Author Archives: Doug Mataconis

The Intellectual Absurdity Of Libertarian-Conservative Fusionism

The libertarian movement finds itself immersed once again in a debate over strategy and where, exactly libertarianism fits in to the American political milieu. Specifically, I’m referring to the ongoing debate about “fusionism” that is perhaps best typified by the May 2013 exchange of essays over at Cato Unbound, which I recommend that everyone who is concerned about the future of what some people have started to call “the liberty movement” read. In it’s most basic form, fusionism refers to the idea that libertarians ought to ally themselves with the conservatives as a way of advancing their ideas. Implicit in this position is the idea that libertarians and conservatives have enough ideas in common to form a coherent political alliance, and that the differences are minor enough that the political alliance can be maintained without one side being subsumed into the other and rendered a virtual nullity.  Most specifically, I would argue that this is the danger that libertarians face in any alliance with a conservative movement that is far more numerous and political powerful, and one of the many reason why any argument in favor of fusionism should be viewed with deep skepticism.

The most important thing to remember in dealing with the entire fusionism debate is that, contrary to Ronald Reagan’s famous quote in a 1975 interview with Reason Magazine that “the very heart of  conservatism is libertarianism,” there are and always have been significant differences between conservatives and libertarians when it comes to basic political philosophy.Where conservatives place significant value in the preservation of “tradition” and generally stand against the idea of radical change, libertarians generally advocate a political philosophy that stands in direct challenge to the status quo, rejects the idea of tradition for tradition’s sake, and emphasizes the primacy of the individual over the group, whether that group be the “traditional family,” the church, or the state. On some level it’s hard to see how conservatives and libertarians can be compatible with each other on any level given their significant core differences.

Even getting beyond the core differences, though, the similarities between conservatives and libertarians are far less obvious than might seem at first glance. For example, it is often stated that libertarianism is basically a mixture of “fiscal conservatism and social liberalism,” meaning that libertarianism is a blend of conservative economic policy and “liberal” social policy on issues such as personal freedom. However, as Jeremy Kolassa pointed out in his initial essay during May’s Cato Unbound debate, there are significant differences between libertarian and conservative views on economics and government fiscal policy:

[W]hat about economics? Surely we can agree with conservatives there. But let’s be honest, Jonah Goldberg was incorrect in saying that Friedman, Hayek, et. al were the Mount Rushmore of conservative economics. Conservative economics is more aptly described by the term “trickle down”: By giving tax breaks and subsidies to corporations and those at the top, the wealth will flow downward and lift the boats of those at the bottom. But that is not increasing freedom or limiting government, it is merely tilting society in the direction of one group rather than another.

That’s not libertarian. A libertarian economic policy would be to eliminate all the subsidies given to businesses, give the tax breaks to everybody, and knock down the barriers that prevent newcomers from setting up businesses. Libertarianism is universalist, not top-down.

This highlights the major difference between “libertarian” and “conservative” economics. Libertarians are pro-capitalism. Conservatives are pro-business. While they sound similar, these ideas are emphatically not the same and never could be. Through the means of creative destruction, capitalism frequently tears down and destroys established businesses. Conservatism, however, in its quest to maintain the status quo, steps in to prevent this. The best example? 2007. If conservatives were truly pro-market, they would have never passed TARP, but they did and bailed out the banks. That’s a conservative, not a libertarian, economic policy.

If conservatives and libertarians can’t even really agree on economic policy, then where’s the basis for the alliance?

Perhaps my biggest problem with fusionism in its current incarnation, however, is the extent to which it demands that libertarians silence their criticism of their so-called conservative allies in the name of “unity.” Even if one accepts the argument that libertarians and conservatives are on the same side when it comes to economics, there is no denying that there are significant differences between the two sides on many issues. The most obvious, of course, are social issues such as gay marriage, the drug war, pornography, and, for some but not all libertarians, abortion rights. In addition to that, it’s generally the case that libertarians have a far more restrained view of what proper American foreign policy should be than conservatives do, even in today’s era where conservatives suddenly seem to have become anti-war when the war is being led by Barack Obama. Based on those differences alone, the idea that libertarians and conservatives are just two sides of the same coin is clearly false.

So, this leads us to the inherent flaw of modern fusionism. People who consider them libertarians are expected to join conservatives in their vehement, and often insane when expressed by people like Michele Bachmann and Allan West, criticisms of the left, and they are also expected to keep their mouths shut when it comes to criticism of their so-called conservative allies when they advocate policies that clearly violate libertarian principles. That’s not an alliance, it’s surrender. If libertarians stay silent while conservatives continue to push continually absurd arguments against marriage equality that advance hateful and bigoted stereotypes about homosexuals, for example, then they are essentially abandoning their principles in favor of short-term, and likely quixotic, political gain. There is no value in keeping your mouth shut just so you can be part of the political “Cool Kids Club.”

None of what I’ve said here should be taken as a rejection of the idea that libertarians should reject the idea of temporary alliances with people on the right to advance specific issues. There are plenty of such issues where conservatives and libertarians can find common ground to push through policies and make progress on the local, state, and federal levels, and coalitions have always been a part of politics in the United States.  However, there’s a difference between coalitions and surrender, and it’s clear to me that fusionism demands nothing more than abject surrender from libertarians and expects them to become little more than the lapdogs of conservatives. Well, we’ve tried that one before, my friends, and it didn’t work. We’d be foolish to try it again.

On a final note, I’d like to note that conservatives aren’t the only ones at fault here. One of the major problems with libertarianism is that, in many ways, it is not a coherent philosophy but rather a hodgepodge of different philosophies that have united under the banner of libertarianism. Among our ranks there are minarchists, Hayekians, the Mises crowd, fans of Milton Friedman, utilitarians, Christian libertarians, anarchists, and anarcho-capitalists. Given that the general principles of libertarianism are still very much in the minority in the United States, perhaps its inevitable that people who clearly have their own deep philosophical differences. However, the lack of a core philosophy is, arguably, one of the biggest weaknesses of libertarianism. I intend to address that issue in a future post.

Ron Paul’s Farewell Speech

When the 112th Congress comes to an end, it will also mark an end to the political career of Ron Paul, who represented the 22nd Congressional District in Texas from 1979 to 1985 (after serving a one term stint from 1976 to 1977) and the 14th Congressional District from 1997 through 2012. I’ve had made disagreements with Ron Paul over the years, specifically involving his ties to people like Lew Rockwell and the unfortunate history surrounding the newsletter he published during the years that he was absent from Congress. However, he’s also the first person I ever voted for as a Presidential candidate way back in 1988 when he was the Libertarian Parry’s candidate in 1988. Despite his faults, he was always a steadfast advocate for individual liberty and limited government at home, and a restrained foreign policy abroad, both of which are things I support wholeheartedly.

Thankfully, the fact that he’s leaving Congress doesn’t mean that the voice of liberty has been silenced on Capitol Hill. There are others who have already taken up the cause, such as Michigan Congressman Justin Amash, just elected to his second term last week, and, of course Senator Rand Paul. One can hope that their caucus becomes larger in the years to come.

Here’s Congressman Paul’s speech. It lasts nearly an hour, but it’s well worth listening to:

Supreme Court Upholds Affordable Care Act

As Quincy notes below, the Supreme Court upheld the Constitutionality of the Affordable Care Act today by relying upon an argument that most people had not been paying attention to:

WASHINGTON — The Supreme Court on Thursday left standing the basic provisions of the health care overhaul, ruling that the government may use its taxation powers to push people to buy health insurance.

The narrowly delineated decision was a victory for President Obama and Congressional Democrats, with a 5-to-4 majority, including the conservative chief justice, John G. Roberts Jr., affirming the central legislative pillar of Mr. Obama’s presidency.

Chief Justice Roberts, the author of the majority opinion, surprised observers by joining the court’s four more liberal members in the key finding and becoming the swing vote. Justices Anthony Kennedy, frequently the swing vote, joined three more conservative members in a dissent and read a statement in court that the minority viewed the law as “invalid in its entirety.”

The decision did significantly restrict one major portion of the law: the expansion of Medicaid, the government health-insurance program for low-income and sick people, giving states more flexibility.

The case is seen as the most significant before the court since Bush v. Gore ruling, which decided the 2000 presidential election.

In addition to its political reverberations, the decision allows sweeping policy changes affecting one of the largest and fastest-growing sectors of the economy, touching nearly everyone from the cradle to the grave.

The political fight over health care remains far from over, with Republicans campaigning on a promise to repeal the law, which they see as an unaffordable infringement on the rights of individuals. The presumptive Republican presidential nominee, Mitt Romney, has promised to undo it if elected.

Chief Justice Roberts wrote that the decision offers no endorsement of the law’s wisdom, and that letting it survive reflects “a general reticence to invalidate the acts of the nation’s elected leaders.”

“It is not our job to protect the people from the consequences of their political choices,” he wrote.

The court’s ruling is a crucial milestone for the law, allowing almost all of its far-reaching changes to roll forward. Several of its notable provisions have already taken hold in the past two years, and more are imminent. Ultimately, it is intended to end the United States’ status as the only rich country with large numbers of uninsured people, by expanding both the private market and Medicaid.

The key provision that 26 states opposing the law had challenged – popularly known as the individual mandate – requires virtually all citizens to buy health insurance meeting minimum federal standards, or to pay a penalty if they refuse.

Many conservatives considered the mandate unconstitutional under the commerce clause, arguing that if the federal government could compel people to buy health insurance, it could compel them to buy almost anything — even broccoli, the archetypal example debated during the oral arguments three months ago.

In a complex decision, the court found that Congress’ powers to regulate commerce did not justify the mandate. But it reasoned that the penalty, to be collected by the Internal Revenue Service starting in 2015, is a tax and is not unconstitutional.

Chief Justice Roberts, in the majority, said that the mandate was unconstitutional under the Constitution’s commerce clause. But that did not matter if the penalty that enforces it was constitutional on other grounds.

The court’s four liberals made it clear that they disagreed with the Chief Justice’s view of the commerce clause, but joined him because the effect of his ruling was to let the law stand.

The Obama administration had said in court in 2010 that the mandate could be upheld under the taxation powers, which they called even more sweeping than the federal power to regulate interstate commerce.

The outcome, I think, is striking many people as a surprise for two reasons.

First of all, if there was any Justice on the Court who seemed likely to be the fifth vote along with the Court’s four liberal members to uphold the ACA, it would be Justice Kennedy. Indeed, after the end of three days of oral argument in March it had seemed as though Roberts was largely in line with Justices Scalia and Alito (and Thomas) in being skeptical of the mandate’s Constitutionality while Justice Kennedy was the one who seemed to be trying to find way to uphold the mandate. One thing this teaches us is that most predictions you hear about the Supreme Court are usually just wild guesses, and that you can’t always determine how a case is going to turn out based on the oral arguments. In the end, rather than Kennedy being the deciding vote in this case, it was Chief Justice Roberts who sided with the Justices Ginsburg, Breyer, Sotomayor, and Kagan to uphold the signature domestic legislation of a Democratic President who has, in the past been critical of many of the Court’s rulings under Roberts.

The second reason this is a surprise is the fact that it was the tax argument that ended up being the basis upon which the law was upheld. For the past two years, nearly all the discussion about the legal merits of the ACA have centered around the question of whether it could stand as a proper application of Congress’s power under the Interstate Commerce Clause. There was a side argument being advanced on behalf of the government in the ensuing litigation that argued that the mandate could also be upheld under the taxing power, but it generally didn’t get much attention from the media or those who were actively engaged in the fight against the law. More importantly, none of the Federal Courts that heard the challenges to the law before it got to the Supreme Court adopted the tax argument as a reason for sustaining the law. Some of those Courts explicitly rejected the argument, while others simply stated that they did not need to rule on the arguments because they found the mandate constitutional under the Commerce Clause. Additionally, at the Supreme Court arguments in March, the lawyers and Justices spent far more time talking about the Commerce Clause arguments than the tax argument. To a large degree, that argument had been filed away and largely forgotten. But, as we see today, not completely forgotten.

It was Law Professor Jack Balkin who first advanced the  argument that the mandate was Constitutional precisely because it was a tax:

he individual mandate, which amends the Internal Revenue Code, is not actually a mandate at all. It is a tax. It gives people a choice: they can buy health insurance or they can pay a tax roughly equal to the cost of health insurance, which is used to subsidize the government’s health care program and families who wish to purchase health insurance.

(…)

The Constitution gives Congress the power to tax and spend money for the general welfare. This tax promotes the general welfare because it makes health care more widely available and affordable. Under existing law, therefore, the tax is clearly constitutional.

The mandate is also not a “direct” tax which must be apportioned among the states by population. Direct taxes are taxes on land or “head” taxes on the general population. The individual mandate does not tax land. It is not assessed on the population generally but only on people who don’t buy insurance and aren’t otherwise exempt. It is a tax on behavior, like a tax on businesses that don’t install anti-pollution equipment.

Many important and popular government programs are based Congress’s ability to give incentives through taxation and redistribute tax revenues for public purposes. To strike down the individual mandate the Supreme Court would have to undermine many years of precedents justifying these programs that stretch back to the New Deal (and in the case of the rules for direct taxes, to the very founding of the country).

Many dismissed Balkin’s argument but it was clear even when he wrote that back in March 2010, shortly after the law had been passed by Congress, that if the Court accepted it then the entire argument against the mandate specifically and the law in general would crumble into dust. And, that is exactly what has happened today.

We’ll be spending much time arguing the political ramifications of this decision, but it’s fair to see that this is now what most people were expecting. For the past two weeks or so, and indeed ever since the arguments in March, the left has seemingly been preparing itself for the likelihood that they would lose the mandate, if not the entire law. I didn’t see very much of this on the right, but now they’ll have to deal with the fact that they legal arguments they had been rallying around for two years have been rejected, and that if the ACA is going to be repealed it will have to be done by Congress. Given the fact that it’s very unlikely that Republicans will get 60 votes in the Senate any time soon, it strikes me that this is quite unlikely to happen.

Gary Johnson: “Be Libertarian With Me”

Gary Johnson’s Presidential campaign has released a new web ad, and it may be their most effective to date:

Johnson has managed to get some top-notch political advisers behind him, and he has experience running for office in somewhat hostile territory so things seem to be going well for him right now. The question is whether they’ll be able to make a credible enough case

Libertarian Party Nominates Gary Johnson For President

The Libertarian Party held its convention over the weekend in Las Vegas and, as many had been expecting, overwhelmingly nominated former New Mexico Governor Gary Johnson as their Presidential nominee:

Aside from the muscular gentleman in the slinky party skirt and halter top, a delegate wearing a Guy Fawkes mask and a prominent speaker sporting a powdered wig, it was a typical political convention.

And by the time the Libertarian National Convention concluded in Las Vegas on Saturday, party members had the man they hope can propel them to relevance in presidential politics.

Former New Mexico Gov. Gary Johnson won about 70 percent of the vote on more than 600 ballots, finishing well ahead of Libertarian newsletter founder Lee Wrights.

What it means is Johnson, a former Republican who served two terms as governor from 1995 to 2003, will carry the party’s torch in a campaign against Democratic incumbent President Barack Obama and presumptive Republican nominee Mitt Romney.

Johnson says a “pie-in-the-sky” goal for himself and vice presidential candidate Jim Gray, an Orange County, Calif., Superior Court judge and outspoken critic of the war on drugs, is to generate enough support to qualify for debates on the same stage as Obama and Romney.

“If that happens, anything is possible,” Johnson said. “I don’t think either Obama or Romney are talking about solutions to the problems.”

He’s betting a swell of supporters for Republican presidential candidate Ron Paul will shift to the Libertarian candidates once Romney becomes the nominee.

“As much as I would like (Paul) to be the nominee, I don’t think that is going to happen,” Johnson said.

Johnson is right about that point, of course. Ron Paul is not going to be the Republican nominee, and even the apparent delegate wins his supporters are racking up at state party conventions in caucus states aren’t going to amount to much of anything in the end. So Paul’s supporters will have a choice, either they support Johnson, they become loyal Republicans and back Romney, or they stay home on Election Day. Johnson is obviously hoping they they choose the first option.

This is the second time in two election cycles that the Libertarian Party has nominated a former Republican elected official as their nominee. Last time, of course, it was former Georgia Congressman Bob Barr and while the results of his campaign were disappointing, Barr did end up getting more votes than any Libertarian Party Presidential nominee since Ed Clark got close to a million votes in 1980. Can Johnson get close to that? Conor Friedersdorf makes a good point in that regard:

A former governor of New Mexico, he was re-elected by that state’s voters, left office popular after two terms, and therefore has the most executive experience of any Libertarian Party presidential nominee. He can also cite the state he ran as evidence that nothing radical happens when he’s put in charge. An economic conservative and social liberal, he represents a new direction for a party that has long wrestled with its paleo-libertarian wing. And yet he too is certain to lose on Election Day, as third-party candidates in American presidential elections do. The question is whether he can match his party’s 1980 high-water mark and win 1 percent or more of the vote, and whether he might win even more in the key swing state of New Mexico, where voters already know and have cast ballots for him.

That would certainly make things interesting wouldn’t it? If Johnson ended up costing the GOP a pick-up in New Mexico, then maybe they’ll stop ignoring the libertarian vote for once.

To be realistic, though, the prospects for third-party candidates are never good and they’re unlikely to be much better. Perhaps the greatest role that Johnson can fulfill with this campaign is to become a strong and effective spokesperson for libertarian ideas around the nation, and to stand as proof that you can indeed by an ideological libertarian and govern effectively. That would be no small accomplishment.

Wayne Allyn Root: Once Again, A Phony Libertarian

You may remember Wayne Allyn Root as the sports betting “expert” cum political commentator who ended up being Bob Barr’s running mate on the 2008 Libertarian Party Presidential ticket. In 2010 he was elected to a position on the Libertarian National Committee and, while many had figured he’d be running for the Presidential nomination this year, he doesn’t appear to be doing so.

Perhaps that’s because he’s decided that Libertarians need to vote for Mitt Romney.

Yes, you heard that right, a member of the Libertarian Party’s governing body said on the Cinncinnati-based Bill Cunningham show [Podcast here] that he’s supporting Mitt Romney and so should other libertarians:

I think the important thing now is to make sure Obama is not elected,and that means in my mind, I would love for a libertarian like Gary Johnson the two term governor of New Mexico would actually get elected President, but I think we all know that’s not going to happen so therefore it’s got to be Romney there is no choice.

Root purported to defend himself in a comment thread at the Independent Political Report:

I said in a perfect world I’d like to see Gary Johnson elected President, he’d be the best choice out there…I also said several times on the call that Mitt Romney is a big spending, big government Northeast liberal…that he will make very little difference because of this…

And that the difference between Obama and Romney…

Is that Romney will slow down our path off a cliff just a bit…and Obama will take us off the cliff in a matter of minutes.

But neither is good enough to save USA from long decline towards mediocrity.

And that Romney’s victory will most probably prove that neither party can change our problems enough to save the economy…so hopefully it will lead to a serious Libertarian third party threat in 2016…of which I plan to be the Presidential candidate.

That’s what I said. It’s on tape. Sorry folks but you can’t take things out of context.

Nobody’s taking anything out of context Wayne. In fact, I think your comment at IPR makes it fully clear what this is really all about. Since you can’t be the LP nominee  in 2012 you apparently have no problem with throwing the guy who most likely will be the nominee under the bus, clinging on to the theory that you’re going to somehow be the nominee in 2016. What happened to that promise in your book that you were going to be the LP nominee in 2012, 2016, and then win the White House in 2020?

Root has every right to his opinion, of course, what he doesn’t have the right to do is trash the party he’s purporting to represent for his own personal interests. If he wants to endorse and vote for Mitt Romney in 2012, that’s his choice. I think it’s a stupid one, but people have the right to make stupid choices. What I don’t understand is how he can continue holding a position of supposed responsibility in the Libertarian Party while endorsing a Republican instead of his own party’s nominee, and I’m not even a member of the LP. The point isn’t that Root doesn’t have a right to endorse Romney, but that it’s an insult to the party he claims to represent that he does so while sitting on the party’s National Committee.

Of course, I was telling people Root was a phony two years ago, and when he almost participated in a birther “trial” of Barack Obama, and then again when he took the side of religious bigots in the controversy over the so-called Ground Zero Mosque.

Nobody should be surprised his latest antics, really.

Counterpoint: The Supreme Court Will Find The Individual Mandate Unconstitutional

Earlier this week, Brad Warbiany started out the latest in our occasional series of Point-Counterpoint exchanges by arguing that the Supreme Court will ultimately uphold the Constitutionality of the Patient Protection And Affordable Care Act’s individual mandate. I’ll start off by saying that this is not an all implausible. Indeed, I’ve argued myself in the past that the odds were quite good that the Supreme Court would uphold the constitutionality of the mandate. Moreover, as Brad notes, the history of the Supreme Court’s Commerce Clause jurisprudence has been one where the Court has essentially been nearly completely deferential to Congressional exercises of authority in this area. If one were making a bet, the safe bet would be the one that says the mandate would be upheld. Nonetheless, as I argue below I believe that the Supreme Court will in the end strike down the mandate, although the fate of the rest of the PPACA remains far from certain.

The Mandate Forces Citizens To Act In A Manner Never Before Seen In American History

Brad argues against the assertion that the mandate is unique in American history because it forces citizens to purchase a product from a private seller by pointing to examples of other things that the government forces people to do, such as the military draft and jury service. It’s correct that these programs are, at least theoretically, authorized by various provisions of Article I, Section 8. However, that’s very different from what the mandate purports to set in place, which is a requirement that every person in the United States engage in a specific commercial transaction whether they choose to or not. As more than one legal commentator has noted, this is unprecedented in American history and likely one of the main reasons that the PPACA itself has aroused the ire of such a large segment of the American public. As a general rule, Americans don’t like being told what to do by the government and, for many people, this was a bridge too far.

The question is whether it is authorized under the Constitution, and I think the case in favor of it is far stronger than the supporters of the law have been willing to admit up until last week’s hearings.

The Commerce Clause

As I noted above, the Supreme Court has, at least since the New Deal Era, been very deferential to Congressional assertions of authority under the Commerce Clause. This started, as Brad notes, with the case of Wickard v. Filburn in which the Court upheld a provision of the Agricultural Adjustment Act that allowed Federal authorities to bar a farmer from growing “excess” wheat even though he would not be selling it and would solely be using it for personal use on his farm. The Court reasoned that this was acceptable because the farmer’s actions had an impact on Interstate Commerce, even though it might only be a small one. It’s a decision that has always aroused the ire of advocates of limited government and it’s implications are wide ranging. Thanks to Wickard, the Court spent some 50 years rubber stamping Federal assertions of authority under the Commerce Clause. Indeed, after the New Deal Era there were very few challenges to such laws that even made it to the Supreme Court.

Then, in the late 90s things took a surprising change. In Morrison v. United States, the Court struck down several provisions of the Violence Against Women Act which purported to make domestic violence a matter for federal law enforcement under certain circumstances. The Court held that there was no evidence that domestic violence had any connection at all to interstate commerce that would justify giving the Feds police authority that is properly the authority of state governments. Several years later, in Lopez v. United States, the Court struck down the Gun Free School Zones Act on the ground that there was not a sufficient nexus with interstate commerce. Suddenly, it seemed, the Court was finding limits to the Commerce power. There seemed to be a setback when the Court upheld Federal drug charges against a California medical marijuana dealer in Gonalez v. Raich, but there’s a good argument to be made that this case is distinguishable based on the fact that it dealt with illegal drugs and that the Court was unwilling to issue a ruling that would have thrown every single Federal drug law into Constitutional doubt. Had Gonzalez dealt with any other commodity, it’s quite conceivable that it would have gone the other way.

It’s been said by PPACA advocates that striking down the mandate would require the Court to overrule 70 years of Commerce Clause precedent, but Morrison, Lopez and even Raich, show that this isn’t necessarily true. Each of the courts that have struck down the mandate have held that the problem with the mandate isn’t that the Courts have been wrong for the past three-quarters of a century about the Commerce Clause, but that even those precedents do not authorize what Congress wishes to do in this particular case. Indeed, it is perfectly easy to distinguish Wickard and its progeny from the PPACA mandate in a way that preserves precedent and yet compels the conclusion that the mandate is a Constitutional bridge too far.

This is what I expect the Supreme Court to do when it issues its opinion in June. Much to the relief of liberals and the chagrin of conservatives, striking down the individual mandate will not mean that the New Deal will be rolled back. What it will mean, though, is that, as in Lopez and Morrison, the Court will be drawing a line and saying that Congress cannot cross it because it does not have the Constitutional authority to do so. It will, in other words, further articulate a limiting principle for the Commerce Clause.

Which brings me to the next part of Brad’s argument I need to address.

Limiting Principles

Brad is correct that the Court could construct a limiting principle if it ends up saying that the mandate is Constitutional. Perhaps this is what it will end up doing. However, it is worth understanding the importance of the failure of the Government to articulate a limiting principle when asked for one by the Court. For one thing, this isn’t the first time that the Court has failed to do so. Reviewing the transcripts of oral argument in many of the lower court proceedings, one runs into other occasions when Judges inquired of the attorneys for the Government whether they believed that there was any limit on the Commerce Power given their arguments in favor of the mandate. In no case were the attorneys willing or able to do so. In some cases, this was cited by Judges as a reason that the mandate cannot be upheld, in others it wasn’t (athough it is worth noting that lower Court judges are bound by precedent from the Supreme Court in a manner that Supreme Court Justices are not).

As a purely tactical matter, it strikes me that an attorney who is unable to provide an answer when a Judge asks “If I rule in your favor, what guarantee is there that I won’t be establishing a precedent to do X” is potentially damaging their case. Most judges are not, by their nature, radicals.Meaning that if they can avoid issuing an opinion that could have far reaching consequences they are likely to do so. It was quite evident from the questioning during last week’s oral argument over the individual mandate that the Court, and specifically Justice Kennedy, has some concerns about the future implications of issuing an opinion upholding the mandate. The Solicitor General’s failure to provide an answer may end up being fatal to the Government’s case.

The Necessary And Proper Clause

This is perhaps the strongest argument that Brad raises. Under the broadest interpretation of the Supreme Court precedents on this case, anything that is necessary for Congress to carry out one of it’s authorized powers is Constitutional. Indeed, this is pretty much what the Supreme Court said when it authorized the creation of the First Bank Of  The United States in McCullough v. Maryland. For that reason alone, it’s interesting that there was so little discussion of the necessary and proper clause during the oral argument last week. Partly, this may be because the law here is pretty much settled and has been for nearly two centuries but one would have thought that Paul Clement, the attorney for the states would have been subjected to some strong questioning on this topic by the Justices on this issue. He really wasn’t, although there was some discussion about whether the health care market was “unique” in some way that made this mandate permissible.

The problem with this argument that it still leaves the Court searching for a limiting principle. If Congressional power under the Commerce Clause to regulate the interstate health care/health insurance market is so broad that it can enact a law that includes a requirement that all Americans purchase insurance, then does that mean that its power to regulate the interstate automobile market is so broad that it can enact a law requiring Americans to buy only American made cars? Even if the Court were to decide that the Necessary and Proper Clause was sufficient authorization for the mandate, it would still be left with the limiting principle question. And my reading of the Court at this time is that there is a majority right now that is unwilling to issue an opinion that would essentially be an open door to Congressional intrusion in even more aspects of the economy, and an end to any hope that there could be limits imposed on Washington, D.C.

Conclusion

I could end up being totally wrong about this, of course. This case is so closely dividing the Court that it’s impossible to guess how it will turn out. I will say that I think that if the mandate is struck down we are looking at a 5-4 decision because there is just no way that I can see Breyer, Ginsburg, Sotomayor, or Kagan going over to the side of the conservatives on this issue. However, if the mandate is upheld I would not be surprised to see it be a 6-3 decision for a very specific reason. Ordinarily, the most senior Justice in the majority gets to decide who writes the majority opinion. However, if the Chief Justice is in the majority he gets to make that decision. If Kennedy ends up voting to uphold the mandate then I could see Chief Justice Roberts joining him so that he can write the opinion himself and make the precedential value of the decision as limited as possible.

However, if the Court were to strike down the mandate, I believe I’ve laid out a perfectly rational, Constitutional basis on which they would do so. That doesn’t mean there won’t be a political firestorm, of course, but there is going to be a political firestorm no matter how the Court rules. I don’t think there’s ever been a time in American history when such an important case was in the hands of the Court in the same year as a Presidential election. Especially an election where the very issue the Court is dealing with, the limitations on the authority of the state contained in the Constitution, were also the central issue in the Presidential election. It’s going to be a very interesting opinion regardless of which way it comes down.

Gary Johnson Invited To 9/22 Fox News/Google Debate

For the first time in four months, former New Mexico Governor Gary Johnson will get to participate in a nationally televised Republican debate:

Gary Johnson, the Republican presidential candidate who has labored in obscurity, is about to get his moment in the spotlight—for one night, at least.

Johnson will be included in Thursday’s Fox News debate in Orlando, the first time he will share a stage with his eight rivals—over the objections of the Florida Republican Party.

The former New Mexico governor won the right to participate, according to Fox sources, by cracking 1 percent in the latest five national polls in which he was included—Fox News, CNN, McClatchy-Marist, ABC, and Quinnipiac—which was the criterion the network had set for inclusion.

Johnson is a quirky character, a libertarian who wants to legalize marijuana and is opposed to a border fence to stop illegal immigration. But he has attracted a passionate if tiny following while mostly flying below the media’s radar.

With nine people on the stage tomorrow night, it will be hard for Johnson to get a lot of air time in, especially since the debate moderators are likely to repeat the practice we’ve seen in the past two debates of concentrating mostly on Rick Perry and Mitt Romney, who are far ahead of the rest of the field at the moment. Nonetheless, it’s an opportunity for Johnson, who has as much Executive experience as Jon Huntsman and more than Mitt Romney, to introduce himself to voters, and he’ll provide an interesting contrast to Ron Paul on the libertarian side.

The debate airs Thursday night on Fox News Channel beginning at 9pm Eastern time. Since Google is involved, there is also an opportunity for viewers to submit questions via YouTube.

Republicans Continue Dissing Libertarians, Then Want Us To Vote For Them

Brian Doherty notes that The Washington Examiner’s Byron York seems to have had a pair of ideological blinders on when he watched last night’s Republican debate:

Byron York, in the game of reporting about right-wing and Republican politics for a very long time, delivers a bravura performance of ignoring what’s in front of his own eyes with this nearly 2,000 word account of last night’s GOP debate that pretty much pretends Ron Paul and Gary Johnson weren’t even there.

York literally mentions that Paul was there–and never mentions yesterday’s million-dollar man again. Johnson gets cred for sprinting on the stage, where apparently from York’s account he then fell through a trap door and never added anything to the very, very fascinating set of fresh ideas delivered by those other three guys, I’ve forgotten their names.

Expect to have to see a lot more of this transparently pathetic pretending that Paul and Johnson don’t exist

York’s not alone. A listener to Rush Limbaugh’s show today would’ve been led to think that the only people at last night’s debate were Herman Cain, Tim Pawlenty, and Rick Santorum, because the great “El Rushbo” didn’t even talk about Johnson or Paul (yea, I know, I shouldn’t be listening). And a review of many of the prominent conservative blogs today shows either the same “memory holing” of Paul and Johnson, or coverage that consists of nothing but derision of them and their supporters.

To which I ask a simple question — if conservative Republicans want to convince libertarian-oriented folks to be allied with them, wouldn’t it be better to actually treat them and their ideas with respect? I’ve seen none of it, and I’m tempted to act accordingly.

Ron Paul To Announce Presidential Bid

National Journal is reporting that Ron Paul will announce the formation of a Presidential Exploratory Committee tomorrow in Iowa:

Rep. Ron Paul, R-Texas, whose outspoken libertarian views and folksy style made him a cult hero during two previous presidential campaigns, will announce on Tuesday that he’s going to try a third time.

Sources close to Paul, who is in his 12th term in the House, said he will unveil an exploratory presidential committee, a key step in gearing up for a White House race. He will also unveil the campaign’s leadership team in Iowa, where the first votes of the presidential election will be cast in caucuses next year.

Paul, 75, ran as the Libertarian Party candidate in 1988, finishing with less than one half a percent of the vote. After more than a decade as a Republican congressman, Paul gave it another shot in the 2008 presidential election, gaining attention for being the only Republican candidate calling for the end to the war in Iraq and for his “money bomb” fundraising strategy, which brought in millions of dollars from online donors in single-day pushes.

Paul took 10 percent of the vote in the Iowa caucuses and 8 percent in New Hampshire’s primary. He finished second, with 14 percent of the vote, in the Nevada caucuses, and eventually finished fourth in the Republican nominating process with 5.6 percent of the total vote. Paul’s campaign book, The Revolution: A Manifesto also reached No. 1 on The New York Times best-seller list in 2008.

An exploratory committee is one step below an actual campaign, but it seems likely that Paul is running, at least for now. Personally, for the reasons I mentioned last week, I am inclined to support Gary Johnson rather than Congressman Paul, but the more the merrier.

Former Governor Gary Johnson Announces Candidacy For President

The field of candidates for the GOP nomination for President got a little more palatable to libertarians today when former New Mexico Governor Gary Johnson announced his candidacy for President at an event in New Hampshire:

Gary Johnson is running for president.

The former New Mexico governor — who favors legalizing marijuana — on Thursday skipped the step of an exploratory committee, saying bluntly on Twitter: “I am running for president.”

That coincided with a speech in front of the New Hampshire statehouse, which made Johnson the first Republican to launch an official presidential campaign. On his new campaign website, Johnson positions himself as “The People’s President,” laying out libertarian-leaning stances on deficit reduction, education, taxes and drug policy.

The campaign went live with a website almost immediately after Johnson began speaking this morning, and his Issues page will give you an idea of just how different Johnson is from most of the other likely candidates on the GOP side:

Gary’s track record speaks volumes.

He has been an outspoken advocate for efficient government, lower taxes, winning the war on drug abuse, protection of civil liberties, revitalization of the economy and promoting entrepreneurship and privatization.

As Governor of New Mexico, Johnson was known for his common-sense business approach to governing. He eliminated New Mexico’s budget deficit, cut the rate of growth in state government in half and privatized half of the state prisons.

Johnson isn’t likely to be the only libertarian-leaning Republican throwing his hat in the ring. It’s becoming rather apparent that Texas Congressman Ron Paul, who became an unlikely superstar during the 2008 campaign will throw his hat in the ring once again. If that happens, then Paul and Johnson would be essentially competing for the same voters and, as Slate’s David Weigel notes, Johnson would need to find a way to differentiate himself from Paul, who is not viewed very favorably by Republicans outside of his own followers.

Personally, I think Johnson is a better standard bearer for libertarian-leaning Republicans than Ron Paul for a whole host of  reasons. For one thing, he’s younger, which is no small thing when you’re talking about a Presidential campaign. While he was able to hold large rallies on college campuses across the country, Ron Paul didn’t seem to have much enthusiasm in 2008 for the kind of retail politics that you have to engage in when you’re running for President.

The other thing that differentiates Johnson from Paul is that Johnson doesn’t come with any baggage. The topic of Ron Paul’s support from extremist, racist, groups and the long history of the newsletter that he published in between his two stints in Congress were frequently discussed here during the 2008 campaign and they were, I think, one of the reasons that Paul wasn’t taken seriously outside of his energetic circle of supporters, many of whom behaved in a way that quite frankly was an embarrassment to the guy they were supporting. Johnson has none of that. Instead he has a successful business career and eight years as a Republican Governor in a state that, at the time, still leaned Democratic. He vetoed more bills than any other Governor. He came out in favor of marijuana legalization while he was in office. Heck, the guy climbed Mount Everest. That all makes for a compelling media story, all without the weird Ron Paul like baggage.

There’s no doubt that Johnson has an uphill fight ahead of him. His name recognition among likely Republican voters is in the teens, and his name hasn’t been included in most recent polls, although that’s likely to change now. However, he’s got a unique message and a solid record. Keep an eye on this guy.

Here’s the video of today’s announcement:

TLP Contributor Stephen Gordon Injured In Car Accident

Via Jason Pye, I’m passing along news that many of you may already be aware of:

Stephen Gordon, a very good friend of mine and fellow libertarian, was involved in a serious car accident on Tuesday evening in his hometown of Hartselle, Alabama. From what I’ve been told, a truck crossed over into his lane and hit him head on, causing his car to flip. In addition to Steve’s lungs collapsing, he suffered broken ribs and a broken ankle. He was airlifted to a hospital in Huntsville and is in critical, but stable condition. The good news is his prognosis is positive.

I know I speak for everyone at The Liberty Papers when I say that we pass along our thoughts and prayers for Steve’s recovery.

Gary Johnson At CPAC 2011

Gary Johnson, the former Governor of New Mexico and a likely candidate for President, addressed the crowd at CPAC this morning in what was a well-delivered and fairly well-received speech:

I spoke briefly with Governor Johnson last night at a meet and great that was attended by a large number of people. He strikes me as an excellent spokesperson for libertarians in the GOP.

Rand Paul At CPAC

Rand Paul’s speech yesterday at CPAC was very well received. and while Donald Trump may have thought that the Standing Room Only crowd in the ballroom was for him, it was actually for the guy who was speaking after him, the Senator from Kentucky:

Of course it probably wasn’t a good idea to follow up a speech by Rand Paul, with the crowd he drew, with the presentation of the “Defender of the Constitution Award” to Donald Rumsfeld, with a special appearance by Dick Cheney.

WTF Quote Of The Day: Hillary Clinton Edition

Via Jacob Sullum, here’s a truly bizarre comment from Hillary Clinton during an interview with Mexican media:

Maerker: In Mexico, there are those who propose not keeping going with this battle and legalize drug trafficking and consumption. What is your opinion?

Clinton: I don’t think that will work. I mean, I hear the same debate. I hear it in my country. It is not likely to work. There is just too much money in it, and I don’t think that—you can legalize small amounts for possession, but those who are making so much money selling, they have to be stopped.

Hillary, perhaps you’re spending too much time saving the world to realize this, but the reason there’s so much money in the illegal drug trade, is because it’s illegal. Think about that one for a second.

Sarah Palin E-Mail Hacker Goes To Prison For Doing Something Uncle Sam Does Every Day

To paraphrase the sign on Ron Paul’s desk, don’t break into someone’s email account that’s the government’s job:

A former University of Tennessee student who was convicted of hacking into Sarah Palin’s e-mail during the 2008 presidential election has been sentenced to a year and a day in custody.

A federal judge recommended Friday that David Kernell serve his time in at the Midway Rehabilitative Center on Magnolia Avenue in Knoxville, a halfway house, instead of prison.

Kernell was also sentenced to three years probation. The Bureau of Prisons will decide if he is allowed to go to the halfway house.

Kernell’s attorney had asked the judge not to sentence him to custody and instead wanted only probation. The attorney noted that similar cases had resulted in probation.

Court documents showed that prosecutors argued for 18 months in prison.

As John Cole notes, it’s too bad for Kernell that he wasn’t “protecting national security” as an employee of the NSA. They’d probably be throwing him a party about now.

Jim DeMint Gives The Middle Finger To Libertarian Republicans

Only a few days after Mike Huckabee dissed libertarians on Fox News Channel, South Carolina Senator Jim DeMint did the same thing:

One doesn’t expect excessive amounts of wisdom from Sen. Jim Demint (R-SC), the troglodyte who recently told an audience, according to the Spartanburg Herald, that “if someone is openly homosexual or if an unmarried woman sleeps with her boyfriend, then that person shouldn’t be allowed in the classroom,” but this is a new level of stupid. When asked to comment on Gov. Mitch Daniels’ suggestion that it’s time for détente in the culture war, Demint tells Fox News that one “can’t be a fiscal conservative and not be a social conservative.”

Video:

As Hot Air’s Allahpundit points out, DeMint’s comments point out the possible conflict between social conservatives and more libertarian oriented Republicans:

Originally, I thought this message was just something DeMint was pitching at Christian conservatives to convince them that the tea party’s libertarianism is overblown, that they’re still a cherished constituency despite the reordering of conservative priorities to favor spending over “values.” But now I think he means it, which makes me wonder. For instance, last I checked, Glenn Beck’s a fiscal conservative (and notably a fan of the idea of Americans turning back to God) but also … fine with gay marriage. DeMint himself, however, is not: He told Al Hunt last year that neither the feds nor state governments should have the power to legalize same-sex unions. Per his God/government dynamic, I would think he’d support getting government out of the marriage business altogether and trusting in Judeo-Christian morals to handle this problem, but he still supports state recognition of traditional marriage as far as I can tell. Likewise with his comments about how gays and unwed mothers don’t belong in the classroom. Said GOProud’s founder Chris Barron of that, “The idea that someone who says they believe in limited government would support the government weeding out gay teachers and unmarried sexually active female teachers simply defies logic.” So maybe our error here is in assuming that when DeMint says “fiscal conservatism,” he means it as a byword for “less government” universally.

And Jim DeMint has made no secret of his desire to use the state to enforce his social goals. Just a few years ago, for example, he said that that gay men and unmarried women shouldn’t be allowed to teach in public schools, so it’s fairly clear that when it comes to the shrinking the size, scope, and power of government Jim DeMint is not onboard. Libertarian-minded Republicans should take note of that fact.

To the extent Jim DeMint was ever on my 2012 “short-list,” he’s off it now.

Update: Jason Pye nails it over at United Liberty:

Republicans were able to regain control of the House of Representatives because the economy is tanking. Social issues were of little concern to voters. Even at CPAC, the annual conference for conservatives, attendees were much more concerned about the economy than social issues.

I believe very much in free markets, but I’m not a social conservative. Why? Because I believe liberty applies to more than just economics. We are sovereign individuals, and we are entitled to live our lives free of government intervention, provided we are not infringing on the rights of others. It’s what John Stuart Mill called the “harm principle” in his book, On Liberty.

(…)

if the GOP takes the mid-term election as a mandate to pass a Federal Marriage Amendment or to find some other social boogeyman to go after, they’re going to wind right back up in the minority

Yep

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