal suggested almost that diagnosing his own depression was itself a revelation — he could finally explain that maybe his life wasn’t causing depression, but rather his depression would be his response to anything that happened in life. It was time to treat the depression, rather than the supposed “causes” thereof. Second, in the span of about 5 weeks, both of my remaining grandmothers passed away. Now, both were already in their mid-nineties, so their passings were neither unexpected nor particularly [in the grand scheme of death] tragic. So, rather than the passing itself, it was my own response to it that suggested I might want to finally write this post.

Like my acquaintance, I’ve dealt with depression in my life. Sadly, I think that statement is likely true of anyone that grew up a nerd in teenage America. My story isn’t one of physical bullying — being bigger than most of the other kids, that wasn’t as common an option as it might have been for other kids. Nor was it, like many kids, due to actual shortcomings — I was smart, moderately athletic, lacked glasses, etc. Rather, it was borne of the father of most bullying — poor self-confidence and an inability to properly understand how to deal with the social rules of childhood. I didn’t learn it until later, but kids are cruel, and they’ll pick at weakness and demean others in a screwy attempt to make themselves feel worth. And I didn’t understand until much later that adults will do the exact same crap.

So I dealt with depression in the way most teenagers do: listening to Nine Inch Nails and Rammstein, thoughts of suicide, and being full of such rage that it ate away at my very soul. I vacillating between the fear that something was seriously wrong with me and the certain knowledge that everyone else was horrible and depraved. It was a miserable existence.

But I was lucky.

During those teenage years, I was involved in martial arts. Now, before my fellow nerds get too excited, I should point out that this story doesn’t end with me mercilessly pummeling a tormentor, on behalf of myself or others. But it involved two very important things: teaching and public demonstration. The school at which I studied had a policy that at brown belt, students were expected to be assistant instructors in classes for the lower ranks. At black belt, one was expected to be capable of mostly leading a class. And as much as it might be meaningless to most people to be referred to as “Mr. Warbiany” at the age of 16 by ones temporal elders, at the time and place I was at in my life, that little show of respect helped me build a bit of self-worth. The demonstration team was a group that went out to public events to put on martial arts demonstrations, and I was lucky enough to play a prominent role. As a very large individual, I played a good “fall guy” — everyone likes to see the big guy lose. But again, it helped me develop a sense of self-worth that I might not have otherwise had. Those experiences gave me a level of confidence in public speaking opportunities that helps me in my career to this day.

The second formative experience that changed my understanding of the world occurred in college. I chose to join a fraternity, and a house full of 50 college males is not exactly a bastion of sympathy and concern for others’ feelings. I fell back into a state of low confidence, and the more cruel of the brothers there [as I mentioned, these personality traits don’t always disappear with age] were more than willing to engage in the same sort of bullying behavior that schoolkids will engage in. My first year or so living in the house was torture. But at some point in there I learned to accept the normal slights and criticism inherent in fraternity life, roll with it with a smile on my face, and occasionally dish it right back rather than sulking in offense. And I learned a critical fact: the people who had previously been busting my chops stopped, because they knew I couldn’t handle it before and now I could. And the people who hadn’t busted my chops started, because they realized that I could take it in stride and wouldn’t be offended. The cruel ones had nothing to feed on, and the non-cruel ones realized that I could start having fun. But the biggest thing I learned from that experience was this:

We can define our selves not by what happens to us, but by how we respond to it.

At that point, a lot changed. A life spent in opposition to most of normal society lends itself to introspection. A newfound understanding of mastery over ones own mental state gives one the tools to apply that introspection. I’ve used the intervening years to better understand myself, my happiness, and how I can work to improve both. And it led to realization #2:

Happiness is a choice.

I realize I have a lot in life to be happy about. The advantage of growing up a nerd is that it often leads to careers that the “normals” aren’t interested in. For me, I went down the engineering path, and my particular career path makes use of the public speaking and presentation skills I picked up. I managed to meet a wonderful woman who — although she doesn’t understand me as a nerd — is social enough to ensure our children are far more socially well-adjusted than I ever was. The conscious decision to respond positively to situations I face both personally and professionally not only makes me happier, but people around me respond to it as well.

But there’s a lot in life that’s difficult as well. As I revealed not long ago, one of my sons was diagnosed with autism back in October. And as I’m not one to “talk about my feelings”, it’s gone into the well inside where such things fester. Likewise with the passing of my grandmother 5 weeks ago. I had to tell my boss and coworkers, of course, since I needed to fly to Chicago to attend the funeral. With all my dysfunctions, I found myself unable to accept peoples’ condolences, not wanting anyone to worry about me and pointing out that she was 93, had Parkinson’s, and was deteriorating, so it was expected. I’ve never understood why I must deflect someone’s polite concern in such a way. Then, to lose my other grandmother 5 weeks later, and not even be able to fly back to attend the funeral (due to cost, my own nasty cold, etc) to say goodbye and spend time letting it set in with my family. And while I am always appreciative of my job, it’s a particularly defeating kind of stress to be working closely with a customer testing and qualifying a new product, and then to find out 3 weeks before release that the product has been cancelled. Even worse when the replacement then gets delayed by 5 months. Watching your hard work be made irrelevant by forces outside your control will really take the wind out of your sails.

But as I said, how we define ourselves is not in what happens around us, but how we respond to it. I’m not much of a Kenny Chesney fan, but one song of late has somewhat seemed to fit the mood:

The first half of the song is about responding to the negative. The second half is about recognizing and enjoying the positive. Both are equally important.

Life throws curves at all of us. We deal with them. Some rely on God — I can’t as I don’t believe. Some people choose to wallow in the negative. I don’t have time for that. Only I can control my happiness, I’m not going to let it be defined by what life throws at me.

When my son was diagnosed with autism, I said that while it certainly isn’t something we wanted to hear, the very diagnosis gives us a roadmap. We know he’s going to develop differently than neurotypical children, but we can anticipate the troubles he’ll face and prepare him for them. Many parents have to deal with issues that they can’t diagnose or define. When my grandmother passed away, I looked on the bright side — it resulted in the first time that I’d be in the same room with all of my siblings at once in over 3 years. It was my first opportunity to meet two of my newly-born nieces, one who was 14 months old at the time. And while it was sad to see my grandmother go, I know that she’d been in terrible pain for a long time, and the fact that she was freed from that pain was itself a blessing. As a nonbeliever I don’t think she had some “better place” to go, but I can be consoled in the fact that she’d managed to spend 93 years on this rock; many of us won’t be so lucky. Some of what I learned simply from hearing others speak of her younger days reminded me of her not as a feebled old woman with Parkinson’s but as a young and vibrant woman with a zest for life. When my other grandmother passed, it was terrible to know that I couldn’t make it back to Chicago for a funeral, but I was lucky enough that I’d been able to see her and spend several hours with her at the previous funeral. While I couldn’t mourn her with my family, I at least got to see her before she went. Setbacks at work are no fun for anyone, but they happen. I can focus on the positive lessons learned through those setbacks — there are always lessons to be learned. I can focus on how those lessons will help us improve practices and products going forward.

Happiness is a choice. It’s a choice that resides inside you. You can’t control the world around you. Sometimes it’s going to treat you well, and sometimes it’s going to deal you a shit sandwich. If you respond negatively to the world, I honestly believe that you’re going to have trouble even enjoying your success. Dwelling on failure makes you difficult to be around and creates the self-fulfilling prophecy for failure. If you respond positively, setbacks become minor. You set yourself up to maximize profit from the positive events you encounter, and you start to focus turning crisis into opportunity rather than a pity party.

Happiness is a choice. Own your choice.

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