Musings of a Rogue Federalist

Flags

2012-05-03T21:27:00.003-04:00

When used on a speaker's platform, the flag, if displayed flat, should be displayed above and behind the speaker. When displayed from a staff in a church or public auditorium, the flag of the United States of America should hold the position of superior prominence, in advance of the audience, and in the position of honor at the clergyman's or speaker's right as he faces the audience. Any other flag so displayed should be placed on the left of the clergyman or speaker or to the right of the audience.

14 USC § 7(k)

It's not that hard.

Student Loans

2012-04-26T13:54:00.002-04:00

The student loan debate currently being pushed to the forefront by President Obama is like the rhetorical gift that keeps on giving. I could write pages on the interesting facets of this, but I'll start with the basics:

In 2008 the Democrat controlled House and Senate passed, and President Bush signed, a law lowering the interest on Federally backed student loans from 6.8% to 3.4% for 5 years. Those 5 years expire this year and so presently the President is going around talking to college campuses about how he wants to stop the Republicans from raising the interest rates and how he understands the plight of these poor college students having to pay on their student loans because he and the First Lady just paid off their loans 8 years ago. Romney and the House Republicans (lead by Boehner) also want to extend the lowering, but Boehner wants to "offset" the cost by reducing the expenditures in Obamacare.

There are so many interesting quirks to this it's hard to see where to start, but I think I'll pick the fact that this shows us how invasive a "temporary" program is. I didn't really follow this particular debate in 2008, but I'm sure there were 10 year budget projections showing what this cost, under the assumption that it only lasted 5 years. But now, 5 years later, the debate isn't about lowering student loan income, it's about preventing it from going up. Both politicians and commentators frequently take the sunset clauses on these "temporary" programs seriously. They shouldn't. If it was a good idea to lower student loan interest rates, it should have been done in perpetuity (the same is true for the Bush tax cuts). The only difference between cutting student loan interest rates (or taxes) for 5 years and forever is that you get to debate it again in 5 years with a "temporary" program, and blame the other side for wanting to go back to the status quo ante (even though that's actually what you agreed to do when you created the program).

The second interesting thing is that the President's student loans dragged him down so much that he couldn't pay them off until just 8 years ago. After he had bought a condo (and a house) and "should have been saving for [his children]". Obama received a $100,000 advance for the publication of his first autobiography while he was still in law school. For the last 5 of those years the Obamas were making well over $200,000. For two of them they were making enough to be the "super rich" that aren't paying their fair-share of taxes. There are two possibilities here, neither of them very favorable for the President. The first is that despite being "super rich" (by his own definition) he really didn't have enough money to pay off his student loans. That eviscerates his argument (which he has been continuing to make at these taxpayer funded campaign speechs at Universities) that those over $250,000 are just throwing away money and need to be giving more in taxes. The other is that, despite having an abundance of discretionary income, he chose not to pay off student loans because the opportunity cost favored keeping them. I suspect this what really happened. He had a student loan at around 6% (this is before the rates were lowered in 2008) and he could make more money on that money than he was paying in interest (and he certainly couldn't get a loan that low) so he didn't see any point in aggressively paying it off the way you would, say, a credit card. This destroys his argument for artificially cutting the rate in half from what was already so cheap he chose to keep it around when he didn't have to.

The third, and most disturbing, interesting thing is the games the Republicans are playing here. When the Democrats created Obamacare they took some of the easier-to-cut sections of Medicare and slashed them to make the budget work. I made the argument at the time that this was like renegotiating a mortgage that was going to bankrupt me and then turning around and spending the "savings" on credit cards. This is exactly what Boehner wants to do here. The Republicans have been arguing since it passed that we can't afford Obamacare. And we can't. Now we have a Republican Presidential candidate who has committed to dropping Obamacare completely, a Supreme Court case that many people consider likely to throw the entire bid out as unconstitutional, and a Republican Congress that says it's still unconstitutional and we can't afford it, but we can cut some of the money we don't have out of Obamacare and use it to pay for another bad idea. Obamacare is a bad idea, and we ought to throw it out, but "saving" money by not funding certain care items while keeping the rest of the restrictions and regulations and then spending the "savings" on another bad idea is an even worse idea.

There are a bunch of other issues particular to the way student loans are subsidized and how this contributes to the rapid inflation of education costs, the fact that through this program a 25 year-old plumber gets to pay the bank 6% for the loan on his truck and tools and subsidize the 3.4% (higher risk profile) loan for the education of a 25 year-old lawyer, or the question of why the Federal government is involved in education funding at all, but I'm honestly not as interested in the standard issues with student loans as the politics of the rhetoric itself.

Laws

2012-04-17T12:40:00.001-04:00

The internal effects of a mutable policy are still more calamitous. It poisons the blessing of liberty itself. It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?

Another effect of public instability is the unreasonable advantage it gives to the sagacious, the enterprising, and the moneyed few over the industrious and uniformed mass of the people. Every new regulation concerning commerce or revenue, or in any way affecting the value of the different species of property, presents a new harvest to those who watch the change, and can trace its consequences; a harvest, reared not by themselves, but by the toils and cares of the great body of their fellow-citizens. This is a state of things in which it may be said with some truth that laws are made for the few, not for the many.

In another point of view, great injury results from an unstable government. The want of confidence in the public councils damps every useful undertaking, the success and profit of which may depend on a continuance of existing arrangements. What prudent merchant will hazard his fortunes in any new branch of commerce when he knows not but that his plans may be rendered unlawful before they can be executed? What farmer or manufacturer will lay himself out for the encouragement given to any particular cultivation or establishment, when he can have no assurance that his preparatory labors and advances will not render him a victim to an inconstant government? In a word, no great improvement or laudable enterprise can go forward which requires the auspices of a steady system of national policy.

But the most deplorable effect of all is that diminution of attachment and reverence which steals into the hearts of the people, towards a political system which betrays so many marks of infirmity, and disappoints so many of their flattering hopes. No government, any more than an individual, will long be respected without being truly respectable; nor be truly respectable, without possessing a certain portion of order and stability.

-- Federalist 62 (emphasis added)

Nominating process

2012-03-15T12:17:00.003-04:00

There's all sorts of talk right now about whether the slowed-down nominating process the Republicans put in place in 2008 was a good idea. I don't care. I'm more interested in the brokenness of the process in general. I'm pro electoral college (and, in fact, think we ought to have some of the electors sent there by state legislatures like we used to do with Senators) so it may come as a surprise that the non-representative nature of the nominating process really bothers me. The problem is that the electoral college was designed to give some relief to the less populace states in our federation on the choosing of the President. That makes sense. The nominating process doesn't seem designed at all.

At present nearly 10% of Romney's delegates are from territories that don't get to vote for President. I'm actually opposed to our permanently retaining territories that are never going to become states, but if the purpose of the nominating convention is to win the Presidency, do we really care what people who can't vote for President think? I'd be okay with in if they got some nominal vote, but the people of the Virgin Islands and the Northern Mariana Islands together get as many votes as New Hampshire (which, admittedly, has an oversized influence because of when it votes).

Only fourteen of the 60 States or districts who have primaries or caucuses are closed. In the rest either Democrats can help select the Republican representative (I'm sure they will have only the best interests of Republicans in mind) or you have to at least not be party affiliated. Though if you're in a semi-closed state the chance you're going to register with a party is pretty much zero. I would not only have closed primaries, I would require that you have been registered with the party for at least two 30 months.

California and New York, states where the Republican nominee is guaranteed zero electoral votes, are two of the three largest delegations to the convention (Texas is number 2). On top of that nearly half of the California and New York delegates (123 out of 261) come from districts that are 60% or more Democrat. According to Sean Trende at Real Clear Politics, 8 districts from Los Angeles County cast just barely more votes in the 2002 Gubernatorial primary as a single majority-republican district. Yet they would get 8 times as much influence in the nominating process. To make matters worse, California is an open primary, so nobody is checking whether the delegates from Nancy Pelosi's district even reflect the desire of the Republican who lives there. I'm not saying we shouldn't care about these people's voice in the primary, but we shouldn't care a lot more about Republican's in Nancy Pelosi's district than those in Paul Ryan's.

On the flip side, the current procedures give extra bonus delegates to majority Republican states. Unlike the issues with allocating delegates based on general-population district lines that in lots of cases were intentionally drawn to polarize towards one party or the other, I can see why this makes sense. The nominee is supposed to be somebody who represents the will of the Republican electorate, so it makes sense to give bonuses to majority Republican states. But the nominee is also supposed to be somebody who can actually win the Presidency. Given that the important thing is winning the electoral college in the fall, wouldn't it make sense to give similar (or even greater) bonus delegates to the states with the closest elections in the past Presidential election? Hugh Hewitt has recommended at least once having the nominee determined only by the closest states. That seems like a recipe for a splintered party to me. It's one thing to give extra credit to electorally important states, it's another entirely to say to Texas or Georgia that the party doesn't care what you think, we're going to find a moderate who does well in Ohio and Pennsylvania.

We also have a bunch of unbound delegates who got their position through some previous party position. I actually don't have a problem with these. The "super delegates" bring some of the horse trading in order to get the desires of various factions of the party fulfilled while finding the most likely candidate to actually secure the election into the convention. If it's a close call, that's a role I don't mind seeing.

If I were head of the primary process, I would allocate votes among the states based on the number of popular votes they cast for the Republican in the prior election. Then I would give a bunch of extra votes to the 4 closest states. The national convention needs some way of allocating votes within states other than congressional districts which are drawn based on general population and frequently drawn to intentionally skew towards one party or the other. I would suggest something like forcing proportional distribution based on the entire states' returns. I would love to draw districts, but you would need special districts established for the purpose if you wanted to fairly district among just one party, and that doesn't seem practical.

Obama is right

2011-12-21T15:53:00.002-05:00

In a post on PowerLine, John Hinderaker started a firestorm on conservative blogs this morning by pointing to (and dismantling) Obama's claim that he "would put our legislative and foreign policy accomplishments in our first two years against any president — with the possible exceptions of Johnson, F.D.R., and Lincoln".

I must say, Obama is right. The standard consistently used to judge Presidents in rankings is something along the lines of how much lasting change they have made to the structure of the Union. This is completely consistent with Obama's worldview (which you would expect, because those rankings are put together by progressive intellectuals). So the economy may have been much worse when Reagan took office and much better at this point in his Presidency, but that's immaterial. Harding took a deflationary depression and turned it completely around within 3 years but consistently appears in the bottom of Presidential rankings. FDR managed to keep the Great Depression going for a decade, but always appears at the top. If you listen to a progressive academic, and Obama has spent his life listening to progressive academics, Presidents aren't measured by how well the economy does.

A much bigger deal than is being reported

2011-10-07T08:35:00.002-04:00

Last night, in order to avoid voting on Obama's jobs bill, Harry Ried changed the rules of the Senate to disallow the introduction of amendments after cloture is invoked. This is an arcane bit of Senate procedure, but the important point to take away from this is that the rules have been changed by a simple majority to prevent the minority from exercising a power they usually possess. This is exactly what I urged the Republican senate to do to allow votes on circuit court judges to pass with a majority, but they were unwilling to do because once Pandora's box is opened the procedure could be used by Democrats in a future Senate. I argued at the time, we now know correctly, that this was irrelevant and Democrats would change the rules as soon as it became convenient.

In light of this, I'd like to propose two changes to the Senate rules for the new Republican majority in 2012:

1) Allow appointments to pass by simple majority. First off, this is extremely politically advantageous, because Republicans tend to accept any judge who is qualified as a matter of training and experience, even if they dislike the positions they take, while Democrats reject any judge whose philosophy they disagree with, so Republican presidents have much more difficulty getting their nominees through the Senate. But secondly, I think the current position is unconstitutional. The Senate can do whatever it wants to its procedures for introducing new legislation, but appointments are an executive power that merely requires Senate "consent". The Senate should not allow itself to withhold consent if the majority of its members agree.

2) Allow any repeal bill to pass with a simple majority. As I stated on my post on Heinlein, giving a power to the government necessarily entails a restriction on personal freedom, and we shouldn't need a super majority to give that freedom back. (This also has convenient side effect that it makes repeal of Obamacare almost guaranteed)

Social Security IS a Ponzi Scheme

2011-09-08T11:50:00.010-04:00

Ponzi Scheme (n): an investment swindle in which early investors are paid with sums obtained from later ones in order to create the illusion of profitability (Merriam-Websters Dictionary of Law, 1996)

Rick Perry is taking a lot of heat not only from the liberal media but also from conservative media for "doubling down" in the debate and calling Social Security a Ponzi Scheme. I understand the mainstream media saying this, they're practically cheerleaders for the Democratic Party and they're very much invested in the lies that have been told about Social Security for half a century. I don't understand the conservatives, though. Yes, sometimes it's politically dangerous to call a spade a spade, but Social Security _is_ a Ponzi Scheme. That it has ever been anything else is one of the great political lies of the 20th Century (maybe THE great political lie of the 20th century) and conservatives should be eager to discredit it (while proposing solutions to the problem that don't pull the rug out from under seniors who are depending on it).

The reason this is so important is that huge portions of otherwise well informed Americans have actually fallen for the statements they get from the Social Security Administration on their paystubs and in the mail that list their "contributions" and "account balance". These are outright lies. No one has ever made a "contribution" to Social Security in the entire history of the program, and no one has ever had an "account balance". Social Security "accounts" don't exist in any meaningful way and the sooner people come to grips with that the sooner we can fix the system.

For those of you who don't know, this is how Social Security really works.

You pay a payroll tax. This payroll tax, as a matter of statute and case law is not earmarked in any way and can be spent at the whim of the Federal Government. (See Helvering v. Davis)
The Social Security Administration uses part of the income from this tax to fund the benefits to current recipients and "invests" part of it in Treasury instruments, which the Treasury promises to pay back if the Social Security Administration asks for it. The money that was invested in the Treasury is then spent as part of the general US budget for farm subsidies and road building and international aid and whatever else the Fed does.
When one of several things happens (death of a spouse, disability, retirement) the Social Security Administration uses some complex formula based on how much you put in and how long you worked to cut you checks from current payroll tax revenue (plus the trust fund, though that rarely happens). This formula is defined by law and subject to change at any time. (i.e. When the Social Security Administration sends you glossy material in the mail saying that you are guaranteed to get X when you retire they mean "pursuant to current law". If Congress changes the law tomorrow to say you get 10 percent of that then tomorrow you will be guaranteed 10 percent of that.)

So lets compare and contrast this with a classic Ponzi scheme. Social Security uses the money from later investors to pay the benefit of early ones so it's clearly at least partially inline with the dictionary definition.

You could argue that the trust fund means that even though in practice it pretty much always pays benefits entirely out of contributions, it's not dependent on them, so that's different from a Ponzi scheme. But you would be wrong. At the end of 2010 Social Security had $2.5 trillion in the trust fund and in 2010 they paid out $584 billion in disbursements (2011 Trustees report, table III.A1) and disbursements are expected to increase rapidly and forever, so we would expect the trust fund to run out of money in less that 5 years if we stopped contributing. And that's not the worst of it. As I've said elsewhere, I don't believe in the trust fund. There are commentators that say the Treasury would never default on the Trust Fund notes because it would cause US bonds to collapse. But they don't have to. The Social Security Administration is a creature of statute law and Congress could vote tomorrow to forgive the trust fund debt to itself and there would be no bond implications (I would actually argue that bonds would become stronger because we don't have the huge unfunded social security liability stressing them). If we suddenly needed to increase expenditures by half a trillion per year to cover Social Security expenses I suspect changes would happen in short order.

You could also argue that Social Security isn't doing this "in order to create the illusion of profitability" because everything I've just stated is a matter of plain statute law, so it's not like Bernie Madoff who was claiming he invested in X and Y. Everybody knows how Social Security works so nobody is fooled into thinking it's a profitable investment. But that's not true, either. I'll demonstrate this by asking what the Social Security would do if they wanted to convince gullible masses that their "contributions" in Social Security "accounts" would yield particular "guaranteed returns". Exactly what they've been doing for years, marking your payroll tax as a "contribution" on your pay stubs and sending you stuff in the mail about your "account". And it's working. In the past week alone I have encountered two people who honestly believed that they have made contributions to Social Security accounts that exist as actual assets somewhere and were somewhat hurt and felt they had been lied to when I told them what I expressed above. I agree they have been lied to, but if the government has been lying to people and telling them that they have money in accounts somewhere, then they are clearly "creating the illusion of profitability".

The only other argument I've seen for why Social Security isn't really a Ponzi Scheme is precisely that it is a government program so whereas a Ponzi Scheme depends on getting more and more investors in order to meet its promises to past investors and inevitably fizzles when not enough gullible people can be found, the government can threaten to put you in prison unless you pay more and more money to support the program for prior investors. I'll admit, this is somewhat different from a classic ponzi scheme (though I'll argue it's worse) but it's not going to prevent a fizzle. The number of investors per recipient is declining and at some point people are going to say "enough" and cancel the program. Social Security started by charging 2% limited to $60. Currently it is sapping around 12% of our income (limited to $12,000) but according to official estimates it's going to require more than twice that by 2025 (including funds to the "general fund" in order to offset repayment of the trust fund) and it grows every year.

Social Security IS a Ponzi Scheme and it's critically important that we as conservatives explain this to people. Until people understand that the underpinnings of the program are a lie we can't have a responsible discussion of the program. If Social Security is like a 401(k) then I would be criminal (or at least progressive) to suggest that Warren Buffet shouldn't be able to get his money out of his account when he retired. If, on the other hand, Social Security is more like welfare it seems insane to think that wealthy retirees should be receiving it at all. One of the most powerful complaints about Paul Ryan's budget is that it reduces Medicare (he doesn't actually deal with Social Security at all) payments for those under 55. This is so powerful because people feel like he's stealing money from the accounts where they have been making contributions all these years, but those contributions were taxes, and they've been spent. And the government is unlikely to be able to raise the money to repay them under the current program in 15 years anyway.

We need to drastically reshape Social Security. I'm fine with the Ryan plan and I'm likely to be fine with the Perry plan, but if I were writing a plan I would go much farther. I understand, particularly politically, the desire not to affect seniors who have already retired under the presumption that they would get what Social Security promised them, but I would prefer if we as a country got to the point where we understood it is essentially a welfare program and if you managed to retire with a hundred million in the bank maybe you shouldn't get the full amount of welfare the SSA said you were going to get (even though you believed them when they lied to you and said you were contributing it to an account and would get a substantial return). After all, many of the investors who believed Madoff and Ponzi when they lied to them didn't get anything back, and even I'm not suggesting that.

Democrats and Democracy

2011-07-12T12:15:00.002-04:00

In a Press Conference this morning, Obama said that the average American shouldn't worry about stuff like the Debt limit, that's what professional politicians are for:

This brings up a couple of questions:

First, why does your party call themselves "Democrats"? When Jackson split off from the Democratic-Republicans he called his party the "Democrats" because they were populists who more directly reflected the will of the people. On the two major issues of your Presidency (three if you include your action in Libya) you have explicitly rejected the will of the people because you thought you knew better than they do. I actually think that's sound governance in a Republic, but then I've also explicitly stated that I don't believe in Democracy, I reject the direct election of Senators, I think we should raise the voting age, and I think we ought to restrict voting to those who are informed (and preferably pay taxes). All positions absolutely anathema to a Democrat.

Second, and more important, why are you pulling the American people into a debate on how a deal to raise the debt limit is structured? You have held something like 4 press conferences in the last couple weeks all of which are intended to point to to an American people who are too busy cooking dinner to have an informed opinion on whether or not a debt limit raise is good policy that we should raise taxes with the debt limit instead of only cutting spending. In your opinion, isn't that something professional politicians should take care of for us behind closed doors? If you can't be bothered to explain why we should raise the debt limit, why explain how the deal should be look?

This is particularly important since these speeches have been utterly insincere. Several Republicans (and to my knowledge not a single Democrat) have asked for the actual negotiations to be open to the public. Despite working to put food on my table, I've actually tried to follow this pretty closely, but there's no way anyone (including the people in the media who have written columns on what a great deal somebody is rejecting) have any actual insight into what's going on in these negotiations. But, despite the fact that I can't find what is actually being debated, I do know enough to know that you are lying to us. I know this because the revenue increases you talk about aren't even a percent of the spending you claim to be offsetting, you have noted in these remarks the drastic cuts you're willing to take while simultaneously asking for increases in spending on pet projects that would be at the top of the Republican list to cut, and most importantly you continually say you want a "long term" fix when the only budget your party has produced in nearly 3 years (your 2010 budget) increased the debt every year in its scope (and was rejected by every member of your party).

If you don't believe the people have enough time to understand the big picture, can you please stop the demagoguery over the details?

PS. I should probably note, I support a debt limit increase, but I would rather have no increase than a bad deal. There's no point in having a debt limit if it's just going to get increased every time the government maxes out our credit card again. I disagree with the assertion that we will default if we don't get a debt increase. We can cover debt repayment with only 10% of receipts at current revenue levels and I would argue the 14th Amendment states that the President must use 10% to do that (which leaves about half of current government functions funded). I'll admit that Obama is probably going to cut the most irresponsible programs he can to show how important our limitless debt is, so we'll have closed National Parks and no FBI while ethanol subsidies and free breakfast in schools continue, but that's still not as bad as an actual default.

Can we please cancel them?

2011-07-01T11:48:00.002-04:00

During a speech earlier this week Obama threatened that if we didn't change the depreciation schedule on private jets,

then the kinds of cuts that would be required might compromise the National Weather Service. It means that we would not be funding critical medical research. It means that food inspection might be compromised. And I’ve said to some of the Republican leaders, you go talk to your constituents, the Republican constituents, and ask them are they willing to compromise their kids’ safety so that some corporate jet owner continues to get a tax break. And I’m pretty sure what the answer would be.

This was, in fact, an important theme of the conference, having been repeated almost verbatim in two parts of the speech. Lots of people are making much of the fact that a change in the depreciation of private jets isn't going to yield a billion dollars, let alone the hundreds of billions those programs eat up. There's also the issue that we somehow managed to give kids scholarships, pay for medical research, and fund the National Weather Service and the FDA on the $2.9 trillion Bush spent in 2008 ($240 billion deficit) instead of the $3.55 trillion Obama spent in 2010 ($1420 billion deficit). I don't think it is generally realized that the "stimulus" wasn't a one time expense, it was a permanent, massive increase in the federal budget, from which Obama now claims we can't possible retreat. But that's not the point of this post.

Also, I happen to agree with Obama that the special depreciation scale Obama proposed and the Democrat Congress passed in 2009 as part of that stimulus for private jets was a bad idea and should be scaled back. Unlike Grover Norquist, I only care about tax rates, not breaks. Special credits are fiscally indistinguishable from spending programs. But that's not the point of this post either.

The point of this post is that not one of the programs the President mentioned is within the Constitutionally defined role of the Federal Government. If it takes keeping an awful airplane depreciation scale to defund the NWS (excepting those areas where it is important for defense, which can be rolled into the defense department), the FDA, Federal funding of medical research, federal interference in education, and things having to do with kids' safety, then I'll keep the depreciation.

Collective bargaining rights

2011-03-01T11:20:00.003-05:00

There's a lot of confusion, even on reputable sites, about what exactly "collective bargaining rights" entail.

Under the National Labor Relations Act of 1935, pretty much all private employees in the United States have the "right" to hold a vote where if half of the employees accept union representation, the employer must negotiate with the union on behalf of all of the employees. In a non-right-to-work state they can also force all employees to pay dues. That is to say that the "right" to collective bargaining is the "right" to prevent an employer and an employee from entering into a private contract (and in some cases the "right" to force an employee to pay for representation they don't want). Or, to put this another way, one of the great examples of the need for unions, the United Mine Workers strikes of the late nineteenth century, was orchestrated by people who did not have collective bargaining rights. The striking mine workers each decided strike, there was no law preventing the mines from hiring someone else if they could find someone.

Additionally, what is being proposed in Wisconsin isn't removing collective bargaining rights from public employees (a step that Walker could legally take if he wanted to). Half of the teachers could still force the other half to accept union contracts, but they couldn't force them to pay dues and they would have to vote to recertify (keep the union as their representative) every year.

In Defense of Obama

2011-02-24T09:57:00.003-05:00

He has less than two years left, so this may be the last time, but I must come to the defense of the Obama administration. I've heard several times in the last two days that Obama is stepping all over separation of powers by deciding the Defense of Marriage Act is unconstitutional without an edict from the court and refusing to press the case. This is as daft as the observers on the left who mocked incoming congressmen last year for saying that they would care about the constitutionality of pending legislation. The Constitution does not say that the Courts are the ultimate arbiter of Constitutionality. If Congress passes a law and the President believes it unconstitutional, he shouldn't defend it. There is even a provision that the Senate and House can appoint their own counsel to defend their laws before the Courts if this happens.

I'll note that I fully expect them to do so, and I fully expect Obama to come out and say that it's a distraction that they're taking up defense of a law he refused to defend in a time of budget constraints. That will be unacceptable politicking, but his decision not to fight for a law he thinks is unconstitutional is perfectly reasonable. I'll also note that I wouldn't be surprised to find a Republican administration in 2013 refusing to defend Obamacare because they believe it Unconstitutional. When that happens the mainstream press will go berserk claiming (as some on the right do now) that the administration is shirking their duty and it's up to the Courts to decide if it is unconstitutional. The mainstream press will be wrong just as the right wingers are now.

Note to Gov. Walker: take a page from Reagan.

2011-02-17T10:17:00.002-05:00

It's all over the news that there are protests at the State Capitol and the Governor's private residence in Wisconsin. What might also be in the news, but I haven't seen as much, is that the teachers and students present are there illegally. They're taking advantage of sick time to join in a political rally and based on video I've seen they're encouraging students to be truant as well.

I'm not going to advise Walker to arrest the teachers for contributing to the delinquency of a minor (though it is appealing to me). I will, however, advise him to take a page from Reagan when he had a group striking illegally: fire them all. I have no tolerance for people who don't show up to work and I doubt the majority of Wisconsin citizens do either.

Balancing the budget

2011-02-16T12:31:00.003-05:00

I happen to agree with Sessions, which I'm sure colors my judgement, but I don't see how any thinking person who has looked at the facts can not think that Mr. Lew and the President are being extremely disingenuous in their statements. In 2008 we had a deficit of $460 billion on a total outlay of $2.97 trillion (roughly 19% of GDP). I think this is way too high, but that's irrelevant to this discussion. In 2010 we had a deficit of $1.29 trillion on outlays of $3.46 trillion (roughly 25% of GDP). Obama is increasing that to $3.8 trillion (25% of GDP) in his proposal and never bringing it down from there. He also never gets back below 20% of GDP in spending. He balances the budget by assuming away entitlement spending, stating that there will be reductions he doesn't specify, ignoring interest on the debt, and assuming he can get receipts (taxes) up to 20% of GDP.

This is like my saying that I make $50,000 and I started this year $50,000 in debt and spent $52,000. I'm looking at bankruptcy, so I come up with a plan for the bankruptcy judge: I'm going to get out of the hole by making loans against my retirement and spending $55,000 this year (and increase from there every year in the future) and by ten years from now I'll be making $100,000 and only spending $100,000 (if we ignore debt repayment) so then, when my budget is balanced, we can start to worry about how to pay back those loans and catch up on retirement.

This would be horrifically misleading even if I had a good plan for increasing my income, but the budget assumes receipts at 20% of the GDP, which is a record level. No matter how high taxes go, we have never taken in more than 20.9% of GDP (1946) or sustained more than 19%. (see here) The OMB uses static scoring, so they just assume that if they charge more in taxes that they will get proportionally more in receipts, but reality doesn't work that way.

It's not that hard

2011-02-11T13:35:00.002-05:00

With common-sense exceptions for seniors, veterans, and our troops, we will roll back government spending to prestimulus, pre-bailout levels, saving us at least $100 billion in the first year alone

That's what the Republicans promised when they were elected. The $100 billion is the effect of their promise, not the promise itself. The promise is a good one (except maybe that seniors, veterans, and defense are common-sense exceptions). Before the failed spend-a-palooza "stimulus" we had a budget that was too high. Allowing that to become the new baseline and whining about how the government is going to shut down if we don't keep the unprecedented, temporary, emergency levels of spending we went to in a vain attempt to recover the economy is one of the biggest crimes of the last congress. So going back to pre-stimulus, pre-TARP 2008 spending levels should be the starting place for any conversation about spending. I think we should go much, much further, but I'm not willing to even talk about it until we get the trillion dollar barrel of pork injected into the baseline in 2010 out of the discussion.

So, when Hal Rogers talks about cutting $100 billion from Obama's massively inflated FY2011 budget proposal, he's dissembling. The incoming Republicans didn't promise to take whatever Obama proposes and cut $100 billion (and certainly not less than $100 billion), they promised a return to 2008 spending levels. And to hear even Paul Ryan, who I like (unlike Hal Rogers, who is a first class appropriator), talk around the issue makes me mad. Here's how you keep the promise the Republicans made:

Ask the Congressional Records Office for a copy of the 2008 budget
(optional) Submit that to the floor with a rule that any amendment offered must not increase the size of the budget.
Send it to the Senate

Was that really that hard?

What's in a Label (part 2)

2010-12-16T11:01:00.006-05:00

You know, [liberal] is a word that originally meant that you were for freedom, that you were for the freedom to achieve, that you were willing to stand against big power and on behalf of the individual. Unfortunately, in the last 30, 40 years, it has been turned up on its head and it's been made to seem as though it is a word that describes big government, totally contrary to what its meaning was in the 19th and early 20th century. I prefer the word "progressive," which has a real American meaning, going back to the progressive era at the beginning of the 20th century. -- Hillary Clinton (CNN/YouTube Debate July 23, 2007)

I've seen, on numerous occasions, people on the left complaining that the right is so much better at creating labels than the left. This is nonsense. The vast majority of terms used in current politics come from the French Revolution, which wasn't exactly a hotbed of Burkean conservatism. Even the terms "left" and "right" address where people sat in the French National Assembly of 1789.

One term that doesn't come from the French Revolution is "liberal". Clinton is correct that "liberal" originally referred (derogatorily) to those in favor of individual liberty. It was somewhat similar to how we would use "libertine" referring to, principally French, criminality and lawlessness. It came to refer to most Enlightenment thinkers (both Scottish and French) and was then taken up in the mid-nineteenth century by those who wished to be free from attachment to current policies and institutions (the opposite of conservative). I will note that in the United States this necessarily means a desire to be free from the constraints the Constitution places on government.

Clinton's preferred label, "progressive", has always meant this final meaning of "liberal". Specifically the origin of the term is with those who wish to free the government in order to lead "progress" towards a more perfect humanity. Contrary to Clinton, however, this has always meant delegating more power to the government in order to allow it to force the people forward. As early as Teddy Roosevelt (and certainly as early as Wilson) Progressives have known that they know how to move forward and if only they could escape the dated bounds of the Constitution they could enact laws forcing us forward.

On to the labels that NoLabels decries, we have Socialist and Capitalist, both coined by Socialists. With the rise of Socialism the socialist wished to distinguish their policies, which looked out for social good and the good of the populace, with those which looked out only for Capital assets and those who held them. You might claim that Socialist whatever Socialism was originally intended to denote, it has come to mean something vile and unpopular and its origin should have no bearing on whether or not it's polite to use it. That might be fair, but it does have meaning. I would assert that most people understand it to mean something pretty close to how Merriam-Websters defines it:

any of various economic and political theories advocating collective or governmental ownership and administration of the means of production and distribution of goods

If that's the case then the question is not, as NoLabels would have it, suppressing the label of Socialist but determining if somebody who nationalizes the auto industry, parts of the financial industry (with the hope of regulations allowing the further nationalization as it becomes needed), regulates the health care industry to the point that providers are still ostensibly private but must do exactly as the government tells them, and rides roughshod over the capital rights of bondholders in bankruptcy holdings is actually a socialist. I think it's pretty obvious where I stand on this, but I wouldn't want to upset David Frum by labelling anyone so I'll stick with just describing policies.

The other label I've seen which No Labels thinks we shouldn't use is "racist". Racist was created as part of Nazi race theory to describe the fact that we should look out for the master race. Like Socialist, I think its meaning in popular culture is largely unchanged and reflects about what modern dictionaries describe it as (again from Merriam-Webster):

a belief that race is the primary determinant of human traits and capacities and that racial differences produce an inherent superiority of a particular race

Again I think the question we should ask is not if the label "racist" should be banned from public discussion, but whether those labelled racist actually are. For this I have two questions to ask:

Is someone who thinks people from all races should be judged in all ways without regard to their race, and who disagrees with the policies of the current (black) president just as they disagree with similar policies undertaken by Carter, Wilson, or FDR a racist?
What about someone who believes that certain minorities can't make it without government handouts and therefore need preferential treatment from the government in farming, business, college admission and various other endeavors?

What's in a Label (Part 1)

2010-12-16T10:49:00.004-05:00

I haven't jumped on the anti-NoLabels bandwagon mainly because I don't think NoLabels is actually attracting enough followers to be worth anyone's attention. But, because everybody else is doing it, I guess I'll chime in.

I pretty much ignore their Statement of Purpose and Declaration because they're statements that all Americans want certain things that are obvious. Yes, all Americans want a government that works and is driven by "common sense and shared purpose". And as soon as Bernie Sanders agrees with me that the way to do that is by paring back the size of the central government to the limits outlined in the text of the Constitution I'll be happy to support him. Until then, his theory on what works is radically different than mine. They appear to have removed most of the actual discussion about labels from their website, but at one time they were saying that we should stop using terms like "racist" and "socialist" in conversation about politics and politicians. Before we stop using them, can we figure out what they mean, where they came from, and why someone would want to stop using them?

In the late 1990s First Union bank was getting rather famous for nickle-and-diming their customers. They actually had a fee for talking to a teller instead of using the ATM. As someone with an IQ above room temperature should be able to quickly figure out, this was causing their customers to flee to other banks. Their management decided to change their policies to be more customer friendly, but they were worried that they had done so much damage to the brand that people would never come back to a bank named "First Union" so they bought a regional bank named "Wachovia" and adopted the "Wachovia" name for all of their branches.

On the other hand we could go to any reference on racial slurs and find a host of not-fit-to-put-in-my-blog labels with pejorative meanings that paint a group of people with a broad brush in an offensive manner.

I can see why those labelled with either of these types of terms would want to stop seeing labels, but First Union poisoned their own brand and they well deserved the disdain they got. So which type is "socialist" or "racist"?

State Debt

2010-12-09T13:45:00.002-05:00

I recently read a post by Yuval Levin about the dilemma that's about to face Congress on what to do about our bankrupt state governments. As a federalist, pretty much nothing is more offensive to me than forcing the taxpayers of Georgia or Alaska to fund the bad spending decisions of California and Massachusetts or the bad investment decisions of those who funded their bankruptcy. Yuval is correct that it would be extremely costly not to bail states out, but from my perspective it's even more costly to bail them out. The most recent "stimulus" contained billions in funding to perpetuate the failed policies of bankrupt states and prevent them from having to make the difficult decisions about which of their unaffordable services to cancel. What this means is that if California decides that everybody needs a car and starts handing them out with welfare then when they don't have the money to pay back bondholders who financed their boneheaded moves the citizens of Ohio (who don't have a free car) can pay the loans. Worse, there currently isn't any reason to believe the fed will force California to stop handing out cars. And if Greece is any model for how a US state might behave, telling California we'll bail them out only if they stop handing out cars won't work out either.

So this raises the question, if (as I argue) it's completely unfair and unsustainable to bail states out and (as Yuval argues, and I agree) it's going to destroy the bond market to not bail states out, what do you do? I don't know, but it's a discussion we better start having soon.

Heinlein

2010-08-23T13:57:00.003-04:00

I haven't read much (maybe any) Heinlein, so I hadn't come across this until just now (and I still haven't read the source material). Evidently Heinlein, in The Moon is a Harsh Mistress, suggests that a Congress should require a two-thirds majority to pass legislation (our own requires nearly that in the Senate, except for Obamacare) but only a one-third minority to repeal legislation. That fascinates me.

Our current system of government places the same strictures on any change to government, but it seems obvious to me that not all changes are the same. Requiring two houses, selected differently, to independently authorize (one by supermajority) and an executive to approve a new incursion on the freedom of the populace seems like an eminently reasonable, and maybe even insufficient, policy. But requiring the same to increase the freedom of the populace, even in a way that might be injurious to society, does seem a bit excessive. And luckily we're provided with a fantastic proxy for what infringes freedom and what increases it. The only lever available to government is the restriction of freedom, so all laws must necessarily impinge on it.

I'll note I'm not arguing that all restrictions on freedom are bad. I'm, rather, arguing that while prohibiting me from stealing things from my neighbor's house is a good idea, it does restrict my freedom to steal things from my neighbor's house. But surely a super-majority of people would agree that the protection of property is worth that restriction and by extension a significant minority would never wish to repeal it.

On the whole I can't think of a good reason why I wouldn't want to see bills repealable by a significant minority. I do question, though, whether parts of bills should also be repealable. On the one hand much legislation going back to the founding has been based on compromises that would fall apart if some of the parties believed that the compromise could be repealed later by a significant minority. On the other hand, maybe not being able to pass a bill that Joe Senator would have voted against if it hadn't been for the promise to build a bridge in his hometown wouldn't be such a bad thing.

Impeachment

2010-08-05T12:19:00.004-04:00

I came across something today I had never noticed before. In the closing of Federalist 81 (about abuse of judicial power), Hamilton says

And the inference is greatly fortified by the consideration of the important constitutional check which the power of instituting impeachments in one part of the legislative body, and of determining upon them in the other, would give to that body upon the members of the judicial department. This is alone a complete security. There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations. While this ought to remove all apprehensions on the subject, it affords, at the same time, a cogent argument for constituting the Senate a court for the trial of impeachments.

I had two thoughts upon reading this. The first was that modern justices clearly do not live in fear that Congress should punish them for usurpation by degradation from their station, since no justice has ever been impeached. The second is that I don't recall anything in the Constitution assigning such a power to Congress. I checked and I was correct. There are three sections on impeachment in the Constitution (excepting the sections excluding powers during impeachment proceedings from the courts and the executive):

Article I, Section 2:

The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.

Article I, Section 3:

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

And Article II, Section 4:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors

Plus one section on the terms of a Justice staying in office, Article III, Section 1

The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.

Now one might reasonably argue that the arrogation of power not mentioned in the Constitution violates "good Behavior", but I think this clearly falls short of terms that would lead the Justices to fear Congressional rebuke for their actions. I find it rather difficult, then, to square the text of the document with Hamilton's (now I think clearly shown to be false) assurance that the judiciary would never exceed their bounds because of fear of impeachment.

A Tale of two Louisianas

2010-05-26T10:24:00.003-04:00

Though it isn't really what I mean to write about, I feel like I need to start this with a defense of why so much of the right is correct to place blame on Obama for the cleanup of the BP oil spill. It is correct that BP, and not Obama, caused the spill. Last I checked only Al Gore believed Bush caused Katrina, but the cleanup efforts to it were still viewed by the media as his fault.

Lets engage in a little thought experiment. Lets say you live in a neighborhood with a bunch of houses very close together. Bob is a chain smoker and he smokes in bed and causes his house to catch fire. You call the fire department and are told "Don't worry, Bob will have to pay for any recovery costs." So the fire department never responds and 12 houses end up burning to the ground. A subsequent inspection finds that even if the fire department had come out and assessed the situation, the prevailing winds made it highly unlikely they actually would have stopped the fire. Is the fire department negligent? Of course they are. Even if it ends up they couldn't have done anything, they should have assessed the situation before rather than after, as it is they put the other houses at risk that the fire could have been stopped and they never bothered to find out. I'll note, I'm giving Obama the benefit of the doubt and accepting that if he had responded more quickly the Fed couldn't have done anything to fix the spill.

But the situation is actually ever more interesting than that, and that's what caught my attention. In the case of a natural disaster hitting a state the state bears primary responsibility for the mitigation and cleanup. The evacuation plan for the city of New Orleans was not used, Kathleen Blanco did a terrible job mobilizing her National Guard and refused to allow the federal government to take control of them at least as late as 15 days after landfall (which I actually believe was the correct decision, but you can hardly blame the President for actions taken by a National Guard whose control he was not given) and disallowed at least the Red Cross from entering the city of New Orleans. In spite of all this, though, the poor response in Louisiana (note I don't mention Mississippi, they somehow managed in spite of Bush) was Bush's fault.

In the case of an oil spill on the coastal shelf the State has no authority to act. This cleanup and prevention is entirely within Federal Jurisdiction, but the new Governor of Louisiana, Bobby Jindal, is itching to take over mitigation for his state anyway. He has requested on May 11th permission to dredge part of the coastline to build an artificial reef and block oil from hitting the coast. I'll note I'm not sure it's a good idea, but it ought to be a state matter and Obama has had 15 days and hasn't given a response at all. This, though, is entirely BP's fault.

Right to Privacy

2010-05-24T12:41:00.003-04:00

As another Supreme Court appointment comes up, I was thinking about the left's signature judicial issue: the right to privacy and its effects upon abortion law. I find it ironic that the supposed legal justification for the central tenet of liberal jurisprudence is a "right to privacy." The left would like to make cigarettes illegal in your own home, to pass laws about what kinds of firearms you can use, to control where your child goes to school and even how you discipline them, and what health coverage you carry. Limitations on a commercial transaction involving a doctor, a few nurses, a medical billing practice, and a patient, though, are off limits because of the egregious invasion of privacy. Not all such transactions, of course, a fair share of the left actually want the government more involved in health care which would necessarily require a government office to be familiar with your medical records and to determine what treatments are efficacious for your present condition. Also not all aspects of abortion transactions, off the top of my head an abortion must be regulated by at least OSHA, the FDA, the OMH, the MHRA, the DOL, and the EEOC, and probably the CDC and the CPSC. And if, as many Democrats want, Abortion came under a universal government healthcare program then every aspect of it would be subject to government oversight, regulation and control, but it's still too private to be regulated by the government.

Overruling the Supreme Court

2010-05-06T13:41:00.002-04:00

Andy McCarthy made a post on the Corner today indicating, in part, that he would like to see the Constitution amended so that a supermajority of Congress can overrule the Supreme Court. I frequently see proposals for changes to the Constitution, but usually they're something to allow a faster slide into a progressivist state. This is different. I like McCarthy, but I can't assert that he wants this change for reasons other than to attempt to overturn decisions with which he disagrees, but I think it's a good position in the abstract.

There actually isn't anything in the Constitutional that allows the Courts to overrule Congress at all, but it seems to have been generally agreed, even at the time of the framing, that that was a natural power of the appellate judiciary (at least from what I've read on it). They didn't give Congress the power to overturn the Supreme Court ruling that something they did was unconstitutional because that would allow a supermajority of Congress to de facto amend the Constitution. Unfortunately the judiciary at some point (I think not before Dred Scott and not after Lochner) decided that they have the right to imagine requirements of the Constitution stemming from emanations from penumbras of the text that just happened to support policies they agreed with.

I'll note, I actually think it highly unlikely that this change would ever be used. The fact of the matter is that if the Supreme Court makes a boneheaded departure from the text of the Constitution they almost always do it on grounds popular enough that you couldn't get two thirds of the Congress to overturn them (I, in fact, can't think of an instance where they couldn't get a third of Congress). I'll also note that historically the Congress was the first branch to abandon the Constitution (We know that they had abandoned it to the popular temptation by 1854 when Pierce vetoed a very popular bill for a national program for the mentally ill). In spite of these negatives, and even though I fundamentally think Democracy can't avoid the servile temptation, I think reserving for the people's representatives some way to overturn the acts of an unelected oligarchy in the form of the Courts is better than giving the country over to them. I would love to see the act state that Congress can only do it if a super majority thinks the court's decision unconstitutional, but I don't flatter myself that they couldn't find some emanations from penumbras that suggest whatever they disagree with is unconstitutional.

The Tebow Ad

2010-02-08T15:35:00.002-05:00

Spurgeon in his exposition on the second Psalm wrote "O that men were half as careful in God's service to serve him wisely, as his enemies are to attack his kingdom craftily. Sinners have their wits about them, and yet saints are dull." I'm happy to say Focus on the Family didn't deserve that this week. My hat's off to their outstanding effort with the Super Bowl ad. The ad itself was almost content free, but FotF managed to enlist practically every pro-abortion group in the country in making it about abortion. Good job.

Pro Abortion

2010-01-27T11:43:00.002-05:00

Most Pro-choice activists are at pains to clarify that they aren't pro-abortion, just pro-choice. I think the current posturing by various "women's" groups to stonewall an advertisement scheduled to run during the Super Bowl in which Tebow and his mother talk about the negative consequences of abortion put the lie to this. I haven't seen the ad (and neither have any of the activists complaining about it, as far as I know) but my impression is part of the current "Choose Life" campaign to discourage abortion rather than an attempt to outlaw abortion. Given that only a Supreme Court Justice could return the right to the states to outlaw abortion, it seems like a massive waste of money to run an ad to people who have virtually no input on such a decision.

Assuming this is right, and I've heard no evidence to the contrary, then it's extremely difficult for me to see how those who wish to silence advocates of one of the choices they wish to leave open are actually "pro-choice". I can see how someone could be both pro-life and pro-choice (you wish the choice to be legal, but believe that abortion is never a preferable alternative. Similarly I think smoking cigarettes is stupid, but I'm not for restricting your right to do it.) similarly I can see how someone could be both pro-abortion and pro-choice (you think that abortion is often a better choice but don't want the government making such decisions. It's easy to see how either a eugenicist or a population growth type could believe this). I have no idea what the motivation of women's groups is, but a dedication to restricting advocacy for choosing life demonstrates to me a preference for abortion, not just choice.

On a related note, if CBS declines to run the ad (and I'd say odds are on them declining) then I can't help but conclude that CBS either refuses to run advocacy ads during sporting events (and I suspect a quick perusal of past ads will show this to be false) or they are themselves a willing advocate for abortion.

Misreading the country

2010-01-22T11:55:00.003-05:00

The narrative I keep seeing in conservative (and some progressive) circles is that the reason the Democrats lost Massachusetts is because they misread (and continue to misread) Obama's election as a sign that the country had moved significantly left when in fact the voters wanted something more centrist and non-partisan.

I don't buy it. Not that the country didn't really move left; that seems reasonable. Obama ran a campaign about how there were "no more red or blue states, just red, white, and blue states" and how he was going to start a new era of bipartisanship and openness in Washington. Then he got into office and immediately started a behind-closed-doors grab-bag of political favors thinly disguised as a stimulus package followed by a "health care plan" that taxes high end private insurance (except for Union members and citizens of Nebraska) in order to extend government healthcare to a bunch of people (who can keep their current healthcare, unless their employer decides to drop it, which Obama can't help, just because the CBO says it will happen if this passes).

Obama doesn't seem like an idiot, and I just can't accept that someone who grew up in the Chicago machine is "misreading" the results of his election on a platform of bipartisanship and openness as really indicating the public wanted machine politics and backroom deals for favored liberal constituents. It seems much more likely that Obama is well aware of what the public wants (which is, after all, why he campaigned on it), but is governing the Chicago Way because it's what he grew up with and he hopes to cultivate enough special interests to get himself re-elected.