Free Markets, Free People
George Will has a column out today declaring that conservatism won “a substantial victory” yesterday:
Conservatives distraught about the survival of the individual mandate are missing the considerable consolation prize they won when the Supreme Court rejected a constitutional rationale for the mandate — Congress’s rationale — that was pregnant with rampant statism.
The case challenged the court to fashion a judicially administrable principle that limits Congress’s power to act on the mere pretense of regulating interstate commerce. At least Roberts got the court to embrace emphatic language rejecting the Commerce Clause rationale for penalizing the inactivity of not buying insurance:
“The power to regulate commerce presupposes the existence of commercial activity to be regulated. . . . The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce. Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. . . . Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation, and — under the government’s theory — empower Congress to make those decisions for him.”
If the mandate had been upheld under the Commerce Clause, the Supreme Court would have decisively construed this clause so permissively as to give Congress an essentially unlimited police power — the power to mandate, proscribe and regulate behavior for whatever Congress deems a public benefit. Instead, the court rejected the Obama administration’s Commerce Clause doctrine. The court remains clearly committed to this previous holding: “Under our written Constitution . . . the limitation of congressional authority is not solely a matter of legislative grace.”
The court held that the mandate is constitutional only because Congress could have identified its enforcement penalty as a tax. The court thereby guaranteed that the argument ignited by the mandate will continue as the principal fault line in our polity.
I’m sorry, I’m just not feeling it. What part of the “tax” isn’t “pregnant with rampant statism”? Why did John Roberts feel compelled to save the mandate by helping the administration identify it as a tax?
And more importantly, since when did taxation go from simply being a means for funding the functions of government to a means of incentivizing/controlling behavior? To me that’s what approving the mandate as a tax has sanctioned. We make fun of the nannies who want to control what we do, eat, say, etc. This precedent just sanctioned a method of doing so. It says it is okay to coerce desired behavior through taxation.
Perhaps, as Will opines, it will limit the Commerce clause which is already insanely overstretched in application. Maybe it finally does draw a much brighter line around the clause, at least marginally.
However, the downside is worse than any upside. The ruling essentially sanctioned the state’s requirement to purchase health insurance and gave it the okay to “tax” those who don’t comply. I’m sorry, you may want to play the word game with them and call it a tax, but it is clearly identifiable to me as a penalty.
That’s just wrong.
One of the more interesting ironies is that within the same ruling the Court found that the Federal government was being coercive toward the states by requiring they comply with the new Medicaid mandates or lose their current Medicaid funding.
How is that anymore coercive than the “tax” required to be paid if an individual decides not to purchase health care insurance?
Taxation as a mechanism of control and/or enforcement of desired behavior is as coercive as the part on Medicaid which was struck down by the court. At least in my opinion.
There may indeed be a silver lining in the ruling as Will outlines. But a “substantial victory”? It sounds like David Axlerod trying to spin the Wisconsin results as a huge win for Obama and trouble for Romney, doesn’t it? If this was a “substantial victory”, then so was Pearl Harbor.
A good friend sends along this George Will column:
Russ Caswell, 68, is bewildered: “What country are we in?” He and his wife Pat are ensnared in a Kafkaesque nightmare unfolding in Orwellian language.
This town’s police department is conniving with the federal government to circumvent Massachusetts law – which is less permissive than federal law – in order to seize his livelihood and retirement asset. In the lawsuit titled United States of America v. 434 Main Street, Tewksbury, Massachusetts the government is suing an inanimate object, the motel Caswell’s father built in 1955. The U.S. Department of Justice intends to seize it, sell it for perhaps $1.5 million and give up to 80 percent of that to the Tewksbury Police Department, whose budget is just $5.5 million.
The Caswells have not been charged with, let alone convicted of, a crime. They are being persecuted by two governments eager to profit from what is antiseptically called the “equitable sharing” of the fruits of civil forfeiture, a process of government enrichment that often is indistinguishable from robbery.
Since 1994, about 30 motel customers have been arrested on drug dealing charges. Even if those police figures are accurate – the police have a substantial monetary incentive to exaggerate – these 30 episodes involved less than five one-hundredths of 1 percent of the 125,000 rooms Caswell has rented over those more than 6,700 days.
So we now have the local government and the federal government complicit in using this abysmal rights-violating drug law to take the property of the Caswells without giving them legal recourse to fight the charges.
By charging the property with a crime.
The government says the rooms were used to “facilitate” a crime. It does not say the Caswells knew or even that they were supposed to know what was going on in all their rooms all the time. Civil forfeiture law treats citizens worse than criminals, requiring them to prove their innocence – to prove they did everything possible to prevent those rare crimes from occurring in a few of those rooms. What counts as possible remains vague. The Caswells voluntarily installed security cameras, they photocopy customers’ identifications and record their license plates, and turn the information over to the police, who have never asked the Caswells to do more.
The Caswells are represented by the Institute for Justice, a libertarian public-interest law firm. IJ explains that civil forfeiture is a proceeding in which property is said to have acted wrongly. This was useful long ago against pirates, who might be out of reach but whose ill-gotten gains could be seized. The Caswells, however, are not pirates.
No the pirates are among those in government and law enforcement who are attempting this travesty.
Constitutional? You tell me:
They are violating the Eighth Amendment, which has been construed to forbid “excessive fines” that deprive individuals of their livelihoods. And the federal “equitable sharing” program violates the 10th Amendment by vitiating state law, thereby enabling Congress to compel the states to adopt Congress’ policies where states possess a reserved power and primary authority – in the definition and enforcement of the criminal law.
“Equitable sharing” – the consensual splitting of ill-gotten loot by the looters – reeks of the moral hazard that exists in situations in which incentives are for perverse behavior. To see where this leads, read IJ’s scalding report “Policing for Profit: The Abuse of Civil Asset Forfeiture” (http://ow.ly/aYME1), a sickening litany of law enforcement agencies padding their budgets and financing boondoggles by, for example, smelling, or imagining to smell, or pretending to smell, marijuana in cars they covet.
This happens more often than you might think, has been going on for decades, is immoral, unconstitutional and just flat wrong. I really don’t care what you think about the drug war. Civil asset forfeiture as it is done today is unacceptable regardless – or should be. I really don’t give a rip about whether or not it is “legal”. Many a dictator has made murder legal but it didn’t change the morality of the act, did it?
This must stop.
California officials argue that they should be allowed to limit minors’ ability to pick up violent video games on their own at retailers because of the purported damage they cause to the mental development of children.
The article Will references says that while the court seemed sympathetic to the aim of the law, it "has been reluctant to carve out exceptions to the First Amendment."
Interestingly, and as an aside, it brings us right back to the point about parents we discussed in the comments about the lip balm issue in North Carolina.
However, the point of the Will article is who it is that is constantly attempting to impose bans and restrictions on the rest of us and why. The money quote is:
Progressivism is a faith-based program. The progressives’ agenda for improving everyone else varies but invariably involves the cult of expertise – an unflagging faith in the application of science to social reform. Progressivism’s itch to perfect people by perfecting the social environment can produce an interesting phenomenon – the Pecksniffian progressive.
Indeed, I agree that progressivism is faith based – AGW being the most recent example of faith in science replacing the healthy skepticism one should always bring to any scientific inquiry. Will points out that scares, such as the video game one now being pushed by the Democratically controlled California legislature, are all too common in our past and were inevitably pushed by progressives and based in questionable science.
As an example, Will points to Fredric Wertham’s crusade against comic books in the early ’50s. Will describes Wertham as “Formerly chief resident in psychiatry at Johns Hopkins, he was politically progressive: When he opened a clinic in Harlem, he named it for Paul Lafargue, Karl Marx’s son-in-law who translated portions of "Das Kapital" into French, thereby facilitating the derangement of Parisian intellectuals.”
Since 1948, he had been campaigning against comic books, and his 1954 book, "Seduction of the Innocent," which was praised by the progressive sociologist C. Wright Mills, became a bestseller by postulating a causal connection between comic books and the desensitization of young criminals: "Hitler was a beginner compared to the comic-book industry."
Wertham was especially alarmed about the one-third of comic books that were horror comics, but his disapproval was capacious: Superman, who gave short shrift to due process in his crime-fighting, was a crypto-fascist. As for Batman and Robin, the "homoerotic tendencies" were patent.
This is important because if you read this carefully, you can identify within this old progressive campaign the blueprint for almost every other that has followed it. Based on pseudo-science and faith in that pseudo science, progressives feel both the right and duty to do what is necessary – by whatever means – to save us from ourselves. Never mind, as in the case of the great comic book scare and many other subsequent scares have never panned out as feared. That faith remains undiminished as witnessed by the the California legislature’s attempt to do precisely what the New York legislature tried to do back then – take control of the process and only allow what government deems to be “safe” to be produced “for the children”.
This is the lip balm story writ large. And even if passed, it only means minors wouldn’t be able to pay for these games at the retail counter. It doesn’t mean older brother or sister of legal age couldn’t buy it for them. Or that they couldn’t rent it elsewhere or any of a huge list of ways minors could and would gain access. It seems as if the law is more for the lawmakers to feel good about themselves instead of actually accomplishing anything. Much like AGW – most scientists note that even if we were to put drastic limits on CO2 and implement an extensive and horribly expensive cap-and-trade system, it would hardly make any difference at all. That doesn’t keep the progressives from continuing to pursue that goal though, does it?
Will’s article is another glimpse into the progressive psyche and his observation is dead on. They are Pecksniffian – always have been. No surprise there. The hypocrisy doesn’t bother them. They simply know better than do you. And they certainly know how to better raise and protect your child.
“For the children” is a fairly recent catch phrase for the progressive left – but, as is obvious, they’ve been trying their “for the children” gig for quite some time. They’ll trot it or a form of it out at the drop of a hat.
But it’s not about the children. It’s about, as Will notes, building a “perfect social environment”. One they define as they wish, not you. They have all the faith in the world they can build that utopia and they’re bound and determined to do so by any means necessary. “Science” is their anchor to credibility in their pursuit. Science, after all, simply can’t be disputed – except when it contradicts the wanted outcome.
It is indeed interesting to apply the comic book scare of the ‘50s to the various more recent attempts to apply the same sort of tactical blueprint to other progressive causes. It helps one understand where they’re coming from and what their aim is. And it isn’t freedom, liberty, or smaller and less intrusive government by any stretch.
Lots to comment on, little time in which to do it (it is a holiday weekend after all). But here are some stories that caught my eye that I may do a more extensive commentary on at a future date.
Thomas Friedman pens a column in which he explores what it will mean if America is no longer the superpower of the world. Quoting Michael Mandelbaum, the Johns Hopkins University foreign policy expert, he makes the case that our debt and the subsequent frugality it will require is essentially going to make us retrench and probably withdraw much of our foreign aid (not just money, but troops and fleets, etc., which have helped keep the peace over the years). He notes that when Great Britain gave up its “global governance role”, the US stepped in. The question is, when the US pulls back and creates the expected power vacuum, what country will try to fill the role?
After all, Europe is rich but wimpy. China is rich nationally but still dirt poor on a per capita basis and, therefore, will be compelled to remain focused inwardly and regionally. Russia, drunk on oil, can cause trouble but not project power. “Therefore, the world will be a more disorderly and dangerous place,” Mandelbaum predicts.
Cast your eyes toward a the Middle East. While Turkey and Iran don’t have what it takes to step into the shoes the US has filled, each certainly feel that the withdrawal of us influence presages a much greater leadership role for them in their respective region. China may feel the same thing about the Far East. Friedman concludes:
An America in hock will have no hawks — or at least none that anyone will take seriously.
That’s true, I believe – at least while a Democrat is in the White House or Democrats control Congress – not because they’re suddenly frugal, but because they’d prefer to spend the money on other things.
But this is my favorite paragraph:
America is about to learn a very hard lesson: You can borrow your way to prosperity over the short run but not to geopolitical power over the long run. That requires a real and growing economic engine. And, for us, the short run is now over. There was a time when thinking seriously about American foreign policy did not require thinking seriously about economic policy. That time is also over.
Some of us Americans have know this was a probable result for years. Welcome on board, Mr. Friedman. It’s about freakin’ time.
If you read no other column today, read George Will’s about the global warming industry.
The collapsing crusade for legislation to combat climate change raises a question: Has ever a political movement made so little of so many advantages? Its implosion has continued since "the Cluster of Copenhagen, when world leaders assembled for the single most unproductive and chaotic global gathering ever held." So says Walter Russell Mead, who has an explanation: Bambi became Godzilla.
In essence, it’s analogous to something else we discussed not to long ago, the UAW is now "management". Will’s point is the former "skeptics" – environmentalists – are now the establishment. Funny how that works.
According to the New York Times, Democratic leaders are in the middle of doing what can only be characterized as “political triage” concerning the upcoming House mid-term elections. Reality, as they say, has finally penetrated the happy talk and leaders are taking a brutal look at the chances of all their House members:
In the next two weeks, Democratic leaders will review new polls and other data that show whether vulnerable incumbents have a path to victory. If not, the party is poised to redirect money to concentrate on trying to protect up to two dozen lawmakers who appear to be in the strongest position to fend off their challengers.
My guess is the Blue Dog contingent is about to be cut loose. The leadership probably figures that losing those seat isn’t as big a problem as losing seats in which automatic votes for whatever the leadership puts forward are assured. That would be members of the Progressive caucus and the Congressional Black caucus for instance. The good news for Democrats is most of them are found in what are considered “safe” districts. So they’ll go in the “will live with minimal treatment” category.
The Blue Dogs will most likely go into the “mortal” category and receive little money or backing. They’ll simply let them die, politically It is those in the big middle, in perhaps marginal districts that could go either way or those who’ve survived tight races previously in districts that may lean slightly to the Democratic side which will get the money. These “critical but can be saved” members will get the lion’s share of the money and support allocated for the mid-terms.
Whether they can save enough of them to avoid the magic 39 seats the GOP needs, however, remains to be seen. My guess is it would require a miracle – and possibly that would require some of the Blue Dogs to squeak out a victory. But if those patients are left to pass quietly away when some might have been saved, the Dems may rue the day they decided to pitch them outside the tent and leave them to be brutalized by the political elements. Or said another way – the Dems may outsmart themselves, this strategy could easily blow up badly in their faces and it may be they that assure the 39th seat by not fighting for all of them.